The Issue The issue is whether proposed rules 9J-5.026(3)(d), (7)(b), (7)(c)4. and 6., (8)(a), (9)(a)3., 6., 18., and 19., and 9J- 11.023(2), (4), and (5), and existing Florida Administrative Code Rule 9J-5.003(80) are invalid exercises of delegated legislative authority for the reasons alleged in the Petition for Administrative Hearing to Challenge Proposed Amendments to Chapters 9J-5 and 9J-11, F.A.C. and to Challenge Existing Rule 9J-5.003(80) (Petition).1
Findings Of Fact Based on the evidence presented by the parties, the following findings are made: The Parties Petitioners are not-for-profit organizations whose members own real property throughout the State. A substantial number of their respective members own real property which could be amassed as one or more areas in the RLSA program. Some members of these organizations have taken steps in an effort to have their land designated as an RLSA. On behalf of their respective members, each Petitioner has a substantial interest in public policy relating to land use planning, growth management, and the protection of agricultural, rural, and conservation lands. Respondent, Department of Community Affairs (Department), has stipulated to the facts necessary to establish standing for each Petitioner. The Department is the state agency charged with implementing the review provisions of the Local Government Planning and Land Development Regulation Act codified in Sections 163.3164, et seq., Florida Statutes. The Original Statute Creating the RLSA Program Because of the complexity of the subject matter, a recitation of the RLSA program's history is appropriate. In 2001, the Legislature enacted Chapter 2001-279, Laws of Florida, codified as Section 163.3177(11)(d), Florida Statutes, which created the RLSA pilot program. The law became effective on July 1, 2001, and stated: It is the intent of the Legislature that rural land stewardship areas be used to further the following broad principles of rural sustainability: restoration and maintenance of the economic value of rural land; control of urban sprawl; identification and protection of ecosystems, habitats, and natural resources; promotion of rural economic activity; maintenance of the viability of Florida's agriculture economy; and protection of the character of the rural areas of Florida. § 163.3177(11)(d)2., Fla. Stat. (2001). While the eligibility criteria and substantive requirements of the RLSA program have been amended several times, the foregoing principles have remained the same. The statute provides an option, not an exception, under the State's growth management laws for local governments to implement innovative planning and development strategies for large, rural parcels. While having many of the attributes of a traditional "transfer of development rights" program, the RLSA planning process provides additional planning and economic incentives as well as flexibility for the local government to implement this program. The program was best summarized by Secretary Pelham at hearing as follows: The RLSA process is an optional planning process which local governments may elect to use in rural and agricultural areas of the state. Essentially it provides incentives to landowners to preserve or conserve environmental and natural resources and agricultural lands by giving them stewardship credits that may be assigned to those lands to be preserved, but which can be used on other lands through a transfer of those credits to the receiving areas. Tr. at 182. The first step in the RLSA planning process is for the local government to "apply to the Department in writing requesting consideration for authorization to designate a [RLSA]." § 163.3177(11)(d)3., Fla. Stat. (2001). Under the original statute, if the Department chose to authorize a local government to designate an RLSA, it would do so by written agreement with the local government. See § 163.3177(11)(d)4. and (5), Fla. Stat. (2001). Because the original statute was a pilot program, the Department could authorize only five local governments to designate RLSAs. See § 163.3177(11)(d)6., Fla. Stat. (2001). To be eligible for designation as an RLSA under this pilot program, a parcel of land had to be larger than 50,000 acres but not over 250,000 acres; it had to be designated as rural or a substantial equivalent on the future land use map (FLUM); and it had to be located outside the municipal and established urban growth boundaries. See § 163.3177(11)(d)6., Fla. Stat. (2001). For this reason, only counties (and not cities) were eligible to participate in the program. Once it received Department authorization to designate an RLSA, the county was to then propose and adopt a plan amendment designating the RLSA. See § 163.3177(11)(d)6., Fla. Stat. (2001). This plan amendment was to be subject to full review under Section 163.3184, Florida Statutes, for a compliance determination. Also, the plan amendment was required to specifically address the following: Criteria for the designation of receiving areas within rural land stewardship areas in which innovative planning and development strategies may be applied. Criteria shall at a minimum provide for the following adequacy of suitable land to accommodate development so as to avoid conflict with environmentally sensitive areas, resources, and habitats; compatibility between and transition from higher density uses to lower intensity rural uses; the establishment of receiving area service boundaries which provide for a separation between receiving areas and other land uses within the rural land stewardship area through limitations on the extension of services; and connection of receiving areas with the rest of the rural land stewardship area using rural design and rural road corridors. Goals, objectives, and policies setting forth the innovative planning and development strategies to be applied within rural land stewardship areas pursuant to the provisions of this section. A process for the implementation of innovative planning and development strategies within the rural land stewardship area, including those described in this subsection and s. 9J-5.006(5)(l), Florida Administrative Code, which provide for a functional mix of land uses and which are applied through the adoption by the local government of zoning and land development regulations applicable to the rural land stewardship area. A process which encourages visioning pursuant to s. 163.3167(11) to ensure that innovative planning and development strategies comply with the provisions of this section. The control of sprawl through the use of innovative strategies and creative land use techniques consistent with the provisions of this subsection and rule 9J-5.006(5)(l), Florida Administrative Code. Once the plan amendment was in place, the county was then to implement it through land development regulations. Under the original statute, the county by ordinance was to "assign to the [RLSA] a certain number of credits, to be known as 'transferable rural land use credits' . . . ." These credits would then be transferred to designated receiving areas "solely for the purpose of implementing innovative planning and development strategies and creative land use planning techniques adopted by the local government pursuant to this section." See § 163.3177(11)(d)8.b., Fla. Stat. (2001). Once transferable rural land use credits were transferred from a parcel, the underlying land uses would be extinguished, the parcel would be limited to agriculture or conservation, and the transfer would be memorialized as a restrictive covenant running with the land. See § 163.3177(11)(d)8.k., Fla. Stat. (2001). The Department was granted the authority to implement this section by rule in the original statute. However, the Department did not adopt rules. No county applied to participate in this pilot program. Amendments to the RLSA Statute The Legislature substantially amended the statute in 2004. See Ch. 2004-372, Laws of Fla. Although the program had no participants as of that time, the Legislature removed the pilot status of the program and the limitation on the number of local governments that may be authorized to designate an RLSA. See § 163.3177(11)(d)1., Fla. Stat. (2004). Although the requirement for a written agreement between the county and the Department was deleted, the requirement for the county's application and Department's authorization prior to the designation of an RLSA remained. See § 163.3177(11)(d)1. and 4., Fla. Stat. (2004). The minimum acreage for an RLSA was reduced to 10,000 acres and the maximum was removed. § 163.3177(11)(d)4., Fla. Stat. (2004). The statute also explicitly recognized that RLSAs could be multi-county. § 163.3177(11)(d)2., Fla. Stat. (2004). In 2005, the Legislature again amended the statute in several respects, one of which was directed to the stewardship credit methodology. See Ch. 2005-290, Laws of Fla. However, the statute still requires that the total amount of credits is to be tied to the "25-year or greater projected population of the rural land stewardship area." Although the statute was amended again in 2006, those amendments have no bearing on the issues in this case. See Ch. 2006-220, Laws of Fla. Designating an RLSA Under the Statute Collier County has been frequently mentioned as a local government with an RLSA program. However, that County's comprehensive plan provisions regarding rural development were not adopted under the RLSA statute; rather, they were adopted by the County in 1999 as conventional plan amendments that were later approved in 2002 by a final order issued by the Administration Commission. Collier County's rural planning program does, however, have some of the same core attributes found in the RLSA program, including the creation of transferable land use credits to enable development in designated receiving areas. The Department closely examined the Collier County program as part of its "Rural Land Stewardship Area Program 2007 Annual Report to the Legislature" (2007 Annual Report). See Joint Exhibit 4. See also § 163.3177(11)(d)8., Fla. Stat. ("[t]he department shall report to the Legislature on an annual basis on the results of implementation of [RLSAs] authorized by the department"). This examination revealed several substantial flaws in the program. First, the Collier County program is extremely complex, with over twenty general attributes that must be examined for every acre of land assigned stewardship credits. This would make it difficult and expensive for small rural counties with limited resources. The Collier County program also assigns the highest stewardship credits to environmentally sensitive lands and appreciably lower values to agricultural land. The result is that development is directed to agricultural areas. For example, eighty-seven percent of the footprint of one receiving area that is currently being developed, known as Ave Maria, was in active agriculture prior to its designation for development. In this respect, the Collier County system is directing development to agricultural lands and not protecting and conserving those lands, which the Department contends contravenes the principles of rural sustainability. Another major concern with the Collier County program is the extent and distribution of receiving areas. The Collier County program does not have any requirements that the receiving area be clustered, thus allowing for the possibility of scattered, sprawling receiving areas throughout eastern Collier County. Also, there appears to be no limit on the footprint of these receiving areas. The original Collier County program envisioned development on only nine to ten percent of the entire area, for a total of approximately 16,800 acres. However, due to the complexity and "flexibility" within the Collier County stewardship credit system, "the maximum development footprint cannot be determined." On September 12, 2006, St. Lucie County adopted plan amendments under the RLSA statute. Later that year, the Department reviewed the amendments and found them to be in compliance. In preparing the 2007 Annual Report, the Department undertook a detailed analysis of the St. Lucie RLSA amendments. Even though the amendments had been previously found to be in compliance, the new analysis revealed several shortcomings in the amendments, including their failure to discuss, analyze, or demonstrate how they further the principles of rural sustainability, a primary focus of the program. Also, the amendments were not supported by an analysis of land use need. Instead of projecting population and need, the RLSA adopted an arbitrary cap of 13,248 dwelling units with "no known planning basis." The St. Lucie RLSA is similar to the Collier County program in two respects: it is very complex, and it places no spacial limits on the footprint of the development area. Due to these shortcomings, the Department has placed little, if any, reliance on the St. Lucie County RLSA amendments as an example of proper planning under the RLSA statute. There is no evidence that any development has occurred under the St. Lucie program, and its most recent Evaluation and Appraisal Report dated October 2008 indicated that none may ever occur. In 2007, Highlands and Osceola Counties both applied for and were granted authorization by the Department to designate RLSAs. However, both counties later notified the Department that they would no longer pursue the RLSAs, and the authorizations were withdrawn by the Department. The Rule Development Process In early 2007, the Department became aware of assertions by some landowners that the RLSA program provides for unlimited development within a stewardship area; that RLSA plan amendments were not subject to the growth management provisions in Chapter 163, Florida Statutes; and that RLSAs were not subject to a needs analysis, as required by the law. At the same time, the Department received numerous inquiries from large landowners and/or their representatives regarding RLSA proposals, some as large as 750,000 acres, and for two "new towns" with 100,000 and 60,000 dwelling units, respectively. It also became aware of concerns and criticisms leveled against the one adopted RLSA program in St. Lucie County and rural planning efforts in Collier County. The main criticism was that the system being used for RLSA planning was too complex, which resulted in an expensive, consultant- intensive process that lacked transparency and was largely incomprehensible. Based on the above concerns and criticisms, the Department began gathering information in early 2007 in preparation for rulemaking. On July 19, 2007, it conducted its first workshop. Two other workshops were held, and the first draft of proposed rule 9J-5.026 was issued in January 2008. That proposed rule set forth the minimum substantive requirements for RLSA planning. In September 2008, the Department issued its first draft of proposed rule 9J-11.023, which sets forth the procedural requirements for a local government to seek authorization from the Department to designate an RLSA. After receiving comments from interested parties, the Department noticed the rules for adoption and conducted a rule adoption hearing. On January 7, 2009, Petitioners filed a Petition challenging most of the provisions in the proposed rules. See DOAH Case No. 09-0048RP. Based upon that challenge, which raised new issues not previously brought to the attention of the Department, the Department withdrew the rules and made substantial revisions to address these concerns. This rendered moot Petitioners' earlier challenge. After the revised rules were noticed for adoption, Petitioners filed their Petition challenging numerous provisions within the proposed rules as well as one existing rule. The Objections As summarized in their Proposed Final Order, Petitioners contend (a) that proposed rules 9J-11.023(2), (4), and (5) are invalid because they exceed the Department's grant of rulemaking authority;4 (b) that proposed rules 9J-5.026(7)(b), (7)(c)4., 6., (8)(a), and (9)(a)3., 6., 18., and 19. enlarge, modify, or contravene the specific provisions of law implemented; (c) that proposed rule 9J-5.026(3) is vague and fails to establish adequate standards for agency decisions; (d) that proposed rule 9J-5.026(9)(a)18. is arbitrary; and (e) that existing Rule 9J-5.003(80) contravenes the specific provisions of law implemented. The remaining allegations have been voluntarily dismissed. a. Does proposed rule 9J-11.023 exceed the grant of legislative authority? Petitioners first contend that subsections (2) and (4) in their entirety and the words "If authorized to proceed" in the first sentence of subsection (5) of proposed rule 9J-11.023 are an invalid exercise of delegated legislative authority because they exceed the Department's specific grant of legislative authority. The challenged subsections of the proposed rule read as follows: 9J-11.023 Procedure for the Designation of a Rural Land Stewardship Area. * * * (2) Pre-Notification Actions. Prior to giving official notification of intent to designate a RLSA to the Department, the county(ies) shall conduct at least one noticed public workshop to discuss and evaluate the appropriateness of establishing a RLSA. The county(ies) shall invite the Department of Community Affairs, Department of Agricultural and Consumer Affairs, Department of Environmental Protection, Department of Transportation, Florida Fish and Wildlife Conservation Commission, affected regional planning council(s), and affected water management district(s) (collectively referred to as the "RLSA Interagency Technical Advisory Team") to participate in the workshop. Potentially affected landowners and other interested parties shall be given notice and invited to participate in the workshop. The workshop shall address: the statutory process for designating a RLSA; the planning issues that are likely to arise; and the technical assistance that will be available from state and regional agencies if the county(ies) proceed to designate a RLSA. The county(ies) shall provide opportunities for broad public participation in the RLSA process, which may include a series of public meetings or workshops. The county(ies), in