The Issue The issue in this case is whether the small-scale comprehensive plan amendment adopted by the Town of Pomona Park (Town) through enactment of Ordinance No. 01-7 (the Plan Amendment) is "in compliance," as defined by Section 163.3184(1)(b), Florida Statutes (2001).
Findings Of Fact The Town's current Future Land Use Map (FLUM) (Exhibit H) depicts the subject parcel and Petitioner's adjoining parcel as fronting on the western shore of Lake Broward and being within a primarily residential land use area that encompasses most of the Town's land area lying west of Lake Broward and northeast of Highway 17. The parcels immediately to the north and south of the subject parcel and Petitioner's adjoining parcel are in Low Density Residential future land use, which allows densities up to two units per acre; the lake is to the east. The eastern five acres of the 13-acre subject parcel, including the lake frontage, were not included in the amendment; only the western eight acres were changed to Agricultural land use, which allows densities up to one unit per five acres (unless occupied only by the owner's family members, in which case densities up to one unit per acre are allowed). The property owner, Town Council member Barry Fouts, had previously requested to have the entire 13-acre parcel changed to Agricultural land use but withdrew that request. Fouts testified that, in requesting the same change for only eight acres of his parcel, he took into consideration that keeping the request under 10 acres would avoid review by the Department of Community Affairs (DCA). Several parcels near the Fouts parcel, including some of the parcels across the street to the west, are designated for Agricultural future land use. However, those parcels across the street to the west of the subject parcel are actually being used for residential rather than agricultural purposes. The nearest parcel that might be considered to be in actual use for agricultural purposes is a horse farm located approximately one quarter mile to the north. However, the present Town Clerk testified in her capacity as Town zoning officer that a horse farm (or an exotic bird breeding operation) is not to be considered an agricultural use because the animals are not being raised for human consumption. Fouts has voluntarily provided some visual buffering along his property line, but there is no requirement in the Plan Amendment that it be maintained in the future, nor would visual screening be particularly effective in protecting nearby Residential properties against noises and odors produced by some common types of agricultural livestock. The Plan Amendment was not initiated by the Town; rather, it was requested by the subject parcel's owner, Barry Fouts, whose request for a change in land use stated that his purpose was to bring his "established agricultural activities, which include horse and bird breeding" into conformity with "Putnam County [sic] zoning recommendations." Fouts gave no other reasons for wanting the change. The former Town Clerk (and zoning officer) testified that there were no restrictions on keeping any type or number of animals in Residential future land use, that Fouts could engage in horse and bird breeding without changing the future land use or zoning, and that there was no need for the land use change. No survey, study, or analysis of the Plan Amendment is reflected anywhere in the Town's files relating to the Plan Amendment, and it is found that there were none. When the Plan Amendment was presented to the Town Council for consideration, all that the former Town Clerk and present Town Clerk presented to the Town Council was a one-page note prepared by the former Town Clerk relating Fouts' desire to continue with his agricultural activities, including horse and bird breeding. At final hearing (with the assistance of leading questions on cross-examination by the Town's attorney), the present Town Clerk and former Town Clerk testified that, notwithstanding the absence of any written survey, study, or analysis, they made a site visit and recalled reviewing the Plan Amendment in relation to the Town's Comprehensive Plan, including the FLUM, as well as analyzing and considering the need for more agricultural land use within the Town's municipal boundaries and the desirability of keeping residential development and septic tanks away from the lake, in arriving at a recommendation to approve the land use change. Regardless whether any such analyses actually occurred by the time of adoption of the Plan Amendment, they clearly were presented as part of the evidence at final hearing. The analysis presented at final hearing that the Town's Comprehensive Plan calls for more land area to be designated for Agricultural future land use was based on an erroneous reading of the Comprehensive Plan adopted by the Town in 1991. The analysis presumed that, under the plan, 1220.3 acres of agricultural land use was "desired" (compared to less that 600 acres in actual agricultural use in 2001). This presumption was based on parenthetical references to 1220.3 acres next to the word "Agricultural" in two places in the plan. But it is clear from a fair reading of the plan that, in designating Agricultural future land use, the plan transferred all 648.6 acres in the "Vacant or Undeveloped" existing land use category to the Agricultural future land use category "for lack of a better land use designation," in addition to the 571.7 acres of existing agricultural land use, for a total of 1220.3 acres. (Other future land use designations mirrored 1991 existing land use.) There was no intention to indicate a need for 1220 acres of agricultural land use in the Town. To the contrary, the plan projected a need for 170 additional housing units through 2001 and stated that "[m]ost of the Town's . . . agricultural and vacant/undeveloped land is suitable for development." Consistent with that, the evidence showed that in the vicinity of the subject parcel most if not all of the parcels designated for Agricultural land use are actually being used for residential purposes and not for agriculture. If anything, it would seem that in 1991 the Comprehensive Plan anticipated a need to designate more acreage for Residential future land use and less for Agricultural. Even if the Comprehensive Plan reflected a perceived need for 1220 acres of actual agricultural use, 1220 acres already is designated for Agricultural future land use, and no reason was given for designating additional acreage for the category. Finally, this part of the Town's analysis makes no sense in light of the undisputed testimony of the Town Clerk, as zoning officer, that "agricultural use" consists of the raising of plants or animals for human consumption. The evidence was clear that the horses, cows, and exotic birds on the Fouts property are not for human consumption. It was not clear from the evidence what the 15-20 chickens on the Fouts property are used for. The analysis that the Plan Amendment was to protect Lake Broward from septic tanks associated with residential land use also is shallow and faulty. While it is true that allowable development densities are lower in the Agricultural future land use category, the five acres of the Fouts parcel that were nearest the lake were not included in the amendment but remained in Residential future land use. Second, the present Town Clerk testified that there never have been any negative effects on the lake from septic tanks, which are regulated, whereas she had no way of knowing whether the unregulated effects of agricultural runoff might be worse than any effects from septic tanks. Objective A.1.1 provides that the Town "shall coordinate future land uses with . . . adjacent land uses, . . . through implementing the following policies . . ..". In this case, the immediately adjacent land uses are designated on the FLUM as Residential, and most if not all of the nearby parcels that are designated Agricultural are actually being used for residential purposes. But Petitioner did not allege that the Plan Amendment was inconsistent with any of the policies listed under Objective A.1.1, and the evidence did not prove any such inconsistencies. Policy A.1.3.2 requires that the Town's Subdivision and Zoning Code shall require buffering and separation between land uses of different densities or intensities of use sufficient to ensure compatibility between uses and also requires the elimination of non-conforming land uses. In this case, the Plan Amendment did not provide for separation or buffering between the newly designated Agricultural future land use and the directly adjoining Residential properties, but neither did it have any effect on the Policy requiring the Town's Subdivision and Zoning Code to require such buffering and separation. Policy A.1.9.3.C.1 provides in pertinent part: "Residential land use is intended to be used primarily for housing and shall be protected from intrusion by land uses that are incompatible with residential density." The Plan Amendment intrudes a small area of Agricultural future land use into an area that is primarily designated for Residential land use and that is in actuality almost exclusively used for residential purposes. The sounds and smells associated with at least some types of agricultural activity, such as the pasturing and raising of livestock and poultry, are capable of adversely affecting nearby residents and are incompatible with residential land use. Policy A.1.9.3.C.4 provides in pertinent part: "Agricultural land is intended to be used primarily for pasture, grove operations or silviculture with possibly some row crops." In this case, the evidence shows that the primary purpose of the Plan Amendment was to allow the landowner to breed horses and operate an exotic bird breeding facility. The Town Clerk, as zoning officer, has taken the position that those activities do not fit within the definition of agriculture. But the Plan Amendment itself is not inconsistent with this Policy.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order finding that the Town's small-scale amendment adopted by Ordinance No. 01-7 is not "in compliance." DONE AND ENTERED this 18th day of June, 2002, in Tallahassee, Leon County, Florida. ___________________________________ J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of June, 2002. COPIES FURNISHED: James L. Padgett, Esquire 3 North Summit Street Crescent City, Florida 32112-2505 Michael W. Woodward, Esquire Keyser & Woodward, P.A. Post Office Box 92 Interlachen, Florida 32148-0092 Barbara Leighty, Clerk Growth Management and Strategic Planning The Capitol, Room 1801 Tallahassee, Florida 32399-0001 Charles Canaday, General Counsel Office of the Governor The Capitol, Suite 209 Tallahassee, Florida 323999-0001 Cari L. Roth, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325 Tallahassee, Florida 32399-2100
The Issue The issues in this case are whether the Small Scale Comprehensive Plan Amendment No. 05S-01 (the Plan Amendment) adopted by Polk County (County) through the enactment of Ordinance No. 05-004 is “in compliance,” as that term is defined by Section 163.3184(1)(b), Florida Statutes,1 and whether Petitioner, Citizens for Proper Planning, Inc. (CPPI), has standing as an “affected person” as defined by Section 163.3184(1)(a), Florida Statutes, in this proceeding.
Findings Of Fact The ECRA is a local special district governmental agency established pursuant to Chapter 163, Part III, Florida Statutes, and is composed of a seven-member board of directors. The boundaries of the Eloise Community Redevelopment Area include an area consisting of approximately 665 acres within the unincorporated Eloise area of Polk County (the Redevelopment Area). The Subject Property is located within the Redevelopment Area. See JE 8A. The ECRA meets once a month, except July, when they do not normally meet. Its purpose is to discuss and implement the ECRA Redevelopment Plan’s six objectives within the Redevelopment Area. The ECRA opposed the Plan Amendment by and through its attorney and submitted oral and written comments, recommendations, and objections to the County regarding the Plan Amendment during the Plan Amendment adoption proceedings. As a part of its presentation to the County regarding the Plan Amendment, the ECRA delivered to the County, ECRA Resolution No. R-05-01, objecting to the Plan Amendment. The parties agree that the ECRA has standing in this proceeding. Petitioner, Bruce Bachman (Mr. Bachman), resides in Winter Haven, Polk County, Florida. His residence is located outside of the Redevelopment Area and is approximately three (3) miles from the Subject Property. He is employed as the operator (since 1980) and general manager of Phoenix Industries, LLP, (Phoenix), located at 621 Snively Avenue, County Road (CR) 655 in Eloise, which is adjacent to and across the street from the Subject Property. Mr. Bachman has served as the Chairman of the Board of Directors of the ECRA since 1998. Phoenix operates a warehousing and distribution complex for dry, refrigerated, and frozen food products east of Snively Avenue and across the street from the Subject Property. The Phoenix property stretches north and south within an elongated area within the Redevelopment Area, and is open 24-hours a day, seven days a week.2 See JE 8A at "30". (The railroad, designated with a red line, runs north and south through the Phoenix property. JE 8A.) Phoenix has spent approximately $115,000 changing the angles of its buildings and moving docks so that trucks could maneuver on the property, and not have to enter Snively Avenue to do so. Mr. Bachman is involved with the Eloise residential area and the Redevelopment Area generally and his contributions to the Eloise area are well-noted in the record. His work with the community includes working with the students at Snively Elementary School. Individually, and on behalf of the ECRA, Mr. Bachman submitted oral and written comments, recommendations, and objections to the County during the Plan Amendment adoption proceedings. The parties agree that Mr. Bachman has standing in this proceeding. Petitioner, Johnny Brooks (Mr. Brooks), resides at 143 8th Street, Eloise, Polk County, Florida, approximately three (3) blocks southwest from the Subject Property. His home is located within the main residential component of the Redevelopment Area. He was born in Eloise (on 5th Street) and has lived, with his wife, at the 8th Street address for 41 years. Mr. Brooks also serves as Vice-Chairman of the Board of Directors of the ECRA. Although disabled, Mr. Brooks is an active member of the Eloise Community. For example, he and his wife conduct a “homework club” at the Eloise Community Resource Center (opened in 2002) located between 7th and 8th Streets and Snively Avenue, which is east and down the block from his residence. JE 8A at "2". They also use the computer lab at the resource center for adult education. They use the neighborhood Snively/Brooks Park, JE 8A at "4", approximately one block south of the Brooks' residence and west of the Snively Elementary School, JE 8A at "3", for, among other activities, Easter egg hunts and Christmas parties. Mr. Brooks is also involved in the Eloise Neighborhood Association, which offers adult computer classes, GED classes, and classes in English as a Second Language. He and his family use other resources within the Redevelopment Area, such as the Snively Elementary School, and a post office, JE 8A at "1", which is located approximately one block north of the Subject Property between 4th and 5th Streets, near Snively Avenue. Mr. Brooks attends the Eloise United Methodist Church (built in 1966-1967), which is located on land designated as Industrial (IND) on the FLUM. 3 JE 8A at "10". This church is located on the southwest side of Snively Avenue, and approximately five or six blocks south of the Subject Property and approximately two blocks south of the Snively Elementary School and the Snively-Brooks Park.4 Mr. Brooks submitted oral comments, recommendations, and objections to the County during the Plan Amendment adoption proceedings. The parties agree that Mr. Brooks has standing in this proceeding. CPPI is an organization comprised of approximately two hundred members, located throughout Polk County, Florida. CPPI has been an existing corporation since 2002. No application, request to join or payment of dues is currently required for membership. According to its executive chairperson, Jean Reed, its purpose is to "better plan for our growth in Polk County." Ms. Reed lives approximately one mile east of Eloise and four of five of the CPPI Board of Directors live within a mile of Eloise. All CPPI members live in the County. CPPI had been involved in County hearings and an administrative hearing involving a small scale comprehensive plan amendment. The organization currently encourages donations and plans to charge dues next year. CPPI submitted oral comments, recommendations and objections to the County during the Plan Amendment adoption proceedings. No evidence was presented to show that CPPI owns real property within the County. The County and the Intervenor dispute CPPI’s standing in this proceeding. The County is a political subdivision of the State of Florida, empowered to adopt, implement, and amend its Comprehensive Plan in accordance with the laws of Florida. Intervenor, Don C. Smith (Smith or Intervenor), owns the Subject Property. He purchased the Subject Property of 9.9 acres, which is part of a contiguous 20-acre site, in May of 2003. Mr. Smith learned that the Subject Property had an RL-4 land use designation just prior to his purchase of the Subject Property. The parties agree that Mr. Smith has standing in this proceeding. The Eloise Community Redevelopment Area The Redevelopment Area consists of approximately 665 acres. EE 2, Plan at 30. It is generally bounded by the CSX railroad to the north of US 17; by Lake Lulu and Shell Road on the east; by Snively Avenue (CR 655) on the south; and by Wahneta Canal and a portion of Wahneta farms on the west. JE 8A.5 (Snively Avenue is a four-lane undivided, major collector highway, but is not a buffer.) Both historically and presently, the Redevelopment Area has been composed of mixed uses in an urban area. Under the FLUM, there are eight separate land uses within the Redevelopment Area: Industrial (IND), Business Park Center (BPC- 2), High Impact Commercial (HIC), Institutional (INST-1), Community Activity Center (CAC), Residential Suburban (RS), Residential Low-1 (RL-1), and Residential Low-4 (RL-4). JE 8A. Beginning at the northern portion of the Redevelopment Area and moving from west to east, south of the CSX railroad and approximately one block south of US 17, the land uses designated on the FLUM are HIC, CAC, and HIC. Moving southward and east of Snively Avenue, the land use designation for a triangular portion of land is BPC-2. The land use designation adjacent to and immediately south of the BPC-2 designation and east of Snively Avenue is designated as IND. The IND designation covers the land in a southerly direction until Snively Avenue intersects with Croton Road. The land to the east and adjacent to the BPC-2 and IND designations is designated as RL-1. There is a small portion of land near Shell and Croton Roads at the southern boundary of the Redevelopment Area designated as Residential Suburban (RS). (The RS designation continues to the east outside of the Redevelopment Area. Lake Lulu is to the east of the eastern RL-1 and RS designations.) There is also land designated as RL-1 west of Snively Avenue, bisected by Unnamed Street, extending west of Wahneta Canal and south-southwest of the Snively Elementary School/Snively-Brooks Park area, to the southwestern boundary of the Redevelopment Area.6 The Snively Elementary School and the Snively-Brooks Park are located in the INST-1 land use designation.7 JE 8A. Approximately 150 children walk to and from this elementary school (with another 60 to middle and high schools outside the Redevelopment Area), utilizing the sidewalk bordering the western portion of Snively Avenue. The majority of the children attending the elementary school reside in the RL-4 designated area (mainly between 1st and 9th Streets). Mr. Smith agreed that the elementary school was in close proximity to the Subject Property. Mr. Smith testified that after meetings with the ECRA, he moved the fence in front of the Subject Property and business back ten feet so that the children could have more room to walk down the street. He also instructed his drivers of big trucks and heavy equipment not to enter the Subject Property during times when the children are going to and from school. There are several school crossings, crossing Snively Avenue. There is a bus stop at 5th Street and Snively Avenue for children attending middle and high school. JE 8A at "6". There are also bus stops on 7th Street and in front of the elementary school. JE 8A at "5" and "7". Except for the residential portions of the CAC and BPC-2 areas, the primary residential area of the Redevelopment Area is generally bounded by US 17 and 1st Street on the north, the Wahneta Canal on the west, and to just north of Snively Elementary School and 9th Street on the south. JE 8A; EE 2, Plan at 6 and Figure 2. The Eloise Community Redevelopment Area Uses 1. In General The Redevelopment Area, for at least the last 40 years, has supported a wide variety of industrial, commercial, institutional, and residential uses. Mr. Brooks and Mr. Smith testified that the Redevelopment Area has supported these mixed uses and has historically been defined by the interrelationship of these various uses with the predominant industrial activities within its boundaries. In the past, the established residential area (RL-4) was once a successful working-class neighborhood which primarily provided homes to those workers who were employed in the citrus plants located within the industrial classified areas. That residential area is now blighted and provides housing for low and moderate income families. Though well established, the RL-4 residential area contains a substantial number of vacant lots within that residential designated area. 2. Redevelopment Area Problems and Redevelopment During the early 1980’s, Eloise was a troubled community, suffering, for example, from theft and vandalism. The community had difficulty finding minority contractors willing to work at Phoenix because of the problems associated with the community. By the early 1990s, the residential area of the Redevelopment Area had deteriorated to such an extent that the Housing and Neighborhood Development Division (HND), an agency of the County, became actively involved in the redevelopment of the community. In 1992, the Eloise Neighborhood Association was formed. In 1996, a Neighborhood Revitalization/Redevelopment Plan was commissioned by HND. This plan was prepared by County staff. Also in 1996, the HND and the Eloise Neighborhood Association prepared the Eloise Neighborhood Revitalization/Redevelopment Plan, which “focused on the 138 acres generally bounded by the CSX Railroad on the east, the railroad and US 17 on the north, the Wahneta Canal on the west, to just south of the Snively Elementary School. Its recommendations included improved social services, land use changes, housing programs and infrastructure improvements.” In 1998, a Declaration of Slum and Blight was adopted by the Board through Resolutions Nos. 98-08 and 98-66, which, respectively, made a finding of blighting conditions in Eloise and adopted a redevelopment plan for Eloise. As a result, the ERCA was created pursuant to Section 163.356, Florida Statutes, to rehabilitate, conserve, and/or redevelop the Redevelopment Area. In 2000, the Board, pursuant to Section 163.360, Florida Statutes, adopted Ordinance No. 00-33, approving of the Eloise Redevelopment Plan as the Community Development Plan for the Redevelopment Area. It was the purpose and intent of the Board that the Eloise Redevelopment Plan be implemented in the Redevelopment Area. The Board made numerous findings in Ordinance No. 00- 33 including a determination that “[t]he Plan conforms to the general plan of the county as a whole” and that “[t]he Plan conforms to the Polk County Comprehensive Plan.” The Board also determined that “[t]he need for housing accommodations has increased in the area.” The Eloise Redevelopment Plan has not been adopted as part of the County's Comprehensive Plan. Thus, the Plan Amendment need not be consistent with the Eloise Redevelopment Plan to be “in compliance.” The May 2000, Eloise Redevelopment Plan describes the then existing ownership patterns such that “[t]he existing Eloise residential neighborhood between 1st and 9th Streets is subdivided into platted, fifty-foot wide lots. Most are 100-125 feet in depth. Lots along 9th Street abutting the school are platted as 70-foot wide lots. The ownership pattern in this area typically follows the lot lines. Most are individually owned lots. (See Figure 6).” EE 2, Plan at 16. Particularly relevant here, it is also stated: “Lots 33 and 34 [part of the Subject Property] are each approximately 9 acres and are owned by Alterman Transport Corporation (ATC). The site is currently used for storage and, in the past, was zoned GI [General Industrial] and R-3. In the current Comprehensive Plan, however, this site is planned for Residential Suburban (RS) to be compatible with the surrounding neighborhood. The trucks are a legal-nonconforming use and may continue but any future development shall comply with the RS land use district.” EE 2, Plan at 16. The Eloise Redevelopment Plan also recommended that the Alterman Trucking Annex, also known as the Alterman Transportation Corporation, be developed for up to 75 single- family homes by the end of 2004. EE 2, Plan at 32; JE 3 at 3 of (The Subject Property was also formerly known as the Alterman Motor Freight Terminal. JE 2, 8/10/2004 site map.) In 2001, the County also changed the classification of the Subject Property from RS to RL-4 pursuant to Ordinance No. 01-45. See Finding of Fact 54. In addition to the creation of the ECRA, the County, through the HND, has attempted to revitalize the Redevelopment Area. Since 1993, HND has spent approximately $4.4 million dollars in these efforts. These funds have been spent on community policing ($424,790), slum and blight clearing ($47,428), housing rehabilitation ($186,807), parks and recreation ($149,982), water/sewer/drainage ($1,094,677), construction of the Eloise Community Center ($2,147,037), replacement of five homes ($314,138), and rehabilitation and repair of five homes ($46,819). As part of the Eloise Redevelopment Plan, many additional infrastructure improvements have been proposed, such as fire hydrants, turnaround areas for emergency vehicles and fire trucks, storm water installation, and sewer for the Residential Area of Eloise between 1st and 9th Streets and between Snively Avenue and the canal. The proposed projects for water, sewer, and storm water include 350 parcels to be served in this Residential Area. The construction of the Eloise Community Center has been the most costly expense in these efforts. After the County obtained this parcel from Phoenix Industries, it was discovered that the land was contaminated and more than $400,000 was spent on environmental clean-up costs for this property. The ECRA and the County have made progress in the area of code enforcement. Furthermore, crime has been cut in half and a drinking ordinance was passed by the County upon request of the ECRA and the Eloise Neighborhood Association. Eloise, with the County's cooperation, also initiated a Community- Oriented Policing program. There has been an increase in construction in the area, both on the residential and commercial/industrial side of Snively Avenue. The ECRA has also been working on a beautification strategy. For example, Phoenix spent $35,000 for landscaping, removing barbed wire, installing an irrigation system, and installing an attractive entrance to its facilities. Further beautification is planned for other areas along Snively Avenue, the main gateway to the area from US 17, and improvements to Snively Elementary School, for which the ECRA allocated up to $10,000. Currently, the socio-economic status of the families living within the residential portion of the Redevelopment Area is low and moderate income. But, as noted above, the area is being revitalized, including the addition of several Habitat for Humanity-built homes. Mr. Bachman confirmed that "[t]hings have changed now," including the employment of minorities and an increase in diversity at the elementary school. The Subject Property The Subject Property is located within the Redevelopment Area on the southwest side of Snively Avenue between 5th and 6th Streets. JE 8A. The Subject Property consists of approximately 9.9 acres, which is part of a 20-acre parcel owned by Mr. Smith. Tr. 261. (There is a vacant parcel not subject to the Plan Amendment, also acquired by Mr. Smith at the same time, adjacent to and west of the Subject Property, which appears to be within a flood zone area. JE 8A at “46”. The canal serves as the western border for this parcel.) Currently, there are ten to eleven residences along 5th Street, north of the Subject Property, and ten residences between the Subject Property and 6th Street, south of the Subject Property. See EE 7. There does not appear to be any appreciable distance between these residences and the Subject Property. Aside from the residential homes north and south of the Subject Property, there are also retail, auto repair, and other commercial uses which border on Snively Avenue. See, e.g., IE 1, aerial with 15 photographs; JE 3 at 5 of 27; Tr. 295-297; JE 8A. According to Mr. Smith, he requested the land use designation change to cure the non-conforming status of the Subject Property. All operations on the Subject Property had ceased for less than one year when he purchased the Subject Property. The Subject Property has historically and, except as noted above, continuously been utilized since the late 1960’s for industrial-type purposes, including motor freight activities which include loading and unloading citrus trucks, racking, truck repair, and truck weighing. These activities would not necessarily be restricted to an Industrial land use designation;8 the current use of the Subject Property as a motor freight terminal is also permitted within a BPC-2 land use designation. There has been no substantial change in the use of the Subject Property since 1980.9 Mr. Brooks testified that while he was growing up in Eloise, the Subject Property "was primarily truck parking for the citrus plant." He "worked for the scale house back in the late 60's before the plant went down and all [they] did was like park the trucks there for unloading and which would be in the citrus plant itself." However, he never knew the Subject Property "to be an industrial park itself," during the late 1960's. Historically, Mr. Snively, who died in 1957, owned several different businesses across the street from the Subject Property, including a fresh fruit packing house, JE 8A at "20", juice plant, JE 8A at "21", concentrate plant, JE 8A at “22”. The plant closed in 1969 or 1970. In and around 1972, during the summer, Mr. Smith worked for the Snively operation when they parked their citrus trucks on the Subject Property and then for the Alterman operation on-site when he loaded and unloaded trucks. Under the County's zoning ordinance adopted in November 1970, the Subject Property, along with the Phoenix Industries Property, its adjoining property, and the property southeast and adjacent to Snively Elementary School, were zoned as General Industrial (GI). Like the Subject Property, this industrial area is located east and immediately adjacent to property classified as residential (RS) (although the property is presently undeveloped). By an amendment to the FLUM adopted by Ordinance No. 91-06 on April 19, 1991, the Subject Property was classified as RS, rather than IND.10 At the same time, the Phoenix Industries Property, its adjoining property, and the property immediately adjacent to Snively Elementary all maintained their Industrial classification. The May 2000 Eloise Redevelopment Plan recommended, in part, consideration of "a plan amendment from RS to RL-4 for the properties north of Snively [Elementary] School and west of Snively Avenue" which included the Subject Property. EE 2, Plan at 38. On July 11, 2001, the County adopted Ordinance No. 01- 45, which changed the land use designation on the FLUM from RS to RL-4, for all of the property (including the Subject Property) between 1st Street and just south of 9th Street and between Snively Avenue on the east and the canal on the west. EE 1 at map page 2. The land use designation for the Snively- Brooks Park was also changed to INST-1 from IND. Other land use designations were changed pursuant to Ordinance No. 01-45. EE 1. See also Tr. 130-136, 139-140. The FLUM changes implemented strategies set forth in the Eloise Redevelopment Plan and adopted recommended changes to the FLUM. See Tr. 163. The RL-4 designated property is located immediately adjacent to and on the north, west, and south sides of the Subject Property. JE 8A. Across Snively Avenue from the RL-4 property is the industrial area which was previously used in the citrus industry and which is currently used by Phoenix warehousing and trucking activities. JE 8A. "The purpose of the [RL-4] District is to provide areas for low density residential needs of residents in urban areas who desire areas with smaller lots, a minimum of 6,000 square feet." § 204A7., Land Development Code (LDC). The County and Mr. Smith contend that the Subject Property was mistakenly or erroneously classified as RS in 1991 and RL-4 in 2001. However, the preponderance of the evidence indicates that no mistake or error was made in 1991 or 2001 based, in part, on the chronology of events regarding the land use changes mentioned above. Merle H. Bishop, A.I.C.P., the current Director of Growth Management for the County, has been an employee of Polk County for 30 years, and was involved in the adoption of the original Comprehensive Plan in 1991. In preparing land use designations for the initial FLUM, he used aerial photographs primarily and the existing zoning at the time. Since that time, he and staff have discovered errors in mapping the land uses of property, including industrial. Typically, the errors have been corrected when presented to the Board for comprehensive plan changes to the FLUM. Mr. Bishop testified that pursuant to a policy in the Comprehensive Plan, the County desired to “recognize industrial uses.” Tr. 444-445. According to Mr. Bishop, an active industrial use would only be eliminated with good reason, i.e., such as it was a remote and isolated industrial use. Tr. 455. According to Mr. Bishop, the Subject Property, the southern parcel by the elementary school, and the Phoenix Industries property made up a major industrial use area. Tr. 456. Although Mr. Bishop stated the Subject Property "would have been" designated as Industrial in 1991 given its use, Tr. 511-512, Mr. Bishop could not "say whether or not [they] missed this on the map when [they] mapped it. I mean it appears -- I mean, when you look at the map, it's very general; or whether there was an intention to not map it." Tr. 483-484. Mr. Bishop did not testify persuasively that the Board, in 1991 or in 2001, erroneously designated the Subject Property as RS and then RL-4. The February 2, 2005, staff report, mentions the applicant’s contention that a mapping error occurred, but implicitly rejects this argument. JE 3 at 11 and 12 of 27. Staff stated: The site has recently changed ownership and the current property owner wants the non-conforming uses to become conforming uses. Recognizing the existing use will enable to [sic] owner to continue utilizing the site as it has historically been used and allow the redevelopment of the property as needed. In addition, the use has remained the same since the early 1970’s according to the applicant. The applicant also states that Policy 2.113-A2 of the Comprehensive Plan states that the [FLUM] Series shall include all major existing industrial areas; since the property has historically been used for industrial uses, the recognition of the site will correct the County’s mapping error. On the other hand, staff and the ECRA has [sic] indicated, for this and the prior requested land use change (CPA 04A-05), that the impacts to the residential neighborhood is [sic] more significant than the redevelopment of the site for commercial or industrial uses. The County worked with the residents, business owners, and land owners in the area to develop a redevelopment plan, in which, the site was intentionally made non-conforming by the community and the County in order to create separation between the industrial uses across the street from the residential uses on the west side of CR 655 (Rifle Range Road [sic]). Therefore, the applicant’s primary argument for recognizing the historical use is not relevant. JE 3 at 12 of 27. Mr. Bishop was not directly involved with the staff review although he participated at the pubic hearing before the Board. If the Subject Property were vacant, Mr. Bishop would not recommend an Industrial land use designation. He supports the land use change because of the existing (at the time) use of the Subject Property and to have the property be a conforming use. Tr. 506-507. The history of industrial-type use on both the Subject Property and other sites in the Redevelopment Area has been a subject of significant concern. Although no tests have been conducted to determine whether the Subject Property is contaminated, Dr. Cherry testified that as a result of its long industrial use, it is likely that contamination will be present, which would render its use for residential purposes not realistic. Tr. 221-223. Since the subject property is located near the property upon which the community center was constructed and both parcels were part of a larger industrial area and utilized for similar uses, Dr. Cherry suspects that the Subject Property will likewise be contaminated. Tr. 222. If the Subject Property is contaminated, it is Dr. Cherry's opinion that there will be insufficient funds to clean the area. Tr. 219. Consequently, Dr. Cherry opined that if the Subject Property could not be used for industrial purposes, it would likely be unable to be developed as residential and most likely would be abandoned, thereby becoming a “brownfield.” This would significantly burden the redevelopment efforts in the Redevelopment Area. However, the Subject Property has not been declared a “brownfield” and no finding can be made regarding the environmental condition of the Subject Property based upon the record of this case. The Small Scale Plan Amendment Application and Adoption On or about August 10, 2004, Mr. Smith filed an application requesting the County to re-designate the land use of the Subject Property from RL-4 to IND. JE 2. According to the “Narrative Summary,” “[t]his change will provide for the continuation of historical motor freight uses and provide for optional industrial uses.” Id. On January 4, 2005, the County published Notice in a newspaper of local circulation providing that the Board would consider the adoption of the Plan Amendment at its meeting of January 19, 2005. At the January 19, 2005, meeting, the County tabled consideration of the Plan Amendment to its meeting of February 2, 2005. The Polk County Planning Division Staff report is dated February 2, 2005. This report contains a detailed analysis of the application. The Planning Division recommended denial of the Plan Amendment. (The report indicates that the Planning Commission recommended approval (3 to 1 vote) of the Plan Amendment.) The Planning Division found, in part, that "the proposed development request IS NOT compatible with surrounding land uses and general character of the area of the residential uses on the southern side of Snively Avenue (CR 655) and IS NOT consistent with the Polk County Comprehensive Plan for a land use change to Industrial (IND) because it would likely intrude into the existing residential neighborhood, allow for more intensive uses to be developed next to existing homes, and not be consistent with the approved Eloise Redevelopment Plan." (Emphasis is original). On February 2, 2005, the Board voted to adopt the Plan Amendment by the adoption of Ordinance No. 05-004.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order concluding that the Plan Amendment adopted by Polk County Ordinance No. 05-004 is not "in compliance" as defined in Section 163.3184(1)(b), Florida Statutes. DONE AND ENTERED this 8th day of July, 2005, in Tallahassee, Leon County, Florida. S CHARLES A. STAMPELOS 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 July, 2005.
The Issue The issue in this case is whether amendments to the Palm Beach County (County) Comprehensive Plan (Plan) adopted by Ordinance Nos. 2004-34 through 2004-39, 2004-63 and 2004-64 (Amendments) to accommodate the County's development of a biotechnology research park on 1,900 acres known as the Mecca site are "in compliance," as defined in Section 163.3184(1)(b), Florida Statutes.1
Findings Of Fact Overview of the County's Pre-Scripps Plan The County's first Plan was adopted in 1980. Its 1989 Plan, the first adopted under the 1985 Local Government Comprehensive Planning and Land Development Regulation Act (also known as the 1985 Growth Management Act, or GMA) built upon the strengths of the first Plan. In 1995, the County evaluated and appraised its 1989 Plan, completed an Evaluation and Appraisal Report (EAR), and subsequently adopted a substantially-amended EAR-based Plan. In 1999, the Plan again was amended by the addition of a Managed Growth Tier System (MGTS) as a new growth management tool.2 The County's Plan recognizes that development in the County has generally moved from eastern coastal areas to the west and from the southern part of the County to the north. Generally, the Plan has attempted to direct growth towards the eastern part of the County and to encourage infill and redevelopment in that part of the County. Redevelopment is underway in older areas, usually under the auspices of local governments. At the same time, the Plan now recognizes that another growth corridor is located along SR 7 and US 441. Even with the efforts to encourage infill and redevelopment in the eastern part of the County, growth pressures have led to 18,000 acres of new land use approvals in the County north of Lake Worth Boulevard in the last 10 years. The Future Land Use Element (FLUE) of the County's Plan contains County Directions, GOPs (i.e., Goals, Objectives, and Policies), the MGTS Map, and the Future Land Use Atlas. The County Directions "provide the basis for preparation of the [GOPs]." The GOPs "provide the framework for decisions that direct the location, pattern, character, interrelationships and timing of development, which ultimately affects the distribution of facilities and services to support it." The MGTS Map "defines distinct geographical areas within the County that currently either support or are anticipated to accommodate various types of development patterns and service delivery provisions that, together, allow for a diverse range of lifestyle choices, and livable, sustainable communities." The Atlas "graphically depicts the future distribution, general use and densities and intensities of [land use] within each tier." (FLUE Introduction, pp. 1-2) The County also routinely employs geographic-specific planning tools. The Plan creates at least 15 overlays to meet planning challenges for specific areas. It also recognizes 10 neighborhood plans. Optional sector planning for a large part of the Central-Western Communities of the County also is underway. The FLUE's County Directions include: Livable Communities (with "a balance of land uses and [other features]"); Growth Management (to "provide for sustainable urban, suburban, exurban and rural communities and lifestyle choices by: (a) directing . . . development that respects the characteristics of a particular geographic area; (b) ensuring smart growth . . . ; and (c) providing for facilities and services in a cost efficient timely manner"); Infill Development (to increase efficiency); Land Use Compatibility; Neighborhood Integrity; Economic Diversity and Prosperity (to promote the growth of industries that are high-wage and diversify the economic base); Housing Opportunity ("by providing an adequate distribution of very-low and low-income housing, Countywide"); Economic Activity Centers (to encourage manufacturing and other value-added activities); Level of Service Standards ("to accommodate an optimal level . . . needed as a result of growth"); Linear Open Space and Park Systems; Environmental Integrity (to "[e]ncourage restoration and protection of viable, native ecosystems and endangered and threatened wildlife by limiting the impacts of growth on those systems; direct incompatible growth away from them; encourage environmentally sound land use planning and development and recognize the carrying capacity and/or limits of stress upon these fragile areas"); Design; A Strong Sense of Community; and Externalities (placing "major negative" ones "away from neighborhoods"). (Id. at pp. 5-6) FLUE Goal 1 is to establish the MGTS. Objective 1.1 recognizes five geographic regions (tiers) of land with "distinctive physical development patterns with different needs for services to ensure a diversity of lifestyle choices": Urban/Suburban (land within the Urban Service Area (USA), generally along the east coast but also along the southeast shore of Lake Okeechobee in the extreme west of the County, having urban or suburban density and intensity and afforded urban levels of service); Exurban (land outside the USA and generally between the Urban and Rural Tiers, platted prior to the 1989 Plan and developed at densities greater than 1 dwelling unit per 5 acres (du/ac); Rural (land outside the USA and east of the Water Conservation Areas, Twenty Mile Bend, and the J.W. Corbett Wildlife Management Area (Corbet WMA), including large tracts of land, as well as lands platted prior to the 1989 Plan, that had a predominant density of 1 du/10 ac, but less than 1 du/5 ac, and afforded rural levels of service); Agricultural Reserve (primarily for agricultural use, reflecting the unique farmlands and wetlands within it, to be either preserved or developed only at low residential density); and Glades (all land west of the Water Conservation Areas, Twenty Mile Bend, and Corbett WMA, predominantly supporting large-scale agricultural operations, and afforded rural levels of service.) The five tiers are depicted graphically in Map LU 1.1, MGTS, of the Map Series. Conservation lands are also depicted on Map LU 1.1 but are not assigned to a tier. The Map also depicts the United Technologies (Pratt-Whitney) (UT) Overlay and the North County General Aviation Airport (North County Airport), neither one which appears from Map LU 1.1 to lie within a tier. The UT Overlay is in the north-central part of the County, sandwiched between Rural Tier on the north, east, and southeast and Conservation land, including Corbett WMA on the west and southwest, and roughly bisected by the Beeline Highway (Beeline), which runs diagonally through the overlay between its northwest and southeast extremes. The Airport lies farther to the southeast along the Beeline, essentially surrounded by Rural Tier land, except for relatively small pieces of Conservation land contiguous to it along its western boundary and at its southeast corner (the North County Airport Preserve.) Notwithstanding the possible appearance from the depictions on Map LU 1.1, the County has no general planning jurisdiction in any of the incorporated areas of the County.3 Map LU 2.1 depicts the three service areas to guide delivery of public services that are established under FLUE Goal 3. These are the Urban Service Area (USA), the Rural Service Area (RSA), and the Limited Urban Service Areas (LUSA). The USA essentially follows the boundaries of the Urban/Suburban Tier. The LUSA is relatively limited geographically and includes the Agricultural Reserve Tier, the UT Overlay, and the North County Airport (with contiguous Conservation lands). The rest of the County is in the RSA. The verbiage of Goal 3, its Objectives and Policies and other parts of the Plan, gives the impression that provision of services is fine-tuned to the character and needs of a particular locale. For example, Goal 3 is "to define graduated service areas for directing services to the County's diverse neighborhoods and communities in a timely and cost- effective manner, reflective of the quality of life associated with each respective Tier." But actually the Plan assigns countywide level-of-service standards (LOSS's) to seven of nine types of facilities. All urban services can be provided in all areas of the County except that County centralized water and sewer services cannot be provided in the RSA. While theoretically intended to be geographically limited, the main difference between the USA and the LUSA is that the LUSA is outside the USA. The Agricultural Reserve part of the LUSA is actually a westerly extension of the USA. The North County Airport part of the LUSA is surrounded by Rural Tier land; the UT part of the LUSA is surrounded by Rural Tier and Conservation lands, the same as the UT Overlay. The County has re-examined its policy decision not to provide centralized water and sewer services in the RSA because it has resulted in various municipalities and utilities special districts and perhaps private alternative providers extending services while the County excludes itself. The County has adopted plan amendments to change this to allow the County to provide such services and to exclude others. Those plan amendments are under administrative challenge at this time and are not yet in effect. The County has three priorities for extending services. One is to encourage development of basic industry to further the Economic Element. The County Plan's Economic Element is optional. It reflects a concerted effort to diversify the economy of the County by encouraging growth in cluster industries, including medical products. Taken together, the Plan reflects a desire to accommodate growth in the Urban/Suburban Tier, especially in the eastern part of the County. Many GOPs in the Plan promote and encourage infill and redevelopment. However, pressure to grow in other parts of the County are undeniable. It appears that, under the Plan, the County will be completely built-out within 30 years. The County's current Plan is detailed and complicated. Many other parts of it, some of which will be addressed later in this Recommended Order, also are implicated in some manner and in different degrees by the Amendments at issue. Scripps Florida In the early 1990s, a County study indicated concern about the three main elements of the local economy: tourism was low-paying; agriculture was low-paying and a declining sector; and construction and development would decline as the County built out. In 1998, a consulting firm (SRI) proposed an action plan for the County to develop economic clusters. The action plan addressed several industry clusters, including medical/pharmaceuticals. SRI recommended, among other things, attracting a biomedical park development, a satellite campus of a medical school, venture capital providers, and a medical research institute. Meanwhile, in the same general time frame, the State’s economic development arm, Enterprise Florida, Inc., targeted the biomedical industry for development in Florida. The Scripps Research Institute in La Jolla, California (Scripps), is the largest not-for-profit biotechnology research organization of its kind in the world. In 2003, Scripps decided to expand its operations. Florida Governor Bush, along with several Florida legislators, personally and through Enterprise Florida and OTTED, actively pursued Scripps to locate in Florida. During the same timeframe, the Federal Government made funds available to Florida under the Jobs and Growth Tax Relief Reconciliation Act of 2003, for the essential governmental service of improving economic opportunities available to the people of this state by attracting new or expanding businesses to, and retaining businesses in, the State. It was decided to use $310,000,000 of these funds in the pursuit of Scripps and hoped-for related economic and other benefits. By October 2003, Scripps agreed to negotiate expansion to Florida and chose Palm Beach County as its preferred location in the State. Also in October 2003, the Florida Legislature met in special session and, on November 3, 2003, enacted Chapter 2003-420, Laws of Florida, which created the Scripps Florida Funding Corporation to facilitate establishment and operation of a biomedical research institution for the purposes of enhancing education and research and promoting economic development and diversity. The Funding Corporation was required by the law to negotiate a contract with the Scripps Research Institute of La Jolla, California, for Scripps to establish a state-of-the-art biomedical research institution and campus in Florida. After disbursement of $300,000 to OTTED to cover staffing and administration expenses of the Funding Corporation, and upon execution of the contract with Scripps, the balance of the $310,000,000 was to be disbursed to the Funding Corporation subject to the terms of the contract. The Scripps Grant Agreement Scripps Florida and the County entered into a Grant Agreement on February 9, 2004, with a term of 30 years. In the Grant Agreement, the County agreed to pay for or provide: a 100-acre campus for Scripps Florida in the 1,919-acre site at Mecca Farms (Mecca), with a funding limitation of $60,000,000; the construction of initial temporary facilities for Scripps Florida at the Florida Atlantic University (FAU) campus in Jupiter, with a funding limitation of $12,000,000; the construction of permanent facilities for Scripps Florida at the Mecca site, with a funding limitation of $137,000,000; 400 adjacent acres for development of “related uses”; and applications for approvals for Scripps Florida to develop 2 million square feet at Mecca. The Grant Agreement’s definition of “related uses” was intended to be broad so that the County can open the 400 acres to computer research, telecommunications and other economic clusters if not enough pharmaceutical or life-science research firms are attracted. The Grant Agreement requires Scripps Florida to create or relocate at least 545 new jobs to the Mecca site; to strive to create 2,777 new or relocated jobs; and to work with the County to create a total 6,500 jobs. In the Grant Agreement, the County expressly reserves all legislative and quasi-judicial powers, acting only in its proprietary capacity. The County's Purchase of Mecca Site In accordance with the Grant Agreement, the County proceeded with the purchase of the Mecca site. In October 2003, the Business Development Board (BDB), a non- profit organization that is funded primarily by and reports to the County, already had obtained an option to purchase the site for $60,000,000, if certain government approvals could be obtained. In February 2004, the County acquired the option on the Mecca property from the BDB and exercised it. Including the cost of some "oral add-ons," the purchase price for Mecca was approximately $60,500,000. Characteristics of the Mecca and Surroundings The Mecca site is in the shape of a rectangle located in the north-central part of the County. It is designated in the Rural Tier. For approximately 50 years, most of the site has been used as a citrus grove with trees grown in rows 15 feet apart, 73-acres of agricultural ditches, and a 272-acre above-ground water impoundment area in the northeast quadrant of the site used for irrigation. There also is a 30-acre sand mine operation in the southwestern quadrant. At this time, the Mecca site is accessible by road only by Seminole Pratt-Whitney Road (SPW), a two-lane paved road from the south. When SPW reaches the southwest corner of Mecca, it becomes a dirt road as it continues along the west side of the property. While Mecca itself is in the Rural Tier, it is not surrounded by Rural Tier land. The land to the west is designated Conservation, and the land to the north and south is designated Exurban Tier. The land to the east is designated Rural Tier, but it actually is within the jurisdictional boundaries of the City of Palm Beach Gardens. The area around Mecca is a “mosaic” of uses, including undeveloped agricultural lands, conservation lands, and lands developed predominantly as undesirable residential sprawl with limited employment and shopping. The nearby Beeline, part of the Florida Intrastate Highway System (FIHS), is classified by the State as “urban” to the east and “transitional” to the west of SPW. Significant among the developed areas near Mecca is The Acreage, abutting Mecca to the south. The County designated The Acreage as part of the Exurban Tier. It is a large, 76 percent built-out, antiquated subdivision with a density of 1 du/1.25 ac and a population of approximately 42,000. As such, it can be characterized as either urban or suburban, but not rural. To the south and west of The Acreage are large citrus groves in the Rural Tier. Farther south and west of The Acreage is Loxahatchee Groves, another antiquated subdivision in the Exurban Tier, with a density of 1 du/5 ac that is just 18 percent built-ut with 1,216 homes built. Farther south, just south of Southern Boulevard, is the Village of Wellington, which is a municipality located within the boundaries of the Urban/Suburban Tier. South and east of The Acreage is the Village of Royal Palm Beach, also a municipality within the Urban/Suburban Tier. The 60,288-acre Corbett WMA is located immediately west of Mecca and is owned and managed by the State as a hunting preserve. It has no tier designation. Corbett has a variety of habitats for endangered or threatened species (wood storks, eagles, red-cockaded woodpeckers, gopher tortoises and indigo snakes), including wet prairie, freshwater marsh and pine flatwoods. Corbett could provide habitat for Florida panthers although there have been no confirmed panther sightings in the area in a number of years. Immediately north of Mecca is another antiquated subdivision, Unit 11 of the Indian Trail Improvement District (Unit 11). The County is buying Unit 11 for preservation as Hungryland Slough, a regional off-site mitigation area. Unit 11 is designated in the Exurban Tier. Hungryland contains habitat similar to that found in Corbett WMA. North of Hungryland, and south of the Beeline, is a small triangle of Rural Tier land, which is just south and south east of the UT Overlay, which includes the Park of Commerce (a/k/a Florida Research Park). The Rural Tier land to the northeast of Hungryland, across the Beeline, is Caloosa, a large-lot residential development with a density of 1 du/5 ac. To the northeast of Caloosa is Jupiter Farms, another large, 81 percent built-out antiquated residential subdivision with a density of 1 du/2 ac and a population of about 12,600. Jupiter Farms is designated in the Rural Tier although it also seems to fit the criteria for the Exurban Tier. The Vavrus Ranch, a 4,600-acre landholding, is located immediately east of Mecca. Approximately half of Vavrus Ranch is wetlands, and the remainder is improved pasture. The Vavrus Ranch appears to be designated in the Rural Tier, but it actually is in the City of Palm Beach Gardens. Existing urban-scale public facilities between Mecca and Southern Boulevard to serve the suburbs include five fire stations, two post offices, eight elementary schools, two middle schools and two branch libraries, with one high school and one middle school planned or under construction. Existing public facilities north of Mecca in Caloosa include one fire station and one elementary school. East of Mecca and the Vavrus Ranch is the North County General Aviation Airport. To address land use deficiencies in this area, the County has agreed with DCA to prepare a plan for a 52,000-acre sector, which originally included Mecca. Current development has committed approximately two- thirds of lands in the sector to an inefficient pattern that is not “sustainable.” This pattern increases reliance on the automobile; may not be served long-term by private wells and septic tanks; and does not pay for itself, requiring substantial taxpayer subsidies. The sector has a serious jobs/housing imbalance, resulting in more congestion and longer commutes for residents. The County’s sector planning consultants identified Mecca as an appropriate site for an intensive employment center in two out of three initial scenarios. Subsequent studies identified Mecca for other uses, and the site was deleted from the sector planning area in 2004 when the Scripps Florida opportunity arose at Mecca. Development of Regional Impact (DRI) and Plan Amendments Since the Scripps opportunity arose, the County's primary vision for Mecca has been to transform its 1,919 acres into a very special place that would be able not only to satisfy the needs of Scripps, but also would have all of the essential elements and many extra amenities so as to enable the County to compete with other areas of the country (and, indeed, the world) to attract related research and development (R&D) and, especially commercial activity in order to reap the maximum possible economic benefits of a biotechnology cluster. This vision included not only onsite opportunities for development of related biotechnology R&D and related commercial ventures, but also a university campus, a hospital/clinic, expansive green spaces and water features, onsite residential opportunities, including affordable housing, and onsite commercial and retail uses, including a town center. The County prepared plans by first reviewing and considering other R&D complexes, companies potentially interested in new locations, views of university officials, the Scripps experience at La Jolla, employees per square foot per industry type, and its own allowable floor area ratios (FARs) in order to identify the developable square footage for R&D at Mecca. As applicant for the necessary DRI approval and Plan amendments, the County’s staff and consultants initially requested approval of 10.5 million square feet for R&D use after balancing space needs, traffic impacts, environmental needs, buffering and other factors. The County’s real estate consultant concluded that a minimum of 2 to 3 million square feet of R&D space would be necessary for the venture to be successful, and that the absorption of 8 to 8.5 million square feet over a long-term build-out period of 30 years was a reasonable expectation. That view was bolstered by the potential establishment of other R&D users, if biotechnology firms do not absorb the entire capacity of the project. Ultimately, the Board of County Commissioners (BCC) approved a development of regional impact (DRI) for 8 to 8.5 million square feet of R&D, including the 2 million square feet for Scripps Florida, in order to provide economic opportunities while avoiding the need for eight-lane roads in the area. In order to accommodate this project, amendments to the County's Plan were necessary. Changes to the Plan adopted October 13, 2004, included Ordinance Nos. 2004-34 through 2004-39. Changes to the Plan adopted December 14, 2004, included Ordinance Nos. 2004-63 and 2004-64. Ordinance No. 2004-34 removes the 1,919-acre Mecca site from the Rural Tier; creates a scientific community overlay (SCO) on Mecca; establishes its allowed uses; imposes controls to balance residential and non-residential uses by phase; sets design principles; designates Mecca as a LUSA; and makes related changes to the FLUE and Economic Element and the FLUE Map Series. Ordinance No. 2004-35 modifies FLUE Policy 3.5-d to exempt the SCO from a County-imposed limitation on allowed land use changes expected to generate significant impacts on any roadway segment projected to fail to operate at LOSS "D" based on the adopted Long-Range Transportation Plan. Ordinance No. 2004-36 amends the FLUE Atlas to change the land use on Mecca from Rural Residential with a density of 1 du/10 ac (RR-10) to Economic Development Center with an underlying density of 2 du/ac (EDC/2). This amendment also sets minimum and maximum amounts of each use and incorporates by reference the land use conversion matrix in the DRI development order (DO). Ordinance No. 2004-37 amends the FLUE Atlas to change the land use on a 28-acre Accessory Site obtained from Corbett WMA from Conservation to Transportation and Utilities Facilities. Ordinance No. 2004-38 amends the Transportation Element (TE) to lower the adopted LOSS on 37 road segments and 6 intersections from the generally applicable standard of “D” to “Constrained Roadway at Lower Level of Service” (CRALLS). Ordinance No. 2004-39 amends the Thoroughfare Right- of-Way (ROW) Identification Map (TIM) and the 2020 Roadway System Map to reflect certain road improvements to accommodate SCO-generated traffic. Ordinance No. 2004-63 updates Tables 1 through 16 of the 2005-2010 Capital Improvement Schedule (CIS), and includes road, water, and sewer facilities to serve the SCO. Ordinance No. 2004-64 updates Table 17 of the CIS, which addresses schools. g. The Petitioners, Their Burden, and Their Issues DCA’s notices of intent to find the Amendments in compliance were challenged by four not-for-profit organizations and one resident of Palm Beach County. All of the Petitioners timely commented, orally or in writing, to the County regarding the Amendments. Additional standing evidence was presented as to each Petitioner. Standing as an "affected person" under Section 163.3184(1)(a) was disputed as to all but one Petitioner. As to Petitioner, Maria Wise-Miller, it was undisputed that she is an "affected person" under Section 163.3184(1)(a). It was Petitioners' burden to prove beyond fair debate that the Plan Amendments were not "in compliance." See Conclusions 210-211, infra. Essentially, Petitioners are concerned that development of the SCO on Mecca's 1,919 acres is poor planning because of its present agricultural use, its location in relation to nearby natural areas and rural areas, and its distance from more urban areas and transportation facilities. More specifically, the issues raised by Petitioners as reasons why the Plan Amendments are not "in compliance" are framed in their Amended Petition.4 Implicating numerous applicable statutory and rule provisions, Petitioners' issues involve: urban sprawl; capital improvements (infrastructure); transportation concurrency; data and analysis; internal consistency; natural resources; community character and compatibility with adjacent uses; the Treasure Coast Regional Planning Council (TCRPC's) Strategic Regional Policy Plan (SRPP); and State Comprehensive Plan (SCP). No other issues have been added by further amendment, and no additional issues were heard by consent of the parties. See Conclusion 212, infra. H. Urban Sprawl Whether the Plan Amendments are consistent with relevant provisions of the state comprehensive plan, regional policy plan, the GMA, and Rule Chapter 9J-5 regarding discouraging urban sprawl, including provisions concerning the efficiency of land use, the efficient provision of public facilities and services, the separation of urban and rural land uses, and the protection of agriculture and natural resources, is determined by application of Rule 9J-5.006(5).5 Exceedingly detailed and complex, Rule 9J-5.006(5) provides in pertinent part: (d) Paragraph (5)(g) describes those aspects or attributes of a plan or plan amendment which, when present, indicate that the plan or plan amendment may fail to discourage urban sprawl. For purposes of reviewing the plan for discouragement of urban sprawl, an evaluation shall be made whether any of these indicators is present in a plan or plan amendment. If an indicator is present, the extent, amount or frequency of that indicator shall be considered. The presence and potential effects of multiple indicators shall be considered to determine whether they collectively reflect a failure to discourage urban sprawl. * * * Primary indicators. The primary indicators that a plan or plan amendment does not discourage the proliferation of urban sprawl are listed below. The evaluation of the presence of these indicators shall consist of an analysis of the plan or plan amendment within the context of features and characteristics unique to each locality in order to determine whether the plan or plan amendment: Promotes, allows or designates for development substantial areas of the jurisdiction to develop as low-intensity, low-density, or single-use development or uses in excess of demonstrated need. Promotes, allows or designates significant amounts of urban development to occur in rural areas at substantial distances from existing urban areas while leaping over undeveloped lands which are available and suitable for development. Promotes, allows or designates urban development in radial, strip, isolated or ribbon patterns generally emanating from existing urban developments. As a result of premature or poorly planned conversion of rural land to other uses, fails adequately to protect and conserve natural resources, such as wetlands, floodplains, native vegetation, environmentally sensitive areas, natural groundwater aquifer recharge areas, lakes, rivers, shorelines, beaches, bays, estuarine systems, and other significant natural systems. Fails adequately to protect adjacent agricultural areas and activities, including silviculture, and including active agricultural and silvicultural activities as well as passive agricultural activities and dormant, unique and prime farmlands and soils. Fails to maximize use of existing public facilities and services. Fails to maximize use of future public facilities and services. Allows for land use patterns or timing which disproportionately increase the cost in time, money and energy, of providing and maintaining facilities and services, including roads, potable water, sanitary sewer, stormwater management, law enforcement, education, health care, fire and emergency response, and general government. Fails to provide a clear separation between rural and urban uses. Discourages or inhibits infill development or the redevelopment of existing neighborhoods and communities. Fails to encourage an attractive and functional mix of uses. Results in poor accessibility among linked or related land uses. Results in the loss of significant amounts of functional open space. Evaluation of land uses. The comprehensive plan must be reviewed in its entirety to make the determinations in (5)(g) above. Plan amendments must be reviewed individually and for their impact on the remainder of the plan. However, in either case, a land use analysis will be the focus of the review and constitute the primary factor for making the determinations. Land use types cumulatively (within the entire jurisdiction and areas less than the entire jurisdiction, and in proximate areas outside the jurisdiction) will be evaluated based on density, intensity, distribution and functional relationship, including an analysis of the distribution of urban and rural land uses. Each land use type will be evaluated based on: Extent. Location. Distribution. Density. Intensity. Compatibility. Suitability. Functional relationship. Land use combinations. Demonstrated need over the planning period. Local conditions. Each of the land use factors in (5)(h) above will be evaluated within the context of features and characteristics unique to each locality. These include: Size of developable area. Projected growth rate (including population, commerce, industry, and agriculture). Projected growth amounts (acres per land use category). Facility availability (existing and committed). Existing pattern of development (built and vested), including an analysis of the extent to which the existing pattern of development reflects urban sprawl. Projected growth trends over the planning period, including the change in the overall density or intensity of urban development throughout the jurisdiction. Costs of facilities and services, such as per capita cost over the planning period in terms of resources and energy. Extra-jurisdictional and regional growth characteristics. Transportation networks and use characteristics (existing and committed). Geography, topography and various natural features of the jurisdiction. Development controls. Development controls in the comprehensive plan may affect the determinations in (5)(g) above. The following development controls, to the extent they are included in the comprehensive plan, will be evaluated to determine how they discourage urban sprawl: Open space requirements. Development clustering requirements. Other planning strategies, including the establishment of minimum development density and intensity, affecting the pattern and character of development. Phasing of urban land use types, densities, intensities, extent, locations, and distribution over time, as measured through the permitted changes in land use within each urban land use category in the plan, and the timing and location of those changes. Land use locational criteria related to the existing development pattern, natural resources and facilities and services. Infrastructure extension controls, and infrastructure maximization requirements and incentives. Allocation of the costs of future development based on the benefits received. The extent to which new development pays for itself. Transfer of development rights. Purchase of development rights. Planned unit development requirements. Traditional neighborhood developments. Land use functional relationship linkages and mixed land uses. Jobs-to-housing balance requirements. Policies specifying the circumstances under which future amendments could designate new lands for the urbanizing area. Provision for new towns, rural villages or rural activity centers. Effective functional buffering requirements. Restriction on expansion of urban areas. Planning strategies and incentives which promote the continuation of productive agricultural areas and the protection of environmentally sensitive lands. Urban service areas. Urban growth boundaries. Access management controls. Evaluation of factors. Each of the land use types and land use combinations analyzed in paragraph (5)(h) above will be evaluated within the context of the features and characteristics of the locality, individually and together (as appropriate), as listed in paragraph (5)(i). If a local government has in place a comprehensive plan found in compliance, the Department shall not find a plan amendment to be not in compliance on the issue of discouraging urban sprawl solely because of preexisting indicators if the amendment does not exacerbate existing indicators of urban sprawl within the jurisdiction. Innovative and flexible planning and development strategies. Notwithstanding and as a means of addressing any provisions contained in Rules 9J-5.006(3)(b)8., 9J- 5.011(2)(b)3., 9J-5.003(140), F.A.C., and this subsection, the Department encourages innovative and flexible planning and development strategies and creative land use planning techniques in local plans. Planning strategies and techniques such as urban villages, new towns, satellite communities, area-based allocations, clustering and open space provisions, mixed-use development and sector planning that allow the conversion of rural and agricultural lands to other uses while protecting environmentally sensitive areas, maintaining the economic viability of agricultural and other predominantly rural land uses, and providing for the cost- efficient delivery of public facilities and services, will be recognized as methods of discouraging urban sprawl and will be determined consistent with the provisions of the state comprehensive plan, regional policy plans, Chapter 163, Part II, and this chapter regarding discouraging the proliferation of urban sprawl. Of the 13 urban sprawl indicators in Rule 9J- 5.006(5)(g), Petitioners alleged the existence of only 2, 4, 6, 7, 8, 9, and 10. While there was evidence from which Petitioners reasonably could argue that the Plan Amendments promote urban sprawl, all of the Rule's indicators are at least fairly debatable. Indicator 2 As to Indicator 2, Petitioners' arguments on urban sprawl hinge in large part on characterization of Mecca as being rural land in the midst of likewise rural and conservation land far distant from any land use that could be characterized as urban or suburban. But while Mecca is distant from most of the Urban/Suburban Tier, neither the Village of Wellington nor Royal Palm Beach, both in the Urban/Suburban Tier, is very far away. The Acreage to Mecca's south, moreover, can be characterized as either urbanizing or suburban, but not rural. To the extent that Mecca is separated from other urban or suburban uses to the east by conservation lands (namely, the Loxahatchee Slough and Grassy Waters Preserve, a/k/a the West Palm Beach Water Catchment Area), no urban, suburban or even rural development of those conservation lands should be expected, making it fairly debatable whether "leaping over" those undeveloped lands should be considered an indicator of sprawl. In that sense, those conservation lands are similar to bodies of water. The “patchwork” pattern of developed, rural, and conservation uses near Mecca, including the adjacency of extensive residential development in The Acreage, also is significant. Nearby subdivisions including Jupiter Farms and Caloosa add further context for the sprawl analysis. The multi-use development at the SCO allowed by the Amendments may remediate the existing sprawl pattern near Mecca. Indicator 4 As to Indicator 4, it is at least fairly debatable whether conversion of rural land to urban uses on Mecca is premature in light of the Scripps opportunity and existing development pressures in the area. According to expert planning testimony for DCA and the County, the County is obliged to plan for growth in accordance with GMA and Rule 9J-5 up to its "sustainable carrying capacity," which has not been reached. Whether or not they believe the County has the option to plan to slow or stop growth before reaching "sustainable carrying capacity," it is clear from the evidence that the County is not doing so, but instead is planning for continued growth within the framework of its Plan until reaching what it considers to be "build-out" conditions. Given the County's basic growth policy, the County’s analysis of population projections for the next 20 years, compared to available vacant lands planned for residential use, shows the County has a “tight” plan with a restricted supply of land for development. This land use needs analysis shows that the eastern half of Palm Beach County (which includes Mecca) is experiencing intensive growth pressures due to the restricted supply of developable land, and that it will likely build out in approximately 20 years. Conservative assumptions in the County’s analysis suggest build-out in this area could occur even sooner. In its 1997 EAR, the County also concluded that eastern Palm Beach County would build out in approximately 20 years. The report noted that the approaching build-out of Dade and Broward counties to the south in the near future would further exacerbate growth pressures in Palm Beach County. Industrial lands in eastern Palm Beach County are expected to be exhausted by 2026. Because communities typically need greater locational variety for industrial uses compared to other uses, and in light of the many different activities that constitute an industrial use, the amount of land in eastern Palm Beach County designated for industrial use may be adequate but is not excessive. Besides, a numeric analysis is not necessary to justify industrial uses since they may be goal-based and aspirational. Seeking to diversify the local economy is an appropriate goal to support additional industrial land. Having a committed end-user for an industrial site is appropriate data to consider in evaluating such a land use change. Onsite residential and commercial uses will support the industrial use and better achieve a balance of uses, which will relieve the necessity to be evaluated against a numeric need test. Likelihood of Economic Benefits Petitioners argue that the proposed development at Mecca is not needed because significant economic benefits are so unlikely that the costly planned use of Mecca's 1,919 acres cannot be justified. Ordinarily, the likelihood of success of planned land uses would not be relevant to the compliance of a comprehensive plan or plan amendment. In this case, however, the County's vision for a Scripps-anchored biotechnology cluster at Mecca was the impetus for the major and important changes embodied in the Plan Amendments and is part of the demonstration of need. For that reason, consideration of the issue is appropriate in this case. The evidence is clear that the County's vision is not guaranteed success as planned and that there are significant risks involved. To maximize economic benefits, the County will have to not only attract R&D but also generate commercial spin-offs, where maximum economic benefits result. R&D requires research funding, and commercial spin-offs require venture capital. It also is essential to establish relationships with hospitals or clinics where clinical trials can take place. The predominant source of biotech research funding has been the National Institutes of Health (NIH). In the mid- 1990s, NIH funding increased dramatically, but significant increases in the coming years cannot be counted on, and other sources of research funding will have to replace the deficit. To the extent that pharmaceutical companies are resorted to for this purpose, they may require participation in any resulting commercialization, which could reduce local economic benefits if the funding source is not local. The evidence was that, over the last 30 years or so, significant economic benefits from biotechnology clusters achieving effective commercialization have been concentrated in just nine areas of the country. One is San Diego, California; none are in Florida. These nine areas also have garnered a disproportionate share of NIH research funding (although the percentage has declined a little in the last few years.) They also tend to have scientists inclined towards commercialization of the results of research and businessmen having the special abilities needed in the unique world of biotech, where years can pass before a business begins to see profits, and many start-ups fail. These nine areas also have access to venture capital, a good percentage of which has tended to be local, since many venture capitalists also want to be more active in monitoring and participating in the businesses they fund than most other investors. On the other hand, there was evidence acknowledging that at least some venture capital will seek out and follow good opportunities for profit wherever they may exist. Historically, at least through 2001, the biotech industry has become increasingly concentrated in these nine areas of the country, and they continue to have competitive advantages that the County's vision for the SCO would have to overcome. (On the other hand, several of these nine areas also have competitive disadvantage in the form of high taxes, high real estate costs, high cost-of-living, and less-than- ideal quality of life. So far, however, their advantages have surpassed their disadvantages.) There also is competition from many other cities and counties throughout the country desiring, like Florida and the County, to develop a biotechnology cluster. Recognizing the intense competition, the County's vision is to create a world-class setting for its effort at Mecca. Allowable facilities at the SCO include not just R&D space, but also a clinical hospital of up to 300 beds, a university campus of up to 2,000 college and university students, public facilities supporting environmental amenities, community facilities and retail facilities in a “town center,” and 2,000 or more housing units, including affordable housing. The SCO contemplates a mixture of uses that is hoped will lead to synergistic relationships and exchange of “tacit knowledge,” which are important to the success of a biotechnology cluster. Scripps Florida, as the anchor institution, will bring critical world renown and credibility. The principles of adjacency within the SCO are intended to promote synergy that transcends local competition and attracts regional and national users. In planning the SCO, Scripps’ experience in La Jolla and the views of Scripps officials were taken into account. Scripps’ campus at Torrey Pines Mesa has been in existence for almost 30 years, and has worked well. Scripps attempts to keep its buildings close to one another and has met with difficulty finding scientists willing to fill workspace four miles from the main Scripps campus. The FAR for the 500 acres of R&D use at the SCO is very low, at 0.39.6 By comparison, there was evidence that the FAR of the 900-acre University of Florida campus in Gainesville, Florida, is 2.00. Petitioners contend that much less than 500 acres is needed for the 8.5 million square feet of R&D provided in the SCO. However, the County found that Scripps’ buildings in California are constructed in horizontal fashion, with three, four and rarely five stories. Taller buildings have lower net-to-gross floor area, so they have significant added cost. Scripps considers close-by affordable housing desirable, especially for graduate and post-doctoral students. For other occupants of the SCO, low-rise construction makes it easier for companies to add space as they grow. High-rise construction is more expensive, harder to finance because of pre-leasing requirements, and less efficient. Based on the evidence, the FAR is fairly debatable. Venture capital from within and outside Florida is growing, as is capital interest in the Scripps initiative in Florida. Four clinical hospitals have expressed interest in participating in the SCO. In the year after announcement of Scripps Florida, the number of new life-science projects announced in Florida quadrupled in comparison to recent years. Workforce training and educational improvement are contemplated as support for and results of the SCO. The State has implemented and funded workforce programs in the life sciences, including in the County. The County has participated in the development of a consortium of Florida institutions of higher learning aimed at creating a specialized campus in the SCO. Scripps Florida is obligated to establish accredited science degree programs and internship programs for educators and secondary, post- secondary, graduate and post-doctoral students. Petitioners’ economic witness testified that the County lacks key competitive ingredients for developing a successful biotechnology cluster. Other witnesses, however, explained the level of efforts that the State, the County, and Scripps Florida are making to bring those ingredients to fruition. In addition, while Petitioners’ economic witness recited past experience of the biotechnology industry and forecast limited success for Scripps Florida primarily based on year seven, the last year of presently-committed State funding, he acknowledged that biotechnology research parks tend to experience a slow ramp-up, and the County anticipates a 30-year build-out. Of course, other sources of needed funding would have to be found after year seven. The evidence was that the chances for successful development of a biotechnology cluster at Mecca will decrease if no universities or hospitals are established onsite at Mecca and will decrease the longer it takes to establish them. If the planned biotechnology cluster does not succeed as well as planned, the SCO incorporates flexibility for absorption of R&D floor space by other types of research and development occupants. Often, when a large development project does not succeed as planned, pressures develop for investors to change the project's characteristics in an attempt to cut losses and increase profitability by selling land more quickly. In the case of the SCO, the investors are the taxpayers of Palm Beach County. It cannot be predicted what kind of pressures the County would feel, or what changes to the planned build-out would occur, if the SCO does not succeed as planned. Based on all the evidence, it is fairly debatable whether the likelihood of economic benefit is enough to justify the planned use of Mecca's 1,919 acres. Other Alternatives Petitioners also contend that the proposed development at Mecca is not needed because better alternatives exist. Specifically, they contend that the Scripps project could be sited: on the Briger site adjacent to the Florida Turnpike on its west and straddling I-95 in the City of Palm Beach Gardens; on Parcel 19 just west of I-95 and the Florida Turnpike, straddling Indiantown Road in the Town of Jupiter; or in the Park of Commerce (a/k/a Florida Research Park) in the unincorporated County near Mecca in the northeast quadrant of the intersection of the Beeline and SPW. Although the County had a contract with Scripps Florida to be located at Mecca, during the review process the BCC requested a study of possible alternative sites. The number of sites reduced rather quickly to three: Briger; Parcel 19; and the Park of Commerce. Data and analysis at the time of adoption of the Plan Amendments indicated that each of these alternative sites had flaws and risk factors, making it fairly debatable whether Scripps should be sited at any one of them instead of at Mecca. All three proposed alternatives have less acreage than Mecca and do not provide the same opportunities for affordable housing, open space, or flexibility of design, so as to be able to be developed in accordance with the vision the County has for development on its own 1,919 acres at Mecca. The Park of Commerce has limited opportunity for affordable housing, is limited in permitted uses, and is limited in flexibility by existing and platted infrastructure and industrial uses. It is now being used for industrial purposes--a railroad, a General Motors distribution facility, and a Walgreen's distribution facility--not considered to be consistent with the County's vision for a biotechnology research park. In addition, it may become necessary in the future to construct an overpass at the Beeline and SPW directly over the only suitable location for construction of the Scripps facilities at that site. Parcel 19 cannot accommodate affordable housing and would require $75 million in construction of major interchanges at I-95 and Indiantown Road, after which Indiantown Road still would be seriously over capacity, creating great traffic problems. In addition, it would be difficult to achieve the County’s targeted development program of 8 to 8.5 million square feet of R&D uses. The 682-acre Briger site favored by the Petitioners is bisected by I-95 into two triangular pieces. It would not meet the acreage requirements of the County’s contract with Scripps Florida unless the City of Palm Beach Gardens waives certain upland preservation requirements. In addition, at this time Briger remains on the County’s list of properties for acquisition for preservation (although its placement on the list may be out-of-date since Briger's hydrologic connection to the Loxahatchee River Slough has been more disrupted by development since its listing). Even if the Scripps contract requirements could be met, it would require higher vertical construction, which would be less compatible with surrounding residential uses, would provide less open space, and would have reduced flexibility. The County's complete vision for onsite incorporation of uses and amenities would not fit on Briger. For example, the university tie-in, the hospital, and residential features would have to be offsite. Briger might have a short-term marketing advantage over Mecca (in part because hospitals and FAU's Jupiter campus already exist in close enough proximity). Briger also would be closer to major transportation facilities, but that advantage would not necessarily offset Briger's deficiencies. It is fairly debatable whether long-term success would be more likely at Mecca or at Briger. All four sites–-Mecca, Briger, Parcel 19, and the Park of Commerce-–are located in the eastern half of Palm Beach County, where growth pressures are strong, the County’s Plan is "tight," and build-out is anticipated within the next 30 years, even without the SCO, based on County data compilations for land use need purposes. Natural Resources Protection and Conservation While they may not protect and conserve natural resources in an absolute sense (as is rarely if ever possible when development takes place near natural areas), it is at least fairly debatable whether measures in the Plan and Plan Amendments to protect and conserve natural resources are adequate. See Findings 146-182, infra. Indicator 6 As to Indicator 6, significant new infrastructure will have to be extended to Mecca under the Plan Amendments. Development closer to existing roads and, to a lesser extent, the existing USA and LUSA might make more use of existing facilities and services possible. But the evidence was that most of the $15 million of centralized water and sewer lines that will serve the SCO at Mecca already are planned for extension of service to the UT Overlay. Many of the road improvements planned for the SCO at Mecca also are already planned. See Findings 116-117 and 152-155, infra. In addition, it is at least fairly debatable whether and to what extent greater use could be made of existing public facilities and services by locating the Scripps elsewhere in the County, or whether location elsewhere in the County would be better or even possible, especially given the County's complete vision for development of the SCO at Mecca. See Findings 85-92, supra. Given the decision to develop at Mecca, there was no evidence that existing public facilities and services will not be used to the maximum extent possible. Indicator 7 As to Indicator 7, there is no reason to believe that the development at Mecca resulting from the Plan Amendments will not maximize the use of future public facilities and services. (The County has not planned to provide centralized water and sewer service to the Vavrus property because it does not have the legal right or ability to provide services within the boundaries of the City of Palm Beach Gardens.) Indicator 8 As to Indicator 8, a disproportionate increase in the cost in time, money, and energy may result from providing and maintaining facilities and services to the SCO. However, while this indicator may be in evidence short-term due to the cost of constructing facilities to the SCO, over time these costs would be ameliorated as more development occurs in the area. Indicator 9 As to Indicator 9, as depicted on Map H of the DRI application, which is referenced in new Policy 1.2-f as a “land use/site planning measure,” it is at least fairly debatable whether the Plan Amendments provide a clear separation between rural and urban uses. The only rural uses adjacent to Mecca are the Vavrus land to the east, and Map H depicts a 50-foot buffer there. There was evidence that the 50-foot buffer on the east is sufficient for the current use and the rural residential land use designation (1 du/10ac) placed on the Vavrus site at this time by the City of Palm Beach Gardens. The Mecca project has been designed so that, if there are changes in the future in the land use on the Vavrus property, those buffers would continue to provide compatibility. Indicator 10 As to Indicator 10, no language contained in the Plan Amendments discourages or inhibits infill or redevelopment, and the Plan still contains several provisions encouraging infill and redevelopment. On the other hand, development occurring at Mecca obviously will not result in infill or redevelopment. To the extent that the availability of economic incentives for infill and redevelopment is limited, the significant economic incentives committed to the Mecca project will not be available for infill and redevelopment. However, it is at least fairly debatable whether the infill and redevelopment measures in the Plan will be compromised by the Amendments in view of the increasing growth pressures in the County and the “tight” supply of land for development. The Plan Amendments include numerous anti-sprawl development controls that also are considered in the urban sprawl analysis. The principal controls are in the structure of the Plan Amendments, primarily the minimum and maximum amounts established for specific uses, a requirement for phasing, and a required balance of residential and non- residential uses for each phase. To mitigate sprawl, development controls should be meaningful and predictable, but also flexible. They need not include numeric setbacks and building spacing requirements, or a site plan. It is at least fairly debatable that the controls in the Amendments satisfy the State’s criteria. Cf. Rule 9J-5.006(5)(j). Petitioners' Evidence One planning witness for Petitioners who opined that the Amendments constitute sprawl did not consider the extent, amount or frequency of any indicator, contrary to Rule 9J-5.006(5)(d). He also opined there is no need for the Amendments. However, in analyzing this issue, he only reviewed portions of the Plan and a six-page summary of the EAR prepared by Petitioners’ counsel. He did not examine the 2003 Population Allocation Model or the County’s population projections and land use need analysis.7 Another planning witness for Petitioners rendered opinions about the interpretation of several indicators in the urban sprawl rule, but his testimony did not constitute expert opinions as to whether the Amendments constitute sprawl, or are "in compliance." A third planning witness for Petitioners, from the TCRPC, opined that the Amendments are sprawl, as is the existing development near Mecca. However, he admitted the definition of “sprawl” in the TCRPC's SRPP is not the same as the definition in Rule 9J-5. Urban Sprawl Summary Based on the foregoing, the determinations by the County and DCA in this case that the Plan Amendments are consistent with the state comprehensive plan, regional policy plan, the GMA, and Rule Chapter 9J-5 regarding discouraging urban sprawl, including provisions concerning the efficiency of land use, the efficient provision of public facilities and services, the separation of urban and rural land uses, and the protection of agriculture and natural resources are subject to fair debate. Capital Improvements In this category, Petitioners contend that the Plan Amendments are inconsistent with Section 163.3177(3)(a) and Rule 9J-5.016(2) and (3)(b). The statute provides: The comprehensive plan shall contain a capital improvements element designed to consider the need for and the location of public facilities in order to encourage the efficient utilization of such facilities and set forth: A component which outlines principles for construction, extension, or increase in capacity of public facilities, as well as a component which outlines principles for correcting existing public facility deficiencies, which are necessary to implement the comprehensive plan. The components shall cover at least a 5-year period. Estimated public facility costs, including a delineation of when facilities will be needed, the general location of the facilities, and projected revenue sources to fund