coordination with the affected landowners, shall host a site visit of the RLSA for the RLSA Interagency Technical Advisory Team in conjunction with the workshop or after the notification of intent to designate pursuant to paragraph (4)(b). * * * Review of Notification of Intent to Designate. The Department will provide members of the RLSA Interagency Technical Advisory Team with a copy of the notification of intent to designate within five days after receipt of the notification. If a site visit was not made prior to the notification of intent to designate, the Department will contact the county(ies) within ten days after receipt of the notification of intent to arrange a site visit of the proposed RLSA and surrounding lands. The county(ies) shall ensure proper coordination with the affected landowners. The Department will coordinate the scheduling of the site visit with the members of the RLSA Interagency Technical Advisory Team and request their participation in the site visit. Members of the RLSA Interagency Technical Advisory Team shall be asked to provide the Department oral and/or written comments on the proposed RLSA within 30 days of the receipt of the notification of intent to designate or the site visit, if it occurs after the notification. The Department may also request meetings with the members of the RLSA Interagency Technical Advisory Team to discuss and evaluate the notification and site visit. The Department may also request a conference with the county's(ies') staff(s) to discuss issues and questions that have arisen as a result of the site visit, comments from members of the Interagency Technical Advisory Team and other stakeholders, and the Department's evaluation of the RLSA proposal. Not later than 60 days following the receipt of the notification of intent to designate or the site visit, whichever is later, the Department shall issue a written notification to the county(ies). The Department's notification shall authorize the county(ies) to proceed with a plan amendment to designate the RLSA or inform the county(ies) of the Department's decision not to authorize. The decision shall be based on the information contained in or gained from the notification, site visit, other agency comments, and other information received. The Department shall authorize the county(ies) to proceed if it determines that the proposed RLSA meets the threshold eligibility requirements of subsection 9J-5.026(4), F.A.C. and that there is a reasonable likelihood that the RLSA will further the principles of rural sustainability. If the Department decides to authorize the county(ies) to proceed with a plan amendment to designate a RLSA, the notification will set forth the facts on which the authorization is based, and may include recommendations to the county(ies) regarding the RLSA. The notification will not guarantee that a comprehensive plan amendment(s) to designate a RLSA will be found in compliance by the Department. It will only constitute the Department's authorization to designate a RLSA if the necessary comprehensive plan amendment(s) are adopted and found in compliance pursuant to Section 163.3184, F.S. If the Department decides not to authorize the county(ies) to proceed with a plan amendment to designate a RLSA, the agency's notification will explain the reasons for the decision. Amendment to the Comprehensive Plan: If authorized to proceed, the county(ies) may prepare and process a plan amendment(s) that will be reviewed by the Department pursuant to Section 163.3184, F.S. The county(ies) may, in preparing the plan amendment(s), establish a local visioning process to facilitate the development of a RLSA plan amendment. The Department encourages the county(ies) to seek and utilize technical assistance from the members of the RLSA Interagency Technical Advisory Team in preparing a RLSA plan amendment. 33. Sections 120.52(8)(b) and 120.54(3)(a)1., Florida Statutes, require that the agency list in the rulemaking notice the purported rulemaking authority for the proposed rule. To comply with this requirement, the Department's rulemaking notice cites Sections 163.3177(9) and (11)(h), Florida Statutes, as the specific authority for adopting the rule and Section 163.3177(11)(d)1., Florida Statutes, as the law being implemented. In its Proposed Final Order, the Department relies on Section 163.3177(11)(h) as the specific statutory authority for rulemaking. It provides that the Department "may adopt rules necessary to implement the provisions of [subsection 163.3177(11)]," including the RLSA provisions found in Section 163.3177(11)(d). On the other hand, the law being implemented is quite lengthy and reads as follows: (11)(d)1. The department, in cooperation with the Department of Agriculture and Consumer Services, the Department of Environmental Protection, water management districts, and regional planning councils, shall provide assistance to local governments in the implementation of this paragraph and rule 9J-5.006(5)(l), Florida Administrative Code. Implementation of those provisions shall include a process by which the department may authorize local governments to designate all or portions of lands classified in the future land use element as predominately agriculture, rural, open, open-rural, or a substantively equivalent land use, as a rural land stewardship area within which planning and economic incentives are applied to encourage the implementation of innovative and flexible planning techniques, including those contained herein and in rule 9J- 5.006(5)(l), Florida Administrative Code. Assistance may include, but is not limited to: Assistance from the Department of Environmental Protection and water management districts in creating the geographic information systems land cover database and aerial photogrammetry needed to prepare for a [RLSA]; Support for local government implementation of rural land stewardship concepts by providing information and assistance to local governments regarding land acquisition and assistance to local governments regarding land acquisition programs that may be used by the local government programs that may be used by the local government or landowners to leverage the protection of greater acreage and maximize the effectiveness of rural land stewardship areas; and Expansion of the role of the Department of Community Affairs as a resource agency to facilitate establishment of [RLSAs] in smaller rural counties that do not have the staff or planning budgets to create a [RLSA]. Proposed rule 9J-11.023 describes in detail the process by which a local government is to request Department authorization to designate a RLSA. At issue here are provisions in subsections (2), (4), and (5) of the rule that require a local government wishing to designate an RLSA to conduct a public workshop; cover particular topics during the workshop; host a site visit with designated agencies; and based on the information gathered from this process to then allow the Department, in its discretion, to either authorize or not authorize the local government to begin to prepare and process an RLSA amendment. The latter decision is based on whether the local government has shown "a reasonable likelihood that the RLSA will further the principles of rural sustainability." Petitioners contend that there is no specific grant of rulemaking authority that authorizes the Department to mandate these procedures in the rule or to prevent a local government from proposing and processing an RLSA plan amendment. Instead, they contend that the enabling statute only allows the Department to promulgate rules that are "necessary" to implement the RLSA program, those being a requirement that the county provide notice to the Department that it intends to propose a RLSA plan amendment and a description of the subsequent review process by the Department to determine whether the amendment is in compliance. Section 163.3177(11)(d)1., Florida Statutes, authorizes the Department to provide "assistance to local governments in the implementation of this paragraph and rule 9J- 5.006(5)(l)." (The cited rule, among other things, encourages "innovative and flexible planning and development strategies" that allow conversion of rural and agricultural lands to other uses.) The statute also includes specific authority to establish a "process by which the department may authorize local governments to designate all or portions of lands classified in the future land use element (FLUE] as predominately agricultural, rural, open, open-rural, or a substantively equivalent land use, as a [RLSA] . . . ." The rule accomplishes this purpose by requiring state agency technical assistance, establishing the process for a workshop and site visit, requiring that the county's notification describe the basis for the designation, requiring broad public participation, and assuring, by approval or disapproval of the county's preliminary proposal, that the proposed RLSA will promote the principles of rural sustainability. Notably, had the Legislature intended this authorization process to be the same as the existing compliance review process for conventional plan amendments, there would be no need for this statutory language. The proposed rule does not exceed the Department's grant of rulemaking authority. b. Do certain provisions within proposed rule 9J-5.026(7) and (9) enlarge, modify, or contravene the law implemented? Petitioners further contend that proposed rules 9J- 5.026(7)(b), (7)(c)4., 6., (8)(a), and (9)(a)3., 6., 18., and enlarge, modify, or contravene the specific provisions of law implemented. The challenged rules read as follows: 9J-5.026 Rural Land Stewardship Area (RLSA) * * * Data and Analysis Requirements. * * * Population Projections and Analysis of Land Use Need. Population projections and analysis of land use need shall be prepared in accordance with Rule 9J-5.006, F.A.C., with the following modifications: The amount and extent of allowable development in the RLSA must be based on the 25-year or greater projected population of the RLSA; the anticipated effect of the proposed RLSA must receiving areas, including any committed catalyst projects, infrastructure improvements, or other projects that would attract and support development; the furtherance of the statutory principles of rural sustainability; and the goals, objectives, and policies of the RLSA plan amendment. * * * 4. Land development and other conversion threats whereby rural resources under threat require more incentives via stewardship credits and less threatened resources require lesser incentives. This includes the future threat of low-density sprawl on lands within and surrounding Eligible Receiving Areas; and * * * 6. Values shall be assigned to all of the land in the RLSA. The highest values shall be assigned to the most environmentally valuable land, and to open space and agricultural land where the retention of such lands is a priority. The assignment of values shall be submitted with the RLSA plan amendment as part of the supporting data and analysis. * * * Stewardship Credit System Criteria. (a) Each credit shall represent a defined number of residential units or a defined amount of non-residential square footage. The credit transferee may decide whether to use the credit for a residential or non- residential use in accordance with the land use standards established for the Designated Receiving Area. * * * Goals, Objectives, Policies, and Map. * * * (a) The goals, objectives, and policies shall include the following: * * * 3. Identification of the innovative planning and development strategies to be used within the RLSA, and a process for implementing the strategies, including the adoption of implementing plan amendments, land development regulations, and the issuance of development orders. The process shall include provision for the Department's review of a proposed land development regulation to designate a receiving area for consistency with the RLSA plan amendment. * * * 6. A requirement that Eligible Receiving Areas shall be located on land that is suitable for development and have the lowest land values based on the land values analysis conducted pursuant to paragraph (7)(c). * * * Policies for new towns which comply with the following: As required by subsection 9J-5.003(80) and paragraph 9J-5.006(5)(1), F.A.C., a new town shall be designated on the future land use map. A new town shall be located within a Designated Receiving Area. The plan amendment designating a new town shall include a master development plan that establishes the size of the new town, the amount, location, type, density and intensity of development, and the design standards to be utilized in the new town. Any increase in the density or intensity of land use required to achieve the proposed new town may occur only through the use of stewardship credits assigned or transferred to the Designated Receiving Area either prior to or subsequent to the designation of the new town on the future land use map. New towns shall be surrounded by greenbelts, except for any connecting rural road corridors and to the extent that new towns are adjacent to existing or planned urban development or incorporated areas. A future land use map amendment to designate a new town shall be internally consistent with RLSA provisions of the comprehensive plan. A future land use map amendment to designate a new town shall be accompanied by an amendment to the capital improvements element to incorporate a financially feasible five-year capital improvements schedule for the public facilities necessary to serve the new town and an amendment to the transportation or traffic circulation element to designate any new rural road corridors required to connect the new town with the rest of the RLSA. Provisions to ensure that any use of the underlying densities and intensities of land uses assigned to parcels of land by the county comprehensive plan prior to designation of the RLSA furthers the principles of rural sustainability. * * * The grant of authority for this rule is cited as Sections 163.3177(9) and (11)(h), Florida Statutes, while Sections 163.3177(2), (3), (6)(a), (8), (10)(e), (11)(a), (b), and (d)1., 2., 4., 5., and 6., Florida Statutes, are cited as the laws being implemented. Subsection (2) of the law being implemented provides that "[c]oordination of the several elements of the local comprehensive plan shall be a major objective of the planning process"; subsection (3) is a lengthy provision requiring that a comprehensive plan include a capital improvements element; paragraph (6)(a) describes in detail the matters that must be contained in the FLUE; subsection (8) requires that all elements of the comprehensive plan be based on data appropriate to the element involved; paragraph (10)(e) generally provides that support data and analysis shall not be subject to the compliance review process, but they must be based on appropriate data; paragraph (11)(a) describes the Legislature's recognition of using innovative planning and development strategies; paragraph (11)(b) expresses the intent of the Legislature to allow the conversion of rural lands to other uses, where appropriate, including urban villages, new towns, satellite communities, area-based allocations, clustering, and open space provisions, mixed-use development, and sector planning; and subparagraphs (11)(d)1., 2., 4., 5., and 6. describe the statutory process for creating an RLSA. Subsection (7) of the proposed rule sets forth the data and analysis requirements that apply to all RLSA plan amendments, including data and analysis of existing conditions (subparagraphs (7)(a)1. through 10.); population projections and analysis of land use (paragraph (7)(b)); and a land values analysis (subparagraphs (7)(c)1. through 6.). A land use needs analysis is an integral part of the planning process. Paragraph (7)(b) requires that an RLSA amendment be supported by population projections and an analysis of land use need such that the amount and extent of allowable development must be based on the 25-year or greater projected population of the RLSA, other items, and the anticipated effect of proposed RLSA receiving areas. Petitioners contend that this language contravenes Section 163.3177(11)(d)6., Florida Statutes, amended in 2005, which provides in part that the total amount of development "must enable the realization of the long- term vision and goals for the 25-year or greater projected population of the [RLSA], which may take into consideration the anticipated effect of the proposed receiving areas." See Ch. 2005-290, Laws of Fla. Paragraph (7)(b) does not contravene the terms of the statute. As expressed in the law being implemented, the rule directs that the need analysis shall be based upon, among other things, "the anticipated effect of the proposed RLSA receiving areas " As a part of the data and analysis to be supplied, paragraph (7)(c) requires that an RLSA amendment be supported by a land values analysis that considers six components described in subparagraphs 1. through 6. This in turn requires a comprehensive analysis of rural resources that exist within the RLSA. Subparagraph 4. requires that the analysis include the development threats to rural resources and that resources under threat of conversion receive more incentives from stewardship credits than resources under less of a threat. Petitioners contend that the rule contravenes Section 163.3177(11)(d)6.j., Florida Statutes, because it requires a greater value to be assigned to resources under threat of conversion and would result in other rural and natural and agricultural resources which may have a higher intrinsic value being assigned fewer credits. Specifically, the cited statute requires that "the highest number of credits per acre" should be "assigned to the most environmentally valuable land, or, in locations where the retention of open space and agricultural land is a priority, to such lands." The purpose of the rule is straightforward: to protect those resources that are under the greatest threat and those that are most susceptible to harm over time through land development or other changes, including urban sprawl. Contrary to