the facilities. Standards to ensure the availability of public facilities and the adequacy of those facilities including acceptable levels of service. Standards for the management of debt. The Rule provides: Capital Improvements Analysis Requirements. The element shall be based upon the following analyses which support the comprehensive plan pursuant to subsection 9J-5.005(2), F.A.C. Current local practices that guide the timing and location of construction, extension or increases in capacity of each public facility; The general fiscal implications of the existing deficiencies and future needs for each type of public facility. This analysis shall be based on the needed improvements, as identified in the other local government comprehensive plan elements, and shall address the relative priority of need among facility types, and shall support the future land use element; The costs of needed capital improvements for mitigation of existing deficiencies, replacement and new growth needs pursuant to the future land use element and shall explain the basis of cost estimates; The impact of new or improved public educational and public health care systems and facilities on the provision of infrastructure; The use of timing and location of capital improvements to public facilities to support efficient land development and goals, objectives, and policies in the future land use element. This analysis must take into consideration plans of state agencies and water management districts that provide public facilities within the local government jurisdiction; and An assessment of the local government's ability to finance capital improvements based upon anticipated population and revenues including: Forecasting of revenues and expenditures for five years; Projections of debt service obligations for currently outstanding bond issues; Projection of ad valorem tax base, assessment ratio and millage rate; Projections of other tax bases and other revenue sources such as impact and user fees; Projection of operating cost considerations; and Projection of debt capacity. Requirements for Capital Improvements Goals, Objectives, and Policies. * * * (b) The element shall contain one or more objectives for each goal and shall address: The use of the capital improvements element as a means to meet the needs of the local government for the construction of capital facilities necessary to meet existing deficiencies, to accommodate desired future growth and to replace obsolete or worn-out facilities; The limitation of public expenditures that subsidize development in high hazard coastal areas; The coordination of land use decisions and available or projected fiscal resources with a schedule of capital improvements which maintains adopted level of service standards and meets the existing and future facility needs; The extent to which future development will bear a proportionate cost of facility improvements necessitated by the development in order to adequately maintain adopted level of service standards; and The demonstration of the local government's ability to provide or require provision of the needed improvements identified in the other local government comprehensive plan elements and to manage the land development process so that public facility needs created by previously issued development orders or future development do not exceed the ability of the local government to fund and provide or require provision of the needed capital improvements. There was no evidence that the Plan does not contain a CIE meeting these requirements or, more germane to this case, that the Plan Amendments undo the Plan's CIE, which already has been determined to be "in compliance." Actually, while seemingly focusing here on capital improvements other than those related to traffic circulation, Petitioners attempt to use these requirements primarily as additional bases for their urban sprawl arguments, supra, and their transportation concurrency and data and analysis arguments, infra. Chapter 2003-420, Laws of Florida, provides that the County in which Scripps is located shall have the exclusive right to provide central water and sewer service to the project. The County intends to provide such service to the SCO via lines extending from Okeechobee Boulevard and SR 7 about 12.5 miles away. The County has enough plant capacity to serve the SCO through build-out. Assuming Scripps Florida is located at the SCO, it would be expected to pay guaranteed revenue fees, connection fees, and on-line rates (which could be special rates set for Scripps and Mecca.) The evidence was that the total cost of construction for the lines to serve the SCO, while substantial at approximately $15 million (some of which would be expended with or without the SCO), is a relatively small percentage (5-6 percent) of the County's overall capital improvements budget, is relatively minor in light of the County’s strong financial condition, will enhance the use of existing assets and rate stability for customers, represents a least-cost and efficient approach for the area to be served, and will not cause other water and sewer needs to go unmet. The County’s 2005-2010 Capital Improvements Schedule (CIS) is financially feasible, as are each year’s program in the CIS. The CIS is based on best available data. Capital outlays to support the SCO will not deprive the County of money for other needed projects or distort the County’s fiscal priorities. Transportation Concurrency The Petitioners' focus here is on the CRALLS designations. CRALLS designations have been assigned to 37 different road segments and 6 intersections, not only near Mecca but also as far north as Indiantown Road, as far south as Okeechobee Boulevard, and as far east as I-95. They are set at vehicle loadings that match the traffic loads expected with development of the SCO. They only apply to the SCO. Other developments cannot rely on them but must use an applicable LOSS. In part, Petitioners frame their arguments on inconsistency with statutes and rules governing interim LOSS designed to correct existing deficiencies and set priorities for addressing backlogged facilities; Transportation Concurrency Management Areas used to promote infill and redevelopment; and Transportation Concurrency Exception Areas used to reduce the adverse impact transportation concurrency may have on urban infill and redevelopment and to achieve other goals and policies of the state comprehensive plan, such as promoting the development of public transportation. See Section 163.3180(9) and Rule 9J-5.0055(4)-(6). However, DCA and the County have made no effort to defend its CRALLS under those provisions.8 Rather, their position is that a CRALLS designation is a specialized LOSS that is "in compliance" without resort to those provisions of the law. DCA and the County seemed to come close to defending the CRALLS in part on the ground that the County has absolute discretion to establish these CRALLS and that they are not even subject to review for adequacy. Such a legal position would be untenable. Cf. Conclusion 217, infra. Assessment of the adequacy of the CRALLS is required. The transportation issues associated with the SCO are unprecedented in the County because of its size, location, and 30-year build-out. To address the challenges posed by these factors, the County relied on a combination of strategies to address transportation, including road improvements, CRALLS, adopting development controls for the SCO, and requiring mitigation. The initial transportation issue for the SCO was posed by FLUE Policy 3.5-d. This policy prohibits land use changes expected to generate significant impacts on any roadway segment projected to fail to operate at LOSS "D" based on the adopted Long-Range Transportation Plan. This policy is self-imposed and not required by the State. The SCO would generate trips beyond the significance thresholds in FLUE Policy 3.5-d. The County Engineer supported an exemption from this policy for the SCO because traffic considerations should not outweigh the economic and other land use goals the County is pursuing with the SCO. The first traffic analysis for the SCO was included in the DRI application, and was predicated on 10.5 million square feet of R&D. Later, in conjunction with re-zoning, the County’s consultants prepared a concurrency analysis for 8.5 million square feet of R&D, reflecting the maximum allowed by the Plan Amendments. All traffic analyses were performed as they would have been for a private developer, with methodologies approved by the County in collaboration with FDOT, TCRPC and Martin County. Assumptions were conservative, representing a worst- case scenario. SCO-related road improvements approved by the County in its five-year road program for 2005-2009 included 18 segments and three intersections at a total cost of $179.7 million. Of these, eight projects totaling $64.8 million were not new or changed in their amount of funding. The SCO-related improvements in the five-year road program were incorporated into the CIS for 2005-2010. An additional $26 million for these projects was included for 2010. Approximately 70 percent of the improvements needed for the SCO was previously identified on the 2020 Roadway System Map. In addition to these construction projects, the County also lowered the LOSS on some roads and intersections that would be impacted by the SCO over the next 30 years. In doing so, the County utilized its long-standing policy of establishing a CRALLS designation for each such road segment or intersection. The County is authorized under its charter to set LOSS's for all major roadways in unincorporated areas and municipalities except for the FIHS. The State sets the LOSS on roads in the FIHS. The County's generally applicable LOSS is LOSS “D”. Since 1989, the County has utilized the CRALLS strategy to establish an alternative LOSS on some roads due to physical or policy constraints. Examples of physical constraints include natural features, waterways, right-of-way limitations, and other roads; neighborhood opposition to a wider road would be an example of a policy constraint. CRALLS designations are not limited to the Urban/Suburban Tier; they may be adopted for land in any tier. Under TE Policy 1.2-f, CRALLS designations by the BCC must be based on data and analysis. These data and analysis must address 11 criteria in the County’s Unified Land Development Code (ULDC). CRALLS standards typically are expressed as a numeric limit on trip loadings on the road segment or intersection in question, rather than reliance upon the conventional, generalized “A”-“F” standards used by transportation engineers. Since 1993, Chapter 163 and Rule 9J-5 have granted a local government discretion to adopt LOSS for seven types of public facilities, including roads other than FIHS roads. The only State requirements are that LOSS's must be adequate, based on data and analysis, and established for each facility type. Local governments are not prohibited from adopting LOSS's for different facilities within a service type or even project-specific LOSS's that overlay the more generally applicable LOSS for a facility or facility type. Of the 37 road segments and six intersections given project-specific CRALLS designations in the Amendments, the designations on nine road segments will become ineffective when the roads are widened as planned. Another seven segments may eventually have their CRALLS designations repealed as unneeded. These segments are projected to be no more than 12 percent over generalized LOS “D”, and the County’s experience is that a detailed arterial analysis generally will show such a segment actually operating at LOS “D” when site-specific factors are considered. Seven segments and one intersection already had CRALLS designations, but the CRALLS was changed to accommodate the SCO. An additional nine segments and four intersections were expected to have a CRALLS designation even without the SCO, due to pre-existing conditions. On all but two of these, the SCO accounted for 5% or less of the trip loadings. Five segments and one intersection received a CRALLS designation solely because of the SCO. These include three segments of PGA Boulevard, two segments of SPW, and the Northlake Boulevard to Orange Boulevard intersection. In analyzing an LOSS for adequacy, a local government should consider both technical and policy issues. Technical issues for roads include the actual amount of traffic to be allowed on a road segment or intersection at the peak hour in the peak season. Policy issues involve comparing increased congestion to other planning principles, such as preventing sprawl, promoting economic development, and neighborhood opposition to wider roads. There is not a limiting list of planning principles to consider in evaluating adequacy. The County Engineer concluded that these CRALLS designations were appropriate and adequate LOSS's. He based his opinion on the amount of traffic on each segment or intersection, how the road would function, fiscal issues, his knowledge of the area, residents’ opinions, and other factors. He noted that the maximum trips in each CRALLS designation are for the peak hour in the peak season; the peak season represents a 15 percent increase over the off-peak season. The CRALLS determinations were supported by the best available data. Among other things, the data and analysis addressed the 11 criteria identified in the ULDC. As transmitted, the Amendments included a number of temporary CRALLS designations. In its Objections, Recommendations and Comments (ORC), DCA objected that temporary CRALLS designations without an accompanying long- range CIS were inconsistent with Chapter 163 and Rule 9J-5. DCA suggested the County identify improvements for those CRALLS that were indeed temporary, and assign permanent CRALLS to those segments for which no improvements were planned. Of the 43 CRALLS designations in the Amendments as adopted, all but two were permanent. The CRALLS designations on two segments of Northlake Boulevard were to be “no longer in effect” after the extension of PGA Boulevard. These CRALLS designations are supported by a fully-funded extension of PGA Boulevard from SPW to the Beeline in the CIS. Considering the road improvements in the adopted CIS and the CRALLS designations adopted in the Amendments, the County will achieve and maintain the LOSS's on roads affected by the Amendments through 2009. In addition to road improvements and adopting CRALLS, the County adopted “best planning practices” for transportation in the Amendments. These included a variety of requirements in FLUE Policy 2.8-c, 1.-3., emphasizing bicycle and pedestrian mobility, project design measures like slip roads, and mixing uses to enhance internal trip capture. Policy 2.8-c, 9., included several requirements intended to foster public transportation at the SCO. Policy 2.8-d required a balance of residential and non-residential uses in each five-year project phase. Finally, the Amendments include required mitigation measures in conjunction with the CRALLS designations, including road construction and design principles for the SCO. Petitioners’ transportation witness opined that the CRALLS designations were not adequate and, in some cases, not feasible. But for several reasons, his opinions were not beyond fair debate. First, he based his opinion on the traffic analysis of 10.5 million square feet of development in the DRI application, which was later reduced to a maximum of 8.5 million, unbeknownst to the witness. Second, his technical analysis was general and did not take into account the County’s actual experience, which is not professionally acceptable data and analysis for purposes of a plan amendment. For example, some CRALLS loadings he said were impossible to achieve are already being met or exceeded in the County on actual roads, and traffic on some roads flows at speeds equivalent to LOS “D” even though trip loadings greatly exceed the LOS "D" numbers on the generalized LOS tables. Third, his opinion did not take into account the possibility that required on-site affordable housing and CRALLS mitigation measures in the Plan Amendments might increase internal trip capture and reduce trips on the external roadway system. Fourth, he assumed that the only policies the County could consider when evaluating the adequacy of a CRALLS designation are infill, redevelopment, and promotion of “forgotten modes” of transportation like bicycles; he did not consider economic development, urban sprawl, growth pressures, and other planning principles. Data and Analysis Paragraph 75 of the Amended Petition, labeled "Data and Analysis," alleges that the Plan Amendments are: not clearly based on the relevant and appropriate and professionally-accepted data and analysis regarding: impacts to adjacent natural areas; compatibility with adjacent land uses; impacts to the Loxahatchee River and restoration thereof; the Comprehensive Everglades Restoration Plan [CERP] and components thereof; impacts to rural communities; the availability and necessity of infrastructure and the provision thereof to support the project; the necessity for and the amount of land needed to accommodate the project; the availability and suitability of alternative sites for the project; the character of the undeveloped land and the surrounding community; the economic impacts of the proposed plan amendments; [and]9 the likelihood of developing an economically significant biotech industry as [a] result of the plan amendments . . . as required by sections 163.3177(6)(a), (8) and (10)(e), Fla. Stat. and Rule 9J-5.005(2) and (5)10 and 9J-5.006(2) and 9J-5.013(1) F.A.C.11 Section 163.3177(6)(a) requires that the future land use plan be based on appropriate data and analysis. Section 163.3177(8) requires all elements of comprehensive plans to be "based upon data appropriate to the element involved." Section 163.3177(10)(e) states the Legislature's intent that goals and policies be "clearly based on appropriate data"; states that DCA "may evaluate the application of a methodology utilized in data collection or whether a particular methodology is professionally accepted"; and states that DCA "shall not evaluate whether one accepted methodology is better than another." Rule 9J-5.005(2) states in pertinent part: (a) All goals, objectives, policies, standards, findings and conclusions within the comprehensive plan and its support documents, and within plan amendments and their support documents, shall be based upon relevant and appropriate data and the analyses applicable to each element. To be based upon data means to react to it in an appropriate way and to the extent necessary indicated by the data available on that particular subject at the time of adoption of the plan or plan amendment at issue. Rule 9J-5.006(2) describes the Land Use Analysis Requirements for the FLUE. It should be noted that new FLUE Policy 2.8-f in the Plan Amendments provides: "If the Scripps Research Institute does not move forward on the Mecca site, Staff shall bring to the BCC for initiation proposed amendments to consider removing any text and maps related to the [SCO] from the Comprehensive Plan." While Petitioners characterize this Policy as an admission that the Plan Amendments are not "in compliance," the Policy actually is prudent and would allow reconsideration of planning for Mecca and vicinity with a Scripps-anchored biotechnology cluster effort located elsewhere in the County (or even without any Scripps-anchored biotechnology cluster effort in the County, if that were to occur) as part of the EAR-based and sector planning efforts of the County. Some parts of the data and analysis would not be "professionally accepted" and, standing alone, would not be adequate to support the Plan Amendments. For example, the Washington Economic Group report is not "professionally accepted" because: it does not explain its methodology; it is based on an erroneous assumption that the plan for Scripps Florida, which is planned to be smaller than Scripps California, will generate the level of biotechnical industry found in all of San Diego, which includes not only Scripps, but also the University of California at San Diego and the Salk Institute in its cluster; it overestimates the importance of Scripps' role in the San Diego cluster; and it double- counts Scripps employment in its employment estimates. But other data and analysis corrected these errors. The amount of data and analysis supporting the Plan Amendments is voluminous. Petitioners' data and analysis arguments essentially are that the same evidence they presented as to the substantive areas of concern proves alleged failures of data and analysis to be "professionally accepted" and adequate. As indicated elsewhere in this RO, Petitioners' evidence did not prove their case as to substantive areas of concern beyond fair debate; likewise, they did not prove beyond fair debate that the totality of the data and analysis supporting the Plan Amendments were not "professionally accepted" or were inadequate. Internal Consistency The Amended Petition alleges numerous internal inconsistencies. Section 163.3177(2) requires: "The several elements of the comprehensive plan shall be consistent . . . ." Rule 9J-5.005(5) repeats this admonition in subparagraph (a), and subparagraph (b) adds: "Each map depicting future conditions must reflect goals, objectives, and policies within all elements and each such map must be contained within the comprehensive plan." Petitioners allege inconsistency with the following statements in section B., the Assessment and Conclusions section of the Introduction to the FLUE, that the updated 1989 Plan implements the direction provided by the BCC to: strengthen and facilitate revitalization and redevelopment and infill development programs; protect agricultural land and equestrian based industries; balance growth through the County; * * * 8. establish a timing and phasing program to provide for orderly growth; * * * coordinate growth with the provision of infrastructure; define how growth/services will be managed in rural residential areas; define service areas and the type of services to be provided within each service area; and provide criteria for expanding the Urban/Suburban Tier. Petitioners allege inconsistency with the following GOPs of the FLUE: Goal 1, to establish the Tier System. Policy 1.1-b, establishing criteria for redesignation of a Tier. Policy 1.1-d, not to modify the Tier System if redesignation would exhibit the characteristics of urban sprawl, as defined by Rule 9J-5.006. Objective 1.4, for a Rural Tier to protect and maintain rural residential, equestrian, and agricultural areas. Policy 1.4-k, not to make future land use decisions that increase density and/or intensity requiring major new public investments in capital facilities and related services in the Rural Tier. Objective 2.1, to designate sufficient land area in each land use designation to manage and direct future development to appropriate locations to achieve balanced growth. Policy 2.1-f, not to exceed the natural or manmade constraints of an area considering assessment of soil types, wetlands, flood plains, wellfield zones, aquifer recharge areas, committed residential development, the transportation network, and available facilities and services; and not to underutilize existing or planned capacities of urban services. Policy 2.2-b, requiring: an adequate justification and a demonstrated need for proposed future land use; for residential density increases to demonstrate that the current land use is inappropriate; for a review and determination of compatibility with existing and planned development in the immediate vicinity; and an evaluation of impacts on the natural environment, availability of facilities and services, adjacent and surrounding development, future land use balance, prevention of urban sprawl as defined by Rule 9J- 5.006(5)(g), Community Plans and/or recognized Planning Area Special Studies, and municipalities in accordance with Intergovernmental Coordination Element Objective 1.1. Policy 2.2-d, to ensure consistency of the County's ULDC with the appropriate elements of the Plan. Objective 2.6, to establish a transfer of development rights (TDR) program. Policy 2.6-b, requiring the TDR program to be the method for increasing density within the County unless an applicant can justify and demonstrate need and that the current designation is inappropriate, or is using the Voluntary Density Bonus program, as outlined in the Housing Element and the ULDC. Policy 2.6-f, limiting potential TDR receiving areas to the Urban/Suburban Tier, Planned Development Districts and Traditional Development Districts requesting a density increase, and subdivisions requesting a bonus density above the standard density. Policy 2.6-h, prohibiting designation of receiving areas which would result in a significant negative impact upon adjacent Environmentally Sensitive Land. Policy 2.6-i, prohibiting designation of receiving areas which would be incompatible with surrounding existing and future land uses. Goal 3, to define graduated service areas for directing services to the County's diverse neighborhoods and communities in a timely and cost-effective manner. Objective 3.1, to establish graduated service areas to distinguish levels and types of services needed in a Tier. Policy 3.1-a, to establish the USA, LUSA, and RSA considering: the density and intensity of land uses depicted in the FLUE Atlas; the cost and feasibility of extending services; the necessity to protect natural resources; and the objective of encouraging reinvestment in the Revitalization and Redevelopment Overlay. Objective 3.4, to require a RSA which meets the needs of rural development and use without encouraging the conversion of rural areas to more intense uses. Policy 3.4-a, for the RSA to include those areas of the County where the extension of urban LOS's is neither foreseen during the long range planning horizon nor warranted by development patterns or densities and intensities allowed. Policy 3.4-c, not to provide or subsidize centralized potable water or sanitary sewer in the RSA unless: required to correct an existing problem; required to prevent a projected public health hazard; required to prevent significant environmental degradation; or required by the Public Health Department for development in the Rural Tier adjacent to water and/or sewer lines which existed prior to adoption of the Plan in 1989. Objective 3.5, to require availability of services concurrent with impacts of development, to ensure consistency of decisions regarding location, extent, and intensity of future land use (particularly urban expansion), with types of land use and development established in each Tier. Objective 4.1, to develop and implement a Community Planning and Neighborhood Planning program, consider the program's plans for more livable communities with a strong sense of place and identity for the various regions in the County. Policy 4.1-c, to consider the objectives and recommendations of all Community and Neighborhood Plans, including recognized Planning Area Special Studies, prior to extending utilities or services, approving land use amendments, or issuing development orders for rezoning, conditional use, or Development Review Committee approval. Goal 5, to provide for the continual protection, preservation, and enhancement of the County's various high quality environmental communities. Petitioners allege inconsistency with the following parts of the Conservation Element (CE): Objective 2.1, to preserve and protect native communities and ecosystems to ensure that representative communities remain intact, giving priority to significant native vegetation. Policy 2.1-g, to ensure that management plans are developed for County-owned or County-managed natural areas and that uses allowed on these lands are compatible with them and preserve their natural character. Objective 2.4, to protect and preserve endangered and threatened species, species of special concern, and their associated habitats. Petitioners allege inconsistency with the following GOPs of the CIE: Objective 1.1, to maintain minimum LOSS's for various facilities, including traffic circulation, and to issue development approvals based on ability to maintain those LOSS's. Objective 1.4, to identify and fund services and capital improvements required by the Plan. Policy 1.4-a, to fund projects and programs to (not in order of importance): correct public hazards; eliminate existing deficiencies in LOS's; provide capacity for projects in the USA approved through development orders; provide for renewal and replacement of, and improvement to, existing public infrastructure and physical assets; maintain LOS's as new growth occurs; increase existing LOS's to desired LOS's; and implement the GOPs in the Plan. Policy 1.5-c, not to provide urban LOS's in the RSA except where allowed under CIE Objective 1.1, required to correct a public health hazard, or required by the Public Health Department for development in the Rural Tier adjacent to water and/or sewer lines which existed prior to adoption of the Plan in 1989. (Other internal consistencies mentioned in Petitioners' PRO were not alleged or heard by consent and may not be considered. See Conclusion 212, infra.) The evidence did not prove beyond fair debate that the Plan Amendments cause the elements of the Plan to be internally inconsistent, or cause the depictions of future conditions in the FLUE Atlas not to reflect the GOPs within all elements of the Plan. Natural Resources Impacts on the Mecca Site As a result of its use for citrus growing and mining, Mecca itself is devoid of significant environmental value. The South Florida Water Management District (SFWMD) has found no jurisdictional wetlands on it. There are no native plant communities; in fact, there is virtually no native vegetation anywhere on the site. Mecca is used by wildlife in limited and intermittent ways. The main wildlife use is localized foraging by species such as sandhill cranes and wood storks in the impoundment and irrigation ditches. Mecca does not provide suitable habitat for nesting or denning. A listed species survey revealed no gopher tortoises or snail kites. The surface water management system for the first 535 acres of the SCO has received a construction permit, and the system for the total site was conceptually approved based on water quantity and water quality compliance. See Florida Wildlife Federation, et al., v. SFWMD, et al., SFWMD Order No. 2004-208 FOF ERP, DOAH Case Nos. 04-3064 and 04-3084, 2004 WL 2770101 (DOAH December 3, 2004; SFWMD Final Order December 8, 2004). No significant adverse impacts to natural resources on Mecca itself would result from development of the SCO on Mecca. Impacts of Development on Mecca on Natural Areas Surrounding Mecca The lands surrounding Mecca are more significant environmentally. They include Corbett WMA to the west, Hungryland Slough to the north and northeast, the Vavrus property to the east, and the North County Airport Preserve (Conservation lands to the west, south, and southeast of that Airport) east of the Vavrus property. Farther away to the east and northeast is the Loxahatchee Slough and the Northwest Fork of the Loxahatchee River, including its federally- designated Wild and Scenic and Outstanding Florida Water portion. Farther away to the southeast is the Grassy Waters Water Preserve Area, which is both a high quality natural wetlands area and an important source of drinking water for the City of West Palm Beach. New FLUE Policy 2.8-c requires the adoption of design standards for the SCO which, among other things, will at a minimum address: 4. Protection of conservation lands to the north and west of the SCO and include a passive recreational wetland system to enhance the quality of surrounding areas of environmentally sensitive lands. In accordance with this Policy, Map H designates a 247-acre, 500-1,000 foot wide flow-way along the entire north and west sides of Mecca. The flow-way will consist of braided channels through a freshwater marsh, as well as forested wetland and upland tree islands. These wetlands will enhance recreation and wildlife use. The mining lake and a new, separate lake on the south end of the site will have littoral shelves and plantings conducive to wildlife use. In addition to providing onsite environmental benefits, the flow-way will help protect adjacent environmental lands to the west and north from the effects of development on Mecca itself. Impacts of Road Construction on Natural Areas Surrounding Mecca SPW as currently depicted in the Plan runs directly along the western border of Mecca immediately adjacent to Corbett WMA. By virtue of the Amendments, the road alignment has been moved eastward onto Mecca, with the flow-way on its west as a buffer between the actual road and Corbett. This road alignment and buffer can be expected to have less of an impact on Corbett than would an alignment without a buffer. In addition to the impacts of development on Mecca itself, the Plan Amendments also affect road construction offsite that have environmental impacts. The extension of SPW from south of Mecca north to the Beeline through the Hungryland Slough was planned and included in the Plan's 2020 Roadway System Map before the Amendments were adopted, but was not in the County's five-year road program through 2009. The Amendments enlarged the planned roadway from four to six lanes and accelerated its construction to 2007. The extension of PGA Boulevard west from the Beeline to Mecca was not depicted in the Plan prior to the Amendments. The Plan Amendments identify a new 260-foot wide ROW on the new TIM; although the ROW could accommodate ten lanes of roadway, a six-lane road is depicted on the new 2020 Roadway System Map. The new road construction is expected to impact a number of wetlands on private property, but the exact extent of this impact is not known as its precise alignment has not been selected, and the general alignment depicted in Ordinance No. 2004-39 does not allow an exact assessment of potential environmental impacts. In order to examine potential impacts of the PGA Boulevard Extension, the County studied the “worst case scenario” for the extension if it were completed in a straight-line from the Beeline to Mecca. A road constructed on this alignment would directly impact over 45 acres of wetlands, and have an indirect impact upon another 56 acres of wetlands. SFWMD considered this “worst case scenario” as part of its review of secondary impacts for purposes of the conceptual permit it issued for the SCO, which assumed that impacts will be lessened during subsequent permitting as a result of SFWMD's avoidance, minimization, and mitigation requirements. See Florida Wildlife Federation, et al., v. SFWMD, et al., SFWMD Order No. 2004-208 FOF ERP, supra. Habitat Fragmentation The integrity of natural areas is very important to wildlife. For one thing, the ability of wildlife to move around and mix to enlarge the gene pool increases the structural stability of wildlife populations. Loss of enough integrated habitat can be very damaging to particular species of wildlife. As habitat becomes further and further fragmented by development, the remaining connections among areas of quality habitat become increasingly important in general and especially for particular species of wildlife. Development and roads built through natural areas result in road kill and habitat fragmentation, which compromises the quality of the natural areas. Before the Plan Amendments, through at least 2009, wildlife would have had the ability to use Mecca and especially Hungryland to move between Corbett, Vavrus, the North County Airport Preserve, without having to cross any major roads until coming to the Beeline and Northlake Boulevard, which separate those areas from the Loxahatchee Slough northeast of the Beeline and north and south of existing PGA Boulevard, and from the Grassy Waters Preserve south of Northlake Boulevard. At some point between 2009 and 2020, a four-lane extension of SPW was planned to be added. As a result of the Plan Amendments, the SPW extension will be accelerated to 2007 and constructed with two additional lanes. As a result, the Plan Amendments will tend to reduce connectivity, increase fragmentation of natural habitats, and probably increase road kill of deer, alligators, various kinds of turtles, otters, and snakes. While not part of the Plan Amendments, planned protection measures include fencing to separate Corbett from the Mecca project and wildlife crossings and bridging installed along with the widening of SPW north of Mecca and the extension of PGA Boulevard to Mecca in an attempt to retain the linkage of open wetland and upland areas to the west, north and east, consistent with CE Objective 5.1. Unfortunately, even if the fencing and wildlife crossings and bridging are 100 percent effective for larger animals (which they probably will not be), it should be recognized that many smaller animals will benefit little from them if at all. In particular, increased road kills of listed indigo snakes should be expected due to their large habitat home range (200-acre home range for males). Fire Management Virtually all plant communities in the vicinity of Mecca are fire dependent--in order to be maintained in their natural state, they must be burned approximately every three years, or they will be invaded by exotic species, and their habitat values will be reduced. The inability to maintain a regular burn schedule also poses a public safety threat due to the increased risk of wildfires. Fire management is compromised near roadways and developed areas due to health concerns, reduced visibility, and increased wildfire threat. Caution is used when burning near roadways so as not to cause (traffic accidents,) or to be blamed unfairly for causing them, which can be just as bad for the public relations that have to be maintained to successfully fire-manage natural lands. If an airport, hospital, school, or community is within two miles of a burn area, it is considered a smoke-critical area. If Mecca is developed as proposed, it will be considered a smoke-critical area for many burns in Corbett, which will not be able to be burned if the wind is blowing from the west. In Corbett, which has a lot of lighter wood, fires often smolder for weeks, further constraining fire management. For these reasons, the development allowed by the Plan Amendments will negatively impact the management of Corbett. However, there are alternative fire-management techniques that can be used, if necessary, in natural areas adjacent to Mecca. In addition, with or without the SCO, the County was planning a four-lane extension of SPW along the eastern boundary of Corbett, which would be a constraint on fire management. Light Impacts The proposed development on Mecca will add light sources that will alter the nighttime sky viewable from Corbett, Hungryland, and the Loxahatchee Slough. Depending on the extent, such an alteration would reduce recreational values of Corbett. Lights also can interrupt bird migration and be harmful to migratory birds. The area surrounding Mecca is important for migratory birds because the lack of lighting provides a dark sky and safe route for migration. Special downward-directed lighting that can reduce the adverse impacts from lighting is intended to be used on the Mecca project although a clear requirement to use them is not included in the Plan Amendments. Noise, Pollution, and Mosquito Control Noise and other roadway disturbance cause behavioral problems in wildlife, disrupt bird-nesting for considerable distances, and negatively impact prey and predator by interfering with offensive and defensive mechanisms. However, it should not be anticipated that these kinds of impacts will be significant. In most cases, they probably will disturb the human recreational users of these public lands more than the wildlife. Fertilizer and pesticide use on Mecca may be harmful to wildlife on adjacent properties. But there are ways to control their ill effects through land development regulation consistent with provision in the CE of the Plan. Mosquito control is typically required in urban developments, and is accomplished through the use of pesticides that are not only targeted towards mosquitoes, which are an important part of the food chain, but also kill a wide variety of insects, spiders, and invertebrates. This reduces the populations of these species, negatively impacts species that rely on them for food, can be expected to result in less food for birds such as tree swallows, which feed heavily on mosquitoes, as well as dragonflies, and numerous species that rely on mosquito larvae in the aquatic environment. Loxahatchee River Basin Petitioners contend that it is unacceptably poor planning to develop the SCO on Mecca at this time and eliminate it as an option for use for water storage as part of efforts to restore the Loxahatchee River. The Loxahatchee River has been negatively impacted by development in its basin. Such development has resulted in several changes, including the redirection of water discharge to other basins and an unnatural increase in stormwater drainage. These changes to the drainage patterns have resulted in several problems, including excessively high flows in the river following rainfall events, and reduced base flows during the dry season. Excessive flows during the wet season have resulted in erosion of the stream bed, sedimentation blocking the channel at times, and sometimes water quality problems and fish kills. Reduced base flows during the dry season have contributed to allowing saltwater intrusion up the river channel. (Other contributing factors include straightening and stabilization of the inlet to reduce the need for maintenance dredging and the removal of a large oyster bar from the riverbed for navigation purposes.) Saltwater intrusion has altered aquatic ecosystems and caused a change in the vegetation along the riverbanks. Specifically, freshwater cypress-dominated wetlands used to occur as far seaward as 6.2 miles from the river mouth; now mangroves have replaced the cypress swamps as far inland as river mile 9.2, and the cypress wetlands to river mile 10.2 are stressed. Restoration of the Loxahatchee River is an objective of CERP, North Palm Beach County Part One. One component of North Palm Beach County Part One was for SFWMD to acquire rock mine pits for water storage from Palm Beach Aggregates near where the L-8 canal meets the C-51 canal. SFWMD plans to channel water through canals into these pits during wet season or high rainfall events, then discharge the water from the pits back through the canals during dry season. One destination for this fresh water during the dry season would be the Loxahatchee River. Until recently, prior to the Scripps opportunity, the North Palm Beach County Part One CERP team also was considering use of Mecca for water storage as a possible management measure in the overall CERP strategy for restoration of the Loxahatchee River. Mecca was considered for two main reasons. One was its location on the west leg of the C-18 canal, which receives discharges from the C-18 basin and flows into the Loxahatchee River. Water could be fairly easily stored there during the wet season and released to the river during the dry season. The other was its disturbed condition, being an orange grove and sand mine. The only other potential water storage sites near the C-18 canal without pristine wetlands that would be unsuitable and undesirable sites for a water storage facility is approximately 1,500 acres of disturbed agricultural land on Vavrus. (The other two-thirds of the Vavrus property has high-quality wetlands habitat.) However, Mecca was not specifically mentioned in any component of CERP, North Palm Beach County Part One, and consideration also was being given to restoring the Loxahatchee River without using Mecca for water storage. No decision was made to use Mecca for water storage, and no steps were taken to purchase Mecca for this purpose. When the Scripps opportunity arose, the County purchased the property for development of a biotechnology research park and applied to SRWMD for a surface water storage and management system and environmental resource permit. One issue was whether the permit would be consistent with the objectives of SFWMD, including CERP. SFWMD did a preliminary study, which included modeling, and determined that Mecca would not be needed for water storage, finding that water storage capacity available in the Palm Beach Aggregates rock mine pits was sufficient, given the pits’ location, depth, and access to nearby canals. SFWMD already had a contract for use of 48,000 acre-feet feet of storage capacity, which is more than seven times the achievable storage at Mecca. In addition, SFWMD was negotiating to acquire the right to double that storage capacity at Palm Beach Aggregates. Based on the County's plans to develop the SCO on Mecca, and the options available for restoring the Loxahatchee without water storage on Mecca, the CERP team eliminated the Mecca option. Instead, SFWMD and the County coordinated on the role the SCO might play in the recovery effort. SFWMD concluded that Mecca could be used to advantage as part of the water conveyance system between the rock mine pits and environmental areas, including the Loxahatchee River. Establishing a flow-way from the south to north of Mecca would give SFWMD another route with which to move water, would reduce dependence on Lake Okeechobee for fresh water, and would provide greater base flows to the Loxahatchee. Based on SFWMD input, the County designed for Mecca a flow-way that will allow flow up to 1,000 cubic feet of water per second (cfs) to assist recovery efforts for the Loxahatchee. Construction at Mecca is phased to assure that the existing onsite impoundment will be in place until the flow-way is functioning. This conveyance system will benefit offsite resources and improve water quality, and is consistent with and complementary to SFWMD’s CERP implementation. Petitioners' witnesses criticized the decision to proceed with development of the SCO on Mecca at this time on the ground that CERP's implementation report (a/k/a "tentatively selected plan") has yet to be approved. However, approval requires not only agreement by the State and federal agencies involved but also a vote of the United States Congress, which may not occur until 2008. It is a fairly debatable policy question whether to postpone a decision on developing the SCO at Mecca until Congress approves an ultimate CERP implementation plan. Petitioners' witnesses also criticized the modeling relied on by SFWMD to eliminate the Mecca option. They pointed out that the modeling was not peer-reviewed and that it assumed 80,000 to 100,000 acre-feet of storage at the rock mine pits. But this point, too, is fairly debatable. First, while peer-review is required in the CERP planning process, it is not required of data and analysis under the GMA. See Finding 136, supra. Second, the purpose of the modeling was to supplement modeling already done assuming 48,000 acre-feet of storage for comparison purposes. It was not intended to answer the ultimate question of CERP planning process--whether the CERP implementation plan will meet CERP objectives, including restoration of the Loxahatchee. In addition, based on the evidence, prospects for obtaining the additional storage seem reasonably good. Third, water from the rock mine pits is only one of four sources of flow needed for restoration of the Loxahatchee. The combination of sources CERP will use has not been determined yet. Preliminarily, it is estimated that base flows from the south will be required to maintain 65 cfs minimum flows at the Lainhart Dam. Based on the evidence, the prospects for being able to maintain those flows using water from the rock mine pits are reasonably good. Other necessary flow will be sought from the Palmar/Cypress Creek and Kitchen Creek areas to the north. Fourth, as for reducing high flows during the wet season, it is fairly debatable whether the plan to use the Palm Beach Aggregates rock mine pits alone for water storage will work well enough. It could be that, despite capacity limitations on storage potential in the C-18 basin, some storage there may prove beneficial, perhaps in conjunction with aquifer storage and recovery wells (ASRs), along with the rock mine pits. Even with the Plan Amendments, there remains some potential at this time that a limited portion of Mecca and disturbed portions of Vavrus could be used for this purpose if needed. Petitioners' witnesses also complained that use of the rock mine pits along with a flow-way through Mecca will require potentially costly land acquisition and permitting and modification of existing canals and construction of new canals, as well as larger pumps, and that water will be lost in transit between the rock mine pits and Mecca through evaporation. But there was no evidence that those factors will in fact harm or jeopardize restoration of the Loxahatchee River. Meanwhile, it is significant that the flow-way on Mecca will be provided by the County and will not cost SFWMD or CERP anything. Natural Resources Summary As can be seen, development of the SCO at Mecca will not be without some adverse impacts to natural resources and the environment. However, the County's determination that the benefits of the SCO outweigh the harm of those impacts, so as not to cause the Plan Amendments to be "in compliance," is a policy decision that is at least fairly debatable. Community Character and Compatibility It is obvious that the Plan Amendments will result in a complete change in the character and use of the Mecca site. Without question, development of the SCO at Mecca will impact adjacent lands and the character of the nearest communities. The question raised, however, is whether the changes at Mecca are compatible with the character and uses of the surrounding lands. New FLUE Policy 2.8-c requires, among other things: urban uses allowed by the SCO to have a defined edge; protection of conservation lands to the north and west by a passive recreational wetland system to enhance the quality of surrounding environmentally sensitive lands; and compatibility with and minimization of impacts on land uses adjacent to the SCO. Map H of the DRI application shows wetland and other buffers on the north, west, and south sides of the SCO, and a 50-foot upland buffer along the Vavrus property to the east. There was evidence that the 50-foot buffer on the east is sufficient for the current use and the rural residential land use designation (1 du/10ac) placed on the Vavrus site at this time by the City of Palm Beach Gardens. The Mecca project has been designed so that, if there are changes in the future in the land use on the Vavrus property, those buffers would continue to provide compatibility. Corbett WMA and the Hungryland preservation lands in Unit 11 will be buffered by passive recreational wetlands 500 to 1,000 feet wide, based on Map H. Corbett WMA will be benefited by moving Seminole Pratt-Whitney (SPW) Road to the east of the SCO westerly buffer and converting the existing roadbed to an equestrian trail.12 To the south, The Acreage is an example of urban or suburban sprawl. A residential development platted in 1.25- acre lots, it has all internal roads in place and in use. There was ample evidence that development of the SCO can be compatible with The Acreage. The southerly buffer between the nearest residence in The Acreage and development in the SCO would be about 800 feet. SPW already is in the 2020 TIM and Roadway System Map as a four-lane paved road through The Acreage and north past Mecca and the Beeline to Indiantown Road. However, SPW Road already has a 120-foot-wide ROW, which can accommodate a six- lane road, and The Acreage Neighborhood Plan calls for construction of this road from Northlake to the Beeline Highway, as well as extension of SR 7 north from Okeechobee Boulevard to Northlake. There is already heavy traffic on the few major through-roads in The Acreage, and that will increase incrementally. At the same time, some work trips from The Acreage to areas of the County farther east could be offset by employment opportunities in the SCO. The North County Airport has a five-mile runway buffer zone precluding educational uses. That buffer zone was accommodated on the SCO by the arrangement of uses on Map H. The new extension of PGA Boulevard from the SCO to the Beeline Highway will be subject to FAA setback requirements, but there are options for addressing that issue when an alignment is selected. The 28-acre Accessory Site is located on the west side of SPW Road just south of the SCO. Its use for construction of SPW Road, a connector canal, and an FPL substation is compatible with the existing FPL transmission line on the property. The substation will be sufficiently buffered by canals and SPW Road from The Acreage to its east and south. Many residents in the communities in the vicinity of Mecca desire to preserve the character of their communities or, it seems, even restore it to what it was before the growth the County has seen in this area over the last several years. Several own horses and desire to continue to ride their horses along the roads in the area. However, as indicated, with or without the Plan Amendments, growth in the area was expected, the County was planning to build roads in the area, and traffic was expected to increase. Based on the foregoing, it is fairly debatable whether the Plan Amendments are compatible with community character and surrounding land uses. Regional and State Plans Section 163.3177(10) states in pertinent part: for the purpose of determining whether local comprehensive plans are consistent with the state comprehensive plan and the appropriate regional policy plan, a local plan shall be consistent with such plans if the local plan is "compatible with" and "furthers" such plans. The term "compatible with" means that the local plan is not in conflict with the state comprehensive plan or appropriate regional policy plan. The term "furthers" means to take action in the direction of realizing goals or policies of the state or regional plan. For the purposes of determining consistency of the local plan with the state comprehensive plan or the appropriate regional policy plan, the state or regional plan shall be construed as a whole and no specific goal and policy shall be construed or applied in isolation from the other goals and policies in the plans. Treasure Coast Strategic Regional Policy Plan (SRPP) In the Amended Petition, the Petitioners did not allege the Amendments are inconsistent with the SRPP, as a whole. Only allegations in the Amended Petition may be considered. See Conclusion 212, infra. Notwithstanding testimony from Petitioners’ TCRPC witness that the Plan Amendments were not consistent with some provisions of the SRPP, he did not testify that they were inconsistent with the SRPP as a whole. The Amendments further some parts of the SRPP. These include SRPP Goal 3.6 and SRPP Goal 3.7 of the Economic Development element, and their supporting strategies and policies. Petitioners' TCRPC witness testified there were five inconsistencies between the Amendments and the SRPP. However, he admitted that he did not recommend that TCRPC file formal objections to the Amendments with DCA on three grounds he cited for inconsistency at hearing --proximity to the Corbett WMA and other natural resources, the CRALLS designations, and proximity to the North County Airport. In discussing some provisions, this witness failed to give the SRPP its proper context. Many goals, strategies, and policies in the SRPP use directive verbs intended to be recommendations to a local government, not requirements. As one of his five grounds of inconsistency with the SRPP, Petitioners' TCRPC witness opined that Regional Goal 4.1 and its supporting measures require the County to prepare a regional plan before urban development may be allowed at Mecca, and to ensure such development meets the SRPP’s definition of a new town, village or city. However, this goal and its key provisions use the verb “should” and therefore are not mandates. Further, a plain reading of these provisions shows no requirement for the County to complete a regional plan as a pre-requisite for urban development. Also, the TCRPC witness opined that SRRP Policies 9.1.1.1 and 7.1.3.1 prohibit CRALLS designations outside urban areas. However, a plain reading of these policies shows no basis for such an assertion, and the witness later admitted the SRPP does not prohibit CRALLS designations in rural areas. Moreover, his testimony on this point was contradicted by his testimony that the SRPP is only “advisory.” State Comprehensive Plan The State Comprehensive Plan (SCP) is a very broad, direction-setting document. The SCP provides over-arching policy guidance, and does not impose or authorize the creation of regulatory authority. The Amended Petition alleged that the Amendments are inconsistent with the goals of the SCP regarding Land Use, Water Resources, Natural Systems and Recreational Lands, Transportation, and Urban and Downtown Revitalization, as well as numerous policies under these goals. Based on these allegations, Petitioners alleged that the Amendments are inconsistent with the SCP as a whole. To the contrary, the record evidence demonstrates that all relevant issues regarding water and other natural resources, land use, and transportation were taken into account by the County and are addressed in the Amendments. Additionally, the Amendments are consistent with and further numerous goals of the SCP not mentioned in the Amended Petition. The Amendments contain a commitment that each phase of development must contain affordable housing for very low, low, and moderate income households. This commitment furthers the SCP goal to “increase the affordability and availability of housing for low-income and moderate-income persons ” § 187.201(4), Fla. Stat. The Amendments have as their principal focus the creation of quality employment opportunities with Scripps Florida as anchor tenant. This purpose is consistent with and furthers the SCP policy to “[a]ttract new job-producing industries, corporate headquarters, distribution and service centers, regional offices, and research and development facilities to provide quality employment for the residents of Florida.” § 187.201(21)(b)(1), Fla. Stat. Summary Using the statutory definition of internal consistency, it is not beyond fair debate that the Plan Amendments are inconsistent with either the TCRPC's SRRP or the SCP.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DCA enter a final order determining that the Plan Amendments are "in compliance." DONE AND ENTERED this 28th day of April, 2005, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of April, 2005.