Petitioners' assertion, the overall analysis does in fact consider all forms of rural resources in determining how the credits will be assigned. The rule implements the statutory directive of attaining the principles of rural sustainability. Subparagraph (7)(c)6. requires, among other things, that the local government submit as a part of the data and analysis supporting the plan amendment "the assignment of values" of all lands in the RLSA. Petitioners contend that assigning values at the time of the amendment "locks in these values" and would require a subsequent plan amendment in contravention of Section 163.3177(11)(d)6., Florida Statutes, which Petitioners argue contemplates the creation of credits after the adoption of the plan amendment. At hearing, however, the Department explained that because conditions will obviously change over time, the land values analysis will be periodically updated and can be changed without a new plan amendment. In their Proposed Final Order, Petitioners concede that given this interpretation of the rule, it "would not be an invalid exercise of delegated legislative authority." See Petitioners' Proposed Final Order, par. 73. Paragraph (8)(a) of the proposed rule requires each stewardship credit to represent either a defined number of residential units or non-residential square footage. Once the credits are created in sending areas, they can be transferred to designated receiving areas to be used to enable development that is consistent with the RLSA goals, objectives, and policies. Petitioners contend that the rule will prohibit mixed-use development in contravention of Section 163.3177(11)(d)4.c., Florida Statutes, which requires that the RLSA goals, policies, and objective provide for a "functional mix of land uses." There is no prohibition of a mix of land uses. In fact, the opposite is true. As clarified by a Department witness, "a mix is essentially required, as you can see from [sub]paragraph (9)(a)17., which describes that a mix of use must be addressed." Tr. at 273. The rule does not contravene the statute. Subsection (9) of the proposed rule generally requires that the RLSA plan amendment contain goals, objectives, policies, and a map. Subparagraphs (9)(a)1. through 21. require that the goals, objectives, and policies identify the innovative planning and development strategies to be used in the RLSA process, including the adoption of implementing plan amendments, land development regulations, and the issuance of development orders. Petitioners allege that subparagraphs 3., 6., 18., and enlarge, modify, or contravene the law implemented. Subparagraph 3. requires "implementing plan amendments" because the Department recognized the fact that the RLSA planning process will consume years or even decades and will require implementing plan amendments to accomplish its purpose. This is especially true here as the RLSA process involves the development of large tracts of land (as much as 100,000 acres or more) that will take years or decades to fully implement and build out. At a minimum, under current law, the "implementing plan amendments" will include a capital improvements element annual update; water supply planning, and the designation of new towns. Except for the requirement that an implementing plan amendment designate a new town pursuant to existing Rule 9J-5.003(80), Petitioners agree that the proposed rule is valid. Because the cited existing rule has been determined to be valid, Petitioners' contention is rejected. See Findings 62-65, infra. Subparagraph 6. provides that the goals, policies, and objectives shall contain "a requirement that the Eligible Receiving Areas shall be located on land that is suitable for development and have the lowest land values on the land values analysis conducted pursuant to paragraph (7)(c)." Petitioners contend that this provision limits the flexibility of local governments to determine the best location for Eligible Receiving Areas and therefore contravenes the provisions in various parts of Section 163.3177, Florida Statutes, that emphasize flexibility. The rule implements the principles of rural sustainability contained in Section 163.3177(11)(d)2., Florida Statutes. Only by directing development to land with the lowest environmental, agricultural, and rural resource value will an RLSA protect ecosystems, habitat, natural resources, and the agricultural economy. The rule does not contravene this statute. Subparagraph 18. requires an RLSA plan amendment to include policies for "new towns," including a requirement that a new town be designated on the FLUM. Petitioners contend that the requirement to designate a new town on the FLUM contravenes Section 163.3177(11)(4)(d)4., Florida Statutes, which provides for the implementation of the innovative planning and development strategies included in existing Rule 9J-5.006(5)(l) through zoning and land development regulations. At hearing, Petitioners narrowed their argument to this one feature in the rule. Because the Department may lawfully require that new towns be designated on the FLUM, subparagraph 18. is consistent with the statute implemented. See Findings 62-65, infra. Subparagraph 19. requires that RLSA plan amendments contain goals, objectives, and policies "to ensure that any use of the underlying densities and intensities of land uses assigned to parcels of land by the county comprehensive plan prior to designation of the RLSA furthers the principles of rural sustainability." Petitioners contend this provision contravenes Section 163.3177(11)(d)6., Florida Statutes, because it "impinges on existing land use rights which is contrary to one of the statutory principles of rural sustainability, namely the 'restoration and maintenance of the economic value associated with rural lands.'" The rule, however, furthers the principles of rural sustainability, as required by Section 163.3177(11)(d)1., Florida Statutes, since it requires that all lands within an RLSA, whether or not in a Designated Receiving Area, be developed in a manner that furthers those principles. It does not contravene the cited statute. Petitioners also contend that subparagraph 19. contravenes Section 163.3161(9), Florida Statutes, which requires, among other things, that all programs be applied "with sensitivity for private property rights and not be unduly restrictive." Petitioners surmise that the rule may operate to displace underlying density within the RSLA regardless of the use of the RLSA credit system. However, the rule does not displace any underlying density; it only requires that underlying rights be exercised consistent with the RLSA. More specifically, existing densities may be used in any manner that furthers the principles without displacing any of those densities. The rule does not contravene either statute. Is proposed rule 9J-5.026(3) vague and does it have inadequate standards for agency decisions? Petitioners next contend that subsection (3) of proposed rule 9J-5.026, and specifically certain words within the definition of the term "greenbelt," are vague and fail to establish adequate standards for agency decisions. That provision reads as follows: 9J-5.026 Rural Land Stewardship Area (RSLA) * * * (3) Definitions * * * (d) "Greenbelt" means a border of permanently undeveloped land sufficient in size to effectively preclude the expansion of urban development into the surrounding rural lands and to provide an effective buffer to protect the surrounding rural resources from development impacts. A greenbelt is an undeveloped area that surrounds an urban area, a new town, or other urban development and is meant to separate the urban developed area from the surrounding area to provide a border that protects surrounding rural lands from urban development. Petitioners contend that the use of the adjectives "sufficient," "effectively," and "effective" to describe the greenbelt buffer are vague and lack standards to guide agency determinations. In common usage, the word "sufficient" means that the greenbelt is sufficient in size to accomplish its purpose of precluding the expansion of urban development into the surrounding rural lands. Similarly, the word "effectively" means that the use or creation of a buffer to protect urban encroachment on rural lands will be accomplished in an effective manner. Likewise, the word "effective" simply means that the greenbelt achieves the purpose of creating a buffer. These phrases are easily understood by persons of ordinary intelligence, particularly when read in context with other provisions of the rule. See, e.g., Cole Vision Corp., et al. v. Dept. of Bus. and Prof. Reg., 688 So. 2d 404, 410 (Fla. 1st DCA 1997). Petitioners contend, however, that the rule fails to explicitly include the standard that site-specific data would be considered in determining the "sufficiency" of a buffer. However, this level of detail is not needed since site-specific information is typically considered and applied by the local government and Department through the planning process and might include, for example, the nature of the urban area, the potential impacts if the urban area is extended, the nature of the surrounding land, and other similar factors. The rule is not so vague or lacks sufficient standards as to be invalid. Is proposed rule 9J-5.026(9)(a)18. arbitrary? Petitioners further contend that subparagraph (9)(a)18. of proposed rule 9J-5.026 is arbitrary. That rule reads as follows: 18. Policies for new towns which comply with the following: As required by subsection 9J-5.003(80) and paragraph 9J-5.006(5)(1), F.A.C., a new town shall be designated on the future land use map. A new town shall be located within a Designated Receiving Area. The plan amendment designating a new town shall include a master development plan that establishes the size of the new town, the amount, location, type, density and intensity of development, and the design standards to be utilized in the new town. Any increase in the density or intensity of land use required to achieve the proposed new town may occur only through the use of stewardship credits assigned or transferred to the Designated Receiving Area either prior to or subsequent to the designation of the new town on the future land use map. New towns shall be surrounded by greenbelts, except for any connecting rural road corridors and to the extent that new towns are adjacent to existing or planned urban development or incorporated areas. A future land use map amendment to designate a new town shall be internally consistent with RLSA provisions of the comprehensive plan. A future land use map amendment to designate a new town shall be accompanied by an amendment to the capital improvements element to incorporate a financially feasible five-year capital improvements schedule for the public facilities necessary to serve the new town and an amendment to the transportation or traffic circulation element to designate any new rural road corridors required to connect the new town with the rest of the RSLA. As noted earlier, this rule sets forth the requirements for policies in the RLSA plan amendment that are applicable to new towns. Petitioners contend that the rule is arbitrary because it "selectively emphasizes" a new town as only one of several innovative and flexible planning strategies set forth in existing Rule 9J-5.006(5)(l). To be arbitrary, a rule must not be supported by logic or the necessary facts. See § 120.52(8)(e), Fla. Stat. Here, the more persuasive evidence shows that new towns are much larger development types; they are more intense than other development forms; and they will likely generate greater impacts. In an RLSA, they take on even more significance since the planning goal is to further the principles of rural sustainability. Collectively, these factors form a sufficient basis and rationale for giving new towns different treatment than other development forms that are smaller, have fewer uses, are less intense, and are more likely to have lesser impacts. The proposed rule is not arbitrary. e. Does existing Rule 9J-5.003(80) contravene the specific provisions of law implemented? Finally, Petitioners have challenged existing Rule 9J- 5.003(80), which became effective in 1994, on the ground that it contravenes the specific provisions of law implemented. That rule defines the term "new town" as follows: (80) "New town" means a new urban activity center designated on the future land use map and located within a rural area, distinct and geographically separated from existing urban areas and other new towns. A new town is of sufficient size, population and land use composition to support a variety of economic and social activities consistent with an urban area designation. New towns include basic economic activities; all major land use categories; and a centrally provided full range of public facilities and services. New towns are based on a master development plan. The specific authority for the rule, when adopted, was Section 163.3177(9) and (10), while the law being implemented was identified as Sections 163.3177 and 163.3178, Florida Statutes. Because Section 163.3178 involves coastal management, and a new town would probably not be located in a coastal zone, it has marginal relevance to this proceeding. The Department relies principally on Section 163.3177(6)(a), Florida Statutes, which requires, among other things, that "various categories of land use shall be shown on a land use map or map series."6 The existing definition provides, in part, that a new town will include "all major land use categories, with the possible exception of agricultural and industrial." Because they include numerous land use categories, new towns are by definition a mixed-use land use category. See Fla. Admin. Code 9J-5.006(4)(c). Mixed-use land use categories must be designated on the FLUM. See § 163.3177(6)(a), Fla. Stat.("The future land use plan may designate areas for future planned development use involving combinations of types of uses"). As noted above, a new town is recognized in existing Rule 9J-5.006(5)(l) as an innovative and flexible planning option. Because the Legislature referenced this rule provision with approval four times in the RLSA statute, it must be presumed that the Legislature was expressing approval of the existing definition with the mapping requirement. See §§ 163.3177(11)(d)1. (two separate references); 163.3177(11)(d)4.c.; and 163.3177(11)(d)4.e. The rule does not contravene the statute being implemented.
The Issue The issue to be determined in this case is whether the amendments to the Palm Beach County Comprehensive Plan (“the Comp Plan”) adopted by the Board of County Commissioners of Palm Beach County by Ordinance No. 14-030 (“Proposed Amendments”) are “in compliance,” as that term is defined in section 163.3184(1)(b), Florida Statutes (2014).
Findings Of Fact The Parties Petitioner Alerts of PBC, Inc. (“Alerts”), is a Florida not-for-profit corporation doing business in Palm Beach County. Alerts made timely objections and comments to the County on the Proposed Amendments. Petitioner Patricia Curry is a resident and landowner in Palm Beach County. Ms. Curry made timely objections and comments to the County on the Proposed Amendments. Petitioner Robert Schutzer is a resident and landowner in Palm Beach County. Mr. Schutzer made timely objections and comments to the County on the Proposed Amendments. Petitioner Karen Schutzer is a resident and landowner in Palm Beach County. Ms. Schutzer made timely objections and comments to the County on the Proposed Amendments. Respondent Palm Beach County is a political subdivision of the State of Florida and has adopted the Comp Plan, which it amends from time to time pursuant to section 163.3184. Intervenor Minto is a Florida limited liability company doing business in Palm Beach County. Minto is the owner of all of the 3,788.6 acres (“the Property”) which are the subject of the Proposed Amendments, with the exception of two parcels totaling 40.04 acres, which are owned by the Seminole Improvement District. Minto appointed the board of supervisors of the Seminole Improvement District pursuant to state law. Background FLUE Objective 1.1 establishes a unique Managed Growth Tier System “to protect viable existing neighborhoods and communities and direct the location and timing of future development.” The Property is located in the County’s Rural Tier and is bounded by Exurban Tier to the north and east. North of the Property is a large subdivision known as the Acreage, which was described by Respondents as “antiquated” because it was developed in a manner that was common decades ago before modern community planning concepts and growth management laws. The Acreage is dominated by 1.25-acre residential lots, laid out in a grid pattern with few other uses. Although the residents of the Acreage have a strong sense of community, it is apparently a matter of aesthetics, familiarity, and social intercourse, because the Acreage is not a community in the modern planning sense of providing a mix of uses where residents can live, shop, work, and play. It is a development pattern that is now discouraged by state law and the Comp Plan, because it is inefficient with respect to the provision and use of public services. The Property and the Acreage are within a 57,000-acre area known as the Central Western Communities (“CWC"). The CWC has been the subject of extensive planning efforts by the County for many years to address land use imbalances in the area. There are many residential lots, but few non-residential uses to serve the residents. In 2008, the previous owner of the Property, Callery- Judge Groves (“Callery”), obtained an Agricultural Enclave (AGE) future land use designation for essentially the same area as the Property. The Comp Plan was amended to establish an AGE future land use designation, AGE policies, a conceptual plan of development, and implementing principles (“the 2008 Amendments”). Under the 2008 Amendments, the site was limited to 2,996 residential units and 235,000 square feet of retail and office uses. No development has been undertaken pursuant to the 2008 Amendments. In 2013, the site was sold to Minto, which submitted a Comp Plan amendment application in November 2013, and a revised application in July 2014. On October 29, 2014, the County adopted the Proposed Amendments. The Proposed Amendments change the future land use designation of 53.17 acres (“the outparcels”) from RR-10 to AGE, and increase residential density to 4,546 units and increase intensity to two million square feet of non-residential uses, 200,000 square feet of civic uses, a 150-room hotel and a 3,000- student college, and revise the Conceptual Plan and Implementing Principles. The Proposed Amendments would also revise text in the Introduction and Administration, Future Land Use, and Transportation Elements. The Map Series would be amended to add 53.17 acres to the Limited Urban Service Area on Map LU 1.1 and Map LU 2.1, and to identify new Rural Parkways on Map TE 14.1. Petitioners’ Challenge Petitioners contend the Proposed Amendments are not “in compliance” because they fail to establish meaningful and predictable standards; do not comply with the agricultural enclave provisions of section 163.3164(4); are not based upon relevant and appropriate data and analysis; promote urban sprawl; are incompatible with adjacent communities and land uses; and create inconsistencies within the Comp Plan. Many of the issues raised and the arguments made by Petitioners fail to acknowledge or distinguish the 2008 Amendments that address future development of the Property. In several respects, as discussed below, the 2008 Amendments already authorize future development of the Property in a manner which Petitioners object to. In several respects, the types of impacts that Petitioners are concerned about are actually diminished by the Proposed Amendments from what is currently allowed under the 2008 Amendments. Meaningful and Predictable Standards Petitioners contend that proposed FLUE Policies 2.2.5-d, 2.2.5-e, and 2.2.5-f, and Maps LU 1.1 and 2.1 fail to establish meaningful and predictable standards for the use and development of land and fail to provide meaningful guidelines for the content of more detailed land development and use regulations, in violation of section 163.3177(1). The Proposed Amendments add more detail to the standards that were adopted in the 2008 Amendments. The Proposed Amendments establish substantially more direction for the future development of the Property than simply a land use designation and listing of allowed uses, which is typical in comprehensive plans. Petitioners contend the Proposed Amendments lack adequate standards because they refer to the use of “appropriate new urbanism concepts,” which Petitioners say is vague. New urbanism refers to land use planning concepts such as clustering, mixed-use development, rural villages, and city centers. See § 163.3162(4), Fla. Stat. (2014). In land use planning parlance, new urbanism creates more “livable” and “sustainable” communities. The term “appropriate new urbanism concepts” used in the Proposed Amendments is the same term used in section 163.3162(4), dealing with the development of agricultural enclaves. There are many concepts that are part of new urbanism, which can be used in combination. Which concepts are “appropriate” depends on the unique opportunities and constraints presented by the area to be developed. Use of the term “appropriate new urbanism concepts” in the Proposed Amendments adds detail to the future development standards applicable to the Property. It does not create vagueness. Petitioners contend the proposed amendments of Maps LU 1.1 and 2.1 do not provide meaningful and predictable standards and guidelines. However, the maps are only being amended to show that 53.17 acres of outparcels within the Property are being added to the existing Limited Urban Service Area. The map amendments do not diminish the meaningfulness or predictability of any standards in the Comp Plan. The preponderance of the evidence shows the Proposed Amendments establish meaningful and predictable standards. Agricultural Enclave Petitioners contend the Proposed Amendments fail to meet the requirements for an agricultural enclave in section 163.3164. As explained in the Conclusions of Law, consistency with section 163.3164 is not a component of an “in compliance” determination. Furthermore, the Property is already designated Agricultural Enclave in the Comp Plan. Data and Analysis Petitioners contend the amendment of the Limited Urban Service Area is not supported by relevant and appropriate data and analysis as required by section 163.3177(1)(f). The inclusion of the outparcels is logical and reasonable. It is consistent with the Comp Plan policies applicable to Limited Urban Service Areas. It is supported by data and analysis. Petitioners contend the increases in density and intensity allowed by the Proposed Amendments are not supported by data and analysis showing a need for the increases. However, the increases are supported by relevant and appropriate data and analysis, including population projections and extensive analysis of the need for non-residential uses in the CWC. Population projections establish the minimum amount of land to be designated for particular uses; not the maximum amount of land. See § 163.3177(1)(f)3., Fla. Stat (2014). Petitioners make several claims related to the availability of public utilities and other services to the Property. The data and analysis show sufficient capacity for roads, transportation, schools, water supply, wastewater treatment, fire, emergency and police either already exists or is contemplated in the Comp Plan to accommodate the development authorized by the Proposed Amendments. The preponderance of the evidence shows the Proposed Amendments are supported by relevant data and analysis. Urban Sprawl Petitioners contend the Proposed Amendments do not discourage the proliferation of urban sprawl. Urban sprawl is defined in section 163.3164(51) as “a development pattern characterized by low density, automobile-dependent development with either a single use or multiple uses that are not functionally related, requiring the extension of public facilities and services in an inefficient manner, and failing to provide a clear separation between urban and rural uses.” Petitioners contend the Property does not qualify for the presumption against urban sprawl under the criteria in section 163.3162(4), but Minto did not rely on that statutory presumption. Petitioners contend the Proposed Amendments create five of the 13 primary indicators of urban sprawl set forth in section 163.3177(6)(a)9.: Promotes, allows, or designates for development substantial areas of the jurisdiction to develop as low-intensity, low-density, or single-use development or uses. Promotes, allows, or designates significant amounts of urban development to occur in rural areas at substantial distances from existing urban areas while not using undeveloped lands that are available and suitable for development. Fails to maximize use of existing 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. The evidence presented on this issue by Petitioners was inconsistent with generally accepted land use planning concepts and principles. The Proposed Amendments do not promote urban sprawl. They go far to rectify existing sprawl conditions in the CWC. Findings relevant to the five indicators have already been made above. Compatibility with adjacent uses is discussed below. There are ample data and analysis which show the Proposed Amendments discourage urban sprawl. Respondents’ characterization of the Proposed Amendments as the opposite of urban sprawl is not unreasonable. The preponderance of the evidence shows the Proposed Amendments discourage the proliferation of urban sprawl. Compatibility Petitioners contend the Proposed Amendments are “incompatible with the lifestyle of the existing and surrounding communities and adjacent agricultural and other land uses.” Protection of Petitioners’ lifestyle cannot mean that surrounding areas must remain undeveloped or must be developed in a similar suburban sprawl pattern. Land use imbalances in the CWC are rectified by the Proposed Amendments while providing large buffers and a transition of land uses on the Property to protect adjacent land uses. The Acreage is more accurately characterized as suburban rather than rural. Moreover, the Proposed Amendments include a conceptual plan and development guidelines designed to create a clear separation between urban uses on the Property and less dense and intense external uses. Residential densities near the perimeter of the Property would correspond to the density in the Acreage. The proposed distribution of land uses and large open space buffers would not establish merely an adequate transition. They would provide substantial protection to adjacent neighborhoods. A person at the periphery of the Property would likely see only open space, parks, and low-density residential uses. The distribution of land uses and natural buffers in the Proposed Amendments provide more protection for external land uses than the 2008 Amendments. The more persuasive evidence presented indicates that Petitioners and other persons living near the Property would be beneficiaries of the Proposed Amendments because they could use and be served by the office, commercial, government, and recreational uses that will be available nearby. The preponderance of the evidence shows the Proposed Amendments are compatible with adjacent land uses. Internal Consistency The Comp Plan’s Introduction and Administration Element and FLUE contain statements of intent. They are not objectives or policies. Petitioners contend the Proposed Amendments are inconsistent with some of the statements. Petitioners contend the Proposed Amendments are inconsistent with the Introduction and Administration Element statements discouraging growth to the west where services are not adequate, do not provide for orderly growth or the provision of facilities and services to maintain the existing quality of life in an economical manner, and do not recognize countywide growth management strategies or maintain the diversity of lifestyles. Findings that refute this contention have been made above. Petitioners contend the Proposed Amendments are inconsistent with several general statements in FLUE Sections I A, I B, and I C. regarding respect for the character of the area, protection of quality of life and integrity of neighborhoods, prevention of “piecemeal” development, and efficient provision of public services. Findings that refute this contention have been made above. Petitioners contend FLUE Policy 2.2.5-d allows land uses which are inconsistent with the policies applicable to the Rural Tier in which the Property is located. In the proposed policy, the County exempts the Project from any conflicting Rural Tier policies that would otherwise apply. Under the County’s Managed Growth Tier System, the tiers are the “first level” land use consideration in the FLUE. Therefore, it would have been helpful to amend the Rural Tier section of the FLUE to indicate the exceptions to Rural Tier policies for agricultural enclaves, in general, or for the Property, in particular. Instead, the Proposed Amendments place the new wording about exceptions in the section of the FLUE dealing with agricultural land uses. However, as stated in the Conclusions of Law, where the exception is located in the comprehensive plan is not a consistency issue. The County has shown there are unique considerations involved with the CWC that justify the exceptions. It also demonstrated that the Proposed Amendments would accomplish numerous objectives and policies of the Comp Plan that could not be accomplished without creating exceptions to some Rural Tier policies. Petitioners contend the Proposed Amendments are inconsistent with FLUE Objective 1.1-3 because they encourage the proliferation of urban sprawl. That contention has been rejected above. Petitioners contend the Proposed Amendments are inconsistent with FLUE Objective 1.1-6 because they do not protect agricultural land and equestrian uses. The evidence shows that agricultural and equestrian uses are enhanced by the Proposed Amendments over the existing provisions of the Comp Plan. Petitioners contend the Proposed Amendments are inconsistent with FLUE Policy 1.1-b, which addresses criteria re- designating a tier. This policy is not applicable because the Proposed Amendments do not re-designate a tier. Petitioners contend the Proposed Amendments are inconsistent with FLUE Policy 1.1-c, which requires the review of the tier system as part of each Evaluation and Appraisal review. Evaluation and Appraisal Reviews are no longer required by state law. Petitioners contend the Proposed Amendments are inconsistent with FLUE Policy 1.1-d, which states a tier shall not be re-designated if it would cause urban sprawl. This policy is not applicable because the Proposed Amendments do not re- designate a tier. Petitioners contend the Proposed Amendments are inconsistent with FLUE Policy 1.4-a, which requires the County to protect and maintain the rural residential, equestrian, and agricultural areas within the Rural Tier. The Proposed Amendments and Conceptual Plan increase the level of protection for these uses over what is currently in the Comp Plan. Petitioners contend the Proposed Amendments are inconsistent with FLUE Policy 1.4-d, which generally prohibits subdividing parcels of land within the Rural Tier unless certain conditions are met. The Proposed Amendments do not subdivide any parcels. Petitioners contend the Proposed Amendments are inconsistent with FLUE Policy 1.4-k, which addresses the designation of “sending areas” for Transfer of Development Rights (“TDR”). This policy only applies to parcels with a RR20 future land use designation and there are no such parcels existing or that would be created by the Proposed Amendments. Petitioners contend the Proposed Amendments are inconsistent with FLUE Policy 1.4-l, which requires the County to provide rural zoning regulations for areas designated Rural Residential. The Property does not have any Rural Residential designations. Petitioners contend the Proposed Amendments are inconsistent with FLUE Policy 2.4-b, which provides that the TDR program is the required method for increasing density within the County. The County applies this policy only to density increases in urban areas, because they are the only areas authorized to receive TDRs. Petitioners contend the Proposed Amendments are inconsistent with FLUE Objective 2.1 and some related policies, which promote balanced growth. The preponderance of the evidence shows the Proposed Amendments will further this objective and its policies because they correct the current imbalance of land uses in the CWC and provide for a balanced mix of residential, agricultural, commercial, light industrial, office, recreation, and civic uses. Petitioners presented no evidence to support their claim that Proposed Amendments would exceed the natural or manmade constraints of the area. Petitioners presented no credible evidence that transportation infrastructure and other public services could not be efficiently provided to the Property. The data and analysis and other evidence presented show otherwise. Petitioners contend there is no justification for the increased density and intensity authorized by the Proposed Amendments. There was ample justification presented to show the increases were needed to create a sustainable community where people can live, work, shop, and play. Petitioners contend the Proposed Amendments are inconsistent with FLUE Objective 2.2 and some related policies, which require development to be consistent with land use designations in the Comp Plan. Petitioners’ evidence failed to show any inconsistencies. The Proposed Amendments are compatible with and benefit adjacent land uses, as found above. Petitioners contend the Proposed Amendments fail to include “new urbanism” concepts as required by section 163.3164(4) and Policy 2.2.5-i. The evidence presented by Respondents proved otherwise. Petitioners contend the Proposed Amendments are inconsistent with FLUE Objective 3 and some related policies, which address the provision of utilities and other public services. Petitioners presented no credible evidence to support this claim. The data and analysis and other evidence presented show that public services are available or planned and can be efficiently provided to the Property. Petitioners argued the Proposed Amendments were inconsistent with several other FLUE policies generally related to compatibility with adjacent land uses and the provision of public services, all of which Petitioners failed to prove as explained above. The preponderance of the evidence shows the Proposed Amendments would not create internal inconsistency in the Comp Plan.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity issue a final order determining the Proposed Amendments adopted by Palm Beach County Ordinance No. 2014-030 are in compliance. DONE AND ENTERED this 17th day of April, 2015, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of April, 2015. COPIES FURNISHED: Ralf G. Brookes, Esquire 1217 East Coral Parkway, Suite 107 Cape Coral, Florida 33904 (eServed) Gary K. Hunter, Jr., Esquire Hopping, Green and Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314 (eServed) Tara W. Duhy, Esquire Lewis Longman and Walker, P.A. 515 North Flagler Drive, Suite 1500 West Palm Beach, Florida 33401 (eServed) Amy Taylor Petrick, Esquire Palm Beach County Attorney's Office 301 North Olive Avenue, Suite 601 West Palm Beach, Florida 33401 (eServed) Jesse Panuccio, Executive Director Department of Economic Opportunity Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed) Robert N. Sechen, General Counsel Department of Economic Opportunity Caldwell Building, MSC 110 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed) Katie Zimmer, Agency Clerk Department of Economic Opportunity Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed)
The Issue The issue is whether the plan amendments adopted by the City of Pompano Beach (City) by Ordinance Nos. 2011-24 and 2011- 25 on February 8, 2011, are in compliance.