The Issue The issue in these cases is whether the Collier County (County) Comprehensive Plan amendments adopted through Collier County Ordinance Number 02-32 ("the Rural Fringe Amendments" or "the Amendments") on June 19, 2002, are "in compliance," as defined in Section 163.3184(1)(b), Florida Statutes.
Findings Of Fact Background The Amendments at issue in these cases arose from a specific historical background which is relevant to help put them in context. In 1997, the County adopted Evaluation and Appraisal Report-based plan amendments ("EAR-based amendments"). DCA found the EAR-based amendments not to be "in compliance." Following an administrative hearing in which FWF and Audubon intervened, the Administration Commission entered a final order agreeing with DCA's determination. Joint Exhibit J.3. The Administration Commission’s final order, entered on June 22, 1999, directed the County to take the following steps in order to bring its comprehensive plan amendments into compliance: (1) rescind those EAR-based amendments found not in compliance; (2) adopt certain specific "remedial" amendments; (3) initiate an assessment of the area of the County designated on the Future Land Use Map ("FLUM") as Agricultural/Rural; (4) adopt interim amendments to remain in force during the course of the assessment; and (5) no later than June 22, 2002, adopt those plan amendments needed to implement the findings and results of the assessment. Summary of Rural Fringe Amendments In response to the Administration Commission's final order on the EAR-based amendments, the County elected to divide its Agricultural/Rural-designated area into two subdistricts-- Rural Fringe and Eastern Lands--for purposes of the assessment and implementing plan amendments. The Rural Fringe subdistrict was designated as "the Rural Fringe Mixed Used District" (or "the Rural Fringe"). The Rural Fringe is described in the amendments as follows: The Rural Fringe Mixed Use District is identified on the Future Land Use Map. This District consists of approximately 93,600 acres, or 7% of Collier County's total land area. Significant portions of this District are adjacent to the Urban area or to the semi-rural, rapidly developing, large-lot North Golden Gate Estates platted lands. * * * The Rural Fringe Mixed Used District provides a transition between the Urban and Estates Designated lands and between the Urban and Agricultural/Rural and Conservation designated lands farther to the east. The Rural Fringe Mixed Use District employs a balanced approach, including both regulations and incentives, to protect natural resources and private property rights, providing for large areas of open space, and allowing, in designated areas, appropriate types, density and intensity of development. The Rural Fringe Mixed Use District allows for a mixture of urban and rural levels of service, including limited extension of central water and sewer, schools, recreational facilities, commercial uses and essential services deemed necessary to serve the residents of the District. In order to preserve existing natural resources, including habitat for listed species, to retain a rural, pastoral, or park-like appearance from the major public rights-of-way within this area, and to protect private property rights, the following innovative planning and development techniques are required and/or encouraged within the District. J.4 at 50. Under the Amendments, the Rural Fringe was divided into areas designated as Sending, Receiving, or Neutral on the FLUM.18 J.5. Some Sending Areas are also designated Natural Resource Protection Areas (NRPAs). Receiving Lands "are those lands within the Rural Fringe Mixed Use District that have been identified as most appropriate for development . . . ." J.4. at 51. These lands have been chosen because they "have a lesser degree of environmental or listed species habitat value than areas designated as Sending and generally have been disturbed through development, or previous or existing agricultural operations." Id. Approximately 25,000 acres are designated Receiving Lands. Receiving Lands "are also located to allow for the provision of central water and sewer and have excellent access to the County's arterial road network." J.11. at 2. The base density within Receiving Lands is one dwelling unit per five acres. However, through the purchase of development rights from Sending Lands through the Transfer of Development Rights (TDR) program established by the Amendments (discussed in Findings 72-91, infra), Receiving Lands may increase density up to one dwelling unit per acre. Additional density may be obtained if a development preserves more than the minimum required amount of native vegetation. Limited commercial, industrial, and earth-mining uses are also allowed in Receiving Lands. Receiving Lands may also be developed as "Rural Villages." The Amendments provide for the possibility of one rural village within each of the four distinct Receiving Areas in the Rural Fringe. The purpose of rural villages is described as follows: Rural Villages may be approved within the boundaries of the Rural Fringe Mixed Use District in order to: maximize the preservation of natural areas and wildlife habitat within the Rural Fringe Mixed Use District; to reduce the need for residents of the District and surrounding lands to travel to the County's Urban area for work, recreation, shopping, and education; and, to enhance the provision of limited urban and rural levels of service through economies of scale. J.4 at 62. The rural villages permitted in the Rural Fringe must consist of compact neighborhoods with nearby neighborhood or village centers. The neighborhood or village centers are to include retail and office uses; public parks, squares, or greens; civic and government uses; and service facilities. J.4 at 63. Specific provision also is made for open space in and surrounding the rural village. J.4 at 63-64. In addition to the one-village-per-district limitation, the amendments impose the following additional locational criteria on a rural village: (1) it must be at least three miles from any other rural village; (2) it must have direct access to an arterial or collector road, or the developer must bear the cost of a new collector road directly accessing the village; and (3) it must be near already- existing or planned public infrastructure, such as water and sewer facilities. J.4 at 63. In addition, a rural village may only be approved if shown to be fiscally neutral to taxpayers outside the village. J.4 at 65. Neutral Lands "have been identified for limited semi-rural residential development" at a maximum density of one dwelling unit per five acres. J.4. at 55. Limited commercial, industrial, and earth-mining uses are also allowed in Neutral Lands. Approximately 7,000 acres have been designated as Neutral Lands. Sending Lands are those lands "that have the highest degree of environmental value" and "are the principal target for preservation and conservation." J.4. at 58. The residential use of this land is restricted to one dwelling unit per parcel which existed before June 22, 1999, or one unit per 40 acres, whichever yields the greatest density. Nonresidential uses of Sending Land, other than agriculture, are quite limited. There also are specific criteria for the protection of site-specific native vegetation, wildlife habitat, and wetlands. J.4 at 58-62; J.6 at 24, 27, and 29-30. Some of the land designated Sending is also subject to regulation as NRPA. The purpose of a NRPA designation "is to protect endangered or potentially endangered species and to identify large connected intact and relatively unfragmented habitat, which may be important for these listed species." J.4 at 79. Designation as a NRPA also limits the intensity and density of development in an area (J.4 at 58-61) and imposes specific restrictions for the preservation of native vegetation, wildlife habitat, and wetlands (J.6 at 24, 27, and 29). The principal additional effect of NRPA designation is to increase the requirement for the retention of native vegetation. In addition to the changes to the Future Land Use Element (FLUE), the Amendments also affected the Coastal and Conservation Element (CCE), Potable Water Sub-Element, and Sanitary Sewer Sub-Element. Standing of Petitioners and Intervenors The evidence was that the Husseys and Brown own property in Collier County and submitted comments regarding the Rural Fringe Amendments between the transmittal hearing and the adoption hearing. The parties stipulated to the standing of FWF, Audubon, Vision & Faith, and Section 20 Investments. There also was evidence that FWF and Audubon submitted comments regarding the Rural Fringe Amendments at both the transmittal hearing and the adoption hearing and that, at least as of June 14, 2000, they owned property or operated a business in Collier County and had members who reside in Collier County. Century is a for-profit corporation that has its principal place of business in Collier County. Century owns 12.5 acres of land in Collier County. According to the testimony of Donald Lester, President of both Century and Waterford Management, Inc., Century is a wholly-owned subsidiary of Century Holdings, a limited partnership. Waterford is Century Holdings' general partner. Waterford, Century, and approximately 300 other entities are limited partners of Century Holdings. All of these entities and the land they own are managed by Waterford. According to Lester, the various Waterford-managed entities are involved in real estate development and have spent $42 million (over $30 million in "land basis" and $7-8 million on professional fees and expenses) acquiring land for development in Collier County, including approximately $36 million for approximately 3,500 acres in North Belle Meade (NBM) in the Rural Fringe and approximately $6 million for another approximately 2,000 acres farther east in Collier County. There was no evidence that these lands have obtained any master development approval or are otherwise vested for development. Coalition is a not-for-profit corporation having its principal place of business in Collier County. Lester is its Executive Director. There was no evidence that Coalition itself owns property or conducts any type of business activity in Collier County, other than commenting on the Rural Fringe Amendments and participating in these administrative proceedings. Coalition is comprised of approximately 2,000 members. Of these members, approximately 300 are the various entities making up the Century Holdings partnership and managed by Waterford. A total of approximately 320-350 Coalition members own property approximately 3,500 acres in NBM; there was no evidence that the other approximately 1,650 members own property or conduct business in Collier County. An unspecified number of members own approximately 2,000 acres to the east of NBM in Collier County. According to Lester, some members voluntarily donate money to the Coalition; others have "been supporting the proceedings" in some unspecified manner. Lester testified at final hearing that he commented on the Rural Fringe Amendments on behalf of both Century and Coalition during the adoption hearing. He indicated that he filled out and submitted a "speaker card" in order to give his comments and that the card indicated that he was speaking on behalf of both Coalition and Century; but the card was not placed in evidence. The only other evidence on the subject consisted of the transcript of that hearing, which records Lester's introductory statement as follows: "I represent a director of 15,000 coalition. I represent landowners that own property within the TDR area." The transcript also reflects that Robert Diffenderfer commented and stated: "I represent the 15,000 coalition and literally thousands of individuals. . . . On behalf of coalition and the individuals, I have the list here. There are 4,000 plus of them." While the list was not placed in evidence, it can be inferred from Lester's testimony that it would have included Century and the other Coalition members owning land in Collier County. Petitioners' Challenges Petitioners' challenges to the Rural Fringe Amendments were narrowed during the course of this proceeding and now are essentially: (1) whether the County's delineation of Sending and Receiving Lands, especially within the NBM portion of the Rural Fringe, is based upon and reacts appropriately to the best available data19; and (2) whether the TDR Program is based upon and reacts appropriately to the best available data, in particular as to the feasibility of its operation.20 Delineation of Sending and Receiving Lands A. Data and Analysis The process of delineating Sending and Receiving Lands in the Rural Fringe was involved and complex. The County accumulated and considered a wide range of data in the process. Among the data sources used were: (1) the South Florida Water Management District's (SFWMD's) 1994/1995 Land Use/Land Cover map; (2) Natural Resources Conservation Service ("NRCS") soils survey data; (3) soils tables prepared by Florida soils scientist, Howard Yamataki; (4) the National Wetlands Inventory; (5) true-color aerial photographs provided by the County property appraiser's office; (6) the updated FWCC's "Closing the Gaps" Report; (7) FWCC's updated wildlife and wildlife habitat data, including its Florida panther and Florida black bear telemetry data and red-cockaded woodpecker colony data, as well as its updated strategic habitat data and Strategic Habitat Conservation Area (SHCA) maps; and (8) the 1999 U.S. Fish and Wildlife Service (USFWS) Multi- Species/Ecosystem Recovery Implementation Team (MERIT) data for South Florida, in particular pertaining to the Florida panther. The County also actively solicited updated data from property owners and other members of the public. These opportunities for public input included numerous publicly- noticed meetings and hearings before the Rural Fringe Advisory Committee (52 to 53 meetings), the Environmental Advisory Committee, the Planning Commission, and the Board of County Commissioners. At all of these meetings, the public was invited to submit information to the County. On two occasions, notification was mailed to each property owner in the Rural Fringe, alerting them of the County's consideration of the amendments and inviting their input. The County posted signs on the two main roads entering the Rural Fringe, notifying the public of the on-going evaluation of the Rural Fringe and providing a contact name and telephone number for those wanting further information. The County also solicited information from the public via the County web page. Members of the public did submit information, some of which resulted in adjustments to the designations ultimately adopted. For example, the County received data from both Audubon and the Collier County School Board regarding red-cockaded woodpecker (RCW) habitat in the northeast corner of NBM. Similarly, Brown submitted information regarding some of his land holdings in NBM that was used in the ultimate delineation of boundaries between Receiving and Sending. The Husseys also submitted data that was considered. While all information submitted by the public was considered, not all resulted in a change in designation. For example, the County received information regarding jurisdictional wetland determinations on four separate properties and reviewed that information in order to determine whether there was a consistent correlation between jurisdictional determinations and the wetlands land cover information obtained from SFWMD. No consistent correlation was found. In two instances, the jurisdictional wetlands were larger than the area shown as wetlands land cover; in the other two, they were smaller. Despite ample opportunity, the only information submitted to the County by the Husseys was a limerock mining exploration contract on some of their property; Coalition and Century did not make any information available to the County between the transmittal and adoption hearings.21 In its analysis of the data, the County recognized that they were collected during different time periods, ranging from the 1980s through 2001. The soils data from NRCS, for example, was developed in the early 1990's from Landsat satellite imagery from 1985-1989, while the panther telemetry data reflected field data through the end of 2001. SFWMD's data was generated based upon false color infrared aerial photography and reflected changes in land cover through 1995.22 At the time of adoption of the Amendments on June 19, 2002, SFWMD's land use/land cover data was the most recent publicly-available depiction of land uses and land cover in the Rural Fringe.23 Petitioners take the position that the NRCS Soils Survey data was the most accurate data available because it was "ground-truthed." But the NRCS data did not depict land use cover; and it was not proven that the NRCS data accurately and reliably depicted vegetative cover.24 Petitioners also criticized the County for not "ground-truthing" the SFWMD data despite having knowledge of inaccuracies in its depiction of jurisdictional wetlands. But even if it were the County's intention to delineate Sending Lands based on the presence of jurisdictional wetlands, "ground-truthing" would have required the collection of additional data, as Petitioners' own expert conceded. See Conclusion 105, infra. The Husseys also argued in their PRO that the NRCS soils survey data should have been used instead of the SFWMD land use and cover data to delineate wetlands because it was "ground-truthed." But even if it were the County's intention to delineate Sending Lands based on the presence of jurisdictional wetlands, the NRCS data does not purport to identify jurisdictional wetlands and should not be used as a proxy for the presence of jurisdictional wetlands due to drainage activities, particularly in NBM. The Husseys had a Lower Tamiami (Aquifer) Recharge/ Discharge map and a map of the County's Wellfield Protection Zones admitted in evidence and argued in their PRO that the County failed to consider these data in delineating Sending Lands and Receiving Lands. To the contrary, the only evidence was that these maps were considered by the County's environmental specialists. Moreover, there was no evidence that these data were in any way inconsistent with the delineation of Sending and Receiving Lands in the Rural Fringe. Having accepted the SFWMD land cover data as the most accurate indicator of land cover and land uses, the County "updated" Gaps Report maps of biodiversity hotspot areas (which were based upon 1980 satellite imaging) by removing areas shown on the more current SFWMD maps to have been cleared for agriculture by 1995 or 1996. Petitioners contended that "updating" the data in this manner made resulting data and analysis inaccurate and misleading by "masking" natural resource information. But those maps were intended to depict features on parts of the Rural Fringe not mapped as agricultural land use cover on SFWMD's land use cover maps. As such, these "updates" reflected the County’s reasonable determination that, while lands cleared for agricultural use can retain natural resource value, they generally have lower environmental and habitat value than uncleared wetland and forest. No evidence suggested that this judgment was unreasonable. The County's analysis resulted in sensible planning decisions that generally afforded undeveloped wetland or forested areas a higher level of protection than land that has been disturbed through agricultural clearing. Petitioners initially seemed to contend that the County failed to take into account changes in hydrology and wetland vegetative cover in NBM as a result of drainage canals and similar alterations. As the hearing progressed, however, it became clear that from the evidence that the County was aware of the changes in hydrology and vegetative cover in NBM and took those changes into account in its planning decisions. The best data and analysis available as of June 19, 2002, showed that NBM is utilized by both the Florida black bear and the Florida panther. The data and analysis indicate that both of these species make more use of areas to the east (the Florida Panther National Wildlife Refuge and largely undeveloped portions of Northern Golden Gates Estates) and south (the (South) Belle Meade NRPA and largely undeveloped portions of Southern Golden Gates Estates). However, both panther and black bear access NBM from those areas by crossing Everglades Boulevard to the east and Interstate 75 to the south. A significant population of black bear uses NBM. FWCC lists the Florida black bear as a threatened species. Areas mapped by FWCC as strategic habitat statewide would support approximately five populations of approximately 200 individual black bears. (By comparison, FWCC ideally would like to maintain enough strategic habitat to support ten populations of 200 individuals, in part to reduce adverse impacts from natural disasters and genetic problems from inbreeding.) FWCC lists the Florida panther as an endangered species. It is one of the most endangered large mammals in the United States. Only approximately 80 to perhaps 100 panthers are thought to exist in the wild, all in south Florida. The Florida panther faces extinction unless "aggressive action" is taken for its protection. Panthers require large areas of habitat to survive in the wild. Depending on habitat quality, individual males require a home range of 100-150, 200-250, or even as much as 400 square miles; females have a smaller home range of approximately 50-70 square miles. Notwithstanding its general goal of maintaining ten populations of 200 individuals, FWCC's realistic goal for the Florida panther is to maintain current panther habitat and population. The (South) Belle Meade NRPA is considered Priority 1 Panther Habitat by FWCC. Other Priority 1 and Priority 2 Panther Habitat exists farther to the southeast and east. While NBM is not as good for panther habitat, radio telemetry data show that panthers also use NBM. Telemetry data show that panther use of NBM has increased in the last ten years. This could be due in part to the introduction of a female Texas cougar as part of FWCC's breeding program. NBM is currently within the home range of at least one male Florida panther and the introduced female Texas cougar. (Other use is possible, as only about a third of the animals in the population are collared for telemetry.) The female denned and gave birth to three kittens in NBM in 1998. It is possible that panthers frequented NBM in the late 1990's in part because a ranch lessee on Brown property in Section 21 was operating a deer-feeding station there. Panther telemetry data seem to have decreased after Brown required his lessee to cease those operations. However, while panther may have returned to those feeding stations because of the deer being attracted, they first had to have been in the area to become aware of the deer being attracted. This indicates some panther use of NBM prior to establishment of the feeding station. FWCC and United States Fish and Wildlife Service data also indicated to the County that red-cockaded woodpecker (RCW) colonies existed in the old-growth forest areas that remain in the western part of NBM, nesting in cavities in these trees. There also were data that FWCC considered these lands to be RCW strategic habitat. To nest, RCWs need old-growth cavity trees in an area not overgrown with new growth. While there were data that drainage of land in NBM in the RCW strategic habitat area has resulted in invasion of melaleuca (a nuisance exotic species), RCW can continue to use the habitat and forage in and around the melaleuca unless the melaleuca blocks off the cavity tree. There were no data that RCW no longer use NBM due to melaleuca infestation. Much of the now-urbanized areas of Collier County once provided RCW habitat, but development has impaired the value of that land for RCW nesting and foraging. As with panther habitat, traditional RCW habitat has diminished under the current regulatory scheme, and additional protection is needed. The non-NRPA Sending Land in the western part of NBM is the last remaining viable RCW habitat that is not already in conservation status. In gathering and using data in the development of the Rural Fringe Amendments, the County was supported by various state agencies that informally reviewed and commented on the amendments. These agencies supported Collier's approach to the designation of Sending and Receiving Lands. It is found that the County used the best available data and reacted to it appropriately for planning purposes by applying professionally acceptable analysis in review and application of that data. Sending and Receiving Delineations in General Petitioners were most critical of the County's alleged exclusive use of the SFWMD vegetative and land use cover maps to delineate Sending Lands based on the presence of jurisdictional wetlands. But the evidence was clear that the County had no intention of designating Sending Lands solely on the basis of the presence of wetlands. See J.15 at 4 (identifying percentages of wetlands in each category, and showing that the County recognized there were wetlands in Receiving Lands and non-wetlands in Sending Lands). Petitioners' characterization of the County's effort was a gross oversimplification. It also was clear from the evidence that the County did not restrict its data and analysis to the SFWMD maps. Petitioners contended that the County ignored the actual boundary of natural features, such as wetlands, in delineating the boundaries of Sending and Receiving Lands. Instead, for planning purposes, the County attempted to delineate reasonably large, contiguous areas as Sending and Receiving Lands, rather than creating a "Swiss cheese pattern" of intermixed Sending and Receiving Lands, designating isolated pockets of Sending within a large Receiving Area, and vice versa. This made sense from a planning perspective, for a number of reasons, including: (1) it permitted concentration of infrastructure, reducing infrastructure costs; (2) it allowed greater opportunity for the protection of environmentally sensitive lands; (3) large, contiguous areas of habitat are necessary to support a viable population for some of the endangered species present in Collier County-- Florida panther, in particular; and (4) it prevented urban sprawl (in part because sufficient acreage must be available in order for higher density development feasible.) In some instances, the County chose to delineate the boundary between Sending and Receiving Lands with a straight, easily-defined line, rather than using the edge of some feature such as vegetative cover. This also made sense from a planning perspective. A straight boundary, such as a section line, is easier to administer and more easily communicated to the public than a natural feature like vegetation, which would require a survey and is often characterized by a gradual change, rather than the sharp demarcation necessary for a boundary. The County recognized that, as a result of the combined effect of its planning approach, Sending Lands would include some areas neither particularly environmentally sensitive nor--apart from the land surrounding it--valuable habitat. Conversely, some relatively environmentally- sensitive lands would fall within a Receiving Land designation; however, it also recognized that these lands would remain subject to site-specific criteria imposed both by the County's Comprehensive Plan (e.g., amended CCE Policy 6.1.2 criteria for preservation of native vegetation and amended CCE Policy 6.2.3 criteria for protection of wetlands25) and by state and federal regulatory programs. It was not shown that these planning decisions lacked merit; at the very least, their merit is fairly debatable. NBM Delineations Distilled to its essence, the testimony of the natural resource experts called by Petitioners argued that the natural resource data and analysis available at the time of adoption did not justify distinguishing Sending, Receiving, and Neutral Lands in NBM. In other words, their position was that measures for protection of practically the entire NBM would be an appropriate response to the data and analysis on wetland and forest cover and habitat value for Florida panther, Florida black bear habitat, and RCW. But it also is at least fairly debatable that the County's inclusion of Receiving and Neutral Lands in NBM was an appropriate response to the totality of the data and analysis. The Rural Fringe Amendments themselves include the County's rationale for the North Belle Meade (NBM) Receiving designations. The Receiving Areas are generally located in the northern portion of NBM [North Belle Meade] Overlay and are generally contiguous to Golden Gate Estates. Two sections are directly to the south of the APAC Earth Mining Operation. The Receiving Area exhibits areas of less environmental sensitivity than other portions of the NBM Overlay, because of their proximity to Golden Gate Estates and prior clearing and disturbance to the land. Within the Receiving Area of the NBM Overlay, are located Sections 21, 28 and the west 1/4 of Sections 22 and 27, which have been largely assembled under one property ownership. These lands are located south of the existing APAC earth mining operation and have been largely impacted by agricultural operations. The location of Sections 21 and 28 is just to the south and west of Wilson Boulevard located in the southern portion of north Golden Gate Estates. Because an earth mining operation and asphalt plant uses have existed for many years in the area, and the surrounding lands in Sections 21, 28 and the western halves of Sections 22 and 27 are reported to contain Florida Department of Transportation grade rock for road construction, these uses are encouraged to remain and expand. J.4 at 76-77. Section 20 (just west of Section 21) also was designated as Receiving. The southwestern corner of NBM, consisting of Sections 26 (Range 2626), 29, 30, 31, and 32, and the eastern half of Section 36 (Range 26) was designated as non-NRPA Sending, along with the southern halves of Sections 13 and 14 in the northeast corner. The southeastern corner (consisting of the eastern 3/4 of Sections 22 and 27, along with Sections 23, 24, 25, 26, 34, 35, and 36) was designated as NRPA Sending. The northwest corner (Section 24, Range 26) was designated Neutral, as was the northern halves of Sections 13 and 14 in the northeast corner. The 15,552 acres in NBM are surrounded on the south by the South Belle Meade (SBM) NRPA across Interstate 75; on the east by largely undeveloped portions of Northern Golden Gate Estates (NGGE); on the north by a more developed portion of NGGE; and on the west by Urban Fringe future land use, which is sandwiched between NBM and more densely developed urban land use to the west. NGGE is the fastest-growing area of the County. It is part of a proposed sprawling, essentially single-use residential development. To date most actual development in NGGE has occurred in the western part of it, closer to more urban uses, and along Golden Gate Boulevard, which is the main east-west road in NGGE. Because the western part of NBM does not extend as far north as the eastern part, it is farther away from Golden Gate Boulevard and its development than the eastern part of NBM. In NBM, the SFWMD data showed practically all wetland cover with some upland forest interspersed in the six sections making up the southeast corner of NBM, as well as the next section to the southwest (Section 34). The section of land immediately to the north of Section 34 (Section 27) showed up as wetland cover over approximately the eastern half and agricultural use over approximately the western half of the section. The section north of 27 (Section 22) showed up as mostly wetland cover with some agricultural use in the northwest corner and some forested upland in the northeast corner. To the north of Section 22 was a section (number 15) with a mix of urban use, agriculture, wetland, and forested upland cover. Proceeding to the east, Section 14 showed up as mostly forested upland, and Section 13 in the northeast corner with mostly wetland cover with some agriculture. The opposite (far western) side of NBM was shown to have approximately eight sections of land with predominately forest land use cover, interspersed with some wetland and agricultural use. Down the center of NBM are four sections shown by the SFWMD data to have, from north to south: (1) predominately, earth mines and mine pit lakes (Section 16); (2) predominately agriculture (Section 21); (3) a mix of agricultural, forested upland, and wetland cover (Section 28); and (4) approximately half forested (the southwest half) and half wetland cover (the northeast half) (Section 33). Of importance for planning purpose, Wilson Boulevard intersects Golden Gate Boulevard and extends south to the edge of NBM at a point approximately 500 feet west of the northeast corner of Section 16. There are plans to extend Wilson Boulevard south into NBM 500 feet west of the eastern boundaries of Sections 16, 21, 28, and 33. Co-location of infrastructure within the right-of-way of the Wilson Boulevard extension would make sense from a planning standpoint. Allowing development to proceed elsewhere in NBM would exacerbate urban sprawl. It also would be possible to locate rural village North Belle Meade near the proposed Wilson Boulevard extension so that public infrastructure could be provided to both the rural village and the existing residents of NGGE. While Section 20 includes both cleared and uncleared areas, it abuts NGGE on the north and west and other Receiving Land on the east. For that reason, the County considered it to be appropriate for future development. Section 28 also includes a "mixed bag" of habitat features and agriculture. However, the remaining forested areas are less valuable as habitat because they are surrounded by agriculture. In addition, prior to the date of adoption, an application had been filed to allow mining in Sections 20 and 28, as well as in Sections 21 and 27. The permit authorizing this mining was issued in December 2002. Once land is disturbed by mining, it loses its value as panther habitat. Taking all of these factors into consideration, the County judged Section 28 to be more appropriately designated as Receiving. The designation of the western quarters of Sections 22 and 27 as Receiving resulted both from the mixture of disturbed and undisturbed property in those areas and from their location in relation to the planned extension of Wilson Boulevard. This proximity to a planned, future transportation corridor was an important factor in identifying areas appropriate for development. Initially, all of the western part of NBM was to be designated as non-NRPA Sending Lands because of the RCW data. But the County School Board and Audubon furnished additional data pertaining to the extreme northwest section (Section 24, Range 26), which resulted in the ultimate designation of the land as Neutral. Even apart from any environmental or habitat distinctions, there are other valid land use planning reasons for the County's Receiving designations. The proximity of the NBM Receiving Lands to the most populous portion of NGGE makes them appropriate for future, mixed-use development. (In contrast, the part of NGGE near the NBM NRPA is not as densely developed and is not growing as fast as the part immediately north of the NBM Receiving Area.) Since NGGE is a large, single-use residential development, residents are currently required to travel great distances for commercial and other services. By encouraging more compact, mixed-use development in the part of NBM immediately adjacent to the most populous part of NGGE, the County hopes to address this dearth of ancillary, commercial, and institutional uses for the present residents of NGGE, as well as the future residents of NBM. In addition, the NBM Receiving Area is located so as to facilitate an extension of sewer and water service along Golden Gate Boulevard and, from there, into NBM. Recognizing that, with updated data, some of these delineations may need adjustment, the County made specific provision in the amendments for owners of Sending and Neutral Lands to submit additional data in support of a change in designation. J.4 at 61. In summary, it is found that the County's delineations of Sending and Receiving Lands in the Rural Fringe, and in NBM in particular, were based on data and analysis--i.e., they reacted appropriately to the extensive data available to the County on the date of adoption--and accomplish the County's objectives, including protection of environmentally sensitive land and habitat, control of urban sprawl, and successful implementation of the TDR program, which required maintenance of an adequate ratio between Sending and Receiving Lands. See Findings 72-91, infra. At the very least, the delineations are fairly debatable; and the contentions of Coalition, Century, and the Husseys to the contrary are rejected. TDR Program The County recognized that the additional restrictions on much of the property within areas designated as Sending may have an effect on property values. As a consequence, the County included a transfer of development rights ("TDR") program in the Rural Fringe Amendments. The Amendments describe the purpose of the TDR program as follows: The primary purpose of the TDR process within the Rural Fringe Mixed Use District is to establish an equitable method of protecting and conserving the most valuable environmental lands, including large connected wetlands systems and significant areas of habitat for listed species, while allowing property owners of such lands to recoup lost value and development potential through an economically viable process of transferring such rights to other more suitable lands. Within the Rural Fringe Mixed Use District and within designated areas of the Agricultural/Rural Mixed Use District, residential density may be transferred from lands designated as Sending Lands to lands designated as Receiving on the Future Land Use Map, subject to [certain expressly delineated criteria] . . . . J.4 at 50-51. The County's TDR program is an innovative land planning technique that is intended to enhance the protection of environmentally sensitive areas, provide for cost-efficient delivery of public facilities and services, and prevent urban sprawl. J.4 at 50. It is designed to give property owners an incentive to protect their property from development while receiving a return in value through the sale of development rights. In so doing, it also serves as a land management technique to direct development from areas where it is not desired, while preserving the value of that area. TDR programs balance the protection of areas incompatible with development with the preservation of private property rights. They are also recognized as a development tool for overcoming urban sprawl. Through the TDR Program, the owners of Receiving- designated property may increase the allowable residential density on their property by purchasing or otherwise obtaining development credits transferred from property designated as Sending. Forty acres of property in Sending--while assigned an allowable density of only one residential unit--is worth eight development credits (one credit for each five acres). J.4 at 58. The specifics of the TDR program, including the process for the "sale" of development rights and the tracking of these transactions, are to be established by the County in its Land Development Regulations (LDRs) within one year. The specific dollar value of a TDR credit will ultimately be decided by the marketplace. Based on a study of land sales in Collier County, the County's expert, Dr. James Nicholas, concluded that a single credit would probably be worth approximately $18,500. Dr. Henry Fishkind, the expert called by Coalition and Century, agreed that this figure is supported by sales data in the area. For example, a property owner with 40 acres in a Sending area could build one residence on that property, or he could sell eight TDR credits to someone who plans to develop a more compact development in a Receiving Area. J.4 at 58-59. If the Sending Land owner elects the latter, he retains ownership of his property and may still utilize it for certain specifically identified purposes, including agriculture, passive parks, passive recreational uses, certain essential services, and oil extraction. J.4 at 60-61. A property owner with 40 acres in a Receiving area could build eight residences on that property without purchasing any development credits, or he could purchase 32 TDR credits and build 40 residences. Once he has obtained enough TDR credits to achieve this one-to-one density, he could further increase his residential density slightly by preserving more than the minimum required native vegetation on site. J.4 at 51. Dr. Nicholas warned that an excess supply of TDR credits, relative to the amount of Receiving Land available to receive those credits, would undermine the success of the TDR program. The ratio of Receiving Land to Sending Land is critical. Dr. Nicholas prefers a ratio of at least two acres of Receiving Land to each acre of Sending. This ratio is not achieved within the Rural Fringe. Rather, the ratio is approximately 1:1 (25,729 acres of Receiving to 23,720 acres of Sending). See J.15 at 4 (which lists the acreages within each category). Taking into consideration Sending Lands that are already developed, Dr. Nicholas testified that approximately 4,100 TDR credits would be generated from the Sending Lands. Approximately 6,100 credits could be absorbed in the Receiving areas, where densities of up to one unit per acre--an increase of four additional units--can be achieved through a purchase of TDR credits. J.4 at 51. In order to bolster the demand for TDR credits, the Rural Fringe Amendments include a number of other additional markets for credits. First, the amendments provide for a limited transfer of TDR credits outside of the Rural Fringe for two purposes: (1) in-fill in the Urban Area on parcels of 20 acres or less; and (2) transfer from areas within one mile of the Urban boundary into lands designated Urban Residential Fringe. J.4 at 34-35. These two options will create a market for approximately 1,000 additional TDR credits (250 as urban in-fill and 750 in the urban fringe.) In addition, the Amendments provide a market for TDR credits for the development of rural villages. See Findings 11-13, supra, for description of rural villages. Rural villages must be at least 300 acres in size, up to a maximum of 1,500 acres, with the exception that a rural village located south of the (South) Belle Meade NRPA, which is south of Interstate 75, may be as large as 2,500 acres. The minimum and maximum gross densities for a rural village outside NBM are two units per acre and three units per acre, respectively. J.4 at 63. Thus, a rural village outside NBM must include at least 600 residential units, but could have as many as 4,500 or 7,500, depending upon its location. For each TDR credit purchased for the development of a rural village, the purchaser receives one bonus, up to the minimum required density, and the minimum density can only be achieved through the combination of base density, TDR credits, and TDR bonuses. J.4 at 64. Additional density--up to the maximum of three units per acre--can be achieved through the purchase of more TDR credits, through the preservation of more native vegetation on site than the minimum required, and/or through the inclusion of affordable housing. J.4 at 64. Consequently, for a rural village of 1,500 acres outside NBM, the developer would need to build at least 3,000 dwellings (2 units per acre). Assuming that the rural village is surrounded by a 800-acre greenbelt,27 it would start with a base density of 460 units28 and would need to purchase 1,270 TDR credits in order to achieve his minimum density of two units per acre. The provisions applicable to the one rural village permitted in NBM differ slightly. There, the minimum gross density is 1.5 units per acre, of which at least 0.5 units per acre must be obtained through the purchase of TDRs. J.4 at Assuming the same 1,500-acre development with an 800-acre greenbelt as described above, the developer would need to acquire 1,790 units more than would be available through the combined base densities of the village itself and the greenbelt in order to achieve minimum density.29 Of these additional units, 750 would have to be obtained through the purchase of TDR credits. Recognizing that there will probably be no more than two or three rural villages developed, Dr. Nicholas estimated that rural villages will absorb between 4,000 and 7,500 TDR credits, with the greater probability that the absorption rate will be closer to the lower number. Thus, in combination with the other markets for TDR credits created by the amendments, Dr. Nicholas estimated that there will be a demand for approximately 11,100 credits, resulting in a more acceptable ratio of just under three units of demand to one unit of supply. In their PRO, the Husseys attempted to raise the specter that the Amendments create too large a market for TDR credits so as to trigger Dr. Nicholas' concerns that, in that situation, potential transfers would be frustrated because TDR prices would rise to levels making their use infeasible for potential users, including developers of rural villages. But the Husseys based their concerns on maximum potential absorption of TDR credits, raising the supposed ratio of TDR buyers to sellers to 7-to-1 (or even 8-to-1 by disregarding the Urban Fringe one-mile limitation described in Finding 82, supra). The greater weight of the evidence was that the realistic market for TDR credits will be much smaller than the maximum potential absorption rates. Taking the realistic market into account, the probable actual absorption ratio is not much more than 2-to-1, which is ideal according to Dr. Nicholas. It also should be noted that the Husseys' arguments run counter to the testimony of their own expert on the subject. Dr. Fishkind agreed with Dr. Nicholas that there will be a functioning market for TDR credits generated from the Sending Areas, that the County’s TDR program is economically feasible, and that the County has the capacity to administer it. In addition, the Amendments include specific provisions requiring the County to establish a process for evaluating the TDR program. J.4 at 62. The purpose of such monitoring will be to assess whether revisions, such as the addition of either more Sending or Receiving Land or a change in the value of TDR credits, are necessary to ensure the success of the program. In concept, the success of the TDR program in achieving the objectives of directing development away from some areas and toward others, while preserving value in the former, is at least fairly debatable. The program's actual success in achieving these objectives initially hinges upon whether the County has appropriately designated Receiving and Sending Lands. If necessary, changes can be made to improve the program and increase its chances of success.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order finding the Collier County's Rural Fringe Amendments to be "in compliance." DONE AND ENTERED this 29th day of April, 2003, 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 29th day of April, 2003.
The Issue The issue in this case is whether Marion County's small- scale comprehensive plan amendment 01-S27 is "in compliance," as defined by Section 163.3184(1)(b), Florida Statutes (2001). Specifically, Petitioners contend that the amendment is: (1) inconsistent with goals, objectives, and policies of the County's Comprehensive Plan--specifically, Future Land Use Element (FLUE) Objectives 1 and 2, and Policies 2.7 and 2.8; and (2) inconsistent with Florida Administrative Code Rule 9J- 5.006(5), which requires that proliferation of urban sprawl be discouraged. (Other contentions are inapplicable. See Conclusions of Law, infra.)
Findings Of Fact Petitioners all reside in the Sherman Oaks subdivision in Marion County, Florida. Sherman Oaks is adjacent to and northwest of the parcel which is the subject of the County's small-scale comprehensive plan amendment 01- S27 (Plan Amendment). This "Amendment Parcel" consists of 2.375 acres located at the northwest corner of the intersection of State Road 40 (oriented east-west at that location) and NW 80th Avenue (oriented north-south at that location) (the Intersection) near Ocala, Florida. The Plan Amendment changes the land use designation for the Amendment Parcel from Urban Reserve to Commercial. Pertinent History of the County's Comprehensive Plan. The County originally adopted its Comprehensive Plan in January 1992. Because of an objection by the Department of Community Affairs (DCA) that the original Comprehensive Plan allocated too much land area to the Urban area, the County adopted remedial amendments on April 7, 1994, which added a new land use classification, Urban Reserve. The Comprehensive Plan defines the Urban Reserve land use classification as follows: This classification provides for the expansion of an urban service area or an urban expansion area in a timely manner. The underlying land uses in this classification shall be those of the rural lands until, through the Plan Amendment process, these areas are designated as Urban Expansion Area or Urban Service Area on the Future Land Map series. Commercial land use designation falls within the generalized Urban Area category in the County's Comprehensive Plan. From the date of the adoption of remedial amendments in 1994 through this date the Amendment Parcel has had a land use designation of Urban Reserve. The Amendment Parcel is part of a larger parcel of land designated Urban Reserve which extends for approximately a mile to the west of the Amendment Parcel, half a mile to the south of the Amendment Parcel, and greater than two miles to the north of the Amendment Parcel. (There also is some Medium Density Residential, which falls with the generalized Urban Area land use category, approximately two miles north of the Amendment Parcel; this is a major residential development called Golden Ocala). All of the property on the east side of the Intersection for approximately half a mile on either side of State Road 40 has had a land use designation of Urban Expansion, which allows urban and commercial uses, since 1992. Marion County has extensive areas in the western half of the County designated as Rural Land. Approximately a mile west of the Amendment Parcel, the property along the north and south sides of State Road 40 changes land use designation from Urban Reserve to Rural Land. Prior to adoption of the County’s Comprehensive Plan in 1992, the Amendment Parcel had a general retail zoning classification of B-2 (Community Business), which has remained in place since the date of the Comprehensive Plan adoption. The Plan Amendment would allow the Intervenor to make immediate use of the Amendment Parcel under its existing zoning classification of Community Business. The County’s Comprehensive Plan also contains a land use classification of Rural Activity Center (RAC) for existing commercial nodes in the Rural Land area. According to the definition in the Comprehensive Plan, this classification: provides for the utilization of mixed-use areas and the infilling of those areas under appropriate circumstances. Rural Activity Centers provide for a nodal-type development pattern. When the Comprehensive Plan was originally adopted in 1992, the County identified a number of RACs and included them on the Future Land Use Map in the Comprehensive Plan. The Intersection was not made a RAC in 1992 because it was surrounded by Urban Expansion lands that were changed to Urban Reserve in 1994. Otherwise, it probably would have been designated a RAC because there already was commercial development on the east side of the Intersection in 1992. Designation as a RAC would have allowed Intervenor to make use of its B-2 (Community Business) zoning classification from 1992 forward. The evidence was not clear why Castro's Corner at the intersection of U.S. Highway 27 and County Road 225A was designated a RAC. It is not now surrounded by Rural Lands; however, from the evidence presented, it is possible that Castro's Corner was surrounded by Rural Lands at the time it was designated a RAC. Pertinent History of the Amendment Parcel In light of the see-saw history of decision-making on applications for comprehensive plan amendments affecting the Amendment Parcel since 1998, it is not surprising that Petitioners are perplexed by this Plan Amendment. In 1998 application was made to change the land use designation from Urban Reserve to Commercial on a parcel that included the Amendment Parcel and approximately seven additional acres lying immediately to the west of the Amendment Parcel, for a total of 9.9 acres, with the entire application parcel having frontage on State Road 40. The County's Planning Department recommended approval of the land use amendment. Staff's report stated that the proposed Commercial land use designation would "continue the formation of a commercial node at the intersection . . . consistent with FLUE Policy 2.7"; would "coordinate development with sufficient roadway capacity and access management procedures, and available water and sanitary sewer facilities as required by FLUE Policy 2.8"; was "compatible with the existing commercial uses on the east side of the intersection"; and was "generally compatible with the areas's [sic] topography, soils and environmental features." Staff's report concluded that the recommendation for approval was based on findings that the request would "not adversely affect the public interest"; was "consistent with the identified objectives and policies in the Marion County Comprehensive Plan"; and was "compatible with the surrounding land uses." The County's Planning Commission agreed with planning staff's recommendation and voted 7-0 for approval, but the County Commission denied the application. In 2000 the Amendment Parcel was included in another application for a land use designation change from Urban Reserve to Commercial on 13.88 acres in the northwest quadrant of the Intersection. This time, the Planning Department recommended denial. As to compatibility with the goals, objectives, and policies of the County's Comprehensive Plan, staff's recommendation was based on findings that the proposed amendment was "not compact and contiguous to the Urban Area (FLUE Policy 2.18)"; did "not preserves [sic] the county's rural areas while allowing the provision of basic services by directing growth to existing urban areas and commercial nodes (FLUE Objective 3.0)"; "does not coordinate development with availability of public facilities such as centralized potable water and sanitary sewage facilities (FLUE Policy 2.18)"; "does not promote the efficient use of resources and discourage scattered development and sprawl because it is not located in an area of increasing urban residential development and commercial development (FLUE Policy 2.7)"; and "does not encourage development that is functional and compatible with the existing land uses adjacent and in the surrounding area (FLUE Policy 1.21)." As to consistency with Florida Administrative Code Rule 9J-5 urban sprawl indicators, staff found that the proposed amendment "promote[d] the development of low-intensity, low-density, or single use development"; "promote[d] urban development in radial, strip, isolated or ribbon patterns generally emanating from existing urban development"; did "not protect adjacent agricultural areas and activities"; allowed "for land use patterns or timing which disproportionately increases the cost in time, money and energy, of providing and maintaining facilities and services, including roads, potable water, sanitary sewer, stormwater management, law enforcement, education health care, fire and emergency response, and general government"; did "not encourage development which would, by it's [sic] location, provide a clear separation between rural and urban uses"; did "not encourage an attractive and functional mix of uses"; and "encourage[d] development which would result in the loss of significant amounts of open space." The report concluded that it was based on findings that "[g]ranting the amendment will adversely affect the public interest"; the "proposed amendment is not compatible with land uses in the surrounding area"; and "[g]ranting the amendment is not consistent with Chapter 163, Florida Statutes, Rule 9J-5, F.A.C., and the Marion County Comprehensive Plan." The Planning Commission voted 6-1 to recommend denial. The application was withdrawn prior to the transmittal hearing before the County Commission. In August 2001, Intervenor submitted an application to change the land use on the property it owns at the Intersection (containing 2.85 acres) from Urban Reserve Area to Commercial. The southern boundary of the original application parcel consisted of 275 feet of frontage on the north side of State Road 40. The eastern boundary of the original application parcel fronted on NW 80th Avenue, with 459 feet of frontage. The County's Planning Department recommended that Intervenor's application be denied. The stated basis for the recommendation was that the proposed plan amendment represented "an extension of urban type land use into the rural area" and that "[d]evelopment of the property as commercial was not compatible with adjacent land uses." Planning staff took the position that the proposed Commercial land use designation did "not encourage compact, contiguous development (FLUE Objective 2)"; did "not preserve the County's rural character (FLUE Policy 2.7)"; did "not coordinate development with sufficient roadway capacity (FLUE Policy 2.8)"; and was "not compatible with the existing adjacent uses (FLUE Objective 1)." Staff also took the position that the proposed Commercial land use designation application would "promote urban sprawl as specified in the Urban Sprawl Rule 9J-5.006(5)(g)" because it was "not compatible with surrounding land use designations"; "discourage[d] a functional mix of uses"; and "discourage[d] [sic?] a land use pattern that disproportionately increases local government's fiscal burden of providing necessary public services." In conclusion, staff based its recommendation on findings that the application would "adversely affect the public interest"; was "not consistent with the identified objectives and policies in the Marion County Comprehensive Plan"; and was "not compatible with the surrounding land uses." The Planning Commission heard Intervenor's presentation and comments from objecting property owners, including Petitioners, and voted 4-3 to deny the application. At a public hearing conducted on December 11, 2001, the County Commission heard Intervenor's presentation and comments from objecting property owners, including Petitioners. During the hearing, at the suggestion of the Commission, Intervenor agreed to amend the application to reduce the total amount of property for which the land use change was requested from the original entire parcel of 2.85 acres to a smaller 2.375 acre parcel (now the Amendment Parcel). The purpose of the reduction in the size of the Amendment Parcel was to exclude a heavily treed area on the north boundary of the original application parcel to create a buffer for residential property owners residing to the north and northwest of the Amendment Parcel. Intervenor also agreed to allow parallel access across the back (north) of the Amendment Parcel to the property fronting State Road 40 to the west, in the event of future development of those properties. After amendment of the application, the County Commission voted 5-0 to approve. Amendment Parcel Characteristics and Surroundings. Both State Road 40 and 80th Avenue in the area of the Intersection are heavily traveled and frequently congested. The Intersection is signalized, and traffic backs up for long distances during busy times when the light is red. The Amendment Parcel and the land to the west between State Road 40 and Sherman Oaks to the north is vacant. The property in the northeast quadrant of the Intersection has a land use designation of Urban Expansion, which allows commercial usage. The property in this quadrant of the Intersection is already commercially developed. There is a combination convenience store/restaurant building at the immediate Intersection. To the north of that parcel along 80th Avenue is Golden Hills Mobile Home Park and the sewage treatment facility serving the mobile home park. The southeast quadrant of the Intersection also has an Urban Expansion land use designation and is also already commercially developed. A prior convenience/general store at the immediate southeast corner of the Intersection has been torn down, and a temporary fruit stand currently occupies the immediate corner. This quadrant of the Intersection also includes a two-story building with retail businesses on the first floor. The property in the southwest quadrant of the Intersection, lying immediately to the south of the Amendment Parcel, has an Urban Reserve land use designation but is currently used as part of an operating horse farm. While it may not completely explain the swings in the decision-making of the County's planning staff, the County Planning Commission, and the County Commission with respect to northwest quadrant of the Intersection, the evidence was that traffic on both State Road 40 and 80th Avenue increased substantially in the five years preceding the County Commission's decision to approve Intervenor's amended application. During this time period, 80th Avenue to the south of the Intersection was extended farther southward to State Road 200, which was widened to six lanes during the same time period. In addition, the Marion County school system constructed a combination high school/middle school on SW 80th Avenue approximately two to three miles south of the Intersection, generating additional traffic. As a result of these changes (together with general growth in the County), 80th Avenue has become a major north/south corridor road in western Marion County, both to the north and to the south of State Road 40. In addition, there was discussion at the County Commission hearing on the Plan Amendment about the initiation by the Florida Department of Transportation (FDOT) of a four- laning road improvement project on State Road 40, including at the Intersection and to the east and west of this Intersection. It was represented that, while the project was not within FDOT's three-year work program, FDOT was in the process of acquiring large parcels for needed drainage retention areas for the project, including a parcel to the west of the Amendment Parcel and a parcel encompassing most of the southeast corner of the Intersection. At final hearing in this case, written communications from FDOT regarding the project confirmed that FDOT had initiated the process of design and right-of-way acquisition for the project but did not have a finalized project time line. A preliminary project time line prepared by FDOT showed construction more than two years away, but the time line also established that the FDOT four-laning project on State Road 40 is underway. The prospect of four-laning State Road 40 played a part in the County Commission's thinking that the timing was right to change the land use designation of the Amendment Parcel to Commercial. Intervenor's Alleged Inaccurate Representations The County's application form cautions applicants that false statements on the application could result in denial. However, it was not proven that denial is mandatory in the case of any inaccuracy. Rather, the evidence was that information in the application can be corrected and supplemented during the review process. Intervenor's application contained inaccurate representations as to the proximity of some public facilities in relation to the Amendment Parcel. Petitioners made no attempt to prove the significance of those inaccuracies, except as to centralized water and sewer water facilities. Intervenor's application stated that the nearest centralized water and sewer facilities were those at the Golden Hills Mobile Home Park on the east side of NW 80th Avenue. The application also stated, as part of its justification, that private central water and sewer was available. The evidence proved that the Golden Hills sewage treatment facilities are presently inadequate for use by the mobile home park itself and are being upgraded to meet current needs of the park. The facilities probably would not be available for Intervenor's use at the Amendment Parcel. While the Golden Hills sewage treatment facilities likely will not be available for Intervenor's use at the Amendment Parcel, the evidence was that the County is working with a large development called Golden Ocala, located approximately five miles north of the Amendment Parcel, for construction of a regional wastewater treatment plant to serve that development. If built, the regional facility might have capacity available for Intervenor's use at the Amendment Parcel. Intervenor's application and presentation to the County Commission on December 11, 2001, stated that the Amendment Parcel is undeveloped and that there is no existing agricultural use on the parcel. While these statements were not proven to be untrue, Petitioners presented evidence that hay was grown on the Amendment Parcel from the late 1980's through spring 2001. Three crops of hay were harvested each year. Each harvest consisted of approximately 18-20 bales; each bale brought approximately $45. Petitioners questioned the accuracy of representations as to the natural buffer strip between the Amendment Parcel and Sherman Oaks. Petitioners did not dispute the existence of relatively dense trees in the buffer strip. However, they are concerned that the line of trees does not extend to the west all the way to the entrance to Sherman Oaks off State Road 40; if additional commercial development occurs to the west on State Road 40, there will not be a similar natural buffer. Petitioners also point out that the trees in the natural buffer strip are not thick enough to form an impregnable barrier to access, light, and sound. They concede, however, that the natural buffer is helpful and that there is no similar natural buffer between them and commercial development to the east across NW 80th Avenue. Petitioners concede that the 75-foot buffer strip is wide enough to contain the entire natural buffer. However, they thought the buffer strip would have to be 90 feet wide to contain the drip lines of all the trees so as to protect their root systems. They conceded that the building setback line probably would prohibit construction of buildings within the drip line of the trees but were uncertain as to whether the setback line would apply to parking lots and driveways. Petitioners' evidence was insufficient to prove that the 75- foot buffer was not enough to protect the natural buffer. Petitioners' evidence was sufficient to prove that, during the presentation before the County Commission, Intervenor's representative may have misspoken or exaggerated on some points (e.g., the timing of FDOT's widening of State Road 40, the distance between the Amendment Parcel and the entrance to Sherman Oaks, and the extent of past and existing commercial development at the Intersection). But the evidence was that the County Commission questioned the information presented by Intervenor, and information also was presented by Petitioners and the County's planning staff; considering all the information presented, it was not proven that the County Commission based its decision on misinformation. At the final hearing, Petitioners raised the issue of stormwater runoff. Petitioners questioned whether stormwater can be managed on the Amendment Parcel without adversely impacting Sherman Oaks. Evidence presented by Petitioners proved that topography would make onsite stormwater management difficult. Natural runoff appears to flow in a northeasterly direction towards an already-stressed stormwater facility within Sherman Oaks. Intervenor suggested that the site could be "tilted" by grading to reverse natural runoff flow so as to contain runoff in the southwestern or western part of the site. Petitioners suggested that "tilting" may not be permissible due to the relatively shallow depth to limerock under the Amendment Parcel site, but Petitioners' evidence was not sufficient to prove that drainage could not be addressed onsite through "tilting." Petitioners also questioned the accuracy of traffic counts presented in the Planning Department's staff report on Intervenor's application. Staff used 2000 traffic counts that did not take into account all of the increased traffic as a result of the opening of the new school south of the Amendment Parcel. But the County's Planning Director explained that the traffic analysis required for a land use designation change does not have to be as rigorous and accurate as the analysis required at the time of concurrency determination. At that time, Intervenor probably will be required to conduct a detailed and up-to-date traffic analysis that would take into account actual traffic counts related to the new school. Other Pertinent Comprehensive Plan Provisions. Objective 1 of the County's FLUE states: Upon Plan adoption, growth and development will be coordinated by ensuring the appropriate compatibility with adjacent uses, topography, soil conditions, and the availability of services and facilities through the preparation, adoption, implementation and enforcement of innovative land development regulations, including mixed use techniques. Objective 2 of the County's FLUE states: In order to promote the efficient use of resources and to discourage scattered development and sprawl, Marion County shall establish and encourage development within Urban Areas. This will discourage the proliferation of urban sprawl, encourage infill and facilitate the provision of urban services through: Land Development Regulations that specify standards which allow higher intensities of land use in areas where adequate services are available and where specific design criteria are met, and future land uses are coordinated with appropriate topography conditions and soil types. A generalized Future Land Use Map which designates an appropriate amount of acreage in each land use category that reflects projected needs, existing development patterns, environmental suitability, availability of infrastructure, and community values. Policy 2.7 of the County's FLUE states: The County shall discourage scattered and highway strip commercial development by requiring the development of such uses at existing commercial intersections, other commercial nodes and town centers of mixed uses. Policy 2.8 of the County's FLUE states: The following performance criteria shall be followed when providing for the location of commercial and industrial land uses within the designated Urban Area: Protection of the development from natural hazards by locating development away from areas that have natural hazards or that may contain sensitive natural resources; Require concurrency be met to ensure adequate services from available public utilities and other urban services; Minimize environmental impacts by ensuring all appropriate permits are obtained and adhered to; Prevent over allocation of commercial land by requiring the adherence to needed acreage based on population projections; and Provide buffering from other land uses to minimize conflicts. Objective 4 of the Stormwater Management Sub-element of the County's Infrastructure Element states: Marion County's land development regulations shall implement procedures to ensure that, at the time a development permit is issued, adequate stormwater management facility capacity is available or the developer will be required to construct storm water facilities within his development according to County standards. Policy 4.1 of the Stormwater Management Sub-element of the County's Infrastructure Element provides some detail as to required content of the procedures, including a requirement: In addition, developers will comply where applicable with the Water Management districts flood control criteria for stormwater quantity and quality. (Citations omitted.) Policy 4.3 of the Sanitary Sewer Sub-element of the County's Infrastructure Element provides in pertinent part: The County's land development regulations shall provide for issuance of development permits within the identified wastewater service areas consistent with the following guidelines: * * * c. Where public wastewater treatment facilities are required, they shall be available concurrent with the impacts of development. Facilities which meet county specifications and the level of service standards for the service areas will be provided by the developer in the interim and will be connected to central facilities when they become available . . .. Internal Consistency. Petitioners presented no evidence that the Plan Amendment did not adhere to "needed acreage based on population projections." Consistent with the pertinent provisions of the County's Comprehensive Plan itself, the County's Planning Department Director testified that the County's Comprehensive Plan encourages the planning concept of nodal commercial development (allowing commercial development on all four corners of an intersection). This planning technique allows clustered commercial development in commercial nodes, locating in outlying areas, to provide localized commercial services for residents. Notwithstanding testimony that Petitioners probably would not patronize retail stores at the Intersection, the expert testimony was that commercial node development is intended to assist in reducing trips and average trip lengths by providing limited commercial services to area residents without necessitating their travel to a centralized commercial area. In the County’s Comprehensive Plan, the concept of commercial node development in non-urban areas is the basis for the RAC land use designation. See Finding of Fact 7, supra. Both of the County's witnesses testified that commercial development of all four quadrants of the Intersection is consistent with the County’s Comprehensive Plan policy of encouraging commercial node development because it has long-existing partial commercial development, is signalized, and provides access in all directions. The evidence did not prove that the County's Comprehensive Plan requires traffic, sanitary sewer, or drainage (or any other) concurrency at the time of the adoption of a plan amendment. The County has adopted in its Land Development Code a concurrency management system requiring that concurrency be established prior to the issuance of a development order (such as a building permit). The evidence was that determining capacity and concurrency at the development order stage in the development process is standard and customary, and is used in a number of jurisdictions in the state. Regardless of the land use classification and zoning classification of the Amendment Parcel, when the Intervenor initiates application for approval of an actual development order, the Intervenor will be required under the County's Land Development Code to establish concurrency, including traffic, sanitary sewer, and drainage concurrency. There was some evidence to support the contentions of some Petitioners that commercial development of the Amendment Parcel would not be compatible with residential and rural land uses in the area and that that NW 80th Avenue is a "line of demarcation" between urban uses and rural uses. But Petitioners failed to prove those contentions by the greater weight of the evidence, including the 1998 recommendations of the County Planning Department staff and Planning Commission to approve a land use change to Commercial west of NW 80th Avenue. In addition, the Comprehensive Plan's designation of land west of NW and SW 80th initially as Urban Expansion in 1992 and as Urban Reserve in 1994 anticipated ultimate urban development of this Intersection, as well as properties approximately a mile to the west of the Intersection. In addition, the Comprehensive Plan designated two RACs to the west of the Amendment Parcel on State Road 40 (between the Amendment Parcel and the City of Dunnellon). The first RAC is three miles to the west of the Amendment Parcel, and the second RAC is seven miles to the west of the Amendment Parcel. The evidence was that the Intersection would have been a RAC had it not been designated Urban Expansion and then Urban Reserve. Finally, at least one Petitioner conceded the point and contested only the timing of commercial development of the Amendment Parcel. Alleged Urban Sprawl. Petitioners presented no analysis of urban sprawl indicators. They also presented no evidence that the Plan Amendment allocated commercial land in excess of demonstrated need in the County. As found, the Amendment Parcel is across NW 80th Avenue from existing commercial and other urban development; in addition, provision of nodal commercial development is intended to counter at least some symptoms of urban sprawl.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order finding that Marion County's small-scale amendment 01-S27 is "in compliance." DONE AND ENTERED this 7th day of June, 2002, in Tallahassee, Leon County, Florida. ___________________________________ J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of June, 2002. COPIES FURNISHED: Mary M. Bartlett 8080 Northwest 2nd Street Ocala, Florida 34482 Robert S. Inglis 8078 Northwest 2nd Street Ocala, Florida 34482 Helen Thomas 8130 Northwest 2nd Street Ocala, Florida 34482 Paul and Joan Lussier 8071 Northwest 2nd Street Ocala, Florida 34482 Wanda Negron 8076 Northwest 2nd Street Ocala, Florida 34482 Thomas D. MacNamara, Esquire Marion County's Attorney's Office 601 Southeast 25th Avenue Ocala, Florida 34471 Steven Gray, Esquire Hart & Gray 125 Northeast First Avenue, Suite 1 Ocala, Florida 34470 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 Whether the amendment to the Land Use Plan Map of the Miami-Dade County Comprehensive Development Master Plan (CDMP), adopted by Ordinance No. 12-109 on December 4, 2012, is “in compliance,” as that term is defined in section 163.3184(1)(b), Florida Statutes (2011).1/
Findings Of Fact The Parties Miami-Dade County (the County) is a political subdivision of the State of Florida with the duty and responsibility to adopt and maintain a comprehensive growth management plan pursuant to section 163.3167, Florida Statutes. The County adopted the challenged Plan Amendment under the expedited State-review process codified in section 163.3184(3), Florida Statutes. Petitioners Robert and Sylvia Kemp own property and reside at 11021 East Golf Drive, Miami, Florida. The Kemps submitted oral or written comments concerning the Plan Amendment to the County at the transmittal hearing. Petitioner Gregory Samms owns property and resides at 11200 West Golf Drive, Miami, Florida, and submitted oral and written comments concerning the Plan Amendment to the County during the transmittal hearing. Intervenor, Westview, is the owner of the property which is the subject of the challenged Plan Amendment. Westview, through its counsel, submitted comments in support of the amendment at the various public hearings. The Subject Property The property subject to the Plan Amendment is the site of the former Westview Country Club, a private club, with golf course, which is now closed (Property). The Property is approximately 196 gross acres, and is currently designated on the Land Use Plan Map (LUP Map) as Parks and Recreation (191.6 gross acres) and Low-Medium Residential (4.4 gross acres). It is currently zoned for residential development, mostly single- family, although there is some frontage along Northwest 119th Street zoned for limited business. The Property is curvilinear and approximately one- quarter mile wide. The site is mostly vacant, the former clubhouse having been demolished, although two maintenance buildings and a single-family home remain on the Property. There is a continuous vegetative buffer along the boundary of the Property. Under the existing future land use designation and zoning category, the Property could be developed at a maximum of 1,736 single- and multi-family residential units. The Property is surrounded on all sides by a residential neighborhood, generally known as Westview, in which Petitioners reside. Westview is an older, established community, consisting mostly of single-family residences with some multi-family development on the western edge. East and West Golf Drive, both local roads, surround the property boundary, providing internal access within the Westview neighborhood. The Property, as well as the surrounding neighborhood, is bisected north to south by Northwest 119th Street (also known as Gratigny Parkway), a major east-west arterial providing access to other regional corridors such as State Road 826/Palmetto Expressway to the west and Interstate 95 to the east. Beyond the immediately adjacent residential neighborhood, the Property is bounded by Northwest 22nd Avenue on the east and Northwest 27th Avenue on the west; and by Northwest 107th Street on the south and Northwest 134th Street on the north. To the west, across Northwest 27th Avenue, is the Miami-Dade County Community College North Campus, an institutional use, and a concentration of industrial uses known as the Northwest 27th-37th Avenue Industrial Corridor. East of 22nd Avenue is mostly low-density residential development, with pockets of low-medium residential development and a business-and- office corridor on either side of Northwest 119th Street. Development to the south is a mix of single- and multi-family residential. The future land use designations of the surrounding properties are institutional and industrial to the west, medium- density residential to the south, low- and medium-density to the east (with a business-and-office corridor along Northwest 119th Street), and low-density residential to the north. The Property is located inside the County’s Urban Growth Boundary (UGB), outside of which development is strictly limited in order to protect environmentally sensitive and agricultural lands, as well as limestone mining activities. The County only accepts proposals to change the UGB every two years and requires a supermajority vote of the County Commission to approve a change. The Property is also located within the Urban Infill Area (UIA), the major urban core of the County. The UIA boundary follows Interstate 95 from the northern County line, goes west along the Palmetto Expressway, and south along the Palmetto to 77th Street. The CDMP encourages development and redevelopment within the UIA, prioritizing development on sites within the UIA over sites outside the UIA. The Amendment Ordinance No. 12-109 changes the future land use designation of approximately 148 acres of the Property to Industrial and Office, and the remaining 47 acres to Business and Office (Plan Amendment). The owner of the Property plans to develop or cause to be developed on the Property the Westview Business Park, with a mix of Office and Industrial uses. Under the proposed land use designations, without any additional restrictions, the Property could be developed at an intensity of up to 3,012,174 square feet of industrial use on the Properties designated for Industrial and Office, and 733,550 square feet of retail use or 2,886 multi-family residential units on the areas designated Business and Office. In this case, the Plan Amendment has been adopted with a binding Declaration of Restrictions. These development restrictions are incorporated as text into the CDMP Land Use Element Restrictions Table. The Declaration restricts development of the Property as follows: Limits Industrial development to 1.6 million square feet of light industrial, warehouse, and flex space, and further limits warehouse/distribution space to no more than 700,000 square feet. Limits Business and Office development to a maximum of 400,000 square feet of retail and service uses. Limits Residential development to areas designated for Business and Office use, and a maximum of 2,000 units. Limits total site development to generation of a maximum of 3,297 net external PM peak-hour vehicle trips. Ensures development of a mix of uses by limiting construction of Industrial and Office to no more than 800,000 square feet prior to issuance of the first Certificate of Occupancy within the Business and Office parcels. Prohibits the re-zoning of the Industrially-designated portions to the IU-3 zoning district and development of any use allowed in the IU-3 Industrial zoning district. Prohibits all uses allowed in the IU-2 zoning district, except that storage and distribution of cement and clay products is allowed. Prohibits most uses allowed in the IU-1 zoning district. Requires the developer to improve the existing vegetative buffer between the Property and East and West Golf Drive to a sixty-foot landscaped buffer including a seven-foot masonry wall, opaque fence, or berm, with trees planted at a minimum height of 12 to 14 feet and not farther than twenty-five feet on center. Limits vehicular access to the Property exclusively from Northwest 119th Street, except that the Industrial and Office portions will have one access directly from Northwest 22nd Avenue.3/ Prohibits direct vehicular access between the Property and the surrounding residential neighborhood. Limits height of any hotel or motel use to 50 feet. Commits the developer to work with the Florida Department of Transportation, Miami-Dade County, and the Miami-Dade County Expressway Authority to make improvements on Northwest 119th Street, including extension of an existing westbound travel lane and construction of an eastbound turn lane. Requires the developer to: Incorporate Transportation Demand Management (TDM) Strategies, pedestrian access and connectivity in the including Business and Office developments, pedestrian access to transit stops, and construction of transit shelters. Direct all lighting away from adjacent residential uses, require sound deadeners for any metal work or welding-related uses, and prohibit outdoor speaker systems within the Industrial and Office designation. Dedicate a five-acre parcel for a public recreational facility and develop a multi-purpose jogging, biking, and pedestrian track within the rights of way of East and West Golf Drive. Offer to dedicate vacant land within the Property for a police substation or similar police use. Work with the Public Works Department and the Golf Park Homeowners’ Association to develop traffic calming devices and neighborhood identification signage for the residential neighborhood immediately adjacent to the Property. Make reasonable efforts to employ applicants who are residents of the zip code in which the Property is located, use local businesses and the local workforce in construction of the Project, utilize minority-owned businesses for construction contracts, and maintain non-discriminatory hiring practices. In addition to establishing binding restrictions on the development of the Property which run with the land, the Restrictions can only be modified by amendment to the CDMP, pursuant to section 163.3184, Florida Statutes, and applicable procedures of the Miami-Dade County Code. Petitioners’ Challenge Petitioners challenge that portion of the Plan Amendment which re-designates approximately 148 acres of the Property from Parks and Recreation to Industrial and Office. Petitioners do not challenge that portion re-designating approximately 46 acres from Parks and Recreation to Business and Office. Petitioners challenge the Plan Amendment as not “in compliance” on the basis of inconsistency with both the CDMP and the Community Planning Act, part II, chapter 163, Florida Statutes. Petitioners’ concerns center on the question of the compatibility between the proposed land use and the existing residential neighborhood. Compatibility Petitioners maintain that the proposed designation of the Property for Industrial development is inherently incompatible with the adjoining residential use. Petitioners rely on the following two CDMP provisions to support this argument: Policy LU-4B. Uses designated on the LUP map and interpretive text, which generate or cause to generate significant noise, dust, odor, vibration, or truck or rail traffic shall be protected from damaging encroachment by future approval of new incompatible uses such as residential uses. From the Textual Description of Industrial and Office Category:4/ In general, the typical residential development is incompatible with major industrial concentrations and shall not occur in areas designated as ‘Industrial and Office’ on the LUP map to avoid conflicts and for health and safety reasons. The cited provisions support a finding that Industrial development is generally incompatible with residential development. That fact was admitted by the County in its Staff Report on the proposed Plan Amendment. Neither of the cited provisions prohibits the Plan Amendment from being approved. Following these policies, the County would be justified in denying an application for new residential development within an area designated for Industrial and Office. It does not follow, however, that the County must deny a plan amendment allowing some industrial development adjacent to residential development. As explained by Intervenor’s expert, Thomas Pelham, in a highly-urbanized area like Miami-Dade County’s central core, it is unrealistic, if not impossible, to follow a Euclidean zoning approach, where different uses are dispersed and separated from one another. Compatibility in such a concentrated urbanized area must be judged by assessing the potential impacts of the proposed development and determining whether those impacts can be mitigated. “‘Compatibility’ means a condition in which land uses or conditions can coexist in relative proximity to each other in a stable fashion over time such that no use or condition is unduly negatively impacted directly or indirectly by another use or condition.” § 163.3164(9), Fla. Stat. Petitioners allege the Plan Amendment is inconsistent with the following group of policies which speak to compatibility among uses in close proximity (emphasis in original): GOAL PROVIDE THE BEST POSSIBLE DISTRIBUTION OF LAND USE AND SERVICES TO MEET THE PHYSICAL, SOCIAL, CULTURAL AND ECONOMIC NEEDS OF THE PRESENT AND FUTURE POPULATIONS IN A TIMELY AND EFFICIENT MANNER THAT WILL MAINTAIN OR IMPROVE THE QUALITY OF THE NATURAL AND MAN- MADE ENVIRONMENT AND AMENITIES, AND PRESERVE MIAMI-DADE COUNTY’S UNIQUE AGRICULTURAL HERITAGE. * * * Objective LU-4Miami-Dade County shall, by year 2015, reduce the number of land uses, which are inconsistent with the uses designated on the LUP map and interpretive text, or with the character of the surrounding area. Policy LU-4A. When evaluating compatibility among proximate land uses, the County shall consider such factors as noise, lighting, shadows, glare, vibration, odor, runoff, access, traffic, parking, height, bulk, scale or architectural elements, landscaping, hours of operation, buffering, and safety, as applicable. Policy LU-4C. Residential neighborhoods shall be protected from intrusion by uses that would disrupt or degrade the health, safety, tranquility, character, and overall welfare of the neighborhood by creating such impacts as excessive density, noise, light, glare, odor, vibration, dust or traffic. Policy LU-4D. Uses which are supportive but potentially incompatible shall be permitted on sites within functional neighborhoods, communities or districts only where proper design solutions can and will be used to integrate the compatible and complementary elements and buffer any potentially incompatible elements. Policy LU-8E. Applications requesting amendments to the CDMP Land Use Plan map shall be evaluated to consider consistency with the Goals, Objectives and Policies of all elements, other timely issues, and in particular the extent to which the proposal, if approved would: * * * iii) Be compatible with abutting and nearby land uses and protect the character of established neighborhoods; . . . . Petitioners argue the County cannot find the uses compatible because it did not consider all the possible negative impacts to the existing residential development from the adjoining industrial development, as required by Policy LU-4A, and because the Plan Amendment does not protect the character of the Westview neighborhood, as required by Policies LU-4C, LU-4D, and LU-8E(iii). The Declaration of Restrictions is critical to the County’s determination that the uses, as proposed in this application, are compatible. County staff originally identified LU-4G and LU-8E as policies which “could be impeded” by the Plan Amendment application. However, the written staff analysis was not amended after the Declaration of Restrictions was finalized. The developer proposed different iterations of the Declaration of Restrictions as the application progressed through the process. The final Restrictions are the most stringent. Mr. Woerner testified that his opinion that the Plan Amendment is compatible is based on the dedication of the final Restrictions. The County considered noise impacts, as evidenced by Restrictions which prohibit outdoor speaker systems, require sound deadeners for metal work uses, and require that all air compressors be of radial (silenced) design. Further, the Restrictions require the developer to submit a site plan at re- zoning which incorporates noise-reduction techniques, such as traffic calming devices and wing walls surrounding loading bays. Petitioners complain that these Restrictions are meaningless because they contain no measurable standard, such as a maximum decibel level. However, Petitioner offered no evidence that a prohibition on outdoor speaker systems, sound deadeners, and radial (silenced) design of air compressors were meaningless or unenforceable standards. Lighting is addressed in the Restrictions, which require lighting to be directed away from the adjoining residential areas. Petitioners complain that the Restriction is meaningless because it contains no measurable standard, such as maximum lumens or brightness. However, Mr. Woerner testified that the Restriction gives direction to the County staff at site plan review to ensure that appropriate lighting is incorporated. The Restrictions also evidence the County’s consideration of traffic issues by limiting access to the Industrially-designated areas via two access points –- one on Northwest 119th Street and one from 22nd Avenue –- both of which are major arterial roadways. Further, the Restrictions require the developer to construct eastbound right-turn lanes and an extension to the existing fourth westbound travel lane on Northwest 119th Street to serve the Property. Finally, the Restrictions prohibit all internal traffic access between the proposed development and the residential neighborhood. The County conducted a traffic study and evaluated a traffic study submitted by the applicant in this case. The studies form the basis for many of the access and traffic provisions incorporated into the Restrictions. Buffering is directly incorporated into the Restrictions, which require a 60-foot landscaped buffer between the residential property and the proposed development, as more particularly described above. The landscape plan for the buffer area must be submitted to the surrounding property owners for review and comment prior to the public hearing on the re-zoning application for the Property. In addition to the landscaping plan for the buffer area, landscaping is further addressed in the Restrictions, which require street trees of at least 12 feet along all roadways abutting the Property at a spacing of 25 feet on center. Runoff is addressed in the Restrictions by requiring the developer to obtain a conceptual surface water permit from the County prior to issuance of any building permit for the Property. Petitioners fault the County for excluding from the Restrictions maximum height limits for warehouse and other industrial uses, while including a height limit for hotel and motel development. However, the County and Intervenor offered uncontroverted evidence that the County’s zoning code contains height limitations which will govern the industrial development. In the Restrictions, the height of hotel and motel development is limited beyond any regulation in the County’s zoning code. Petitioners likewise fault the County for not specifically including provisions addressing odor, vibration, and other potential negative impacts on the residential area as anticipated in Policy LU-4A. The best evidence that the County considered the myriad impacts from industrial development on the neighboring residential areas is the prohibition of the majority of typically allowable industrial uses. The Restrictions prohibit all uses allowed in the IU-3 Industrial Unlimited zoning district. Further, the Restrictions prohibit the following uses allowed in IU-2, the Industrial Heavy Manufacturing zoning district: Asphalt drum mixing plants which produce less than one hundred fifty (150) tons per hour in self-contained drum mixers. Rock and sand yards. Manufacturing of cement and clay products, such as concrete blocks, pipe, etc. Soap manufacturing, vegetable byproducts, only. Railroad shops. Sawmills. Petroleum products storage tanks. Dynamite storage. Construction debris materials recovery transfer facility. Finally, the Restrictions also prohibit most of the 90 uses allowed in IU-1, the Industrial Light Manufacturing zoning district.5/ Eliminating the uses prohibited by the Restrictions, the Property may be developed for the following uses: auditoriums, automobile rentals/storage and wholesale distribution, bakeries (wholesale only), banks, bottling plants, caterers, cold storage warehouses and pre-cooling plants, contractors’ offices (not yards), engine sales, food storage warehouse, hotel and motel, laboratories, leather goods manufacturing (except tanning), locksmiths, office buildings, pharmaceutical storage (subject to conditions), police and fire stations, post offices, radio and television transmitting stations and studios, restaurants, salesrooms and storage show rooms (retail subject to limitations), schools for aviation and electronic trades, physical training schools such as gymnastics and karate, ship chandlers, telecommunications hubs (subject to conditions), telephone exchanges, vending machine sales and service, truck and bus stations and terminals, as well as the storage and wholesale distribution of concrete, clay or ceramic products, and novelty works. By prohibiting the myriad uses typically allowed within an Industrially-designated area, the Restrictions eliminate the sights, sounds, odors, vibrations, glare and other potential adverse impacts associated with those uses. The Restrictions protect the neighborhood from noise, light, glare, odor, vibration, dust and traffic, as required by Policy LU-4C. A preponderance of the evidence supports a finding that the County considered the proximity of the neighborhood to the proposed Industrial and Office designation, and approved the designation only with severe limitations on allowable uses and with restrictions designed to mitigate negative impacts and protect the health, safety, and character of the adjoining neighborhood. The Restrictions are designed to buffer the neighborhood from potentially incompatible elements of the adjoining industrial uses, as required by Policy LU-4D. Neighborhood safety and quality of life are additionally addressed by specific provisions of the Restrictions. The developer is required to construct a multi- purpose jogging, bicycle, and pedestrian track along the perimeter of the property; offer to dedicate and improve a 5-acre public recreational facility; and offer to dedicate property for a police substation or similar police use. Further, the developer is required to include pedestrian access improvements across Northwest 119th Street between the Business and Office parcels. These improvements are designed to increase pedestrian access between the two sections of the neighborhood currently divided by Gratigny Parkway. Petitioners cite to the following additional provisions in support of their argument that the Plan Amendment is inconsistent with the CDMP: Policy LU-5B. All development orders authorizing new land use or development, or redevelopment, or significant expansion of an existing use shall be contingent upon an affirmative finding that the development or use conforms to, and is consistent with the goals, objectives and policies of the CDMP including the adopted LUP map and accompanying ‘Interpretation of the Land Use Plan Map’. Objective LU-8 Miami-Dade County shall maintain a process for periodic amendment to the Land Use Plan map consistent with the adopted Goals, Objectives and Policies of this plan, which will provide that the Land Use Plan Map accommodates projected countywide growth. Policy LU-8A. Miami-Dade County shall strive to accommodate residential development in suitable locations and densities which reflect such factors as recent trends in location and design of residential units; a variety of affordable housing options; projected availability of service and infrastructure capacity; proximity and accessibility to employment, commercial and cultural centers; character of existing adjacent or surrounding neighborhoods; avoidance of natural resource degradation; maintenance of quality of life and creation of amenities. Density patterns should reflect the Guidelines for Urban Form contained in this Element. Policy LU-8D. The maintenance of internal consistency among all Elements of the CDMP shall be a prime consideration in evaluating all requests for amendment to any Element of the Plan. Among other considerations, the LUP map shall not be amended to provide for additional urban expansion unless traffic circulation, mass transit, water, sewer, solid waste, drainage and park and recreation facilities necessary to serve the area are included in the plan and the associated funding programs are demonstrated to be viable. From the Textual Description of Parks and Recreation Category: Unless otherwise restricted, the privately owned land designated as Parks and Recreation may be developed for a use or a density comparable to, and compatible with, surrounding development providing that such development is consistent with the goals, objectives and policies of the CDMP. The cited provisions are wholly inapplicable to the Plan Amendment at issue. Policy LU-5B applies to development orders. The Plan Amendment at issue is not a development order. See § 163.3164(14) through (16), Fla. Stat. Policy LU-8A applies to evaluation of LUP map amendments to accommodate residential development. The Plan Amendment at issue does not designate property for residential use. LU-8A requires the County to follow the Guidelines for Urban Form in evaluating residential designations. While this policy applies to both new and existing residential development, it does not apply to the Plan Amendment at issue. Policy LU-8D speaks to factors for considering urban expansion. The Plan Amendment at issue is urban infill, not urban expansion. The textual description excerpted from the Parks and Recreation category is likewise inapplicable because it limits development on lands designated Parks and Recreational without a change to another land use category. In the case at hand, a map amendment is sought, rendering those limitations inapplicable. Urban Infill and Economic Development Miami-Dade County maintains that the proposed Plan Amendment is consistent with, and furthers, a number of other CDMP provisions, as follows: LU-1C. Miami-Dade County shall give priority to infill development on vacant sites in currently urbanized areas, and redevelopment of substandard or underdeveloped environmentally suitable urban areas contiguous to existing urban development where all necessary urban services and facilities are projected to have capacity to accommodate additional demand. LU-10A. Miami-Dade County shall facilitate contiguous urban development, infill, redevelopment or substandard or underdeveloped urban areas, high intensity activity centers, mass transit supportive development, and mixed-use projects to promote energy conservation. LU-12. Miami-Dade County shall take specific measures to promote infill development that are located in the Urban Infill Area as defined in Policy TC-1B or in a built-up area with urban services that is situated in a Community Development Block Grant-eligible area, a Targeted Urban Area identified in the Urban Economic Revitalization Plan for Targeted Urban Areas, an Enterprises Zone established pursuant to state law or in the designated Empowerment Zone established pursuant to federal law.[6/] The proposed use of the Property is for infill development and redevelopment of an underdeveloped parcel in a highly urbanized area. Petitioners’ expert, Mr. Henry Iler, questioned whether the proposed use of the Property is infill development. He argues that urban infill is traditionally higher-density residential on small vacant sites within urban areas, explaining that “Infill development a lot of times are quarter acre parcels or it could be an acre inside of some development.”7/ Mr. Iler’s argument is not persuasive because it is the location of the development, rather than its size or use, that defines it as urban infill. The Property represents a unique, if not unprecedented, opportunity in Miami-Dade County –- almost 200 acres of vacant land within the UIA, with ready access to major transportation corridors for moving goods throughout Florida and beyond. County staff estimates the project would create 2,000 direct jobs and up to 3,500 direct and indirect jobs combined. Industrially-zoned property within the minor statistical area (MSA) in which the Property is located, along with the closest adjacent MSA, is projected to be depleted by the year 2017. The designation of the Property for Industrial would add over nine years’ supply of Industrial land within the two combined MSAs. The Plan Amendment includes a functional mix of land uses, and the Restrictions ensure that a mix of uses actually develops. The Property is located within a quarter-mile of a future rapid transit corridor, and partly within the North Central Urban Community Center, which is planned for intensified mixed-use development along the Northwest 27th Avenue and Northwest 119th Street transit corridors. The site is currently served by three Metrobus routes, one of which is programmed for improvements in 2012. The Restrictions require the developer to improve existing transit stops along Northwest 119th Street. As summarized by Mr. Pelham, the Plan Amendment fits Policy LU-10A “like a glove.” Concepts The CDMP Future Land Use Element contains a list of 14 long-standing concepts which are embodied in the CDMP. Mr. Woerner testified that the Plan Amendment is consistent with a number of those concepts, including: Rejuvenate decayed areas by promoting redevelopment, rehabilitation, infilling and the development of activity centers containing a mixture of land uses. Promote development of concentrated activity centers of different sizes and character to provide economies of scale and efficiencies of transportation and other services for both public and private sectors. 11. Allocate suitable and sufficient sites for industrial and business districts to accommodate future employment needs. 13. Avoid excessive scattering of industrial or commercial employment locations. Mr. Woerner testified that the Plan Amendment furthers concept 8 by encouraging infill and a mix of land uses, furthers concepts 9 and 13 by its location in relation to the nearby Northwest 27th-37th Avenue Industrial Corridor and access to major transportation routes, and furthers concept 11 by fulfilling the need for industrial land in the two adjoining MSAs. Petitioners counter with concept 7, “Preserve sound and stable residential neighborhoods,” arguing that the Plan Amendment is contrary to this long-standing concept. Mr. Woerner testified that the Plan Amendment protects the Westview neighborhood through the extensive Restrictions, eliminating myriad uses otherwise allowed in Industrially-designated areas and requiring mitigation of anticipated negative impacts. Petitioners maintain that the Restrictions do not afford the neighborhood the protection required under the CDMP because the Restrictions are not binding, or otherwise enforceable, and can be changed in the future by the County Commission. Petitioners’ argument is not well-taken. The competent substantial evidence supports a finding that the Declaration of Restrictions is incorporated into the Future Land Use Element of the CDMP and can only be changed pursuant to the public notice and hearing provisions of the County ordinances and the Community Planning Act. If, as Petitioners speculate, the owner seeks to permit an IU-3 use on the Property in the future, it will require a future Plan Amendment to revise the Declaration of Restrictions as if it were another land use amendment. Further, such amendment is subject to a super-majority vote of the County Commission. Summary Petitioners failed to establish beyond fair debate that the challenged Plan Amendment is not in compliance.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity enter a Final Order determining that the Miami-Dade County Plan Amendment adopted by Ordinance No. 12-109 on December 4, 2012, is in compliance. DONE AND ENTERED this 1st day of August, 2013, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of August, 2013.