Findings Of Fact The Parties Petitioner is a resident and owner of real property within the City. Through counsel, she submitted written and oral comments to the City during the transmittal and adoption hearings for the plan amendments. Petitioner is employed by the Seminole Tribe of Florida at its casino located in Coconut Creek, Broward County (County). PPI's claim that this challenge is rooted in gaming interests of the Seminole Tribe of Florida appears to be a valid assumption. The City is a municipal corporation in the County and is responsible for adopting and maintaining its Plan. It adopted the amendments pursuant to former section 163.32465, in effect at that time, which codified an adoption process known as the Alternative State Review Pilot Program (Pilot Program). Under the Pilot Program, the Department of Community Affairs (DCA)1 did not issue an Objections, Recommendation, or Comments report or a notice of intent regarding compliance or non- compliance of the plan amendments. The DCA and other reviewing agencies did, however, issue letters advising that they did not object to the final version of the adopted amendments. PPI owns property in the City and is the applicant for the amendments. PPI submitted comments in support of the amendments throughout the adoption process. The Amendment Process in Broward County Under the County Charter, land use changes to the City's Plan that are not more restrictive than the County Land Use Plan must be reviewed by the Planning Council to ensure that they are in "substantial conformity" with the County Land Use Plan. However, the Planning Council does not review the City's plan amendments for consistency with the City's Plan or chapter 163. After the County's review was completed, the DCA recommended that certain changes be made. The amendments were transmitted back to the City and were amended to conform to the DCA's recommendations. The amendments were then required to undergo the same review process a second time. Although a determination was made by the Planning Council that the initial amendments were in substantial conformity with the County Land Use Plan, the revised amendments cannot be recertified for consistency until this challenge has been concluded. If plan amendments are in substantial conformity with its Land Use Plan, the County must amend its Plan to incorporate the City's changes. Based upon a favorable recommendation by the Planning Council, on September 28, 2010, the County adopted companion amendments, although not identical to the City's revised amendments. Those amendments are the subject of a pending challenge by the same petitioner in Case No. 10-9939GM and have not yet become effective. A hearing in that case is now scheduled in September 2013. Until that challenge is resolved, the City amendments cannot become effective. The Property PPI owns approximately 230 acres of property within the City. The property is bounded on the north by Racetrack Road, by North Cypress Bend Drive to the south, by Powerline Road to the west, and the CSX railroad tracks to the east. The current land use designation on 160 acres is Commercial Recreation (CR), while the remaining 70 acres has a Regional Activity Center (RAC) designation. The 70 acres makes up the southern part of a pre-existing RAC known as the Arvida Pompano Park Regional Activity Center (Arvida RAC), whose boundaries are coextensive with a Development of Regional Impact approved in the 1980s, but which expired in 2004. Except for the 70 acres owned by PPI, the Arvida RAC is fully developed. The CR property lies just to the south of the Arvida RAC and forms the southern boundary of that development. The 160 acres is now occupied by the Pompano Park Harness Track, Isle of Capri Casino, surface parking lots, various commercial uses, horse stables, a training area, and other uses associated with the harness track and casino. The 160 acres is the only property in the City designated as CR. That designation allows an extremely wide range of permitted uses: outdoor and indoor recreation facilities such as active recreation complexes, marinas, stadiums, jai-alai frontons, bowling alleys, golf courses, and dog and horse racing facilities; accessory facilities, including outdoor and indoor recreation facilities that support the primary recreation facility; hotels, motels, time shares, and similar lodging ancillary to the primary commercial recreation uses; and other active and passive recreation uses. The site was once considered for a new baseball stadium for the Florida Marlins and a hockey arena for the Florida Panthers. The CR property can have more than one primary use. For example, besides the harness track, the casino is an "indoor recreation facility" and qualifies as a second primary use. If a hotel has resort and destination features that are open to the public, the amenities can become a primary use. Under the City's interpretation of CR land, a hotel containing a destination function with resort and recreation features is also a primary use. Ancillary facilities for each of these uses is also allowed. The City is already 95 percent built-out, and it considers PPI's property to be regionally significant, under developed, and ripe for redevelopment as a major attraction. For these reasons, it supports the designation of the property as a new RAC. PPI filed the application because it desires greater flexibility in planning for the future development of the property. If the amendments become effective, PPI intends to expand the existing casino and build a large resort hotel, various commercial and residential uses, and other amenities associated with those activities. The Amendments In December 2009, PPI submitted an application to the City to reduce the existing Arvida RAC by removing PPI's 70 acres south of Racetrack Road; eliminate the development intensity assigned to those 70 acres; and combine the 70 acres removed from the Arvida RAC with its 160 acres of CR property to create a new South RAC. PPI also proposed to transfer credit for the remaining undeveloped portion of the Arvida RAC to the new South RAC. After the local review process was completed, the plan amendments were transmitted to the DCA, which issued a letter of comment recommending that the amendments be revised to identify the maximum amount of development (i.e., square footage) that would be allowed in each non-residential use, including CR, commercial, and office. Based on the DCA's comments, the application was modified by PPI to include floor area ratios (FARs) for each non-residential use, and in October 2010 the revised amendments were approved by the City on first reading. The DCA reviewed the revised amendments and had no objections. In February 2011, the revised amendments were adopted on second reading. Petitioner then timely filed her challenge. The map amendment (Ordinance No. 2011-25) changes the land use designation on the CR property to RAC. It consolidates the 70-acre parcel with the 160-acre parcel to create a unified RAC designation. The amendment does not change the boundary or designation of uses within the existing Arvida RAC. The amended FLUM now shows only a single RAC, with different intensity and density standards assigned to the North and South RACs in the text amendment.2 The text amendment to the FLUE (Ordinance No. 2011-24) affects a total of 399 acres of land, which covers both the existing Arvida RAC and the 160 acres of CR property south of Racetrack Road. It amends the listed uses for the Arvida RAC and names the uses for the new South RAC. The amendments permit a mixed use complex on PPI's property with a combination of 135 acres of CR (rather than 160 acres), 27 acres of commercial uses, 26 acres of office uses, and 43 acres of residential usage, consisting of 1,050 mid-rise apartments and 250 garden apartments, or a total of 1,300 residential units. The only new use introduced by either amendment is the 1,300 residential units. The maximum intensity on the CR property is not defined in the text of the Plan. However, FLUE policy 01.07.20 allows development on the 160 acres to a maximum intensity of 105 feet in height with 50 percent floor area coverage. This equates to an effective FAR of 5.0. All parties agree that a 5.0 FAR is unrealistic, and PPI never considered using that level of development. For this reason, the text amendment reduces the CR intensity to 0.31, which represents a far more reasonable and realistic development limitation. The amendment limits the maximum development within the South RAC to the following maximum FARs: 0.31 for commercial recreation use; 0.84 for office use; and 0.65 for commercial use. To the extent any portion of the 160 acres is re-designated as commercial or office, the amendment limits the maximum potential development on that acreage. Petitioner's Objections Petitioner's objections, broadly defined, are that the amendments are not in compliance because (a) they are not based on relevant and appropriate data and analysis regarding transportation impacts; (b) they are internally inconsistent with four policies in the FLUE, one objective and two policies in the Transportation Element (TE), one policy in the Capital Improvement Element (CIE), and three policies in the Housing Element (HE); and (c) they are not supported by appropriate data and analysis regarding affordable housing. Data and Analysis -- Transportation Section 163.3177(1)(f) requires that plan amendments be based on "relevant and appropriate data and analysis by the local government that may include, but not be limited to, surveys, studies, community goals and vision, and other data available at the time of adoption of the comprehensive plan or plan amendment." In addition, "the future land use plan and plan amendments shall be based upon surveys, studies, and data regarding the area, as applicable, including: . . . [t]he availability of water supplies, public facilities and services." § 163.3177(6)(a)2.d., Fla. Stat. FLUM amendments must be based on an "analysis of the availability of facilities and services." § 163.3177(6)(a)8.a., Fla. Stat. Finally, "[w]here data is relevant to several elements, consistent data shall be used." § 163.3177(2), Fla. Stat. Relying on the foregoing statutory requirements, Petitioner contends that the data and analysis regarding transportation impacts are inconsistent with the data and analysis supporting the TE and CIE; the various data and analysis supporting the amendments are not accurate and professionally acceptable because they underestimate impacts to transportation facilities by overstating the maximum development intensity of the property under the existing CR land use designation and do not identify the true impact of the amendments; and the City did not react appropriately to the data and analysis demonstrating serious impacts to already failing roadways in the area. In broad terms, a traffic impact analysis identifies the potential traffic impacts of the plan amendments on the transportation system. In their analyses, the parties used very different assumptions as to the maximum development intensity under the existing land use designations on the PPI property. Each analysis compares the traffic generated at the maximum intensity permitted under the existing land uses to the traffic generated by the maximum density/intensity under the plan amendments. The City does not require that a particular methodology or set of assumptions be used in performing an analysis. This is because the methodologies and assumptions used in a traffic impact study may differ, and they are grounded in part on the expert's sound judgment, experience, and discretion. PPI submitted two traffic impact analyses, one in March 2010 and the second in October 2010. Because the City disagreed with PPI's pre-amendment assumptions in the first analysis and assumed a smaller development under the existing land uses, it recommended that an independent traffic engineer be hired to conduct a second analysis and verify the transportation impacts. Due to a lack of resources, the City does not conduct its own traffic analysis; instead, it typically defers to the traffic analysis conducted by the Planning Council or, in some cases, it may hire its own consultant. PPI's second analysis assumed a different mix of pre- amendment CR uses. Also, it used the County Metropolitan Planning Organization's (MPO's) latest model (the Florida Standard Urban Transportation Model Structure, a/k/a FSUTMS) for traffic distribution, which was not available until after the first analysis had been completed. The second analysis assumed that under existing land uses the 160 acres could be developed with a 15,000 seat racetrack (instead of a 5,625 seat facility); a 125,000 square- foot casino; a 400,000 square-foot amusement center; a 2,333 room hotel; 350,000 square feet of accessory retail; and a new 100,000 square-foot theme park. The analysis sought to represent the existing condition of the property as reflecting a reasonable amount of development which could actually be built on the property. While these assumed uses dramatically expand the existing development on the parcel, each is permitted under the CR category, and the intensities are substantially lower than those allowed under the FLUE limitations. The assumed pre-amendment development was compared with an assumed post-development condition of a 11,591 seat racetrack; a 96,561 square-foot casino; a 309,091 square-foot amusement center; a 1,750 room hotel; 270,455 square feet of accessory retail; and a 77,273 square-foot theme park. Thus, PPI's post-amendment assumptions represented a reduction in the pre-development conditions. The October study concluded that the plan amendments would generate 6,578 net new daily trips and 568 net new total afternoon peak-hour trips (i.e., trips during rush hour). It further concluded that a number of roadway segments would continue to operate at unacceptable Level of Service (LOS) F in the future no matter whether the amendments were approved or not. Notably, only State and County roadways were impacted, and those impacts have been further evaluated by the Planning Council through its own traffic impact study. To mitigate these impacts, the revised study identified various improvements or modifications to the three affected segments, Racetrack Road east of Powerline Road, Racetrack Road east of Southwest 23rd Avenue, and Powerline Road north of McNab Road. These modifications were accepted as adequate mitigation by the City. Although Petitioner questioned whether the proposed mitigation could be enforced without being incorporated into the Plan, the City takes the position that PPI's representations are enforceable. If additional mitigation is required, PPI has agreed that this can be provided during the permit stage. After receiving PPI's second impact analysis, the City noted that it was "more detailed" than the City's abbreviated analysis performed after PPI's first study; it agreed with PPI's use of FARs for each land use category (as recommended by the DCA) to determine the maximum development that could occur; it agreed that the accepted analysis "shows a lower net increase in the demand for public facilities and services than the City's analysis"; and it concluded that "the project can meet all applicable concurrency requirements." By then, the City was also aware that the County had adopted PPI's companion amendments, and the Planning Council, with the MPO's technical assistance, had made its own evaluation of traffic impacts before amending its own Plan. The Planning Council used a different methodology to analyze traffic impacts for CR land use amendments. Unlike PPI, the Planning Council's analysis did not assume the maximum development potential in either the before or after condition. Rather, it converted the acreage of uses in the before and after conditions by assuming a development potential of 10,000 square feet per acre for all non-residential uses, which equals a 0.23 FAR. It also assumed that the only new use would be the addition of 1,300 new residential units. The Planning Council analysis concluded that the amendments would add 305 afternoon peak-hour trips to the regional roadway network, or fewer than that found in PPI's study. The County further concluded that the net increase in trips would not significantly impact the two major roadways in the area, Powerline Road and Atlantic Boulevard, and that they would continue to operate at LOS F even if the amendments were not approved. Under current Planning Council review standards, any impact that is less than three percent of the capacity of a roadway is considered insignificant. There were no impacts that exceeded this threshold. The Planning Council's traffic impact analysis and supporting data are a part of the data and analysis supporting the City's amendments. Petitioner contends that PPI's second traffic study is flawed in several respects. One concern is that the assumptions made by PPI in determining the pre- and post-amendment conditions on its property "significantly overestimate the development in the pre-approval condition," and therefore "grossly underestimate the net increase in traffic." Using different assumptions, Petitioner's expert prepared his own traffic impact analysis which substantially reduces the pre- amendment maximum development on the property. In all, Petitioner's expert prepared 11 different scenarios, some showing no impacts at all, but he eventually decided to use the tenth version, which is probably the most favorable to his position. The permitted uses under the City's CR category are extremely broad and mimic the permitted uses under the "very, very broad" CR category in the County's Plan. Petitioner's expert opined that because the CR land use is so "ill-defined," the "best indicator" of what could be built in the before condition "appeared to be the plat." A plat is a development permit approved by, and recorded with, the County. It normally reflects what a property owner intends to build on his property at the time the plat is approved or in the very near future. The County then uses the plat to determine the amount of impact fees to be paid by the owner. Because it can be amended at any time, usually when a land use amendment is being processed or when more development is contemplated, a plat is not used to determine the maximum potential development capacity on a parcel. Notably, PPI could easily file an application for approval of a new plat on the CR land showing exactly what it assumed in pre-amendment conditions. The existing plats themselves were not made a part of the record. By using recorded plats for his entire analysis, including the CR land, which he admitted was "a little unusual," Petitioner's expert significantly reduced the amount of development in a pre-amendment condition, increased the difference between pre- and post-amendment traffic, and created more post-amendment traffic impacts on the road network. However, this assumption is contrary to the plats' intended use, it does not represent a parcel's true development potential, and at best it produces results that are no more reasonable than the results presented by PPI. The City's Future Conditions Analysis (FCA) makes up a part of the narrative portion of the TE and forecasts future travel demands, land use growth, and traffic operations within the City. The FCA was "developed to be consistent with the MPO travel demand process and incorporates the [MPO's] analysis, findings and recommendations as appropriate for the City." Jt. Ex. 1, TE, p. 60. Petitioner contends that PPI failed to coordinate with the MPO data and analysis (specifically the LOS standards and traffic volumes), incorporated by reference into the TE, when it prepared its pre-amendment conditions. Thus, she argues that the amendments are inconsistent with the data and analysis supporting the TE (and by implication the CIE), and it results in far more traffic in the existing condition than the MPO model assumes. See § 163.3177(2), Fla. Stat. The Planning Council traffic impact study is a part of the data and analysis supporting the City amendments. In performing their pre-amendment analyses, both the Planning Council and MPO reviewed the same MPO "analysis, findings, and recommendations" that are incorporated by reference into the City's Plan. Notably, the Planning Council's analysis concluded that the additional traffic generated by the difference between the assumed pre- and post-amendment conditions would not cause significant impacts on the regional transportation network. Testimony presented by the City and PPI established that all relevant portions of the City Plan were reviewed for consistency, and unless a provision was found to have some significance, no reference to that provision was made in the traffic impact analysis, application, or staff report. Even if PPI's traffic impact study does not overtly state that PPI coordinated with the MPO data and analysis before making its pre-amendment assumptions, the Planning Council data and analysis are sufficient to show that the required review and coordination were made. The City reacted appropriately to the data. Petitioner's expert also leveled criticisms regarding the following aspects of PPI's traffic impact study: the level of internal trip capture; by-pass capture; and pedestrian access internal to the site, i.e., walking to a site. Petitioner did not prove that the assumptions supporting those aspects of the study were unreasonable. Petitioner has failed to establish beyond fair debate that the plan amendments are not supported by relevant and appropriate data and analysis regarding transportation impacts, or that they are inconsistent with other data and analysis supporting the Plan. Affordable Housing Petitioner contends that affordable housing was not addressed by PPI or the City, and PPI failed to provide any data and analysis with regard to various affordable housing requirements in the City's Plan. Given these omissions, she contends that the City did not react appropriately by approving the amendments. The application contains a section relating to affordable housing. While PPI referred to HE policies 05.03.02, 05.08.02, and 05.08.05 and County Land Use Plan policy 1.07.07, no explanation was given as to how the amendments conform to these provisions. Policy 1.07.07 provides a number of ways to meet the affordable housing policies, methods, or programs to achieve and/or maintain a sufficient supply of affordable housing. One option is that when a plan amendment adds more than 100 residential dwelling units, an applicant must agree to either provide 15 percent of the proposed residential units in the project for affordable housing or make a contribution of $750.00 per residential unit, to be paid to the local government when building permits are issued. To comply with this requirement, an applicant must provide the County a declaration of restrictive covenants. As explained at hearing, rather than undertaking a detailed analysis of its HE policies when reviewing land use amendments, the City routinely follows the dictates of policy 1.07.07 and allows an applicant to "buy out" its affordable housing obligation. It then uses the money for one of the City's housing programs, either to subsidize the demand side, or the existing supply of affordable housing. The City already has an ample supply of affordable housing, and it prefers that developers buy out their obligations since the cash can be used more effectively to achieve HE goals, objectives, and policies. This process was followed here, and the City allowed PPI to "buy-out [its obligation] at $750.00 x 100 percent of the units." In doing so, it relied on PPI's declaration of restricted covenants provided to the County, the fact that an in-lieu fee would best meet its affordable housing needs, and its expectation that the money would then be used to support one of its housing programs. This information (data) was available to the City and was in existence at the time the amendments were adopted, it was presented at final hearing, and it is sufficient to support the amendments. See § 163.3177(1)(f), Fla. Stat. Petitioner failed to establish beyond fair debate that the plan amendments are not supported by adequate data and analysis regarding affordable housing or that the City did not react appropriately to that data. Internal Inconsistency Section 163.3177(2) requires that the "elements of the comprehensive plan shall be consistent." Petitioner contends that the amendments are inconsistent with four FLUE policies; one TE objective and two TE policies; one CIE policy; and three HE policies. Petitioner also argues that the amendments are inconsistent with FLUE section 3.02K, which establishes criteria that must be met in order for a property to qualify for a RAC designation. Among other criteria, FLUE subsection 3.02K.4 requires that a RAC "provide direct access to existing or proposed airports, ports, and rail mass transportation facilities." It is undisputed that the property is bounded on its east side by the CSX railroad tracks. The South Florida Regional Transportation Authority (RTA) uses those tracks to operate a rail mass transportation facility known as Tri-Rail between Palm Beach and Dade Counties. Through its Board of Directors, the RTA has established station stops at various points on its route; there is, however, no station stop adjacent to PPI's property. Because the property sits adjacent to the railroad tracks, it is eligible to be considered for a station stop. At any time, but logically after this challenge is concluded and development begins, PPI and the City can submit a formal joint proposal for a station stop. Also, PPI can offer inducements to the RTA, such as dedicating land for a station stop and assisting in its funding. In addition, the RTA currently provides a shuttle service, which can easily transport PPI patrons to the station stop. These considerations support a finding that the property has "direct access" to the Tri-Rail, as contemplated by the FLUE. Petitioner contends, however, that in order to have direct access, PPI must have a binding commitment from the RTA to build a station stop before the amendment is approved. This narrow interpretation has been rejected as not being as or more reasonable than the City's interpretation of its Plan. Petitioner next contends that the amendments are internally inconsistent with HE policies 05.01.05, 05.03.02, and 05.08.01. In general terms, the first policy requires that the City promote affordable housing; the second requires that the City support public and private sector efforts to create and preserve affordable housing for very-low, low, and moderate- income groups in areas designated for residential land use for future and current residents; and the third policy requires the City to "consider the ability of the proposal to provide affordable housing" and allows restrictive covenants to be used as a tool to meet those needs. PPI's execution of a restrictive covenant to buy out its obligation for affordable housing, and the City's use of those funds to provide affordable housing in the manner as it sees fit, are sufficient to achieve consistency with the requirements that the City promote and support affordable housing, and that it allow restrictive covenants to be used as a tool to meet those needs. Petitioner also contends that the amendments are internally inconsistent with CIE policy 13.03.02, which requires that the City provide infrastructure necessary to maintain the LOS standards concurrent with the impact of development. The traffic impact analyses performed by PPI and the Planning Council demonstrate that the amendments will not significantly impact the regional transportation network. To the extent any adverse impacts may occur, PPI has agreed to mitigate those impacts. Petitioner contends that the amendments conflict with TE objective 02.02.00 and policies 02.02.05 and 02.07.02. The objective requires that the City coordinate the transportation system with the uses shown on the FLUM to ensure that adequate transportation services are provided. The first policy requires that the City continue supporting a system that allows development to occur in concurrence with the FLUM and consistent with the established LOS standards. The second policy requires that the City review future land use amendments in concert with maintenance of the adopted LOS standards. For the reasons previously found, the plan amendments are not internally inconsistent with the objective or policies. Finally, Petitioner contends that the amendments are internally inconsistent with FLUE policies 01.01.01, 01.01.02, 01.01.03, and 01.01.05. These policies require that the City adopt and maintain services based on LOS standards; review all proposals for development using the adopted LOS standards; phase development concurrent with the availability of infrastructure; and review proposals for new development to identify the cumulative impacts of the development on public services and facilities. For the reasons previously stated, the plan amendments do not conflict with these policies. Petitioner failed to prove beyond fair debate that the plan amendments are internally inconsistent with objectives or policies in the FLUE, HE, CIE, and TE.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity enter a Final Order determining that the Plan Amendments adopted by Ordinance Nos. 2011-24 and 2011-25 are in compliance. DONE AND ENTERED this 19th day of June, 2013, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of June, 2013.