Findings Of Fact Parties Petitioners Austin, Houston, and Dorn all reside in the City of Cocoa (Cocoa or City). Petitioners Hendry both reside in Cocoa. The Department of Community Affairs (DCA) is the state land planning agency under the Local Government Comprehensive Planning and Land Development Regulation Act, Chapter 163, Part II, Florida Statutes (the Act). Cocoa is located entirely within Brevard County, which is within the jurisdiction of the East Central Florida Regional Planning Council (the Regional Planning Council). The resident population of Cocoa is presently about 18,000 persons. The City encompasses over 4500 acres and abuts the Indian River, which is also identified as the Indian River Lagoon. Preparation of Proposed Plan By Ordinance 6-86, which was adopted on March 25, 1986, the Cocoa City Council designated the Cocoa Planning and Zoning Board as the local planning agency under the Act. The Planning and Zoning Board thereby became responsible for preparing the Cocoa comprehensive plan required by the Act (the Plan), conducting public hearings on the Plan, and recommending the Plan to City Council for adoption. In February, 1987, Cocoa entered into a contract with the Regional Planning Council for assistance in preparing the Plan. Pursuant to the contract, the Regional Planning Council drafted all elements of the Plan except the Potable Water Subelement of the Public Facilities Element and related portions of the Capital Improvements Element, which CH2M Hill prepared; the Wastewater Subelement of the Public Facilities Element and related portions of the Capital Improvements Element, which Camp, Dresser and McKee prepared; and the Solid Waste Subelement of the Public Facilities Element and related portions of the Capital Improvements Element, which the City prepared. On November 7, 1987, a 4 1/4" by 3" display advertisement in the Florida Today newspaper announced that Cocoa had begun to prepare an update of its comprehensive plan in conformance with the 1985 Local Government Comprehensive Planning and Land Development Act. The advertisement stated that the preparation of the update "will have the effect of regulating the use of lands within the municipal limits of the City of Cocoa." The advertisement advised that copies of documents prepared during the updating process would be on file in the City's Community Improvement Department. The advertisement added that the public would be informed of public meetings through the news media and bulletins posted at City Hall. The Florida Today newspaper is a standard-sized newspaper of general paid circulation in Brevard County and of general interest and readership in Cocoa. The newspaper is published at least five times a week. All advertisements described herein appeared in the Florida Today newspaper and adequately identified the location of the advertised meeting or documents. On November 17, 1987, a 1 1/4" by 2 3/4" classified-type advertisement announced a meeting of the Planning and Zoning Board on November 18, 1987, at 5:15 p.m. for the purpose of discussing preliminary drafts of the Traffic Circulation and Recreation and Open Space Elements of the Plan. The advertisement stated that copies of the relevant documents could be obtained from the Community Improvement Department. On November 18, 1987, the Planning and Zoning Board conducted a public hearing on the Traffic Circulation and Recreation and Open Space Elements. On November 28, 1987, a 1 1/4" by 2 3/4" classified-type advertisement announced a meeting of the Planning and Zoning Board on December 2, 1987, at 5:15 p.m. for the purpose of discussing preliminary drafts of the Housing and Conservation Elements of the Plan. The advertisement stated that copies of the relevant documents could be obtained from the Community Improvement Department. On December 2, 1987, the Planning and Zoning Board conducted a public hearing on the Housing and Conservation Elements. There is some evidence to suggest that discussion of the Conservation Element was carried over to the next regularly scheduled meeting of the Planning and Zoning Board on December 9, 1987. On January 9, 1988, a 1 1/4" by 2 3/4" classified-type advertisement announced a meeting of the Planning and Zoning Board on January 13, 1988, at 5:15 p.m. for the purpose of discussing the Drainage Subelement of the Public Facilities Element and the Coastal Management Element. The advertisement stated that copies of the relevant documents could be obtained from the Community Improvement Department. On January 13, 1988, the Planning and Zoning Board conducted a public hearing on the Drainage Subelement of the Public Facilities Element and the Coastal Management Element. On February 25, 1988, a 1 1/4" by 5 3/4" classified-type advertisement announced meetings of the Planning and Zoning Board on March 9, 1988, at 5:15 p.m. and the City Council on March 22, 1988, at 7:00 p.m. for the purpose of hearing all interested persons on the Future Land Use and Capital Improvements Elements of the Plan. The advertisement stated that copies of relevant documents could be obtained from the Community Improvement Department. The record is unclear as to whether these meetings took place, although the Planning and Zoning Board met on March 23, 1988, and discussed the Future Land Use, Intergovernmental, and "Capital Facilities" Elements, as well as the "Sanitary Sewer" Subelement of the Public Facilities Element. On March 28, 1988, a 4 1/4" by 3" display advertisement described the planning process in the same manner as did the November 7 display advertisement. The March 28 advertisement announced that the Planning and Zoning Board and City Council would hold joint workshops on March 29, 30, and 31, 1988, at 5:15 p.m. to discuss "public facilities, coastal management, housing, transportation, recreation and open space, intergovernmental coordination, capital improvement and future land use elements." The advertisement stated that copies of relevant documents could be obtained from the Community Improvement Department. The record is unclear as to whether these meetings took place as scheduled, although, at minimum, it appears that the March 29 meeting took place. On April 23, 1988, at 5:15 p.m., the Planning and Zoning Board commenced a special meeting with the following persons present: six members and the chairman of the Planning and Zoning Board, four members of the City Council and the Mayor, the City Manager and Assistant City Manager, the Community Improvement Administrator, a City planner, and four representatives of the Regional Planning Council. The purpose of the meeting was to consider the Future Land Use, Traffic Circulation, Housing, Public Facilities, Coastal Management, Conservation, Recreation and Open Space, Intergovernmental Coordination, and Capital Improvements Elements of the Plan. The Future Land Use Element was unavailable, so the City Council postponed the discussion of this element until a later date. At the April 13 meeting, Rochelle Lawandales, the Community Improvement Administrator, stated that no formal action would be taken at the workshop, but that the Plan would go before the City Council on April 26, 1988, at 7:00 p.m. during a public hearing. At the conclusion of the April 26 hearing, the City Council would be expected to authorize staff to submit the Plan to DCA. The April 13 meeting was adjourned at 8:05 p.m. On April 19, 1988, at 5:15 p.m., the Planning and Zoning Board began a special meeting with largely the same persons who attended the April 13 meeting. The purpose of the meeting was to discuss the Future Land Use Element and Future Land Use Map. The discussion culminated in the consensus that the Planning and Zoning Board would recommend that the City Council transmit the Plan to DCA. The meeting adjourned at 6:55 p.m. Transmittal of Proposed Plan to DCA On April 19, 1988, a 6 1/2" by 10 1/2" display advertisement with a large-type headline appeared on page 5 of Section B of the newspaper. The advertisement, which was in the form prescribed by Section 163.3184(15)(c), Florida Statutes, announced that the City Council proposed to change the use of land within the City and that on April 26, 1988, at 7:00 p.m. the City Council would conduct a public hearing on the Plan proposed to be sent to DCA (Proposed Plan). The advertisement contained a large map of Cocoa with major street names indicated, listed the nine major elements of the Proposed Plan, and advised that interested persons could submit written comments or attend the public hearing to be heard regarding the transmittal of the Proposed Plan to DCA. The advertisement stated that the City Council would not give final approval to changes proposed at the hearing, which was described as part of the process designed to lead to the eventual adoption of the Plan. On April 26, 1988, the City Council conducted a public hearing. Following receipt of public comment, which was relatively limited, Mayor Dollye Robinson closed the public hearing, and the City Council unanimously approved Resolution No. 88-17, which authorizes the transmittal of the Proposed Plan to DCA. On May 1, 1988, DCA received the City of Cocoa-- Comprehensive Plan, which consists of two volumes. Volume I is Background Analysis. Volume II is Goals, Objectives, and Policies. DCA also received a document containing population estimates for Cocoa and an Evaluation and Appraisal Report (EAR), dated April, 1988, assessing the performance of the Cocoa comprehensive plan adopted under the Local Government Comprehensive Planning Act of 1975. (The Proposed Plan and Plan are unrelated to the comprehensive plan assessed in the EAR.) On May 8, 1988, a 4 1/4" by 3" display advertisement announced that the Proposed Plan and supporting documentation were available for review at the public library and city hall. Proposed Plan: Goals, Objectives, and Policies General The Act requires that each comprehensive plan contain eight or nine major elements: Capital Improvements; Future Land Use; Traffic Circulation; Sanitary Sewer, Solid Waste, Drainage, Potable Water, and Natural Groundwater Aquifer Recharge (identified as the Public Facilities Element in the Proposed Plan and Plan); Conservation; Recreation and Open Space; Housing; Intergovernmental Coordination; and, if applicable, Coastal Management. Each element comprises goals, objectives, and policies, which respectively represent long-term ends, criteria by which progress toward the goals can be measured, and programs and activities by which the goals are to be achieved. The goals, objectives, and policies in the Proposed Plan are largely carried over to the Plan. Future Land Use Element and Map The Proposed Plan contains two objectives under the Future Land Use Element. They are: Objective 1.1: Future growth and development will be managed through the preparation, adop- tion, implementation and enforcement of land development regulations. Objective 1.2: Future development and redevel- opment activities shall be directed in appro- priate areas as depicted on the Future Land Use Map, consistent with sound planning principles, minimal natural constraints, and the goals, objectives, and policies provided in the . . . Plan. Policy 1.1 of the Future Land Use Element provides in part: The City will adopt land development regula- tions that shall contain specific and detailed provisions required to implement the . . . Plan and which: * * * Regulate the use of land and water consis- tent with this element and ensure the compati- bility of adjacent land uses and provide for open space; Protect the wetland areas identified in the conservation element and future land use element; Regulate areas subject to seasonal and periodic flooding and provide for drainage and stormwater management; * * * H) Provide that development orders and permits shall not be issued which would result in a reduction of the adopted level of service standards. The Future Land Use Map, which is part of the Proposed Plan, depicts eight land use categories: low-, medium-, and high-density residential, commercial, industrial, institutional, open space and recreational, and activity center. Policy 1.2 specifies a maximum density of seven units per acre for low- density residential and 15 units per acre for medium-density residential. The Future Land Use Map in the Proposed Plan depicts four large parcels as open space. These are north of Michigan Avenue, just west of U.S. Route 1; south of Michigan Avenue, just west of U.S. Route 1; north and west of the intersection of Michigan Avenue and Range Road; and east of the north end of Range Road and west of the largest unincorporated enclave surrounded by the City. According to the two Existing Land Use Maps contained in the Background Analysis, which is described in Paragraphs 47-67 below, the four large parcels designated as open space on the Future Land Use Map are wetlands, except for a small strip that is probably a park and is described further in Paragraph 127 below. The four open spaces constitute nearly all of the existing wetlands in the City. Neither the Future Land Use Map in the Proposed Plan nor either of the Existing Land Use Maps in the Background Analysis depicts any historical resources. Housing Element The Housing Element of the Proposed Plan contains the following provisions with respect to historic properties: Objective 3.1.4: Housing designated histori- cally significant will continue to be preserved and protected, and the quality of existing homes and neighborhoods will be maintained or improved. Policy 3.1.4.4: Assist owners of designated historically significant housing to apply for and utilize state and federal assistance programs. Policy 3.1.4.7: The City will aid in the identification of historically significant housing and structures. Public Facilities Element The Public Facilities Element of the Proposed Plan provides the following level of service standards for drainage: design storm event--five year frequency/24-hour duration event; on-site stormwater management--retention of first one inch of rainfall runoff or, with respect to drainage areas under 100 acres with under 80% impervious surface, retention of first one-half inch of runoff; stormwater quantity--no greater than pre-development stormwater runoff flow rates, quantities, peaks, and velocities; and stormwater quality--no degradation of existing water quality condition in receiving water bodies. The Drainage Subelement of the Public Facilities Element of the Proposed Plan contains seven objectives. Three of the objectives focus upon floodplains and wetlands: Objective 4.3.5: To reduce existing flooding problems and to prevent additional flooding problems from being created as a result of future development. Objective 4.3.6: To ensure the protection and preservation of existing wetlands as viable components of the City's surface water management systems, to include the establish- ment or maintenance of desirable hydroperiods, water quality conditions, and natural ecosystems. Objective 4.3.7: To ensure that proper and adequate surface water management facilities are provided in response to identified needs. Several policies under Objectives 4.3.5, 4.3.6, and 4.3.7 describe the data still needed by the City to determine its drainage needs and the means by which Cocoa intends to attain the overall goals of the subelement: Policy 4.3.2.5: Efforts will be undertaken to eliminate existing points of direct stormwater discharge into receiving surface waterbodies, where possible, based on the following procedure: engineering studies will be initiated for the purpose of identifying the comparative nonpoint pollution impacts of each direct discharge point, and determining relative priorities for corrective actions (or "retrofit" projects) to be undertaken, based on the extent of-- --adverse impacts on entire receiving waterbody --system retrofitting required to eliminate or minimize the adverse impacts --projected benefits to be accomplished --overall implementation feasibility facility design studies will be initiated for those direct discharge points determined to have the highest priority. The estimated costs of individual corrective action projects will be included as components of the Capital Improvements Program. Policy 4.3.5.2: Drainage needs assessment investigations will be initiated for areas within the City which have been identified as experiencing flooding problems, for the purpose of identifying actions necessary to alleviate the problems. Policy 4.3.5.3: Based on the findings of the drainage needs assessment investigations, engineering studies will be initiated to develop solutions to the identified flooding problems, with the cost estimates being included in the Capital Improvements Program. Policy 4.3.6.1: Public infrastructure improvements that encourage the development of wetlands will be avoided except in the case of overriding public interest, with appropriate measures being taken to discourage development in affected wetland areas. Policy 4.3.6.2: The City will review its land development and zoning ordinances, regulations and standards with the intent being to remove any requirements which might encourage develop- ment in wetland areas. Policies 4.3.7.1 and 4.3.7.2 promise an inventory of Cocoa's surface water management system followed by an engineering study of the system components to identify the extent of excess or deficient surface water flow or storage capacity. The final policy in this subelement states: Policy 4.3.7.9: Flood control for new develop- ment will be accomplished through the limita- tion of fill in the 100-year floodplain. In cases where there are no alternatives to fill in the floodplain, compensatory storage for such fill will be provided through excavation in adjacent upland areas (above the 100-year floodplain) of a volume equivalent to the loss of storage within the 100-year floodplain resulting from the placement of fill, where such compensatory storage can be accomplished in an environmentally sound and economically feasible manner. Coastal Management Element The Coastal Management Element of the Proposed Plan does not refer to coastal wetlands or historic resources. It does not contain any analysis of the effects on estuarine water quality of existing drainage systems and nonpoint source pollution such as that carried by stormwater runoff. Conservation Element The Conservation Element of the Proposed Plan contains nine subelements. Several of these subelements contain objectives or policies addressing wetlands, floodplains, and stormwater drainage. The Vegetation and Wildlife Habitat Subelement of the Conservation Element provides: Policy 6.4.2: Areas of natural habitat within the 100 year floodplain shall be given priority consideration in the identification of lands which address passive recreational demand and open space objectives. Policy 6.4.3: In order to reduce the adverse consequences of floodplain development and simultaneously encourage the conservation of natural habitat, the City's Flood Damage Prevention ordinance shall be amended to discourage construction in the floodplain by requiring the provision of compensatory storage for fill placed within the floodplain. Policy 6.4.7: The City shall not approve any development which would significantly and adversely alter the ecological functions of freshwater wetlands or deepwater habitat. Ecological functions include: (a) provision of wildlife and fisheries habitat; (b) main- tenance of in-stream flows and lake levels during periods of high and/or low rainfall; (c) erosion control; and (d) water quality enhancement. The Fisheries and Estuarine Habitat Subelement of the Conservation Element provides: Objective 6.5: The City shall protect the ecological well being of the Indian River Lagoon from adverse activities or impacts, so as to maintain or enhance the abundance and diversity of estuarine habitat and species. Policy 6.5.2: The city shall establish site design standards and regulations for the control of stormwater runoff to insure the adequate treatment of stormwater from all new development or redevelopment prior to its discharge to surface waters. Policy 6.5.3: The City shall take steps to identify means for reducing the volume of untreated stormwater discharged to surface waters, and shall develop a program to take corrective action, to the greatest extent feasible. The Water Quality Protection Subelement of the Conservation Element contains similar provisions with respect to the control of stormwater runoff and development of corrective programs. The Floodplain Management Subelement of the Conservation Element states: Objective 6.8: The City shall protect the flood storage and conveyance functions of the 100 year floodplain. Policy 6.8.1: In order to reduce the adverse consequences of floodplain development and simultaneously encourage the conservation of natural habitat, the City's Flood Damage Prevention ordinance shall be amended to discourage construction in the floodplain by requiring the provision of compensatory storage for fill placed within the floodplain. Policy 6.8.2: Developers shall be encouraged to incorporate those portions of sites which are within the 100 year floodplain as open space preservation. Policy 6.8.3: The City shall promote wetlands preservation and non-structural floodplain management by encouraging the use of isolated wetlands as detention areas, where such use is consistent with good engineering practice and does not significantly degrade the ecological value of wetlands. Pre-treatment of stormwater runoff by diversion of the "first flush" shall be required prior to discharge to wetland detention areas. Policy 6.8.4: The City shall encourage public and private agencies . . . in acquiring floodplains. Recreation and Open Space Element The Recreation and Open Space Element of the Proposed Plan provides: Goal 7.2: Ensure the conservation of open space areas in the City to provide aesthe- tically pleasing buffer areas, to serve as wildlife habitats, to act as groundwater recharge areas, to give definition to the urban area, and to enhance and promote natural resources. Policy 7.2.1.2: Designate conservation areas within the City as part of the future land use map in order to preserve open space and fulfill objectives discussed in this element and the Conservation Element. Capital Improvements Element The Capital Improvements Element of the Proposed Plan provides: Objective 9.1: The Capital Improvements Element will establish adopted levels of service for public facilities and capital improvement projects which the City will undertake. The Five-Year Schedule of Improvements will identify projects which a) meet existing deficiencies; b) provide repair or replacement of existing facilities; [and] c) accommodate desired future growth. Objective 9.2: All land use decisions which impact the Capital Improvements Element or Future Land Use Element will be coordinated by the City Manager, or his designee, in conjunction with the City's Planning and Zoning Board, and approved by City Council. Objective 9.3: Annual review of the Capital Improvements Element will be included in the City's budget process. As part of this review the Finance Department shall be responsible for: (1) addressing the fiscal impact of capital improvement projects on revenue and expenditures, and (2) updating the fiscal assessment section of the Capital Improvements Element. Objective 9.4: Public facility improvements that are needed to support new growth will maintain adopted levels of service. Improve- ments to public facilities which result from the impact of new development will require equitable cost participation by the developer. Policy 9.4.1: The City Manager shall initiate impact analysis of proposed development projects to determine the impact of the development on the City's fiscal operations and LOS [i.e., levels of service] for public facilities. Objective 9.5: The City will not approve development which requires public facility improvements that exceed the City's ability to provide these in accordance with the adopted LOS standards. Policy 9.5.1: Before a development is approved, the City Manager or his designee will determine that any needed public facility improvements do not exceed the City's funding capacity. Policy 9.5.2: Development approved prior to the adoption of this Plan which requires improvements to public facilities will be included in the Five-Year Schedule of Improvements with a funding priority designation. The Five-Year Schedule of Capital Improvements in the Proposed Plan includes only four projects: ongoing resurfacing and repair of roads, possible four-laning one specific road, expanding the wastewater treatment plant, and extensive, detailed work to the potable water system. I. Monitoring and Evaluation Provisions regarding Monitoring and Evaluation follow the goals, objectives, and policies in Volume II of the City of Cocoa--Comprehensive Plan. Concerning the public participation requirement, this section states in relevant part: In cases in which the proposed ordinance deals with more than five percent (5%) of the total land area of the municipality the council shall provide for public notice and hearings as follows: The council shall hold two (2) advertised public hearings on the proposed ordinance. Both hearings shall be held after 5:00 p.m. on a weekday and the first shall be held approxi- mately seven (7) days after the day that the first advertisement is published. The second hearing shall be held approximately two (2) weeks after the first hearing and shall be advertised approximately five (5) days prior to the public hearing. The day, time and place at which the second public hearing will be held shall be announced at the first public hearing. [This section is virtually identical to the language contained in Section 163.3184(15)(c), Florida Statutes.] [This section allows notice by mailing instead of advertising.] (Laws of Fla., Ch. 59-1186, Art. V, Section 9; Ord. No. 4-80, Section, [sic] 4-8-80) Proposed Plan: Background Analysis Future Land Use Element and Map The Future Land Use Element of the Background Analysis explains the purpose of the Future Land Use Map: The future location and distribution of land use are shown on the Future Land Use map. This map identifies appropriate types of land uses if all vacant land were to be utilized within the ten year planning horizon. Once the Future Land Use map is adopted, all development regulations in effect subsequent to its adoption must be consistent with it. Land development regulations in particular, shall rely on the map for their rational basis. (Future Land Use Element, Background Analysis, p. 1-3.) The Future Land Use Element of the Background Analysis states that the existing land use in Cocoa in 1987 includes about 389 acres of wetlands, or 8.6%, out of a total of 4520 acres. (Future Land Use Element, Background Analysis, Table 1-2.) Public Facilities Element The Drainage Subelement of the Public Facilities Element of the Background Analysis describes Cocoa's drainage as flowing equally into two waterbodies: the Indian River Lagoon on the east and the St. Johns River on the west. Of the five main drainage areas within Cocoa, three are part of the Indian River Lagoon Watershed and two are part of the St. Johns River Watershed. The map of Drainage Areas/Facilities, which is part of the Drainage Subelement, depicts each of the five drainage areas. Drainage Area III is bounded on the east by the high relict dune line just east of U.S. Route 1, on the west by Clearlake Road, on the south by Dixon Boulevard, and on the north by a low ridgeline in the vicinity of Industrial Park Road. Drainage Area III encompasses the wetlands bisected by Michigan Avenue, just west of U.S. Route 1. These wetlands, which are about 3000 feet from the Indian River, are part of a series of linear marshes running north-south and representing the "major repository" of stormwater drainage from contributing portions of Drainage Area The Background Analysis reports that these marshes function effectively as a surface water management area. Although on the landward side of the dune line, Drainage Area III is within the Indian River Lagoon Watershed because excess water in the area reverse flows into the lagoon during periods of very wet weather. According to the map of Vegetative Cover and Wildlife in the Background Analysis, seagrasses cover either the southeastern portion of the open space/wetlands south of Michigan Avenue or the adjacent land designated as medium-density residential. Noting historical encroachment on these wetlands, the Background Analysis concludes that continued encroachment will reduce the size of the storage capacity and increase the likelihood of outflow into the Indian River Lagoon. Drainage Area IV includes the wetlands found between the north end of Range Road and the largest unincorporated enclave within the City. These wetlands, which drain into the St. Johns River, are the site of Little Mud Lake. According to the Water Quality Protection Subelement of the Background Analysis, Little Mud Lake is largely a willow marsh with little or no open water. What water remains is probably of poor quality. However, the Background Analysis observes that the lack of adequate water quality data for all waterbodies in the City is itself a problem. Drainage Area V includes the largest contiguous wetlands within the City, which is the area north and west of the intersection of Michigan Avenue and Range Road. This area, which drains into the St. Johns River, surrounds Big Mud Lake, whose water quality is probably in poor condition, according to the Background Analysis. The Drainage Subelement of the Background Analysis acknowledges that the surface drainage systems for Cocoa have not been comprehensively inventoried since June, 1968. However, Drainage Area III is known to contribute about 29% of the stormwater runoff-generated pollutant loadings from the City to the Indian River Lagoon in the vicinity of the City. Although the wetlands serve as natural treatment and storage units, "[t]he continued loss of wetland areas will result in a corresponding decline in the overall effectiveness of the remaining wetlands to remove pollutants." (Drainage Subelement, Background Analysis, p. 4-30.) By way of comparison, Drainage III loads the Indian River Lagoon in the vicinity of the City with more than double the poundage of suspended solids than does the Jerry Sellers wastewater treatment plant in Cocoa. As to Drainage Area V, the Drainage Subelement warns that the salutary effect of Big Mud Lake, which serves as a natural treatment unit for stormwater pollutants, will be lost once the lake reaches its assimilative capacity to absorb or fix incoming loads of pollutants. According to the Water Quality Subelement of the Background Analysis, Big Mud Lake is probably eutrophic and "reduction of stormwater pollution . . . is probably the only means to restore [it]." (Water Quality Protection Subelement, Background Analysis, p. 6-62.) The Drainage Subelement concludes, however, that the impact of stormwater runoff-generated loadings is not expected to increase significantly and may even be reduced due to stormwater treatment requirements and stormwater retrofitting projects. However, existing stormwater treatment facilities serve only about 5.5% of the land area within the City, which depends heavily upon existing natural treatment systems for the management and control of stormwater problems. The Drainage Subelement offers 13 recommendations. Four of the first five recommendations suggest an inventory of existing stormwater drainage systems, evaluation of the effectiveness of current strategies, and projection of the impact of future growth on flow volumes. The fourth recommendation reads: Efforts should be undertaken to ensure the protection and preservation of existing wetlands in Drainage Areas #3, 4 and 5, with a priority being placed on the wetlands in Drainage Area #3. Applicable actions include modifications to existing zoning classifica- tions and provisions, land development regu- lations, stormwater, runoff treatment requirements, and other regulatory measures, as well as the possible acquisition of conservation or drainage easements in the wetland areas. (Drainage Subelement, Background Analysis, p. 4-37 and 4-38.) The Floodplain Management Subelement of the Conservation Element of the Background Analysis defines floodplains as those areas that become inundated by water on a recurring basis. The 100 year floodplain is an area that stands a 1% chance in any year that it will be subject to such inundation. The subelement notes that the addition of fill in the floodplains may raise flood elevations to an extent that flooding results to structures previously thought to be outside the floodplain. According to the Floodplain Management Subelement, 745 acres or 16% of the area of the City is located within the 100 year floodplain. Only 66 acres or about 9% of these floodplains are currently developed. Wetlands occupy 120 acres or 16.1% of the 100 year floodplain in the City. In assessing the future needs of Cocoa with respect to floodplains, the Floodplain Management Subelement expressly assumes that the "areas currently supporting open water or wetlands are clearly safe from development." (Floodplain Management Subelement, Background Analysis, p. 6-72.) This subelement concerns itself with the "several adverse consequences" of the development of the remaining 510 acres of undeveloped wetland upland within the 100 year floodplain. The Background Analysis warns that development within the 100 year floodplain "would be dependent upon the proper functioning of all drainage systems needed to overcome soils limitations" or else less severe storm events might result in recurrent flooding. Id. The Floodplains Subelement concludes that adverse consequences, such as flooding existing homes, can best be avoided by "limiting any development which requires the placement of fill" and encouraging the use of nonwetland upland floodplains as open space. Again concerning itself exclusively with nonwetland uplands within the 100 year floodplain, the subelement recommends "minimal development, such as very low density single family homes," to avoid future infrastructure problems due to flooding existing structures. (Floodplain Management Subelement, Background Analysis, p. 6-73.) Recreation and Open Space Element The Recreation and Open Space Element of the Background Analysis acknowledges that lands designated as open space may include wetlands. Conservation Element The Fisheries and Estuarine Subelement of the Conservation Element describes the Indian River Lagoon as a tidal estuary, whose brackish waters are an important resource for commercial and recreational fishing. The subelement notes that considerable amounts of seagrass cover have been lost, presumably due to human-induced environmental changes. One of the causes of the loss of seagrasses, which are a crucial component in the ecological food web of the estuary, is the discharge of inadequately treated stormwater. The Fisheries and Estuarine Subelement concludes that the pollutant discharges, which include stormwater, must be "reversed" if the estuarine resources are to be "maintained." The subelement contains a recommendation that existing drainage systems be improved and projects feasible only through dredging and filling of wetlands be prohibited, except for projects of overriding public interest. (Fisheries and Estuarine Subelement, Background Analysis, p. 6-50.) Coastal Management Element The Coastal Resources Subelement of the Coastal Management Element of the Background Analysis defines the coastal area for the subelement as the entire City. (Coastal Resources Subelement, Background Analysis, p. 5-5.) The subelement reports that shellfish were once harvested commercially through the entire Indian River Lagoon. However, due to the effects of urban and agricultural development, shellfish harvesting in the lagoonal waters adjacent to Cocoa is either restricted or prohibited. The subelement notes that the manatee, which is the only endangered mammal regularly inhabiting the Indian River, suffers from the loss of seagrasses, upon which the manatee grazes. The Coastal Resources Subelement states that the Indian River Lagoon receives little tidal flushing due to its distance from Sebastian Inlet. Thus, whatever pollutants are discharged into the lagoon remain indefinitely. In general, the water quality of the lagoon, according to one source cited in the Background Analysis, ranges from fair to poor. According to another source cited in the Background Analysis, the water quality is poor. The subelement reports that, by November, 1988, Cocoa was projected to complete the expansion of the Jerry Sellers wastewater treatment plant, whose effluent flows into the lagoon. The expansion was to increase the capacity of the plant by 80% of its present capacity. (Coastal Resources Subelement, Background Analysis, p. 5-10.) The Coastal Resources Subelement discloses that the Indian River Lagoons Field Committee was commissioned in 1985 to assist in the preparation of an integrated management plan for the lagoon, which extends over 156 miles through five counties and 40 municipalities. One of the committee's general recommendations is that local governments should include in their comprehensive plans the committee's recommendations for floodplain and critical area protection. (Coastal Resources Subelement, Background Analysis, p. 5-34.) Objections, Recommendations, and Comments of DCA Findings of Other Agencies Upon receipt of the Proposed Plan and supporting documents, DCA distributed them to various state, regional, and local agencies for comment, as part of the intergovernmental review process mandated by Section 163.3184(4) and (5), Florida Statutes. The Act gives these agencies 45 days within which to send their comments to DCA, which has an additional 45 days within which to transmit its objections, recommendations, and comments (ORC) to the local government submitting the plan. In the present case, DCA received responses from the Divisions of State Lands and Resource Management of the Department of Natural Resources (DNR); Comprehensive Planning Division of Brevard County; Regional Planning Council; Bureau of Historic Preservation of the Division of Historical Resources of the Department of State (the Department of State); Planning Department of the St. Johns River Water Management District (the Water Management District); Bureaus of Air Quality, Wastewater Management and Grants, Groundwater Protection, and Waste Planning and Regulation and Sections of Coastal Management and Drinking Water of the Department of Environmental Regulation (DER); Game and Fresh Water Fish Commission; and District 5-- Division of Planning and Programming of the Department of Transportation. DNR commented upon Policy 1.1.C, which as noted above in Paragraph 28 above provides that the City will adopt land development regulations to protect the wetlands identified in the Conservation and Future Land Use Elements. DNR stated that the policy "needs to project a long-term land use program to insure the protection of natural resources." DNR objected that the Coastal Management Element "contains no goal or objective addressing the protection, conservation, or enhancement of remaining coastal wetlands, living marine resources, . . . wildlife habitat, or the maintenance or improvement of estuarine environmental quality." The Regional Planning Council reported that Objective 6.4 in the Conservation Element lacks policies addressing the need to protect upland habitat adjacent to regionally significant wetlands, as required by Policy 43.8 in the plan of the Regional Planning Council. In a letter signed by Secretary of State Jim Smith, the Department of State determined that the Proposed Plan was inconsistent with the historic preservation aspects of the state comprehensive plan and failed to meet the requirements of the Act "regarding the identification of known historical resources . . . and . . . establishment of policies, goals, and objectives for historic preservation." The Department of State stated that Objective 3.1.4 of the Housing Element, which is quoted in Paragraph 33 above, lacks a specific plan of action for achieving its stated goal of preserving housing designated as historically significant. The Department of State faulted the Coastal Management Element for its failure to mention historical structures or archaeological sites and the Future Land Use Element and Map for their omission of known historical resources. The Water Management District stated that the Proposed Plan is "deficient with respect to water-related goals, objectives and policies required by Chapter 9J-5." With respect to the Future Land Use Element, the Water Management District noted the absence of objectives to ensure the protection of natural resources and policies to provide for drainage and stormwater management. The Water Management District found several items missing from the Coastal Management Element. These items included an inventory of the effect of the future land uses on natural resources; objectives protecting coastal wetlands, resources, and habitats; objectives addressing estuarine environmental quality; policies limiting the impacts of development upon wetlands; and policies identifying techniques for the protection of the Indian River Lagoon. The Water Management District concluded that this element did not appear to follow the requirements of Chapter 9J-5 as closely as did the other elements of the Proposed Plan. The Water Management District also objected to the Conservation Element on the grounds that it lacked specificity for the protection of existing natural resources and time frames for the treatment of untreated stormwater discharges, fisheries, wildlife, and wildlife habitats. DER commented generally that the Proposed Plan "appears to have important weaknesses." Referring to the Future Land Use and Capital Improvements Elements, DER noted the need for a number of studies regarding drainage, but the absence of any funds allocated for this purpose. DER also commented generally that "much of the work that identified potential areas for conservation, such as mapping the areas subject to flooding and areas with poor soil suitability or wetlands, was not carefully incorporated into the Future Land Use Element." DER objected that the Future Land Use Element is not based upon analyses of the effect of development and redevelopment of flood-prone areas and the character and magnitude of existing vacant or undeveloped land to determine its suitability for use. DER stated that the Future Land Use Element insufficiently analyzes the wetlands and floodplains identified elsewhere in the Proposed Plan. Findings of DCA General On August 5, 1988, DCA mailed to Cocoa the ORC, which contained 139 objections, the above-described objections and comments of the other state, regional, and local agencies, and general background information concerning the Act and the planning process. The ORC explains that objections relate to specific requirements of the Act or Chapter 9J-5. Each objection includes a recommendation of "one approach that might be taken" to address the objection. A comment is advisory in nature and does not form the basis of a determination of noncompliance. The ORC states that the City's public participation procedures are in violation of Rule 9J-5.004(2)(c) and (e). The objections states that the procedures lack provisions to assure that the public has opportunities to provide written comments and would receive responses to their comments. The ORC recommends that the City revise the procedures to include the necessary provisions. The ORC states that the format of the goals, objectives, and policies are in violation of Rules 9J-5.003(32), (57), and (64) and 9J-5.005(6). The objection states: Goals which do not state a long-term end towards which programs or activities are directed are not acceptable. Objectives which are not measurable, not supported by the data and analysis and are stated in an unspecific, tentative and/or conditional manner are unacceptable. Policies which are tentative or conditional, or do not describe the activities, programs and land development regulations which will implement the plan, are unacceptable. The accompanying recommendation adds: A goal must be written to state a long-term desired result [citation omitted]. Objectives must be written in a way that provides specific measurable intermediate ends that mark progress toward a goal [citation omitted]. A measure such as a quantity, percentage, etc. and a definite time period for its accomplishment should be included in the objectives. Policies answer the question of "how" by specifying the clearly defined actions (programs and activities) local governments will take to achieve each objective and ultimately the identified goal [citation omitted]. If desired, local governments may choose to assign the measurability to a policy . . .. [DCA] is primarily concerned that local governments provide the basis for assessing the effectiveness of their plan. When writing objectives and policies, avoid vague words and phrases (e.g., "adequate," "sufficient," "minimize," and "adverse impacts"), terms which nullify the strength of the statement (e.g., "consider" or "encourage"), or advisory words. "Should" implies an advisory statement which is inappropriate in an adopted portion of the plan. Using the term "shall" provides direction in implementing the plan and will make later evaluation and update of the plan an effective process. . . . The use of words like "ensure" and "encourage" leaves the what and how questions unanswered. [A]n objective cannot be phrased to "maintain or improve," one or the other actions might be set as an objective, but not both. Objectives and policies which are written using phrases such as "if needed," "whenever possible" and "where feasible and appropriate," or other vague words or phrases make the statements unacceptable because the conditional criteria making them specifically operational, have not been stated. 2. Future Land Use Element and Map Included in the background information accompanying the ORC is the following statement from DCA concerning the purpose of the future land use element: The purpose of the future land use element is the designation of future land use patterns as reflected in the goals, objectives and policies of all the comprehensive plan elements. Depicting the future land use patterns on the future land use map serves to (1) anticipate and resolve land use compatibility issues, and (2) provide the information necessary to determine the needed location and capacity of public facilities. (Major Issues--Local Government Comprehensive Planning, p. 3.) The ORC contains three objections and recommendations with respect to the data and four objections and recommendations with respect to the analysis contained in the Future Land Use Element of the Background Analysis. These objections cover the failure of both Existing Land Use Maps to depict natural and historic resources, which is in violation of Rule 9J-5.006(1)(a)6. and 11. The ORC contains seven objections and recommendations with respect to the goals, objectives, and policies under the Future Land Use Element of the Proposed Plan and three objections and a comment with respect to the Future Land Use Map. Two of the objections pertain to the two objectives of the Future Land Use Element. These objections, which are recited above in Paragraph 27, generally provide for the management of future growth through the implementation of unspecified land development regulations and require the direction of future development and redevelopment into appropriate areas as depicted on the Future Land Use Map. The ORC states that these objectives are unmeasurable and unsupported by the data and analysis in the Background Analysis, which is in violation of Rule 9J-5.005(3)(b). Another objection is that the Future Land Use Element of the Proposed Plan lacks objectives addressing the requirements set forth in the following rules: Rules 9J-5.006(3)(b)1.-8. These rules require, among other things, the coordination of future land uses with the appropriate topography, soil, conditions, and availability of facilities and services; and the protection of natural and historic resources. DCA also objects in the ORC to Policy 1.1, which is recited at Paragraph 28 above and calls for land development regulations protecting wetlands and regulating areas subject to flooding, among other items. The ORC states that Policy 1.1 fails to satisfy the definition of a policy set forth in Rule 9J-5.003(64) because it fails to specify how the programs and implementation activities would be conducted. The ORC asserts that Policy 1.1 is unsupported by the necessary data and analysis, in violation of Rules 9J-5.005(1)(a)6. and 10., 9J-5.005(1)((b)3. and 4., and 9J-5.005(2)(a). The missing data and analysis include: the uses of conservation and undeveloped land; the presence on existing land use maps of wetlands and floodplains; and the availability of any facilities and services, as identified in the Drainage Subelement, to serve existing land uses. The ORC states that the Future Land Use Element lacks policies addressing the requirements set forth in Rule 9J-5.006(3)(c)3. and 8. The former subsection requires a policy addressing implementation activities directed toward providing facilities and services to meet locally established level of service standards concurrent with the impacts of development. The latter subsection requires a policy addressing implementation activities directed toward identifying, designating, and protecting historically significant properties. As to the Future Land Use Map, the ORC identifies deficiencies similar to those cited regarding the Future Land Use Element with respect to a lack of support by the data and analysis. The deficiencies in the data and analysis include the failure to show all required land use categories, including conservation and historic resources, which are required by Rule 9J-5.006(4)(a); failure to show one land use category, the redevelopment area, that is described in the text; and omission of all required natural resources, such as floodplains and wetlands, which is in violation of Rule 9J-5.006(4)(b). Noting that the legend on the Future Land Use Map states that the map is intended as an adjunct to the Plan, DCA comments that the legend should reflect that the map will be adopted as part of the Plan. 3. Housing Element One of the objections to the data underlying the Housing Element in the Background Analysis is that they do not include an inventory of historically significant housing listed in the Florida Master Site File, housing designated as historically significant by a City ordinance, or the location of the single house that is listed on the National Register of Historic Places. All of this information is required by Rule 9J-5.010(1)(g). The ORC contains an objection to Objective 3.1.4, which is set forth in Paragraph 33 above. The ORC states that this objective, which promises the preservation of historically significant property, is unmeasurable. 4. Public Facilities Element The ORC sets forth six objections to the data and analysis underlying the Drainage Subelement of the Public Facilities Element of the Background Analysis. These objections point out the absence of data and analysis concerning the following items: the design capacity of the drainage facilities, which information is required by Rule 9J-5.011(1)(e)3.; the existing level of service standard provided by the drainage facilities, which information is required by Rule 9J-5.011(1)(e)5.; and the projected facility capacity, including surpluses and deficiencies, for the second increment of the planning period, which information is required by Rule 9J-5.011(1)(f)3. The ORC states that Objectives 4.3.5, 4.3.6, and 4.3.7 are unmeasurable and, as to Objectives 4.3.6 and 4.3.7, unspecific. These objectives, which are quoted in Paragraph 35 above, respectively deal with flood control, wetlands protection, and adequate surface water management facilities. The ORC is also critical of Policy 4.3.6.1, which is set forth in Paragraph 36 above and promises that the City will avoid infrastructure improvements that encourage wetlands development. DCA recommends that the Drainage Subelement show how the City will conduct the programs and implementing activities to avoid such infrastructure improvements. 5. Coastal Management Element Among the objections to the data underlying the Coastal Management Element of the Background Analysis is that the element lacks any inventory, analysis, or mapping of historic resources, which are required by Rule 9J- 5.012(2)(c). The ORC cites the failure of the Coastal Management Element to include policies addressing the requirements of Rule 9J-5.012(3)(c)1.-3., 8.-10., 13., and 14. These subsections require policies that, among other things, limit the specific impacts and cumulative impacts of development or redevelopment upon wetlands, water quality, wildlife habitat, and living marine resources; restore or enhance disturbed or degraded natural resources, including wetlands, estuaries, and drainage systems; regulate floodplains, stormwater management, and land use to reduce the risk of loss of human life and property as a result of natural hazards; protect historic resources by, among other things, identifying historic sites and establishing performance standards for the development and sensitive reuse of historic resources; and generally establish priorities for shoreline land uses. 6. Conservation Element The ORC contains an objection to Objective 6.5 of the Fisheries and Estuarine Habitat Subelement of the Conservation Element of the Proposed Plan. DCA finds this objective, which is cited in Paragraph 40 above and requires the protection of the Indian River Lagoon, to be unmeasurable and unspecific. The ORC states that the Conservation Element lacks policies to protect existing natural resources and designate environmentally sensitive lands for protection, which are required by Rule 9J-5.013(2)(c)7. and 9. 7. Capital Improvements Element The ORC notes one objection and recommendation to the data underlying the Capital Improvements Element of the Background Analysis. The objection states: Because data and analysis requirements were missing in the Drainage . . . Subelement, capital improvement needs cannot be adequately evaluated. Capital improvement needs for [this subelement] cannot be assumed to be nonexistent. The ORC states seven objections and recommendations to the analysis underlying the Capital Improvements Element of the Background Analysis. These objections generally concern a lack of information about costs and revenues. The ORC contains objections to Objectives 9.1, 9.2, and 9.7 as unmeasurable and, with respect to Objectives 9.2 and 9.7, unspecific. These objectives, which are quoted at Paragraph 44 above, deal generally with funding capital improvements required by level of service standards. The ORC cites the absence of an objective addressing the requirements of Rule 9J-5.016(3)(b)5. This rule requires an objective showing the local government's ability to provide or require the provision of the needed improvements identified in the Plan's other elements. The rule also requires an objective showing the local government's ability to manage the land development process so that the public facility needs created by previously issued development orders do not exceed the ability of the local government to fund or require the funding of capital improvements. DCA also objects to numerous policies in the Capital Improvements Element on the grounds that they are not measurable. 8. Miscellaneous DCA objects in the ORC that the Proposed Plan lacks goals, objectives, and policies that further numerous policies of the Regional Comprehensive Policy Plan of the Regional Planning Council. Review of ORC and Adoption of Plan Review of ORC Within a few days after receiving the ORC from DCA, Cocoa forwarded the relevant portions of the Proposed Plan to the consultants who had prepared them for the preparation of responses and revisions. On or about August 31, Cocoa received the responses and revisions from the consultants. As noted in Paragraph 46 above, the procedures in effect at this time were those contained in Ordinance No. 4-80. On August 23, 1988, the City Council postponed until its next meeting consideration of a new ordinance establishing procedures for adopting amendments to the Proposed Plan. On August 31, 1988, a 1 1/4" by 8 1/4" classified-type advertisement announced a meeting of the Planning and Zoning Board on September 14, 1988, at 5:15 p.m. for the purpose, among other things, of recommending to the City Council changes to the nine elements of the Proposed Plan. The advertisement stated that the City Council will consider the recommendations of the Planning and Zoning Board during its regularly scheduled meeting on September 27, 1988, at 7:00 p.m. The advertisement advised that the Plan documents, including the Future Land Use Map, were available for public inspection at the Community Improvement "Office." On September 1, 1988, a 6 1/2" by 10 1/2" display advertisement provided the same information as that contained in the advertisement published the prior day. The display advertisement stated: The City urges any citizen to review the Plan documents and submit written or oral comments at any time during the process. Such comments will be presented during the hearing along with response as appropriate. All citizens will be given the opportunity to review the documents, have legal notification, submit written or oral comments, and receive appropriate responses to items related to elements to be adopted by the City as the City's Comprehensive Plan. The display advertisement bore a large, boldface headline in block print, stating: "NOTICE OF CHANGE IN LAND USE." The advertisement contained a large map of the City. A 6 1/2" by 4" version of the same advertisement appeared elsewhere in the same edition of the newspaper. At the regular meeting of the City Council on September 13, 1988, Ms. Koons, on behalf of Petitioners Austin, Houston, and Dorn, complained about the limited opportunities for public participation, in part caused by the lack of current information available to the public. In response, the City Council announced the dates of September 27 and October 4, 5, or 6 for the adoption hearings for the Plan. Richard Amari, the City Attorney, reminded everyone that the Act gives local governments only 60 days following the issuance of the ORC within which to adopt the Plan. He said that Cocoa was not trying to bypass public participation, but had to comply with the law. At the September 13 meeting, the City Council adopted Resolution No. 88-31, which became effective the same date. The resolution provides in relevant part: Section 1. The City will advertise pursuant to Florida State Statutes and Department of Community Affairs Rule 9J-5. Section 2. The City will post notices of its public hearings in City Hall, Library and Police Department regarding consideration of the Comprehensive Plan. Section 3. The City will provide in its ads encouragement for written and oral comments by the public which written comment will be made part of the public record. Section 4. The City Manager or his designee will assure that responses to written comments received during the process will be given either at the public hearings as appropriate or written responses may be given upon request. Section 5. The plan documents are available for public inspection at City Hall in Rooms 208 & 202, and the Cocoa Public Library during normal business hours. Section 6. This Resolution shall govern activities engaged in by the Planning and Zoning Board acting as the Local Planning Agency during its public hearing on September 14, 1988, and continued from time to time; and by the City Council at its Public Hearing on September 27 as may be continued from time to time. On September 14, 1988, the Planning and Zoning Board conducted a public hearing concerning, among other items, the Plan. The scarcity of Plan documents, especially the Future Land Use Map, limited the amount of meaningful participation by members of the audience and, to a lesser extent, the Board. The Future Land Use Map is a color-coded document. A black and white photocopy of the map incompletely depicts the various land uses shown on the map. An ongoing problem through the planning process was that these color maps, which were prepared for the City by the Regional Planning Council, were not generally available to the public. However, during most if not all of the process, Ms. Lawandales maintained in the Community Improvement Department a large color map, which was generally current. Part of the problem was the City's inability or unwillingness to incur the cost and suffer the inconvenience of printing new maps every time that there was a change in the use assigned to a parcel. Such changes were frequent in the final weeks before adoption of the Plan. At the September 14 meeting, for instance, there was already a handwritten list of 20 numbered proposed changes to the Future Land Use Map. Item 10 of the proposed changes converts from open space to medium- density residential most of the southeast quarter of the open area located north of Michigan Avenue and west of U.S. Route 1, which is part of the linear marsh wetlands within Drainage Area III. The September 14 meeting was a scene of some confusion due to the above-described documents. One Board member moved that the public be given at least those documents that the Board had. The motion failed. In part due to time constraints and limited staff resources, the Board decided instead to copy for the public only the maps and revisions and responses to the goals, objectives, and policies. The meeting adjourned by a 4-2 vote before considering the Future Land Use Map. Two Board members remained after the meeting to share their Future Land Use Maps with the audience. A few days later, City staff persons compiled a large notebook with a complete set of documents related to the Plan and distributed these notebooks to the members of the City Council. These documents consisted of the goals, objectives, and policies of the Proposed Plan; the unrevised Background Analysis; the responses and revisions to the goals, objectives, and policies as a result of the ORC; the EAR; and possibly other documents. On September 18, 1988, a 10 1/2" by 6 1/2" display advertisement announced three workshops and two public hearings to be held by the City Council. The workshops were set for September 19 at 7:00 p.m., September 20 at 5:00 p.m., and September 22 at 6:30 p.m. The first workshop would cover the Public Facilities, "Transportation" (i.e., Traffic Circulation), and Capital Improvements Elements. The second workshop would cover the Coastal Management, Conservation, and Recreation and Open Space Elements. The third workshop would cover the Future Land Use, Housing, and Intergovernmental Coordination Elements. The advertisement stated: "The general purpose of the workshops is to receive public comments and review the Comprehensive Plan." Some local residents were aware of the three workshops at least one day prior to the publication of the advertisement. The same advertisement announced that the public hearings would take place on September 27, 1988, at 7:00 p.m. and October 4, 1988, at 6:00 p.m. The advertisement stated: The purpose of these hearings is to receive public comments and recommendations on a Comprehensive Plan, and to review and adopt an ordinance adopting the Comprehensive Plan in accordance with the requirements of growth management and land development legislation adopted by the Florida Legislature in 1985 and 1986. On September 19, the Planning and Zoning Board and City Council jointly conducted a workshop on the Public Facilities, Traffic Circulation, and Capital Improvements Elements. Mayor Robinson acknowledged the receipt of a petition of residents from two subdivisions in opposition to changes to their neighborhoods by the Plan. Mayor Robinson informed the audience that the Future Land Use Map would be discussed at the September 22 meeting. The format of the September 19 workshop, as well as the two other workshops, was that City staff would first address an issue, followed, in order, by City Council members, Planning and Zoning Board members, and lastly the audience. City staffpersons at the September 19 workshop identified a list of 38 recommended changes to the Future Land Use Map. Item 10 from the September 14 list was renumbered as Item 7. Item 6 on the September 19 list encompasses what remained of the eastern half the open space north of Michigan Avenue. The recommendation is to designate this wetlands area commercial. The northern tip of the linear marsh wetlands area south of Michigan Avenue and west of U.S. Route 1 is proposed to be redesignated commercial in new Item 10. Item 11 proposes that the remainder of this open space/wetlands be redesignated medium- density residential. The recommended changes appearing at the September 19 workshop substantially eliminate the two other open space/wetlands, as well. Item 33 recommends low-density residential for most of the southern half of the open space/wetlands located between Range Road and the largest unincorporated enclave within the City. Item 34 recommends medium-density residential for most of the northern half of the same open space/wetlands. According to the Soils Map contained in the Background Analysis, the northern portion of Little Mud Lake is in the medium-density residential area and the southern portion of the lake is in the low-density residential area. After these two changes, about one quarter of the original open space/wetlands between Range Road and the unincorporated enclave retains the originally proposed designation as open space. The remaining open space is an L-shaped strip immediately adjacent to the unincorporated area within the City. According to the Existing Land Use Map in the Background Analysis, the portion of the L-shaped strip running north-south is devoted to recreational uses, such as a park. Items 37 and 38 recommend the complete elimination of the largest open space/wetlands, which is located north and west of the intersection of Michigan Avenue and Range Road and is within Drainage Area IV. Item 37 proposes that nearly all of this open space/wetlands, including Big Mud Lake, be redesignated low-density residential. Item 38 proposes that the western portion of this open space/wetlands be redesignated medium-density residential. On September 20, 1988, the Planning and Zoning Board and City Council jointly conducted a workshop on the Coastal Management, Conservation, and Recreation and Open Space Elements. Discussion included the redesignation of the open space/wetlands in the vicinity of Michigan Avenue from open space to medium-density residential and commercial. At the conclusion of the meeting, the City Council agreed to add another parcel to the list of recommended changes to the Future Land Use Map. On September 22, 1988, the Planning and Zoning Board and City Council jointly conducted a workshop on the Housing, Future Land Use, and Intergovernmental Coordination Elements. Ms. Koons, on behalf of Petitioners Austin, Houston, and Dorn, objected at this workshop to the Future Land Use Element, as well as other matters. Petitioner Houston herself spoke against the Future Land Use Map. A Future Land Use Map was present at this workshop. This map, reflecting the latest addition, showed 39 numbered areas marked in black. The numbers corresponded to the list of recommended changes to the Future Land Use Map. The City Council authorized during the workshop the addition of two more proposed changes. The September 22 workshop marked the last involvement of the Planning and Zoning Board in the planning process. The Board never formally recommended the Plan and supporting documents to the City Council for adoption. However, by the end of the meeting, none of the Board members expressed any remaining objections to the Plan and supporting documents, and most if not all Board members had no serious objections to the Plan. A formal recommendation was therefore unnecessary. Adoption Hearings On September 23, 1988, a display advertisement nearly identical in size and content to that published on September 18 stated that the City Council would conduct public hearings on September 27, 1988, at 7:00 p.m. and October 4, 1988, at 6:00 p.m. on changes in the use of land within the City limits. A similar display advertisement on September 29, 1988, announced the October 4 public hearing. The City Council received a list of 41 proposed changes to the Future Land Use Map at the September 27 hearing and approved the addition of a another property, as well as unrelated revisions to the Wastewater Element. In a presentation to the City Council, Ms. Lawandales referred to a set of revisions to the Future Land Use Element. These revisions were not the same as those prepared by the Regional Planning Council. Ms. Lawandales referred in her presentation to a set of revisions that add only two short clauses to the goals, objectives, and policies of the Future Land Use Element. At the October 4, 1988, public hearing, the City Council received written objections from Ms. Koons, on behalf of Petitioners Austin, Houston, and Dorn, in the form of an eight-page letter. Given the detail and scope of the letter and lack of time, the City Council and staff were justifiably unable to offer a response until after the hearing, which concluded with the adoption of the Plan. During the hearing, the City Council approved the addition of five more properties to the list of 42 recommended changes to the Future Land Use Map. At the conclusion of the October 4 hearing, the City Council adopted the Plan by adopting Ordinance No. 20-88, which in relevant part provides: Whereas, after months of careful review and a public hearing the Planning and Zoning Board sitting as the Local Planning Agency has recommended adoption of the new Comprehensive Plan in substantially the form presented; and Whereas, the City Council has received objections, recommendations, and comments from the [Regional Planning Council, DCA], and various other agencies; and * * * Whereas, the City Council has made certain amendments in the proposed new Comprehensive Plan in light of [public comments], as well as the comments, recommendations, and objections of the [Regional Planning Council, DCA], and various other State agencies; * * * Now, therefore, be it enacted by the City Council of the City of Cocoa, Brevard County, Florida, that: Section 1. That Section 15-4 of the City Code of Cocoa is hereby amended to read as follows: Sec. 15-4 Adoption of Comprehensive Plan. The City's Comprehensive Plan consists of the one (1) volume book entitled Comprehensive Plan--City of Cocoa, Volume II, April 1988, which Comprehensive Plan consists of (i) Goals, Objectives and Policies for nine (9) elements, including Future Land Use, Traffic Circulation, Housing, Public Facilities, Coastal Management, Conservation, Recreation and Open Space, Intergovernmental Coordination and Capital Improvements, (ii) Procedures of Monitoring and Evaluation, (iii) Requirements for Consistency of the Local Comprehensive Plan, and (iv) Population estimates and projections utilized as basis for the plan documents, plus the Evaluation and Appraisal Report dated April, 1988. Section 2. Attached hereto and incorporated herein by this reference is the City's Comprehensive Plan as referenced in Section 1 of this Ordinance, which Comprehensive Plan is hereby adopted as the official comprehensive plan for and of the City. * * * Section 4. Ordinances and Resolutions in Conflict. All Ordinances or Resolutions or parts thereof that may be determined to be in conflict herewith are hereby repealed. The City's Comprehensive Plan approved with the adoption of Ordinance No. 11-80 of July 8, 1980, all as the same may have been amended from time to time, be and the same is hereby repealed. Section 5. Effective Date. This Ordinance shall become in full force and effect immediately upon its adoption by the City Council. Adopted by the Council of the City of Cocoa, in regular meeting assembled, on the 4th day of October, 1988. The ordinance is signed by Mayor Robinson, whose signature is attested by the City Clerk. The review and adoption proceedings ended with the October 4 hearing. At no time during these proceedings did Petitioner David P. Hendry, Sr. or Loula P. Hendry submit oral or written objections to the Plan or Proposed Plan. On or about August 13, 1988, Petitioner David P. Hendry, Sr. sent a letter dated July 31, 1988, to Cocoa and numerous other state and local officials. In the letter, he objected to a marina project that was under consideration. However, these comments did not constitute objections to the Plan or Proposed Plan, of which Petitioners Hendry were unaware until after it had been adopted by the City and determined to be in compliance by DCA. The Contents of the Plan General Besides the goals, objectives, and policies, the Plan consists of the EAR (described in Paragraphs 157-169), Resolution No. 88-31 (described in Paragraph 115), population data (described in Paragraph 170), a section entitled "Consistency of the Local Plan with the State Comprehensive Plan" (described in Paragraph 171), and a section entitled "Monitoring and Evaluation (described in Paragraph 46). The Plan is also supported by the data and analysis contained in the Background Analysis, portions of which are described in Paragraphs 47-67 above. The City submitted revisions to the Background Analysis, portions of which are described in Paragraphs 172-180 below. Goals, Objectives, and Policies The goals, objectives, and policies of the Plan are those of the Proposed Plan, as revised by the City Council. The revisions are as follows: 47 changes to the Future Land Use Map, as identified in Austin Exhibit 10; numerous revisions to the goals, objectives, and policies of the Proposed Plan, as identified in Austin Exhibit 10; two revisions to the proposed Future Land Use Element, as identified in Cocoa Exhibit 4; and revisions to the Solid Waste and "Sanitary Sewer" (i.e., Wastewater) Subelements of the Public Facilities Element, as identified in Cocoa Exhibit 4. There are no other revisions, additions or deletions affecting the goals, objectives, and policies of the Plan. The revisions described in Paragraph 181 below were never adopted by the City and are not part of the Plan. Responses, which are set forth in Austin Exhibit 10, are explanations offered by the City in response to objections and recommendations of DCA; responses do not contain any goals, objectives, or policies. Future Land Use Element and Map One response concerning the Future Land Use Element explains that objections in the ORC to missing data have been satisfied by a revision of the underlying data and analysis. However, as to objections with respect to the failure of the Future Land Use Map to depict conservation and natural resources, the response is that "no . . . conservation or historic resource land use categories are applicable for the city." However, the revised analysis underlying the Future Land Use Element includes a map of the Cocoa Historic District. The response to the objection that the Future Land Use Map fails to show all required natural resources is: "Wetlands are not a designated future land use." The revisions to the goals, objectives, and policies of the Future Land Use Element include revised Objectives 1.1 and 1.2, which are set forth in their proposed form in Paragraph 27 above. These revisions require that the City accomplish the tasks described in the two objectives within one year of Plan submittal. The revisions to the goals, objectives, and policies of the Future Land Use Element contain four new objectives. Objectives 1.3 and 1.4 respectively deal with the elimination by the year 2000 of blight and existing land uses that are inconsistent with the Future Land Use "Plan." Objective 1.5 states that within one year of Plan submittal all development activities "will be consistent with and supportive of the Plan's objectives for protecting natural and historic resources." Objective 1.6 states that within one year of Plan submission land development regulations will provide for the availability of sufficient land area for the siting of public facilities. The revisions contain several new policies. New Policy 1.1.3 allows the City to issue development orders only if the necessary public facilities, operating at the adopted levels of service, are available concurrent with the impacts of the development. New Policy 1.5.1 states that the City will identify its historical resources and maintain an updated file of historically significant properties. New Policy 1.5.3 provides that the City will protect its cultural, historic, and archaeological resources by helping to educate the public of the value of such resources, considering the establishment of a historic district, and purchasing development rights to preserve historically significant properties. Revisions also clarify that open space/residential areas on the Future Land Use Map will be used for park, recreational, and ancillary uses, except as required for other public purposes. 2. Housing Element The City Council adopted several revisions to the goals, objectives, and policies of the Housing Element. Objective 3.1.4, which in its original form is set forth in Paragraph 33 above, is revised to provide that the quality of existing homes and neighborhoods will, at a minimum, be maintained, rather than maintained or improved. Policy 3.1.4.7, which is also set forth in Paragraph 33, is revised to add that the City will perform an annual review of historically significant housing units in order, as previously provided, to aid in the identification of historically significant housing and structures. 3. Public Facilities Element Objectives 4.3.5, 4.3.6, and 4.3.7 are revised as follows with the new language underlined: Objective 4.3.5: To reduce existing flooding problems and to prevent additional flooding problems from being created as a result of future development through actions identified in needs assessments and engineering studies, with the actions being undertaken on a priority basis as determined in the engineering studies, with individual prioritized actions being initiated no later than one year following the completion of the engineering studies, consistent with the schedule of actions contained in the Comprehensive Improvements Plan [sic]. Objective 4.3.6: To ensure the protection and preservation of existing wetlands as viable components of the City's surface water management systems, to include the establishment or maintenance of desirable hydroperiods, water quality conditions, and natural ecosystems applicable ordinances (including design criteria and standards) will be submitted for adoption consideration no later than October 1, 1990, with final adoption within one year following the initial submittal. Objective 4.3.7: To ensure the proper and adequate surface water management facilities are provided in response to identified needs existing deficiencies and needs will be determined, cost and time requirements of corrective actions will be identified, and alternative sources of revenue will be evaluated, with the above information being compiled into a Surface Water Management Plan for the entire City and any external service areas by October 1, 1995. The revision of another objective reiterates the intention of the City to perform engineering studies in the future to gain information necessary to drainage planning: Objective 4.3.2: To protect, preserve or improve the quality of surface drainage waters being discharged from existing and future drainage systems in the City so that such discharges do not contribute to the degradation of water quality conditions in receiving waterbodies or prevent the improvement of degraded conditions, and promote the continuance or establishment of healthy, balanced natural environments through the implementation of ordinances, engineering studies, inspection programs, and coordinative actions with regulatory agencies, with such activities being initiated no later than October 1, 1992. Revisions to several policies show an increasing recognition of the need to plan for drainage and the role of wetlands in such a plan: Policy 4.3.2.6: Proposed development plans will be thoroughly reviewed to ensure that new development does not adversely impact surrounding properties by altering drainage patterns and water storage capabilities so that increased volumes of water are discharged onto the properties or that surface drainage flows from the properties are not impeded or retarded so as to create or contribute to flooding or diminished land usage, unless such lands have been purchased or designated by the City for surface water storage purposes. Policy 4.3.4.3: The City will actively participate in the preparation and implementa- tion of applicable Surface Water Improvement and Management (SWIM) plans being undertaken by the [Water Management District] which will [replacing "would"] involve or include land areas in the City or waterbodies affected by drainage from the City. Policy 4.3.6.1: Public infrastructure improvements that encourage the development of wetlands will be avoided except in the case of overriding public interest, for the purpose of protecting and preserving wetland areas with appropriate measures such as ordinances and development standards being used [replacing "taken"] to control [replacing "discourage"] development in affected wetland areas. Policy 4.3.6.3: The City will review its existing land development design criteria, and revise if necessary, to provide for and encourage the incorporation of existing wetlands into land development plans for the use of "free services" offered by the natural areas provided that: --intrinsic natural wetland values, functions and hydroperiods are not adversely affected, --the wetland is maintained in its natural condition, and --the wetland is protected from future development. 4. Coastal Management Element The revisions add a new goal, objective, and policies that provide: Goal 5.3: The natural resources of the City's coastal area shall be preserved, protected or enhanced to provide the highest possible environmental quality for recreation and the propagation of fisheries and wildlife. Objective 5.3.1: The City shall protect, and restore where necessary, the following natural resources and environmental attributes within its control: air quality, endangered species and their habitat, native vegetation and wildlife, fisheries and estuarine habitat, water quality, and floodplains. New Policy 5.3.1.1 incorporates Objectives 6.1 and 6.2-6.9 and the policies thereunder. The revisions contain another new objective and policies under the new goal described above. Policy 5.3.2.3 states that the City will conform its plan and development criteria to the guidelines set forth in yet-to-be identified resource protection plans to the extent "legally permissible." Policy 5.3.2.4 states that the City shall notify the Resources Council of East Florida and the Indian River Aquatic Preserve of all proposed activities that the City Council considers will directly affect the coastal zone, including changes in stormwater discharge, vegetation removal, or dredge and fill operations. 5. Conservation Element Objective 6.5 of the Fisheries and Estuarine Habitat Subelement, which is quoted in its original form in Paragraph 40 above, is revised as follows: Objective 6.5: By 1993, the abundance and diversity of submerged aquatic vegetation and fish species found in the City's lakes, and in the Indian River within the zone between the Cocoa shoreline and the Intracoastal Waterway, shall be as great, or greater, than they were in 1988. The City cites eight policies under Objectives 6.4 and 6.8 in response to the objection that the Proposed Plan lacks policies addressing the protection of existing natural resources and designating for protection environmentally sensitive land. 6. Recreation and Open Space Element The revisions to the Recreation and Open Space Element contain a new objective concerning open space: Objective 7.2.1: Within one year of Plan submittal the land development regulations will include provisions for addressing the open space needs of the City. 7. Capital Improvements Element The revisions to the Capital Improvements Element include requirements that the City satisfy the requirements of Objectives 9.1 and 9.2, which are set forth in Paragraph 44 above, by 1989 and 1990, respectively. The City revised Objective 9.1 to require, by 1989, the incorporation of levels of service standards into land development regulations. Also, the City added the following language to Objective 9.5, which is quoted in its original form at Paragraph 44 above: "Public Facility needs created by development orders issued prior to Plan adoption will not exceed the ability of the City to fund or provide needed capital improvements." Evaluation and Appraisal Report The EAR, which is referenced in Paragraph 24 above, evaluates the success of an earlier, unrelated comprehensive plan previously adopted by the City. The EAR begins with an introductory section commenting about the area and problems facing the City. The introduction notes that the City has significant undeveloped lands, especially in the northwest section of Cocoa. A large part of these lands is the single open space/wetlands north of Michigan Avenue and west of Range Road. The EAR states: "Much of the land is not developable due to natural constraints; however, primary residential growth will occur in this area in the future." The introduction also recognizes that "drainage is still a major concern" due to the "extensive amount of new development and alteration of some natural drainage systems, as well as continued drainage problems from older development." Among the solutions noted in the introduction are the requirement of retention and detention areas in new developments. Concerning conservation and protection of the coastal zone, the introduction states: The City of Cocoa has continued to seek to protect the integrity of the flood hazard areas as significant development has not occurred in these areas as of this date. Maintaining these areas for natural functions, it will decrease the possibility of flooding and associated problems during heavy cycles of rain. This also adds to the water quality of the area. The major portion of the EAR is devoted to an evaluation of the success of the prior comprehensive plan. Several relevant portions of this self-assessment, which was updated on September 27, 1988, are set forth in the following paragraphs. Objective 2 under Open Space was to "develop flood plain controls which will allow for the protection of some open space around Cocoa's lakes and low areas in the event of development." The result: not accomplished. Objectives 2 and 3 under the Conservation/Coastal Element were to use the City's water retention ordinance to control surface drainage from new developments and continue to make needed drainage improvements. The results: the first objective was accomplished and the second objective was not accomplished as of April, 1988. However, as to the second objective, as of September 27, 1988, "a drainage improvement program has been initiated." Objective 3 under the Land and Vegetation Resources was to control the amount of filling that could occur in new development to ensure proper drainage in surrounding areas. The result: not accomplished in April, 1988, and partly accomplished by September 27, 1988. Objective 1 under Drainage was to develop a citywide Master Drainage Plan with priorities and cost estimates for drainage improvements needed in Cocoa. The result: not accomplished. Objective 3 under Drainage was to control activities in flood prone areas in an effort to prevent a detrimental impact on areawide drainage patterns. The result: not accomplished. Objective 4 was to encourage, as feasible, the use of natural filtration, detention, and retention to reduce runoff-associated drainage problems. The result: accomplished. Objective 11 under Intergovernmental Coordination was to adhere to statewide plans and programs designed to control nonpoint sources of water pollution and prevent alteration of areawide drainage patterns. Result: not accomplished. Miscellaneous The Plan includes the population history and estimates that had been provided with the transmittal of the Proposed Plan in April, 1988. This document is included in Cocoa Exhibit 4. The Plan includes the Consistency of the Local Comprehensive Plan with the State Comprehensive Plan that had been provided in April, 1988, at the end of the City of Cocoa--Comprehensive Plan, Volume II . This document is a cross-index between provisions of the Plan and the state comprehensive plan. Background Analysis In reply to objections and recommendations in the ORC pertaining to the Background Analysis, the City supplemented its data and analysis through revisions. Shortly after the Plan had been adopted and transmitted, the City sent to DCA the revisions to the data and analysis and responses to the objections and recommendations concerning data and analysis. Future Land Use Element and Map In response to the objection that the data omitted conservation uses and historic resources, the City states that there are "no conservation uses" and supplies a map depicting existing historic resources. Elaborating upon the historic resources, the City mentions a survey of historic structures that took place in November, 1987. The resulting list of 72 structures is depicted on a map, which is included in the response and entitled, "Cocoa Historic District." An inventory of the properties is included. In a narrative response to an objection to the absence of an analysis of the need for redevelopment, the City describes its earlier redevelopment efforts, which include the adoption of a redevelopment plan, pursuant to Chapter 163, Part III, Florida Statutes. Noting the objectives of the redevelopment plan as to the elimination of slums and blighted conditions, the narrative concludes: "These goals should be retained and reiterated in the goals, objectives and policies section of the Comprehensive Plan." 2. Housing Element The revised Background Analysis contains a long narrative concerning housing. At the end, the City states that it should take "appropriate measures" to preserve and protect the Porcher House, which is the only structure in the City listed on the National Register of Historic Places, and maintain the quality of older neighborhoods in order to preserve other potentially significant property. 3. Drainage Subelement Responding to an objection that the data and analysis fail to include the capacity allocated to meet the City's drainage needs for the ten-year planning horizon, the City added the following language: However, information is not currently available for future allocation and usage during the ten-year planning period. The available information is insufficient to accurately determine the proportion of design capacities currently being used to handle runoff and groundwater flows in the drainage system components. 4. Capital Improvements Element Elaborating upon its earlier responses to the objections to the Drainage Subelement of the Background Analysis, the City states that "[t]here are no planned capital improvements for the drainage system." The City refers to attached materials in response to numerous objections to the omission from the analysis of future revenue and expenditures available for needed capital improvements. However, such material was not included with the revisions and responses. 5. Coastal Management Element The glossary added to the Background Analysis by the revisions reiterates the statement in the original Background Analysis, noted at Paragraph 65 above, that the coastal area for the Coastal Resources Subelement is the entire City. (The reference to "Rockledge" is a typographical error; the Regional Planning Council, which drafted the Background Analysis and revisions, was working at the same time on the Rockledge comprehensive plan.) (Responses to DCA Comments, p. 12-6.) 6. Miscellaneous In responding to objections to the data and analysis concerning the consistency of the Plan with the plan of the Regional Planning Council, the City cites a new Objective 6.3 with new Policies 6.3.1-6.3.5 and 6.4.9. These items, which generally deal with ensuring the persistence through 1998 of the 1990- level distribution and abundance of endangered and threatened species and their habitats in the City, were neither considered nor adopted by the City Council. Objective 6.3 and Policies 6.3.1-6.3.5 and 6.4.9 are therefore not part of the Plan. Determination of Compliance by DCA After receiving the Plan and supporting documents shortly after October 4, 1988, DCA analyzed the revisions and responses in light of the 139 objections and recommendations contained in the ORC. At the conclusion of the analysis, DCA found that 28 of the revisions and responses were inadequate. These findings are set forth in the Preliminary Findings on the Cocoa Comprehensive Plan, which is dated November 16, 1988. On November 26, 1988, DCA published, by way of a 10 1/2" by 6 1/2" advertisement, its Notice of Intent to Find the City of Cocoa Comprehensive Plan in Compliance. The advertisement complies with the statutory requirements. Ultimate Findings as to Public Participation The public participated in the comprehensive planning process to the fullest extent possible. The City Council adopted procedures to provide effective public participation, including notice to real property owners of all official action affecting the use of their property. Any deficiency in the procedures is immaterial. The Planning and Zoning Board duly discharged its responsibilities as the local planning agency under the Act. The City Council and Planning and Zoning Board amply advertised their many public hearings and provided reasonable opportunity for written comments and open discussion. Comments from the public appear to have received fair consideration. The City disseminated proposals and other information as broadly as possible, although certain materials were available at times only to staff and not the City Council, Planning and Zoning Board, or public. The City was confronted with a substantial task involving the identification, consideration, and resolution of complex technical and legal questions. The City prudently delegated much of the work to City staff and outside consultants. The Act generates severe time pressures, especially on the local government, which has only 60 days to digest the ORC and adopt a plan. Once the City received the ORC, about half of the 60 days was spent by the staff and outside consultants in drafting proposed revisions and responses. Neither City Council or the Planning and Zoning Board could realistically commence public meetings until the members had reviewed the work of the consultants and staff. Critical land use decisions such as those involved in the adoption of a comprehensive plan are politically sensitive. The land use decisions in this case generated considerable controversy in the community. Members of the City Council or the Planning and Zoning Board could not reasonably be expected to commence public meetings before they were aware of what revisions and responses were being proposed by their experts. The greatest shortcoming in the public participation process involved the ongoing proposed changes to the Future Land Use Map and the inability or unwillingness of the City to disseminate in a timely manner updated maps reflecting these proposed changes. Broader and more timely dissemination of the proposed changes would have facilitated more careful consideration of the effects of redesignating the uses of large parcels of land. However, the real target of the frustrations expressed with the public participation process is with the resulting land use decisions, not the process itself. Even in light of the shortcomings with respect to the revisions to the Future Land Use Map, the public participated in the process to the fullest extent possible under the circumstances described above. Ultimate Findings as to Consistency Drainage, Wetlands, and Floodplains Internal Consistency The Plan is internally inconsistent with respect to drainage, wetlands, and floodplains. These inconsistencies render the Plan inconsistent in the related matters of protecting the estuarine waters of the Indian River Lagoon; fisheries, wildlife, and vegetation habitat; and general water quality. In general, the inconsistencies result from the conflict between Plan provisions protecting wetlands, restricting floodplain development, and ensuring adequate drainage, on the one hand, and, on the other hand, the elimination of nearly all of the existing open space/wetlands from, and the failure to depict wetlands as a natural resource on, the Future Land Use Map. Many Plan provisions assure the protection of wetlands, adequacy of drainage, and restriction of development in the floodplains, as well as the protection of the estuarine waters of the Indian River, various habitats, and general water quality. For instance, Policy 1.1.B protects the wetlands identified in the Conservation and Future Land Use Elements. Objective 1.5 requires that development activities will be consistent with and supportive of the Plan's objectives for protecting natural resources. Objective 4.3.6 promises ordinances to ensure the protection of wetlands. Policy 4.3.6.1 restricts public infrastructure funds that encourage the development of the wetlands. Goal 5.3 and Objective 5.3.1 provide for the protection and restoration of estuarine habitats and floodplains. Policy 6.4.7 prohibits any development that significantly and adversely alters the function of the wetlands. Objective 6.5 requires that the condition of the Indian River, in terms of its ability to support numbers and types of aquatic vegetation and fish, be maintained or improved between now and 1993. Policy 6.5.3 requires that the City take steps to reduce the volume of untreated stormwater. Objective 6.8 ensures the protection of the flood storage and conveyance capacities of the 100 year floodplain. However, the protection guaranteed wetlands, floodplains, and drainage is contradicted by the treatment of wetlands in The Future Land Use Map. The map is a critical component of the Plan. According to both Objective 1.2 and the Background Analysis, the Future Land Use Map will provide the rationale for all future land use decisions when the City implements the Plan with land development regulations. The Future Land Use Map is at least as important as goals, objectives, or policies in setting the course for future development and redevelopment in Cocoa. The Future Land Use Map subordinates all but a small section of the wetlands in the City to residential and commercial land uses. The City could have extended effective protection to the wetlands by reserving them a place in Cocoa's future. First, the City could have shown them as a natural resource on the Future Land Use Map. Second, the City could have shown them as a conservation land use on the Future Land Use Map. The failure to take these steps was not inadvertent. The ORC pointed out both of these omissions. In the Proposed Plan, the City chose to designate the wetlands as open space, which provided some protection. Even so, DCA objected to the omission of a conservation land use category from the Future Land Use Map, as required by Rule 9J-5.006(4)(a). The City's response: "No . . . conservation . . .land use categories are applicable for the city." DCA also objected to the failure to show on the Future Land Use Map all required natural resources, which include wetlands under Rule 9J-5.006(4)(b). The City's response, which betrays a failure to comprehend the difference between a land use category and a natural resource: "Wetlands are not a designated future land use." These "explanations" are hardly consistent with overall protection of the wetlands or, specifically, with such provisions as are contained in Policy 7.2.1.2, which provides that the City will "[d]esignate conservation areas . . . as part of the future land use map in order to preserve open space and fulfill . . . [Conservation Element] objectives." As the Future Land Use Map presently stands, the City will soon adopt land development regulations consistent with the use of nearly all of its wetlands for low- and medium-density residential and commercial purposes. Following the adoption of these land development regulations, it will be too late to protect the wetlands as a system, which is how they function in providing drainage, habitat, and water filtration. Absent designation as a conservation area or open space, the wetlands can be preserved, at most, as isolated, poorly functioning remnants carved out of large-scale development plans. Wetlands are vital to the efforts of the City in the areas of drainage, flood control, and water quality. Two factors exacerbate the above- described inconsistencies in the Plan. First, the drainage system suffers from known deficiencies, and, at the same time, the City has failed to achieve certain significant objectives of its prior comprehensive plan with respect to drainage, flood control, and nonpoint sources of water pollution, such as stormwater runoff. Second, the data are inadequate concerning the City's drainage needs and capacity, as well as the precise role of the wetlands as to drainage and conservation. Although eliminating open space/wetlands as a land use category and declining to depict wetlands and floodplains as a natural resource, the City acknowledges several significant shortcomings in its drainage system and efforts to protect floodplains and wetlands. The City has failed to accomplish goals of earlier comprehensive plans to adopt a citywide Master Drainage Plan and obtain cost estimates for drainage improvements. It has even failed to adhere to statewide plans to control nonpoint sources of water pollution and prevent alteration of drainage patterns. A drainage improvement program, initiated between April and October, 1988, begins on an inauspicious note with the elimination of nearly all of the open space/wetlands from the Future Land Use Map. There are signs that the natural drainage system offered by local waterbodies and wetlands may be reaching or exceeding its capacity. There is clear evidence of at least isolated failures of vital parts of the natural drainage system. For example, Big Mud Lake has been exploited to its limit as a receptacle for untreated stormwater and is probably eutrophic. Suffering from untreated stormwater runoff, the Indian River has lost the vitality needed to maintain a harvestable shellfish population. The water quality of both of these waterbodies is not good. It is difficult to correlate Plan provisions protecting wetlands, ensuring adequate drainage, and preserving water quality with the nonrecognition of wetlands in the Future Land Use Map, especially in view of the City's admitted lack of knowledge concerning the needs and capacities of its drainage system. Besides repeated references in the Background Analysis to a lack of data concerning important aspects of the drainage system, the goals, objectives, and policies reflect the need for considerably more information in this area. For instance, Objectives 4.3.2 and 4.3.5 identify "needs assessments," "engineering studies," and "inspection programs" with respect to flooding and drainage that will be conducted in the future. Objective 4.3.7 ties in this work with the promise of the preparation of a surface water management plan, by October 1, 1995, to determine "existing deficiencies and needs," "cost and time requirements of corrective actions," and "sources of revenue." Policies 4.3.2.5, 4.3.5.2, 4.3.5.3, 4.3.7.1, and 4.3.7.2 also promise engineering studies to take place in the future in order to gather more information concerning drainage and the effect of stormwater on receiving waterbodies. The Background Analysis notes that no complete inventory of the drainage system has taken place for 20 years. The City requires these studies in order to determine what to do about a deficient drainage system for which no improvements are presently planned. Objective 4.3.7 acknowledges that the City has not included any improvements to its drainage or stormwater management systems for at least the initial five-year planning timeframe covered by the Plan. The Five Year Schedule of Improvements reflects no such expenditures, and the Background Analysis states that no such expenditures are planned for the next five years. As a result of the elimination of the open space/wetlands, many provisions concerning drainage and floodplain are no longer supported by the data and analysis in material respects. The data reveal the critical role of the wetlands and 100 year floodplain in the present performance of the drainage system. However, as noted above, the data also reveal that insufficient information is presently available upon which to justify the residential and commercial development of the wetlands, especially in the face of ongoing development in the 100 year floodplain. The broad promises of adequate drainage, floodplain protection, and maintenance or enhancement of the estuarine waters of the Indian River are inconsistent with the elimination of nearly all of the open space/wetlands from the Future Land Use Map and even the presence of significant development of wetlands and vacant floodplains. Under the circumstances, the Plan is internally inconsistent in its treatment of wetlands, drainage, and floodplains and, as a result of these inconsistencies, in its treatment of estuarine waters, the above-described habitats, and general water quality. The elimination from the Future Land Use Map of the open spaces hosting nearly all of the wetlands, coupled with the refusal to designate the wetlands and floodplains as natural resources on the map, are not merely inconsistent but mutually exclusive with Plan provisions protecting the above-named resources and ensuring adequate drainage. These Plan provisions lack support by the data and analysis contained in the Background Analysis. Under these conditions and in view of the failure of the City to allocate funds for improvements in the drainage system, including stormwater runoff, the Plan also lacks economic feasibility with respect to drainage and stormwater treatment. 2. Consistency with the Regional Plan Several "issues" identified in the plan of the Regional Planning Council are devoted to wetlands, drainage, and floodplains. Each of these issues contains a goal, background summary, and policies. Issue 38 of the regional plan deals with the protection of water resources. After acknowledging that stormwater runoff may be the largest surface water quality problem facing the region, Policies 38.3 and 38.5 urge local governments to divert the "first flush" of stormwater to retention facilities. The policies recommend that the local governments employ the most efficient and cost-effective pollutant control techniques available and wet detention facilities, including isolated wetlands. The goal of Issue 39 is to reduce dependence on structural means of floodplain management and optimize maintenance of water-dependent natural systems. The regional plan states that wetlands assimilate nutrients and trap sediment from stormwater, as well as physically retard the movement of surface water. Policy 39.7 advises that "[n]atural, isolated wetlands should be incorporated in surface water management systems as detention facilities, where . . . practical and appropriate, as an alternative to filling or excavating such wetlands." Policy 39.8 adds: "Floodplains which are relatively undisturbed should be protected and preserved " The goal of Issue 40 is the protection and preservation of the region's coastal areas. The regional plan defines the "coastal zone" as "within the watersheds of coastal estuaries," including the Indian River. The background summary recognizes the adverse effects of stormwater runoff on the Indian River, which is one of two major estuaries draining the region's coastal zone. These effects include the introduction of fresh water, which kills sensitive aquatic organisms like clams and oysters, and heavy metals and other pollutants. Policy 40.1 states in part: Proposed activities which would destroy or degrade the function of coastal wetlands . . . should not be permitted except where such activities are clearly in the public interest and there is no practical alternative which reduces or avoids impacts to wetlands. The redesignation of the four open spaces and the elimination of wetlands as a future land use is inconsistent with Policy 40.1. The use of the advisory word "should" in Policies 38.3, 38.5, 39.7, and 39.8 militates against a finding of inconsistency based upon a small number of specific provisions containing little more than recommendations. On balance, the Plan is not inconsistent with the policies of the regional plan. 3. Consistency with the State Plan Under the category of water resources, the state plan includes the following policies at Section 187.201(8)(b), Florida Statutes: 2. Identify and protect the functions of water recharge areas and provide incentive for their conservation. 4. Protect and use natural water systems in lieu of structural alternatives and restore modified systems. 8. Encourage the development of a strict floodplain management program by state and local governments designed to preserve hydrologically significant wetlands and other natural floodplain features. 10. Protect surface and groundwater quality and quantity in the state. 12. Eliminate the discharge of inadequately treated . . . stormwater runoff into the waters of the state. Under the category of natural systems and recreational lands, the state plan includes the following policies at Section 187.201(10)(b), Florida Statutes: Conserve . . . wetlands, fish, marine life, and wildlife to maintain their environmental, economic, aesthetic, and recreational values. 7. Protect and restore the ecological functions of wetlands systems to ensure their long-term environmental, economic, and recreational value. The above-cited policies are clear and specific. On balance, the Plan's treatment of wetlands, drainage, and floodplains, as well as estuarine waters, fisheries, wildlife, and vegetation habitats, and water quality, is inconsistent with the above-described policies of the state plan. On balance, the Plan is incompatible with and fails to further the state plan. The Plan is therefore inconsistent with the state plan. Historic Resources Internal Consistency The Plan is internally consistent with respect to historic resources. No material inconsistency exists with respect to the identification and protection afforded historic resources by the Plan. All relevant provisions of the Plan are oriented toward the protection of historic resources. Objective 3.1.4 promises the protection and preservation of historically significant housing. Policy 3.1.4.7 states that the City will identify historically significant housing and structures annually. Policy 1.5.3 provides that the City will protect historic resources by the education of the public, consideration of the establishment of an historic district, and purchase of development rights. Objective 1.5 states that in one year all development must be consistent with the Plan's objectives for the protection of historic resources. The above-described objectives and policies are supported by the data and analysis. As revised, the Background Analysis contains a map entitled the Cocoa historic district and an inventory of the 72 properties depicted on the map. Rule 9J-5.006(4)(a)10., Florida Administrative Code, requires the inclusion in the Future Land Use Map of historically significant properties meriting protection and the boundaries of any historic district. In the responses to the ORC, the City states that "no . . . historic resource land use categories are applicable for the city." There is some conflict between the acknowledgement of an historic district and claim that no historic resource land use categories are applicable for the city. However, on balance, the inconsistency is immaterial. Unlike the situation with respect to wetlands, drainage, and floodplains, the Plan provisions protecting historic resources can be carried out without the designation of an historic district on the Future Land Use Map. 2. Consistency with the Regional Plan Two "issues" of the plan of the Regional Planning Council are devoted to historic resources. Issue 61 concerns access to cultural and historical resources. Issue 62 concerns the development of cultural and historical programs. Policy 61.1 states that historical resources "shall" be properly identified and evaluated and "should" be protected and preserved. Policy 61.3 states that local governments should adhere to the requirements of the Act regarding the inclusion of known historically sensitive resources in existing and future land use maps and the treatment of historical resources in the coastal management element, where applicable. Policy 61.5 provides that the local government "shall," "to the maximum practical extent," avoid or reduce adverse impacts of adjacent land uses on historical sites listed or eligible for listing on the Florida Master Site File or National Register of Historic Places. Policy 62.5 states that historic resources listed or eligible for listing on the Florida Master Site File or National Register of Historic Places "shall be taken into consideration" in all capital improvement projects. The Plan could have gone farther to promote the preservation of historic resources, especially from the adverse impact of nearby development and redevelopment. The most obvious way in which to achieve this goal would be through the designation of an historic land use category. However, on balance, the Plan is not inconsistent with the policies of the regional plan. 3. Consistency with the State Plan Under the category of cultural and historical resources, the state plan includes the following policies under Section 187.201(19)(b), Florida Statutes: 3. Ensure the identification, evaluation, and protection of archaeological folk heritage and historic resources properties of the state's diverse ethnic population. Encourage the rehabilitation and sensitive, adaptive use of historic properties through technical assistance and economic incentive programs. Ensure that historic resources are taken into consideration in the planning of all capital programs and projects at all level of government and that such programs and projects are carried out in a manner which recognizes the preservation of historic resources. The Plan's treatment of historic resources is consistent with the above-described policies of the state plan. Redevelopment Plan The omission of the redevelopment plan earlier adopted by the City, the failure to describe in the Plan redevelopment programs, activities, and land development regulations, and the exclusion from the Coastal Management Element of a redevelopment component did not render the Plan inconsistent internally or with the regional or state plans.