The Issue The issue for determination in this case is whether the Small Scale Comprehensive Plan Amendment No. SSA 03-07 (Plan Amendment) adopted by Bay County (County) through the enactment of Ordinance No. 03-06 is "in compliance" as that term is defined by Section 163.3184(1)(b), Florida Statutes.
Findings Of Fact Parties Petitioner, T & P Enterprises of Bay County, Inc. (T & P), is a Florida corporation authorized to do business in this state, and operates such business at 20016 Front Beach Road in Panama City Beach, Florida. Petitioner, Edgar Garbutt, is a resident of Bay County, Florida, and is the President of T & P, which operates a seasonal resort at 20016 Beach Front Road in Panama City Beach, Florida. Petitioner, Edgar Garbutt, submitted written comments in opposition to the Small Scale Comprehensive Plan Amendment at issue before the adoption of SSA 03-07. Intervenor, Barbara S. Harmon, owns a house located at 190 16th Street in Panama City, Florida. Mrs. Harmon and her husband purchased their house in 1994. The Harmon property is located in the Laguna Beach subdivision. Mrs. Harmon was one of the property owners who petitioned the County for adoption of SSA 03-07. The Property The property affected by SSA 03-07 consists of twelve separate parcels of land totaling approximately 2.35 acres located in unincorporated Bay County. The property lies within a two-block area generally situated south of First Avenue, East of Wisteria Lane, and along both sides of 16th Street, which is west of the municipal boundaries of Panama City Beach in what is commonly known as the West Beaches. Two of the parcels subject to the Plan Amendment are located on the Gulf of Mexico south of Front Beach Road. The twelve parcels are not contiguous. The predominant type of structure on these parcels are one-story housing structures used primarily for residential purposes. Some of the structures are used as short-term or long-term rentals. Others, including the Harmons' house, are used as second homes during the summer season, or on weekends. Mrs. Harmon and her husband purchased their house in Bay County in 1994. They reside there six to nine months a year. They also have a residence in Gadsden, Alabama. The Harmons bought their house in Bay County because they wanted a house close to the beach in a clean, quiet neighborhood. The area affected by the Plan Amendment is predominantly residential in character. The area is generally built-out as residential land use. The area has not substantially changed since the Harmons purchased their house in 1994. Background Bay County adopted a Comprehensive Plan in 1990. The 1991 existing conditions map accompanying the Comprehensive Plan shows that most of the property in the West Beaches Area was "predominantly medium density residential with low density residential also being a majority land use category." Mrs. Harmon testified that her house on 16th Street was designated Residential under the County's Comprehensive Plan at the time she purchased it in 1994. In 1994-1995, as part of its Comprehensive Plan evaluation and appraisal process, Bay County's planning staff undertook a "windshield survey" of the West Beaches Area. The windshield survey indicated that Laguna Beach 1st through 7th additions were platted or developed between 1938 and 1954, and consisted primarily of a mix of older single-family houses, mobile homes, multi-family buildings, and church buildings. The windshield survey reflected seasonal resort uses on the south side of Front Beach Road on the Gulf of Mexico. The windshield survey shows that the predominate land use in the West Beaches Area in 1994-1995 continued to be residential, as it was at the time of the 1991 existing conditions map. In December 1999, Bay County adopted amendments to its Comprehensive Plan in which it created the SR FLUM category. Under the Plan, the purpose of the SR FLUM category is "to provide areas for a functional mix of compatible seasonal/resort land uses where the clientele are predominantly seasonal or temporary visitors and tourists." The uses allowed include beach houses, cottages, condominiums, townhouses, apartments or other similar multi-family structures, motels, lodges, restaurants, convenience stores, retreats, and lounges, bars, and other similar uses and public utilities." The criteria for designating areas as SR are "areas with concentrations of accommodations and businesses that are used for non-residential, tourist-oriented purposes." The Plan further provides that "Year-round, permanent residences should not be located in this area." The County's Evaluation and Appraisal Report (EAR), which was the data and analysis relied upon by Bay County for the 1999 plan amendments, defined these seasonal or temporary visitors and tourists as people who visit Bay County for an average 5.385 days. Terry Jernigan, the former Bay County Planning Director, testified that in developing the SR category, the County focused primarily on "typical summertime tourists" who stay for weekend, weekly, and monthly rental periods and attempted to identify areas that were tourist areas or were likely to become transient in nature in the future. Second homeowners and seasonal visitors were not considered when the SR category was developed. The SR Future Land Use Map category has also been applied in the beach areas of unincorporated Bay County located east of the municipal boundaries city of Panama City Beach. Development in that area includes large high-rise condominiums and hotels, bars, T-shirt shops, and night clubs. The SR category was also applied to a number of properties in the West Beaches Area that are indicated as residential uses in the County's official windshield survey, including the parcels that are the subject of the amendment at issue. Mr. Jernigan testified that an indicator of an area that was transient in nature was the large number of signs indicating that the properties were for rent. Mrs. Harmon testified that since she purchased her property in 1994, she had observed no signs advertising rentals in the area in which the properties subject to the amendment are located. Mrs. Harmon was motivated to seek the FLUM amendment from SR to Residential to prevent high-rise development, bars, T-shirt shops, and noise increases that she has observed in the SR category east of Panama City Beach. The applicants for the subject amendment are concerned that the SR category may adversely affect the character of the neighborhood. Development of the Plan Amendment In the spring and early summer of 2002, Bay County began receiving "grass roots petitions" from property owners in the West Beaches Area requesting that either their future land use designation or zoning be changed from SR back to Residential. The petitions stated that the FLUM designations were changed without notice to the property owners. These petitions initially involved 400-500 parcels of land. In response to the grass roots petitions, the County identified several "target areas" where there were a large number of parcels generally contiguous to each other. At the direction of the Board of County Commissioners, on August 28, 2002, County staff sent letters to individuals within the target areas asking them if they wanted the land use designated on their properties changed from SR to Residential and attaching a land use map application form. Allara Mills Gutcher, a County Senior Planner III, testified that the County wanted assurances that the petitioning property owners understood the nature of the change they were requesting. The County's letter directed to the property owners in the target areas not only asked if the owners wanted a land use designation change, but also indicated that a petitioning property owner would be required to pay the County a $1,100 fee to apply for the land use change. Although the letter indicated that the Board was considering waiving the fee, no evidence was presented that the Board made a decision on the waiver or that the approximately 180 property owners to whom the County had written had received further notice from the County regarding the $1,100 fee. Some County property owners, including Mrs. Harmon, complained to the County that the application fee discouraged a number of property owners from submitting FLUM amendment applications. The forms accompanying the County's August 28, 2002, letter also advised the property owners that small scale plan amendments could only be considered in connection with a specific plan of development or hardship, restrictions not contained in either the County's Plan or Chapter 163, Part II, Florida Statutes. Ms. Gutcher testified that only 20 responses to the County's letter were received. The Plan Amendment Summary Sheet on the subject amendment, however, indicates that a result of the mail out was the submittal of an application to change approximately 30 properties along Front Beach Road in another area, Sunnyside Beach, from SR to Residential. This amendment is known as the Centeno amendment, and was adopted by the Board of County Commissioners in December 2002. One of the target areas of the mail out was the Laguna Beach Subdivision area where Intervenor Harmon's property is located. After receiving the County's August 28, 2002, letters and learning of the Centeno/Sunnyside small scale plan amendment, Mrs. Harmon spearheaded an effort to seek the subject small plan amendment in her neighborhood. She worked with County staff on the locations of properties to be included in the proposed amendment. Erroneously included in the first proposed plan amendment was The Laguna Beach Christian Retreat property on Front Beach Road, owned by Petitioners. Mrs. Harmon brought this error to the attention of County staff, and Petitioners' property was removed from the proposed amendment, leaving 16 lots included in the amendment package. County staff initially supported the 16-lot proposed small scale plan amendment in Mrs. Harmon's neighborhood in part because it included properties adjacent to First Avenue on the north and contiguous to properties currently designated Residential on the FLUM. Prior to and at the Planning Commission meeting at which the subject amendment was considered, three individuals owning four of the 16 lots withdrew from the plan amendment application. These withdrawals included the two lots on First Avenue contiguous to the existing Residential FLUM area, a lot on 16th Street, and a lot on Front Beach Road. The Planning Commission recommended approval of the requested FLUM change from SR to Residential on the 12 remaining parcels. County staff did not dispute the appropriateness of the Residential FLUM designation for the subjected properties, but did not support the plan amendment for the remaining 12 lots because of the configuration of the map. Ms. Gutcher testified that her objection was not to the actual land use designation of the subject land parcels, but to the configuration of the Plan Amendment which interspersed parcels designated SR with the residential parcels. The 12 lots subject to the Plan Amendment are not contiguous to existing Residential lands and there are SR lots adjacent to lots that were changed to Residential. Ms. Gutcher, however, stated that adjacency of future land uses is not a requirement of Chapter 163, Part II, Florida Statutes, or Chapter 9J-5, Florida Administrative Code. Ms. Gutcher further testified that although she considered the Plan Amendment "poor planning" and did not support the Plan Amendment, she did not consider the Plan Amendment violative of the Bay County Comprehensive Plan, Chapter 163, Florida Statutes, or Chapter 9J-5, Florida Administrative Code. On June 3, 2003, the Bay County Board of County Commissioners accepted the Planning Commission recommendation and voted to adopt small scale amendment No. SSA 03-07 amending the FLUM designation on the 12 lots from SR to Residential. Internal Consistency Section 163.3177(2), Florida Statutes, and Florida Administrative Code Rule 9J-5.005(5), require that all comprehensive plan amendments, including amendments to the FLUM be consistent with the other provisions of the applicable comprehensive plan taken as a whole. Petitioners allege that the Plan Amendment is internally inconsistent with several discrete provisions contained in the County's Comprehensive Plan; however, when taken as a whole, the Plan Amendment is not inconsistent with the goals and policies of the County's Comprehensive Plan. Because the Plan Amendment at issue here amends the FLUM designation from SR to Residential, of particular significance to the analysis of internal consistency in this case is the County Comprehensive Plan's Residential FLUM Category. Policy 3.3.1. of the Future Land Use Element in the County's Plan provides that "criteria for designating land use categories on the FLUM and attendant standards for development shall be as shown on Table 3A." Table 3A contains the following criteria and standards for the Residential FLUM category: Purpose: To provide areas for a functional, compatible mix of residential land uses, and to protect property values in viable residential neighborhoods. Designation Criteria: Existing residential areas, residential subdivisions recorded with the Clerk of the Court prior to adoption of this Plan, areas adjacent to existing residential areas, "in-fill" of vacant areas otherwise surrounded by urban development, and low density rural community development. Allowable Uses: Those land uses typically associated with residential occupancy including single-family, duplex, triplex, quadraplex, and manufactured housing. These uses are generally coded as 100 to 900 on the DOR Property Use Code Table for property tax purposes. Public utilities, recreation, conservation. Limited public institutional uses and educational facilities (Policy 2.8.1) may also be allowed. The County Comprehensive Plan does not define the terms "residential occupancy" or "residential use." Florida Administrative Code Chapter 9J-5, setting out the minimum criteria for review of comprehensive plans, defines "residential uses" as "activities within land areas used predominantly for housing." Fla. Admin. Code R. 9J-5.003(108). In its compatibility analysis, the County described the subject area as "primarily developed as a single-family use today" "similar to current uses in the area." The area is an existing residential area. The predominant type of structure in the area is one-story residential structures used for housing. Except for one vacant lot, each property that is the subject of the amendment contains a one-story single-family residence. All houses on the amendment properties are used as homes, second homes or long-term rentals. None of the houses included in the Plan Amendment are rented on a short-term basis. The evidence demonstrates that the properties included in the Plan Amendment are now used for housing. All but one of the Plan Amendment properties are coded 100 on the tax code, which is the same as the DOR Property Use Code Table referenced in the Residential FLUM category in Table 3A of the Plan. One lot included in the Plan Amendment is vacant and is coded 0000 on the tax code. The Plan Amendment is consistent with the stated purpose, designation criteria for existing residential areas, and allowable uses for the Residential FLUM designation stated in the County's Comprehensive Plan. Many properties in the West Beaches area are rented; however, according to Mrs. Harmon, most properties that are subject to the Plan Amendment are not rented or are rented on a long-term basis. Neither the provisions of Table 3A describing the Residential FLUM category, nor the definition of "residential use" in Chapter 9J-5, distinguish between owner-occupied and rental housing use. One significance of a land use designation from a planning perspective is its impact on infrastructure. That impact is the same whether a house is rented or owner-occupied. Whether the structures are owner-occupied or rented is not a land use amendment compliance issue. Wendy Grey, Petitioners' expert witness, testified that the configuration of the Plan Amendment is not consistent with those portions of the Goal Statement in the Future Land Use Element of the Plan that express the County's goals "to promote an orderly and efficient pattern of growth and development" and "to promote compatibility between land uses and reduce the potential for nuisances." Ms. Grey opined that leaving some properties designated SR surrounded by Residential properties does not promote an orderly and efficient pattern of growth and development. That portion of the Goal Statement referring to an orderly and efficient pattern of growth and development was taken directly from the intent sections of Chapter 163, Part II, Florida Statutes, and Chapter 9J-5, Florida Administrative Code. The language governs the overall planning process of allocation of future land uses based upon infrastructure, natural resource protection and efficiency in terms of using existing infrastructure. It is based upon the purpose of the Growth Management Act to manage the extent, distribution and timing of future growth, discourage urban sprawl, and maximize existing infrastructure. These are terms of art under the Growth Management Act, and have nothing to do with drawing the polygons on the map. Tony Arrant, the County's expert witness, testified that the predominance of the small scale amendments he has seen focus on specific areas that have other land use classifications next to the parcel amended, just as with the Plan Amendment. Further, the Goal Statement also includes a statement that the plan should "protect viable neighborhoods." The amendment is consistent with this portion of the goal statement by designating an existing residential area for residential use. When read as a whole, the Plan Amendment is consistent with this Goal Statement. Designating residential properties for residential use is also consistent with the Goal Statement in the Housing Element of the Plan and with Housing Element Objective 8.5, which requires that the County preserve and protect the character, compatibility, and aesthetics of residential areas and neighborhoods. To make a land use amendment uniform throughout a block, connected to existing residential land uses, and following street rights-of-way helps with code enforcement issues and is easier for the public to understand. However, these are not compliance issues. The configuration of the Plan Amendment and the symmetry or lack of symmetry of the future land use map is not a compliance issue. Policy 3.2.1 of the Future Land Use Element governs amendments to the FLUM. It does not require any particular map configuration, or that FLUM boundary lines follow street rights- of-way. There is no express requirement in the Plan that FLUM boundaries must always follow roads. Petitioners contend that the Plan Amendment is internally inconsistent with Policy 3.7.2. of the Future Land Use Element of the County's Plan. Policy 3.7.2. prescribes the general criteria for zoning districts shown on an Official Zoning District Map. This policy implements Objective 3.7, which provides that "By 2001, (the County will) adopt a zoning code to further the intent, and implement the objectives and policies of this Plan." The County has not yet adopted a zoning code. Petitioners specifically rely on the following criteria in Policy 3.7.2.: 4. District boundaries will be drawn so as to follow property lines, road rights-of way, geographic features, section lines, or other readily identifiable features. Where possible, district boundaries will be drawn so as to create buffers between potentially incompatible land uses. District boundary lines shall be drawn so as to minimize the potential for nuisances caused by incompatible land uses. Ms. Grey opined that the Plan Amendment is not consistent with Policy 3.7.2. because the FLUM boundary lines do not follow roads and other geographic features, making it difficult to implement Policy 3.7.2. when a zoning code is adopted. Ms. Grey, however, also acknowledged that it would be possible to draw a zoning map that is consistent with the Plan Amendment. Petitioners contend that the Plan Amendment is inconsistent with Future Land Use Element Policy 3.9.1. which defines "compatibility" of land uses. Ms. Grey opined that interspersing SR with Residential land uses does not promote compatibility. The Plan Amendment recognizes the current use of the subject property. Under the broad categories of permissible uses for the SR designation there are many compatible uses. Moreover, Mrs. Harmon testified that she believes Petitioners are entitled to engage in their business activity, and that everyone in the West Beaches Area got along fine until the SR designation was adopted. The Plan Amendment can be viewed to support the compatibility of land uses because it is consistent with the land uses that are already there. Therefore, the Plan Amendment may serve to decrease the possibility of future incompatibility. It will provide a level of security for the areas that are residential in that any redevelopment of other developed properties will have to be reviewed in light of Comprehensive Plan policies requiring protection of viable residential areas. Additionally, Petitioners contend that the Plan Amendment is inconsistent with several of the many policies set forth in the Comprehensive Plan to implement Objective 1.2. Policy 1.2.1.2 states that it is the intent of the Comprehensive Plan to encourage the most appropriate use of land, water and resources consistent with the public interest. The subject property has historically been residential, the current use of the property is residential, and the interest of the public is served in continuing the residential nature of the property as indicated by the responses to the County's letter of August 28, 2002. Policy 1.2.1.3 states that a purpose of the Comprehensive Plan is to overcome "present handicaps." Ms. Grey opined that if the SR category is a handicap, the Plan Amendment does not overcome it because there are still SR parcels around the subject property. However, the Comprehensive Plan does not define "present handicap" and there is no evidence that the SR category is a "present handicap." Policy 1.2.1.4 requires that the Plan deal effectively with future problems that may result from the use and development of land because the Plan Amendment does not address potential incompatible uses between SR and Residential. There are many permissible land uses, including beach houses, cottages, condominiums, townhouses, and apartments in the SR category that are compatible with the Plan Amendment. Moreover, Ms. Grey stated that a zoning map could be drawn consistent with the Plan Amendment. The Plan Amendment recognizes the land uses that currently exist on the subject property. The Plan Amendment is consistent with the land uses already there. Taken as a whole, the Plan Amendment furthers the goals, objectives and policies of the Comprehensive Plan. Data and Analysis Petitioners contend that the amendment is not supported by adequate data and analysis. Ms. Grey opined that there was not adequate data and analysis to demonstrate that residential land use was the most appropriate or suitable for the subject property and within the public interest. Ms. Grey stated that the primary purpose for the Plan Amendment was to respond to individual requests to change the land use classification. She also believed that the lack of homestead exemptions for the majority of the area was data that supported the SR and not the Residential land use classification. Ms. Gutcher, however, testified that she reviewed appropriate data and the Plan Amendment was supported by the types of data and analysis typically provided for FLUM amendments listed in Policy 3.2.1. of the plan. These data included the national wetlands inventory, the ITE Journal for the Traffic Counts, and other data contained in the checklist in Chapter 3 of the Comprehensive Plan. There was sufficient data and analysis to support the Plan Amendment, including the following: (a) the fact that the 1990 Plan designated the area as Residential; (b) the 1994 windshield survey identifying the area as residential; (c) the fact that the actual uses of the properties are for housing; (d) the existing residential character of the area; (e) the property owners' desire that their properties be designated Residential; and (f) the 1991 existing land use map identifying the area that is the subject of this case as "predominantly medium density, residential with low density residential also being a majority land use category." The population projections in the County's EAR are required to include both resident and seasonal populations to arrive at a functional population. This number is then used to plan for the amount of residential, commercial land use authorized. Chapter 9J-5 and Chapter 163, Part II, Florida Statutes, do not differentiate seasonal housing from permanent housing in forecasting future land use needs. There is adequate data and analysis to support the Plan Amendment.
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 concluding that the FLUM Plan Amendment No. SSA 03-07 adopted by the Board of County Commissioners of Bay County in Ordinance No. 03-06 is "in compliance" as defined in Section 163.3184(1)(b), Florida Statutes. DONE AND ENTERED this 23rd day of January, 2004, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of January, 2004. COPIES FURNISHED: Terrell K. Arline, Esquire 3205 Brentwood Way Tallahassee, Florida 32309 Gary K. Hunter, Jr., Esquire Hopping, Green & Sams 123 South Calhoun Street Post Office Box 6526 Tallahassee, Florida 32314 Sherry A. Spiers, Esquire Law Office of Robert C. Apgar 320 Johnston Street Tallahassee, Florida 32303 Colleen M. Castille, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 100 Tallahassee, Florida 32399-2100 Heidi Hughes, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325 Tallahassee, Florida 32399-2100
The Issue The issues in this case are: (1) whether City of Miami Ordinance 12911, which amends the Future Land Use Map (FLUM) of the City of Miami Comprehensive Neighborhood Plan (MCNP), is a small-scale development amendment, as defined by Section 163.3187(1)(c), Florida Statutes; and (2) whether Ordinance 12911 is "in compliance," as defined by Section 163.3184(1)(b), Florida Statutes. (Statutes refer to the 2007 codification.)
Findings Of Fact Based on all of the evidence, the following facts are determined: The Property Subject to the FLUM Amendment TRG-MH Venture, LTD. (TRG-MH), is a Florida limited partnership formed for the purpose of purchasing and developing a parcel of property in the southeast corner of a larger, 40- acre parcel owned by Mercy Hospital, Inc. (Mercy). TRG-MH and Mercy have executed a purchase and sale agreement for this corner parcel, which is located at approximately 3663 South Bayshore Drive in the Coconut Grove area of Miami, Florida (the Site). TRG-MH hired an architectural firm, Arquitectonica, to design on the Site a proposed residential development named 300 Grove Bay Residences (the Project). The Site, which currently serves as a paved parking lot for Mercy Hospital employees, measures 6.72 acres. The Site is abutted on the north, northwest, and northeast by the rest of the 40-acre parcel owned by Mercy and used for its hospital, professional offices, and patient and visitor parking. The tallest of these buildings is 146 feet. To the north of Mercy's property and medical complex is another 30-plus acre parcel owned by the Catholic Diocese of Miami and used for La Salle High School and a religious facility, Ermita de la Caridad. Abutting the northern boundary of the La Salle High School property is Vizcaya Museum and Gardens. To the west of the Site are a small convent, an administration building, and a modest-sized assisted living facility. To the west of these buildings is South Bayshore Drive, which is a four-lane road. Single-family residential neighborhoods are west of South Bayshore Drive. The Site is abutted on the southwest, south, southeast and east by Biscayne Bay. Grove Isle, a three-building, 18- story condominium/hotel/marina complex, is located on a small, man-made island (Fair Isle) in the Bay to the south of the Site. It is located approximately 1,300 feet from the Site and is separated from the Site by Bay water. Grove Isle has a future land use designation of Medium Density Multifamily Residential (M/D Residential) and is zoned Medium-Density Residential (R-3). However, Grove Isle is a legal nonconformity because it exceeds the densities allowed in M/D Residential and R-3. To the southwest of the Site, but separated from the Site by Bay water, are single-family and medium-density dwellings, including several multifamily structures. Petitioners Bloch and Steen reside in this neighborhood. No property zoned single-family residential (R-1) abuts the Site. Currently a paved parking lot, the Site has no archeological, environmental, or historical significance. Miami-Dade County had designated all of the City as an "Urban Infill Area." This designation is made in the County's Comprehensive Plan and is implemented in Policy LU-1.1.11 of the Future Lane Use Element (FLUE) of the City's Comprehensive Neighborhood Plan. The Parties The Vizcayans, Inc. (The Vizcayans), is a not-for- profit Florida corporation of volunteer members and a paid staff consisting of: an executive director, a membership director, and a controller. The purpose of the organization is to support the Vizcaya Museum and Gardens (Vizcaya), a publicly-owned and operated museum, through contributions and fundraising events. The Vizcayans' office at 3251 South Miami Avenue is located on the grounds of Vizcaya. The Vizcayans submitted comments in opposition to the proposed FLUM Amendment and appeared in person and through lawyers at the City Commission hearings. The Respondent and Intervenors stipulated that The Vizcayans have standing as affected persons under Sections 163.3187(3)(a) and 163.3184(1)(b), Florida Statutes, to challenge the small-scale development amendment in this proceeding based on allegations that The Vizcayans operate a business in the City. Miami-Dade County owns Vizcaya. By contract, The Vizcayans provides funds annually to Miami-Dade County for use in maintaining Vizcaya's properties and conducting educational programs. Any funds in excess of those owed to the County under the contract are used to pay staff and host fundraisers or are invested for future use. Vizcaya is governed by the County through the Vizcaya Museum and Gardens Trust, which is an agency of Miami-Dade County. Jason Bloch and Constance Steen reside in the City and own properties to the southwest of the Site. Glencoe is a not- for-profit corporation of homeowners in the Glencoe neighborhood to the southwest of the Site. Mr. Bloch formed the corporation during the pendency of the application proceedings for the primary purpose of opposing the proposed development of the Site. Bloch, Steen, and Glencoe submitted comments in opposition to the proposed FLUM amendment. Grove Isle is a not-for-profit Florida corporation of condominium owners. Grove Isle submitted comments in opposition to the proposed FLUM amendment. The City and Intervenors stipulated to Grove Isle's standing in these proceedings. The City is a political subdivision of the State of Florida. The City adopted its Comprehensive Neighborhood Plan, including its FLUM, in 1989. The Comprehensive Plan and the FLUM have been amended from time to time as allowed by law. TRG-MH is a joint venture limited partnership. Its direct and indirect participants include Ocean Land Equities, Ltd., and The Related Group. TRG-MH contracted to purchase the Site from Mercy and applied to the City for the FLUM Amendment at issue in this proceeding. TRG-MH also submitted applications for a change of zoning and MUSP on the Site. The zoning and MUSP applications, and the resulting City ordinance and resolution arising from their approval, are not at issue in this proceeding. Mercy is a not-for-profit Florida corporation that owns and operates Mercy Hospital. Mercy has contracted to sell the Site to TRG-MH. The FLUM Amendment In June 2007, TRG-MH applied to the City for a small- scale development amendment to change the Site's land use designation on the City's Future Land Use Map (FLUM) from Major Institutional, Public Facilities, Transportation and Utilities (M/I) to High Density Multifamily Residential (H/D). TRG-MH submitted its application concurrently with its applications for a zoning change from G/I to R-4 and for a MUSP. According to the FLUM Amendment application, TRG-MH was seeking a map amendment for a 6.723-acre parcel of real property. With its FLUM Amendment application, TRG-MH submitted a survey prepared and certified by surveyors Fortin, Leavy & Skiles. The survey depicted: the Site, as a parcel with a "net lot area" of 6.723 acres; a Proposed Road, measuring 1.39 acres, that wrapped around the Site on its west and north sides (the Perimeter Road); and a Private Road, also known as Tract "C" or Halissee Street, measuring .95 acres, which accesses the Site and Perimeter Road from South Bayshore Drive. Accompanying the survey was a legal description for the Site, which included a description for the proposed new Perimeter Road abutting the Site. The legal description covered an area comprising 8.11 acres. Also accompanying the application was a traffic analysis showing the impact to existing road networks of traffic resulting from the proposed MUSP application, which sought to build 300 residential units on property currently having no existing residential units. TRG-MH's applications were reviewed by the City's Planning Department and its Planning Advisory Board (PAB). The City's Planning Department recommended approval of the land use designation change. The PAB's 3-3 tie vote operated as to deny the request for a change of the land use designation recommendation. On April 26, 2007, the City Commission voted to approve the FLUM amendment application and, with modifications, the accompanying zoning and MUSP applications. (The City Commission approved the zoning change and MUSP subject to the condition that the size and scale of the Project be reduced by 25 percent across the board. Thus, for example, the height of the tallest of the three condominium buildings was reduced from approximately 411 feet to 310 feet.) The FLUM change was adopted by Ordinance 12911, which the Mayor signed on May 7, 2007. Ordinance 12911 amended the FLUM by changing the land use designation "for the property located at approximately 3663 South Miami Avenue, Miami, Florida, more particularly described in Exhibit A attached and incorporated." Exhibit A to the ordinance was the legal description included on the Fortin, Leavy, Skiles survey. The section of the MCNP entitled "Interpretation of the Future Land Use Plan Map" describes the various future land use categories in the Plan. It describes the Major Institutional future land use category as follows: Major Institutional Public Facilities, Transportation and Utilities: Areas designated as "Major Institutional, Public Facilities, Transportation and Utilities" allow facilities for federal, state and local government activities, major public or private health, recreational, cultural, religious or educational activities, and major transportation facilities and public utilities. Residential facilities ancillary to these uses are allowed to a maximum density equivalent to "High Density Multifamily Residential" subject to the same limiting conditions. Miami Comprehensive Neighborhood Plan (MCNP) at 21 (June 2006). The same