Conclusions Jurisdiction 86 Standing 88 The Act 91 Public Participation 91 Elements Required of All Plans 94 General 94 Future Land Use Element and Map 96 Public Facilities Element 97 Conservation Element 99 Housing Element 100 Capital Improvements Element 100 Coastal Management Element 101 Miscellaneous Elements 104 Determination of Noncompliance 105 General 105 Wetlands, Drainage, and Floodplains 106 Historic Resources 108 Remedial Action 108 RECOMMENDATION 108
Recommendation Based on the foregoing, it is hereby recommended that the Department of Community Affairs determine that the Plan is not in compliance and, pursuant to Section 163.3184(9)(b), Florida Statutes, submit this Recommended Order to the Administration Commission for entry of an appropriate final order. RECOMMENDED in Tallahassee, Florida, this 2nd day of June, 1989. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 FILED with the Clerk of the Division of Administrative Hearings this 2nd day of June, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 88-6338GM AND 89-0291GM Treatment Accorded the Proposed Findings of Petitioners Austin, Houston, and Dorn 1-16 Adopted. 17 Adopted in substance. However, Ms. Lawandales maintained in her office a color-coded map through much, if not all, of the planning process. 18-19 Rejected as subordinate. 20-21 Adopted. Rejected to the extent that the finding suggests that the Planning and Zoning Board did not intend that the City Council adopt the Plan. Although the Planning and Zoning Board did not formally recommend adoption by the City Council, the Board intended that the City Council adopt the Plan. Adopted. Rejected as recitation of testimony and subordinate. First four sentences adopted or adopted in substance. Remainder rejected as irrelevant. 26-27 Adopted in substance. 28-30 Rejected as subordinate. 31-33 Adopted in substance. Rejected as against the greater weight of the evidence. Adopted. Rejected as subordinate. Adopted in substance. 38-40 Rejected as irrelevant. 41 Rejected as subordinate. 42-43 Adopted. 44-46 Rejected as against the greater weight of the evidence. Adopted. Adopted in substance. 49-51 Rejected as irrelevant. 52 Rejected as against the greater weight of the evidence. 53-54 Rejected as recitation of testimony. 55 Adopted. 56-58 Rejected as irrelevant, except that the proposed finding that DCA found the Plan to be in compliance after using a balancing test is adopted in substance. Rejected as irrelevant. Rejected as against the greater weight of the evidence. 61-62 Adopted. Rejected as irrelevant. Adopted. 65-66 Rejected as irrelevant. 67-69 and 71 Rejected as legal argument. Rejected as against the greater weight of the evidence. Rejected as not finding of fact. 72-83 Rejected as irrelevant and against the greater weight of the evidence. 84-86 Rejected as irrelevant. Specific objectives and policies are insufficiently specific and, in certain respects, various Plan provisions represent nothing more than an intent to plan at a later date. However, such deficiencies must be evaluated in the context of all of the provisions of the entire Plan. After doing so, the only places at which the lack of specificity and deferral of planning are generate unlawful inconsistencies have been described in the recommended order. 87-91 Adopted or adopted in substance except that last sentence of Paragraph 91 is rejected as against the greater weight of the evidence. 92-93 Rejected as irrelevant. 94 Rejected as against the greater weight of the evidence. 95-98 Rejected as irrelevant. 99 and 111 Rejected as recitation of evidence. 100-110 and 112 Rejected as against the greater weight of evidence. 113 Rejected as not finding of fact as to the expertise of the witness. Rejected as against the greater weight of the evidence as to the inconsistency in the Plan's treatment of historic resources. Treatment Accorded Proposed Findings of Petitioners Hendry There are no rulings on the proposed findings of Petitioners Hendry due to the fact that it has been determined that they lack standing. Treatment Accorded Proposed Findings of DCA 1-4 Adopted. 5-18 Rejected as legal argument. 19-40 Adopted. 41 Rejected as irrelevant. 42-56 Adopted. 57 First sentence rejected as against the greater weight of the evidence. Second sentence adopted. 58-69 Adopted. 70 Adopted in substance. 71-72 Adopted. 73 First sentence adopted. Second sentence rejected as against the greater weight of the evidence. 74-75 Adopted in substance. Adopted. Rejected as legal argument. Treatment Accorded Proposed Findings of Cocoa I-IV Adopted or adopted in substance. Adopted except that Paragraphs B and C are rejected as legal argument. Adopted except that Paragraphs B.5, B.7, B.13, and B.14 are rejected as irrelevant and Paragraph B.8.f is rejected as against the greater weight of the evidence. Adopted in substance. Adopted or adopted in substance except that Paragraph G is rejected as against the greater weight of the evidence. COPIES FURNISHED: Judith E. Koons Attorney at Law Central Florida Legal Services, Inc. 1149 Lake Drive, Suite 201 Cocoa, FL 32922 David P. Hendry, pro se 17 Riverside Drive, #2 Cocoa, FL 32922 David J. Russ, Senior Attorney Rhoda P. Glasco, Senior Attorney Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 Bradly Roger Bettin Amari, Theriac, Roberts & Runyons 96 Willard Street, Suite 302 Cocoa, FL 32922 Thomas G. Pelham Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 Laurence Keesey General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 ================================================================= AGENCY FINAL ORDERS ================================================================= STATE OF FLORIDA BEFORE THE ADMINISTRATION COMMISSION OMEGA AUSTIN, BEATRICE HOUSTON, and MARY DORN, Petitioners, vs. CASE NO. 89-31 DOAH CASE NO. 88-6338GM DEPARTMENT OF COMMUNITY AFFAIRS and CITY OF COCOA, Respondents. / DAVID P. HENDRY, SR. and LOULA P. HENDRY, Petitioners, vs. CASE NO. 89-31 DOAH CASE NO. 88-0291GM DEPARTMENT OF COMMUNITY AFFAIRS and CITY OF COCOA, Respondents. /
The Issue The issue is whether the Land Development Code (LDC) adopted by Ordinance No. 2007-12 on August 22, 2007, as amended on February 27, 2008, is inconsistent with the effective comprehensive plan for the City of Doral (City), which is the Miami-Dade Comprehensive Development Master Plan (County Plan).
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: The Parties Section 64 is a Florida corporation. The Grand is a Florida limited partnership. Both entities are owned by the same individual. On September 25, 2001, Section 7 acquired ownership of an approximate ten-acre tract of property in the County (now the City) located along the southern boundary of Northwest 82nd Street, between 109th and 112th Avenues. See Petitioners' Exhibit 416. On December 16, 2005, title in one- half of the property was conveyed to The Grand in order to divide the property into two different ownerships. Id. It was Petitioners' intent at that time to build two hotels on separate five-acre tracts, one owned by Section 7 and the other by The Grand. The City is located in the northwestern part of Dade County and was incorporated as a municipality in June 2003. At the time of incorporation, the County's Plan and Land Use Code were the legally effective comprehensive plan and land development regulations (LDRs), respectively. On April 26, 2006, the City adopted its first comprehensive plan. After the Department determined that the Plan was not in compliance, remedial amendments were adopted on January 10, 2007, pursuant to a Stipulated Settlement Agreement. Although the Department found the Plan, as remediated, to be in compliance, it was challenged by a third party, and the litigation is still pending. See DOAH Case No. 06-2417. Therefore, the County Plan is still the legally effective Plan. See § 163.3167(4), Fla. Stat. The Department is the state land planning agency charged with the responsibility of reviewing LDRs whenever the appeal process described in Section 163.3213, Florida Statutes, is invoked by a substantially affected person. History of the Controversy When Petitioners' property was purchased in 2001, the County zoning on the property was Light Industrial (IU-1), having been rezoned by the County to that designation on October 9, 1984. See Petitioners' Exhibit 5. One of the uses permitted under an IU-1 zoning classification is a hotel with up to 75 units per acre. See Petitioners' Exhibit 6. The land use designation on the County's LUP map for the property is Low- Density Residential (LDR), with One Density Bonus, which allows 2.5 to 6 residential units per acre with the ability for a "bump-up" in density to 5 to 13 units per acre if the development includes specific urban design characteristics according to the County urban design guide book. Language found on pages I-62 and I-63 of the Future Land Use Element (FLUE) in effect at the time of the incorporation of the City (now found on pages I-73 and I-74 of the current version of the FLUE) provides in relevant part as follows: Uses and Zoning Not Specifically Depicted on the LUP Map. Within each map category numerous land uses, zoning classifications and housing types may occur. Many existing uses and zoning classifications are not specifically depicted on the Plan map. . . . All existing lawful uses and zoning are deemed to be consistent with the [Plan] unless such a use or zoning (a) is found through a subsequent planning study, as provided in Land Use Policy 4E, to be inconsistent with the criteria set forth below; and (b) the implementation of such a finding will not result in a temporary or permanent taking or in the abrogation of vested rights as determined by the Code of Metropolitan Dade County, Florida. As noted above, if there is a concern that zoning might be inconsistent with land use, using the criteria described in the provision, the County may initiate a planning study to analyze consistency and down-zone the property to a less intense use if an inconsistency is found. Although the County initiated a number of planning studies after it adopted its Plan in 1993, and ultimately down-zoned many properties, none was ever initiated by the County for Petitioners' property. Essentially, when existing uses and zoning are not depicted on the County LUP map, the language in the FLUE operates to deem lawfully existing zoning consistent with the land use designation on the property. In this case, the parties agree that the zoning of Petitioners' property is not depicted on the County LUP map. Therefore, absent a planning study indicating an inconsistency, the zoning is deemed to be consistent with the land use category. On August 22, 2007, the City adopted Ordinance No. 2007-12, which enacted a new LDC, effective September 1, 2007, to replace the then-controlling County Land Use Code. Although the LDC was adopted for the purpose of implementing the new City Plan, until the new Plan becomes effective, the LDC implements the County Plan. Amendments to the LDC were adopted by Ordinance No. 2008-1 on February 27, 2008. The LDC does not change the zoning on Petitioners' property. However, it contains a provision in Chapter 1, Section 5, known as the Zoning Compatibility Table (Table), which sets forth the new land use categories in the City Plan (which are generally similar but not identical to the County land use categories) and the zoning districts for each category. Pertinent to this dispute is an asterisk note to the Table which reads in relevant part as follows: Under no circumstances shall the density, intensity, or uses permitted be inconsistent with that allowed on the city's future land use plan. . . . Zoning districts that are inconsistent with the land use map and categories shall rezone prior to development. See Petitioners' Exhibit 27 at p. I-3. Under the Table, only residential zoning districts (with up to ten dwelling units per acre and no density bonus) are allowed in the City's proposed LDR land use category. Therefore, if or when the City Plan becomes effective, before Petitioners can develop their property, they must rezone it to a district that is consistent with the land use designation shown on the Table. There is no specific requirement in the LDC that the City conduct a planning study when it has a concern that the zoning is inconsistent with the relevant land use category in the new City Plan. Petitioners construed the asterisk note as being inconsistent with the text language on pages I-62 and I-63 of the County Plan. See Finding of Fact 5, supra. Accordingly, on August 21, 2008, Petitioners submitted a Petition to the City pursuant to Section 163.3213(3), Florida Statutes, alleging generally that they were substantially affected persons; that the LDC was inconsistent with the County Plan; that the LDC changes the regulations regarding character, density, and intensity of use permitted by the County Plan; and that the LDC was not compatible with the County Plan, as required by Florida Administrative Code Rule 9J-5.023.2 See Petitioners' Exhibit 103. The City issued its Response to the Petition on November 20, 2008. See Petitioners' Exhibit 104. The Response generally indicated that Petitioners did not have standing to challenge the LDC; that the Petition lacked the requisite factual specificity and reasons for the challenge; that the LDC did not change the character, density, or intensity of the permitted uses under the County Plan; and the allegation concerning compatibility lacked factual support or allegations to support that claim. On December 22, 2008, Petitioners filed a Petition with the Department pursuant to Section 163.3213(3), Florida Statutes, alleging that the LDC implements a City Plan not yet effective; that the LDC changes the uses, densities, and intensities permitted by the existing County Plan; and that the LDC changes the uses, densities, and intensities permitted by the not yet effective City Plan. See Petitioners' Exhibit 105. After conducting an informal hearing on April 7, 2009, as authorized by Section 163.3213(4), Florida Statutes, on July 23, 2009, the Department issued a Determination of Consistency of a Land Development Regulation (Determination). See Petitioners' Exhibit 102. See also Section 7 Tract 64 Property, Inc., et al. v. The City of Doral, Fla., Case No. DCA09-LDR-270, 2009 Fla. ENV LEXIS 119 (DCA July 23, 2009). In the Determination, the Department concluded that Petitioners were substantially affected persons and had standing to file their challenge; that the provision on pages I-62 and I-63 of the County FLUE did not apply to Petitioners' property because the uses and zoning of the property are specifically designated on the LUP map; that the law does not prohibit the Department from reviewing the LDC for consistency with the not yet effective City Plan; and that because the LDC will require Petitioners to rezone their property to be consistent with the City Plan, the challenge is actually a challenge to a rezoning action and not subject to review under this administrative process. See § 163.3213(2)(b), Fla. Stat. On August 13, 2009, Petitioners filed their Petition for Formal Proceedings with DOAH raising three broad grounds: that the LDC unlawfully implements a comprehensive plan not yet effective; that it changes the uses, densities, and intensities permitted by the County Plan and is therefore inconsistent with the County Plan; and that it changes the uses, densities, and intensities permitted by the not yet effective City Plan and is inconsistent with that Plan. See Petitioners' Exhibit 39. These issues are repeated in the parties' Stipulation. As to other issues raised by Petitioners, and evidence submitted on those matters over the objection of opposing counsel, they were tried without consent of the parties, and they are deemed to be beyond the scope of this appeal. The Objections Petitioners first contend that the LDC unlawfully implements a comprehensive plan not yet in effect, in that it was specifically intended to be compatible with, further the goals or policies of, and implement the policies and objectives of, the City Plan. See Fla. Admin. Code R. 9J-5.023. But Petitioners cited no statute or rule that prohibits a local government from adopting LDRs before a local plan is effective, or that implement another local government's plan (in this case the County Plan). While the LDC was adopted for the purpose of implementing a City Plan that the City believed would be in effect when the LDC was adopted, the City agrees that until the new City Plan becomes effective, the LDC implements the County Plan. Even though the two Plans are not identical, and may even be inconsistent with each other in certain respects, this does automatically create an inconsistency between the LDC and County Plan. Rather, it is necessary to determine consistency between those two documents, and not the City Plan. Except for testimony regarding one provision in the LDC and its alleged inconsistency with language in the County FLUE, no evidence was presented, nor was a ground raised, alleging that other inconsistencies exist. The Table note and the County Plan do not conflict. The LDC is not "inconsistent" merely because it was initially intended to implement a local plan that has not yet become effective. Petitioners next contend that the LDC changes the uses, densities, and intensities permitted by the County Plan and is therefore inconsistent with that Plan. Specifically, they contend that the note following the Zoning Compatibility Table in Chapter 1, Section 5 of the LDC is inconsistent with the language on pages I-62 and 63 (now renumbered as pages I-73 and I-74) of the County Plan. In other words, they assert that an inconsistency arises because the note requires them to down- zone their property before development, while the County Plan deems their zoning to be consistent with the County LUP map unless a special planning study is undertaken. The evidence establishes that if there is a conflict between zoning and land use on property within the City, it is necessary to defer to the language on pages I-62 and I-63 of the County FLUE for direction. This is because the County Plan is the effective plan for the City. Under that language, if no planning study has been conducted, the zoning would be deemed to be consistent with the land use. On the other hand, if a planning study is undertaken, and an inconsistency is found, the property can be rezoned in a manner that would make it consistent with the land use. Therefore, the LDC does not change the use, density, or intensity on Petitioners' property that is permitted under the County Plan. It is at least fairly debatable that there is no conflict between the Table note and the County Plan. Finally, Petitioners contend that the LDC changes the uses, densities, and intensities permitted by the not yet effective City Plan because the current industrial zoning designation will be inconsistent with the LDR land use designation. Petitioners argue that once the new City Plan becomes effective, the LDC requires them to down-zone their property before development. However, this concern will materialize only if or when the new City Plan, as now written, becomes effective; therefore, it is premature. Further, the definition of "land development regulation" specifically excludes "an action which results in zoning or rezoning of land." See § 163.3213(2)(b), Fla. Stat. Because the challenged regulation (the note to the Table) is "an action which results in zoning or rezoning of land," the issue cannot be raised in an administrative review of land development regulations. Id. The other contentions raised by Petitioner are either new issues that go beyond the scope of the Petition filed in this case or are without merit.
The Issue The issue in this case is whether the City of Gainesville comprehensive plan amendment adopted by Ordinance No. 4036 on October 24, 1994, is in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact have been determined: The Parties Respondent, City of Gainesville (City), is a local government subject to the comprehensive land use planning requirements of Chapter 163, Florida Statutes. That chapter is administered and enforced by respondent, Department of Community Affairs (DCA). The DCA is charged with the responsibility of reviewing comprehensive land use plans and amendments made thereto. Petitioners, Mark Barrow, Jane Myers, Wilse Barnard, Mary Webb, and Steven and Mary Reid, own property and reside within the City. Petitioners, Historic Gainesville, Inc. and Duckpond Neighborhood Association, Inc., are organizations made up of persons who reside, own property, or operate businesses within the City. By stipulation of the parties, petitioners are affected persons within the meaning of the law and have standing to bring this action. Intervenors, John and Denise Feiber and Katherine Bodine, are the owners of two parcels of property which are at issue in this case. Intervenors submitted oral and written comments during the plan amendment review and adoption proceeding and thus have standing as affected persons to participate in this proceeding. Background During 1993 and 1994, John Feiber unsuccessfully attempted to sell his 1,800 square foot single-family home for an asking price that was disproportionately high for residential property, and was more in keeping with a commercial asking price. Recognizing that the property would be far more valuable with a commercial classification than its current residential designation, on June 11, 1994, Feiber, his wife, and the owner of the property next door, Katherine Bodine, submitted an application for an amendment to the City's Future Land Use Map (FLUM) to convert a .57 acre parcel from Residential- low Density to Planned Use District (PUD) to change a single family home into a law office, potentially convert an adjacent structure into mixed office and residential uses, and possibly build a third office building. Although the City's Plan Board unanimously recommended that the application be denied, by a 4-1 vote the City approved the application on October 3, 1994. This approval was formally ratified through the adoption of Ordinance No. 4036 on October 24, 1994. After essentially deferring to the City's findings, on January 25, 1995, the DCA completed its review of the amendment and issued a Notice of Intent to find the amendment in compliance. On February 15, 1995, petitioners filed their petition for administrative hearing with the DCA generally contending the amendment was internally inconsistent and violated certain parts of Chapter 163, Florida Statutes, the state comprehensive plan, and Chapter 9J- 5, Florida Administrative Code. In resolving these contentions, on which conflicting evidence was presented, the undersigned has accepted the more credible and persuasive evidence. Finally, by order dated March 30, 1995, intervenors were authorized to participate in this proceeding in support of the amendment. The Affected Neighborhood The parcel in question consists of two lots, one owned by the Feibers, the other by Bodine. Both lots are located within, and on the edge of, the Northeast Gainesville Residential Historic District (Historic District), a 63- acre collection of properties, which by virtue of the historically significant structures and residential land use patterns, qualified for listing on the National Register of Historic Places in 1980. The dominant land use and character within the Historic District is residential, and has been since it was zoned residential in 1932. Land uses on Northeast First Street, which forms the western boundary of the District, were always institutional, but on the east side of Northeast Second Street eastward, the uses were always residential with the exception of the Thomas Center, a 1920's vintage building now serving as a City office building. The Historic District is located in downtown Gainesville, beginning just north of East University Avenue and continuing northward until Northeast Tenth Avenue. Within its boundaries on the FLUM are two distinct land use designations, Residential-Low Density and Office. Northeast Second Street serves as the land use boundary between the two, with residential uses permitted on the east side and nonresidential uses permitted on the west side of the street. There have been no encroachments across the residential land use line since 1976 when a nonconforming parking lot was approved by the City. When the City adopted its comprehensive plan in 1985, and revised it in 1991, it continued the same two land uses, thereby codifying existing residential land use patterns and the conversion of office uses that had already occurred along First Street Northeast in the early 1970s. The Amendment As noted above, the parcel in question consists of two legal lots, one owned by the Feibers, the other by Bodine. The amendment changes the FLUM portion of the City's 1991-2001 comprehensive plan to reflect a PUD overlay for the parcel. The land is presently designated as residential-low density, a category in which office uses are not permitted. According to policy 2.1.1 of the Future Land Use Element (FLUE), this land use category is appropriate "for single family development, particularly the conservation of existing traditional low-density neighborhoods, single-family attached and zero-lot line development, and small scale multi-family development." Conversely, the same policy provides that "office designations shall not encroach in viable residential areas nor expand strip development." By their application, John and Denise Feiber seek to convert their single-family home at 206 N. E. Third Street into a law office. An adjacent two-story structure located at 206 N. E. Second Avenue would possibly be converted to office uses on the first floor and residential uses on the second floor. That building is owned by Katherine Bodine, an absentee landlord who resides in Jacksonville, Florida. The amendment also permits, but does not require, future consideration of a third, multi-story structure to accommodate offices. After the amendment was approved by the City, Bodine immediately listed her parcel for sale, and its future development is uncertain at this time. FLUE policy 2.1.1 describes the PUD designation as follows: This category is an overlay land use district which may be applied on any specific property in the City. The land use regulations pertaining to this overlay district shall be adopted by ordinance in conjunction with an amendment to the Future Land Use Map of this comprehensive plan. The category is created to allow the consideration of unique, inno- vative or narrowly construed land use proposals that because of the specificity of the land use regulations can be found to be compatible with the character of the surrounding land uses and environmental conditions of the subject land. Each adopting PUD overlay land use designation shall address density and intensity, permitted uses, traffic access and trip generation, environmental features and buffering of adjacent uses. Planned Development zoning shall be required to implement any specific development plan. In the event that the overlay district has been applied to a site and no planned development zoning has found approval by action of the City Commission within one year of the land use designation, the overlay land use district shall be deemed null and void and the overlay land use category shall be removed from the Future Land Use Map, leaving the original and underlying land use in place. Therefore, any land use proposal under this category must be "compatible with the character of the surrounding land uses and environmental conditions" and address the "buffering of adjacent uses." It follows that a PUD may not be applied arbitrarily, but rather it must be appropriate for the area and specific site. The amendment applies the following land use regulations to both the Feiber and Bodine parcels: Residential use of up to ten (10) units per acre and all uses permitted by right and by special use permit within the RMF-5 zoning district is authorized; the maximum floor area of all buildings and structures is 7,185 square feet; the Historic Preservation/ Conservation District requirements of Section 30-79, Land Development Code of the City of Gainesville regulate and control the development and design of all buildings, structures, objects and related areas; in addition to the Landscape and Tree management requirements of the Land Development Code, the property is required to be planted and maintained with residential scale landscaping to conform to the surrounding residential neighborhood, as well as act as a buffer for the surrounding uses; the average weekday afternoon peak trip generation rate per 1,000 square feet of gross floor area in office use is not permitted to exceed 1.73; any application for development is required to meet concurrency requirements of Article III of the City of Gainesville Land Development Code for each phase of development; and off-street parking is required to be provided unless on- street parking is created, pursuant to a plan attached to the ordinance as Exhibit "D". The amendment also applies the following land use regulations specifically to the Feiber parcel: An additional land use, Legal Services, as defined in Major Group 81 of the Standard Industrial Classification Manual, 1987 ed. is authorized; the maximum floor area authorized for such Legal Services is one thousand seven hundred eighty five (1,785) square feet; and, if on-street parking is not provided in accordance with the plan provided in Exhibit "D" of the ordinance, then off-street parking must be provided within 300 feet of the Feiber parcel. Finally, the amendment applies the following land use regulations to the Bodine parcel: Non-residential land uses are permitted as specified in Exhibit "E" of the ordinance; the maximum floor area authorized for non-residential uses is three thousand six hundred (3,600) square feet; the second story of the existing building is limited to residential use only; and on-site parking limitations are imposed. In accordance with policy 2.1.1, Planned Development (PD) zoning is required to implement the development plan and the uses permitted in the amendment. The underlying FLUM designation of Residential Low Density, which allows up to 12 units per acre, is neither abandoned nor repealed, but rather remains inapplicable, so long as the property is developed in accordance with a development plan to be approved when the implementing PD zoning is adopted, and such implementing zoning must be adopted within one year of the amendment becoming effective. Data and Analysis Data and Analysis Before the City Basically, the City concluded that the amendment could be justified on the theory that the conversion would provide commercial "infill" of an underutilized parcel with step-down transitions to the inner neighborhood. It further concluded that because of the small size of the parcel involved, the conversion would have a de minimis effect on the neighborhood. When the amendment was adopted, the City had before it the previously adopted comprehensive plan, including the original data and analysis to support that plan, and testimony and exhibits offered both for and against the amendment during a local government hearing conducted on October 4, 1994. Significantly, the City had no studies of any kind regarding marketability, neighborhood stability, availability of land for office and residential uses, or traffic. Indeed, in preparation for final hearing, its expert simply made a walking tour of the neighborhood. Data and Analysis Before the Department On October 28, 1994, the City transmitted the amendment to the DCA for review. The transmittal package contained the following items: The City's Final Order; Ordinance No. 4036, with Exhibits A-E; interoffice communication to the City Commission from the City Plan Board dated July 11, 1994; interoffice communication to the City Plan Board, Planning Division Staff dated June 16, 1994; attachment to Land Use Application (pages 1-5); and excerpts from the City Zoning and Future Land Use Maps showing the zoning and land uses assigned to adjacent properties. However, the transmittal package did not include transcripts of the City Plan Board hearing, the Commission Adoption hearing, or any part of the record of the quasi-judicial hearing of October 4, 1994. The DCA planning staff consulted data contained in the Department of Transportation's ITE Manual in analyzing the traffic and parking impacts of the adopted land use map amendment. It also contacted the Department of State, Division of Historic Resources (Division), for analysis of the amendment's impact on historic resources, and it received comments on the amendment from the the North Central Florida Regional Planning Council (NCFRPC). The DCA planning staff also analyzed the FLUM to determine compatibility of the amendment with surrounding uses. During this review, the DCA planning staff reviewed all pertinent portions of the City's Plan Goals, Objectives and Policies (GOPs) and data and analysis. This review was done in a cursory fashion, however, since the DCA viewed the application as being a very small project with no perceived impact. Given the lack of any studies concerning marketability, neighborhood stability, availability of land for office and residential uses, and traffic, all of which are pertinent to this amendment, it is found that the City and DCA did not use the best available data and analysis. Therefore, the amendment is inconsistent with the requirement in Rule 9J-5.005(2), Florida Administrative Code, and Section 163.3177, Florida Statutes, that the best available (and appropriate) data and analysis be used. Compatibility with Adjacent Uses To the south of the subject parcels is a four-lane loop road (Northeast Second Avenue) which now serves as a buffer from the adjacent uses. Across the street to the south is City Hall, which was constructed more than thirty years ago. To the west of the property is a commercial parking lot with an office building next door to that parking lot. On the east side of the property are multi-family dwellings. To the south and east from the parcels is a commercial lot. An area from the corner of Northeast Second Avenue and Northeast First Street, one block from the subject parcels, and proceeding north along Northeast First Street, contains many non- residential uses, including offices. Areas to the north are predominately multi-family and single-family uses. Transitional uses and buffering are professionally-acceptable planning tools. However, changing a single-family dwelling into an office does not enhance buffering for the residential properties further in the neighborhood because the Feiber house is currently a less intense use than office. Therefore, the amendment conflicts with the plan's requirement that a PUD provide buffering for adjacent uses. The concept of transitional uses entail the practice of providing for a gradation of uses from high-intensity to low-intensity uses. Insertion of another non-residential use at the Feiber property to achieve a chimerical "step-down transitional use" merely moves the "edge" another step inward. Nonresidential uses already exist just outside the Historic District neighborhood that would meet this "step-down" criteria. Retrofitting an existing neighborhood is not appropriate unless it is no longer viable, which is not the case here. Contrary to the proponents' assertion, the Feiber and Bodine parcels will not provide the transitional uses of office and multi-family uses between the high-intensity office (City Hall) uses and lower intensity, multi-family uses to the north of the subject parcels. The four-lane street between the City Hall and the subject property now serves as an adequate buffer. A major goal of the City's plan is to protect viable, stable neighborhoods, and the FLUM, with its residential land use category, provides that protection. This goal cannot be achieved by converting these parcels to office use. Another major goal of the plan is to protect and promote restoration and stablization of historic resources within the City. That goal cannot be achieved by converting these parcels to nonresidential uses. Yet another major goal of the plan is the prohibition of office uses intruding into residential neighborhoods. The amendment contravenes that requirement. Impact on Historic Resources As noted earlier, the Feiber and Bodine properties are located on the southern edge of the Historic District of the City, separated from the City Hall by a one-block long segment of a four-lane street plus the full half-block length of the City Hall parking lot. A major goal of the City's plan is the protection of historic architectural resources and historically significant housing within the City. This goal is found in FLUE objective 1.2, Historic Preservation Element goals 1 and 2, and Housing Element policy 3.1.3. This overall major goal, as embodied in the foregoing objective, policies and goal, cannot be furthered by the amendment. Conversions which intrude across stable boundaries, such as exist in this neighborhood, begin a pattern of disinvestment. As investment subsides, the physical, historic structures will be adversely affected. The conversion contemplated by the amendment would represent a small encroachment of office use into the neighborhood with a cumulative effect. There is nothing to preclude its precedential effect or encouragement of similar applications. Although the Division of Historic Resources stated that it had no objection to the amendment, its acquiesence to the amendment is not controlling. Rather, the more persuasive evidence supports a finding that the amendment will have an adverse impact on the Historic District and will not further applicable goals, policies and objectives. Local Comprehensive Plan Issues One criteria for evaluating a plan amendment is whether it would result in compatibility with adjacent land uses. The overriding goal in the area of compatibility analysis is the protection of viable, stable neighborhoods. There is nothing in the plan amendment itself which provides compatibility or buffering for the residential properties located to the north and east of the subject parcel. Indeed, office development of the land will increase the pressure to convert more structures. Objective 2.1 of the FLUE establishes an objective of providing sufficient acreage for residential, commercial, mixed use, office and professional uses and industrial uses at appropriate locations to meet the needs of the projected population. Those acreages are depicted on the FLUM. When reviewing a FLUM amendment, such as the subject of this proceeding, the City is required to make a need analysis. The amendment is not supported by any analysis of need. Prior to the amendment, the plan contained an overallocation of office space and a shortage of housing for Market Area 4, in which the subject parcel is located. The amendment does not increase available housing or alleviate the overallocation of office space in Market Area 4. Indeed, it has a contrary result. Adaptive reuse is not promoted by the City's plan. Rather, the Housing Element promotes restoration and conservation of historically or architecturally significant housing, which means returning to housing use, not adapting structures to some other use. In this respect, the amendment is contrary to the City's plan. Summary Because the plan amendment is internally inconsistent and not based on the best available data and analysis, it is found that the amendment is not in compliance.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Community Affairs enter a final order finding the amendment to be not in compliance. DONE AND ENTERED this 19th day of September, 1995, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of September, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-0749GM Petitioners: Petitioners' proposed findings, while substantially modified and shortened, have been generally adopted in substance. Respondents/Intervenors: 1-8. Partially covered in findings of fact 10-16. 9-37. Partially covered in findings of fact 17-22. 38-53. Partially covered in findings of fact 23-30. 54-71. Partially covered in findings of fact 31-33. 72-106. Partially covered in findings of fact 31-38. Note: Where a proposed finding has been partially accepted, the remainder has been rejected as being unnecessary for a resolution of the issues, cumulative, irrelevant, not supported by the more credible, persuasive evidence, subordinate, or a conclusion of law. COPIES FURNISHED: Patrice F. Boyes, Esquire W. David Jester, Esquire Post Office Box 1424 Gainesville, Florida 32602-1424 Richard R. Whiddon, Jr., Esquire Post Office Box 1110 Gainesville, Florida 32602 Suzanne H. Schmith, Esquire 2740 Centerview Drive Tallahassee, Florida 32399-2100 C. David Coffey, Esquire 105 S. E. First Avenue, Suite 1 Gainesville, Florida 32601-6215 James F. Murley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Dan R. Stengle, Esquire General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100