section describes the H/D Residential, in pertinent part, as follows: Areas designated as "High Density Multifamily Residential" allow residential structures to a maximum density of 150 dwelling units per acre, subject to the detailed provisions of the applicable land development regulations and the maintenance of required levels of service for facilities and services included in the City's adopted concurrency management requirements. MCNP at 20 (June 2006). (By way of comparison, M/D Residential is described similarly except that the maximum density is 65 dwelling units per acre.) According to the MCNP, the FLUM land use designations "are arranged following the 'pyramid concept' of cumulative inclusion, whereby subsequent categories are inclusive of those listed previously, except as otherwise noted." Ordinance 12911 was not reviewed by the Department of Community Affairs (DCA), as required for text changes and large- scale FLUM changes to a comprehensive plan. On June 4 and 6, 2007, Petitioners filed their petitions challenging the FLUM Amendment. Generally, the Petitioners alleged that the FLUM Amendment did not qualify for treatment as a "small-scale" development amendment; was internally inconsistent with other provisions of the City's Comprehensive Neighborhood Plan; was not supported by adequate data and analysis; and was not "in compliance" with Florida's Growth Management Act and its implementing regulations. Scale of the FLUM Amendment A small-scale development amendment may be adopted if the "proposed amendment involves a use of 10 acres or fewer." § 163.3187(1)(c)(1), Fla. Stat. According to the survey and architectural plans on file with the City, the "net lot area" of the Site measures 6.72 acres. The City Zoning Code defines "net lot area" as "[t]he total area within the lot lines excluding any street rights-of- way or other required dedications." § 2502, City Zoning Code. In determining how large (in square feet of floor area) the planned Project could be, the architects were permitted, under the City's zoning regulations, to multiply the "floor area ratio" (FAR) for the High Density Multifamily Residential zoning classification by an area larger than the "net lot area." See § 401, City Zoning Code. The Zoning Code allows the maximum square footage to be calculated using the Site's "gross lot area." Id. The City Zoning Code defines "gross lot area," in pertinent part, as "[t]he net area of the lot, as defined herein, plus half of adjoining street rights-of-way and seventy (70) feet of any other public open space such as parks, lakes, rivers, bays, public transit right-of-way and the like." § 2502, City Zoning Code. If the "gross lot area" to be used to calculate the maximum square footage involves properties under different ownership, either the owners must apply jointly for a MUSP, or they must enter a covenant-in-lieu of unity of title. Properties joined by a covenant-in-lieu of unity of title need not have the same land use designation or zoning classification. If a covenant-in-lieu of unity of title is required, it need not be submitted to the City until building permits are sought. At present, no covenant-in-lieu of unity of title has been prepared or executed for the Site. The "gross lot area" used to calculate the Project's maximum square footage of floor area measured 11.44 acres. Thus, the Petitioners argued that the FLUM Amendment "involved a use" of more than 10 acres. But the application requested a land use designation change on only 6.72 acres of land. Because High-Density Multifamily Residential use will not be made of the proposed Perimeter Road, the access road known as Halissee Street, or the proposed Bay Walk, a land use designation change was not required for that acreage. Indeed, according to the amended FLUM, there is no land use designation applied to Halissee or to the northern part of the Perimeter Road. Moreover, use of Halissee Street, the Perimeter Road, and the Bay Walk is not exclusive to the 6.72 acres but will remain shared with Mercy Hospital, its patients and employees, as well as with the public. The Petitioners attempted to prove that a marina was planned to serve the development, which would involve a total use of more than ten acres for residential purposes. Even if a marina was initially contemplated, the application on file with the City does not include one, and there are no approved plans for a marina to be incorporated into the proposed residential development. No marina is required to be developed in connection with the 300 Grove Bay project. Moreover, there was unrebutted evidence that it is highly unlikely that a marina would ever be permitted under the statutes now regulating Biscayne Bay. There is no evidentiary support for including any part of Biscayne Bay in the acreage subject to the small-scale FLUM Amendment because of a possible marina so as to support the Petitioners' claim that Ordinance 12911 should not have been processed as a small-scale amendment. Suitability and Compatibility of FLUM Amendment The Site is a parking lot. It is not environmentally sensitive and has no significant natural or archeological resources that would make it unsuitable for High Density Multifamily Residential future land use. Major Institutional accommodates the Vizcaya Museum and Gardens and the Mercy Hospital complex, which are compatible with and actually part of Coconut Grove. However, as pointed out by the City and the Intervenors, Major Institutional also allows future land uses that could be less compatible with the surrounding land uses, including the Vizcaya Museum and Gardens and the residential neighborhoods of Coconut Grove. While a lower density residential future land use would be appropriate and compatible with the surrounding uses, the issue in this case is the density allowed by H/D Residential--up to 150 residential units per acre, which Petitioners contend is incompatible with the surrounding land uses and inconsistent with previous efforts to protect Vizcaya and Coconut Grove from the intrusion of high- density residential development. The Petitioners also contend that the FLUM Amendment is not suitable on the bayfront. Suitability on the Bayfront The Petitioners contend that H/D Residential is not suitable on the bayfront for reasons related mostly to aesthetics and views. While it certainly would be possible and reasonable for a community to decide not to allow dense and intense development on significant water bodies, it was not proven by a preponderance of the evidence that the City has done so, or that H/D Residential is unsuitable on the Site for that reason. 2005 Evaluation and Appraisal Report The City's 2005 Evaluation and Appraisal Report ("2005 EAR") focused on two citywide issues relevant here: (1) the preservation and enhancement of historic and similar resources; and (2) neighborhood integrity and the need to protect existing neighborhoods from incompatible development. Vizcaya Museum Gardens Industrialist James Deering built Vizcaya in 1916 as a winter home. The land Deering purchased in the early 1900s was developed into a 180-acre estate that included his Mediterranean-style home, Italianate gardens, farms, orchards, and lagoons. The mansion and gardens were designed by three well-known architects and designers and constructed using local materials. When Deering died nine years later in 1925, Vizcaya was left to his heirs, who eventually sold the south gardens and western agricultural fields to the Catholic Diocese. The southern acreage (which included the Site) was later developed into a church (Ermita de la Caridad), a school (La Salle), and medical and hospital facilities (Mercy). The Diocese sold the western acreage, which was eventually developed into single- family-home subdivisions. In the 1950s, the Deering heirs sold the remaining property, consisting of the mansion, gardens, and farm buildings, to Dade County. In 1952, Dade County opened Vizcaya to the public. Since then, the County has operated Vizcaya as a museum, which has welcomed thousands of visitors annually and is a popular site for tourists, social functions, and photo shoots. The Vizcaya mansion and gardens have historical, architectural, and botanical significance. The mansion is an "architectural masterpiece" and an "outstanding example of Italian Renaissance Revival architecture." Vizcaya has been on the National Register of Historical Places since 1977; it was designated as a City Heritage Conservation District in 1984; and, in 1994, it was designated a National Historical Landmark-- one of only three in Miami-Dade County. The southernmost part of Vizcaya's gardens is approximately 1,600 feet from the FLUM Amendment Site, and the mansion is approximately 2,300 feet from the Site. For the specific purpose of objecting to the 300 Grove Bay project, The Vizcayans commissioned the Vizcaya Viewshed Impact Assessment, which is referred to as the "balloon" study, and the Vizcaya View Corridor Study. According to the balloon study, the 300 Grove Bay condominiums would be visible from the balcony on the south side of the mansion. Although the balloon study was based on the original Project building heights and not re-done using the reduced heights in the zoning and MUSP approvals, the Petitioners' witnesses said that the Project would still be visible through the existing landscape, even at the reduced height. The Petitioners' witnesses opined that the development of 300 Grove Bay would "overpower and overshadow" the gardens on the south side of the mansion. No federal, state, or local statutes, rules or ordinances, including those relevant to this proceeding, protect the view corridors of Vizcaya's gardens. Coconut Grove The area known as Coconut Grove was settled in the late 1800s and was considered "off the beaten path" from the City which was incorporated in 1896. Coconut Grove was incorporated as a separate municipality in 1919, but in 1925 it was annexed to the City, as were five other municipalities. Petitioners' witnesses observed that Coconut Grove is the only one of these towns that has continued to retain a unique and recognizable character. Vizcaya and Mercy Hospital, including the parking lot site, are located in the northern area of Coconut Grove. Coconut Grove is primarily, but not entirely, a residential community. Coconut Grove has an active "downtown" business, commercial, and hotel district. The Petitioners maintained that the northern area of Coconut Grove is primarily single-family residential. However, it also includes a non- conforming high-density development (Grove Isle), medium-density residential, Mercy Hospital and its professional buildings, an assisted living facility, a school, a church, and governmental office buildings, as well as two museums (Vizcaya and the Museum of Science). A Coconut Grove Planning Study was commissioned and printed in 1974, but the City never adopted it; therefore, it has no official status. The Coconut Grove Neighborhood Conservation District In 2005, the City adopted by ordinance the Coconut Grove Neighborhood Conservation District (NCD-3). See § 803.3, City Zoning Code. According to the Code, a Neighborhood Conservation District is an "umbrella land use designation overlay," which allows for the tailoring of a master plan or of design guidelines for any area that meets certain criteria. See § 800, City Zoning Code. The intent of the Coconut Grove Neighborhood Conservation District is to "[p]reserve the historic, heavily landscaped character of Coconut Grove's residential areas and enhance and protect Coconut Grove's natural features such as tree canopy and green space." § 803.1, City Zoning Code. NCD-3 does not specify the High-Density, Multifamily Residential (R-4) zoning classification. But that does not mean that NCD-3 does not allow R-4. NCD-3 is enabling legislation that imposes greater restrictions within a geographic "overlay" for the zoning classifications addressed in Section 803.3. So far, NCD-3 has not addressed G/I and R-4 but only Single-Family Residential (R-1) and Commercial Districts. See § 803.3, City Zoning Code. For that reason, the ordinance does not apply to the Site. The "Grovenor Ordinance" The so-called Grovenor Ordinance was the City's response in July 2004 to the construction of a high-density residential project on property in Coconut Grove zoned "G/I Government and Institutional." The Grovenor Ordinance amended subsection of Section 401 of the City's Zoning Code to provide in pertinent part: G/I Government and Institutional Intent and Scale: The government/institutional category allows the development of facilities for federal, state and local government activities, major public or private health, recreational, cultural, religious, or educational activities, major transportation facilities, public utilities, and public and private cemeteries. Uses ancillary to these uses are allowed to a maximum density and intensity equivalent to the least intense abutting zoning district, subject to the same limiting conditions. Intensity: For residential uses: As for the least intense abutting zoning district. . . . * * * Permitted Principal Uses: Governmental and institutional uses as described in the City of Miami Comprehensive Development Plan designation of "Major Institutional, Public Facilities, Transportation and Utilities", however for accessory non-governmental or institutional uses-only such uses as may be permitted as principal uses in the least intense abutting zoning district . . . . § 401, City Zoning Code. The Grovenor Ordinance applies to property that is zoned G/I. The City's and Intervenors' witnesses testified that it applies only if G/I-zoned property ceases to be used for governmental or institutional purposes and is used instead for residential purposes. However, from the language of the ordinance itself, it is beyond fair debate that it also applies to G/I-zoned property that is used both for government or institutional uses and for ancillary residential uses. Clearly, without a FLUM change to a higher-density residential zoning category, in Coconut Grove the residential use on the Site would be restricted to the zoning classification of the "least intense abutting zoning district." Since it pertains to zoning, the Grovenor Ordinance does not directly apply to the issue of whether a FLUM amendment is "in compliance." However, it has some bearing on the proper interpretation and application of the "pyramid concept" of the MCNP's future land use designations, which is important to the issues for determination in this case. The Pyramid Concept The City and the Intervenors rely heavily on their interpretation of the MCNP's pyramid concept of cumulative future land use designations to support the FLUM Amendment in this case. According to them, the FLUM Amendment is compatible with surrounding land uses because high-density multi-family residential use already is a permitted use as a matter of right for land designated "Major Institutional." Similarly, they maintain that, under the "pyramid" concept, high-density multi- family residential use is permitted as a matter of right in all of the commercially designated land in Coconut Grove. But it is beyond fair debate that their interpretation of the "pyramid concept" is incorrect. As indicated, the "'pyramid concept' of cumulative inclusion" applies "except as otherwise noted." In the Major Institutional future land use category, it is noted that residential facilities with densities equivalent to "High Density Multifamily Residential" (i.e., up to 150 units per acre) are permitted only if "ancillary" to the listed major institutional uses. Similarly, in the General Commercial future land use category, it is noted that high-density residential uses "are allowed by Special Exception only, upon finding that the proposed site's proximity to other residentially zoned property makes it a logical extension or continuation of existing residential development and that adequate services and amenities exist in the adjacent area to accommodate the needs of potential residents." If the "pyramid concept" authorized high- density multi-family residential use as a matter of right on land designated either Major Institutional or General Commercial, there would be no reason to limit those uses by notation. Under the correct interpretation of the "pyramid concept" in the MCNP, free-standing high-density multi-family residential use of up to 150 units per acre is not already permitted as of right in either the Major Institutional or the General Commercial land use categories. Compatibility Notwithstanding the correct interpretation of the "pyramid concept" in the MCNP, the Petitioners failed to prove by a preponderance of the evidence that High Density Multi Family Residential future land use on the Site is incompatible with the surrounding uses or is inappropriate. The lower density residential and other less intense future land uses in the MCNP are buffered from the Site by Biscayne Bay and by Medium Density Multifamily Residential future land use. Vizcaya is buffered from the Site by Mercy Hospital and related medical facilities and by La Salle High School. The compatibility of a specific density of residential development on the Site with less dense residential use in Coconut Grove and with Vizcaya, including issues regarding building height and intrusion into Vizcaya's view corridors, can be addressed through zoning and MUSP proceedings. Data and Analysis Data and analysis is another matter. Because of their incorrect interpretation of the "pyramid concept" in the MCNP, the City and the Intervenors took the position that the FLUM Amendment constitutes "down-planning" and that the City was not required to perform the same level of analysis as it would have if the amendment sought a designation that permitted uses of greater impact, density, and/or intensity. The experts disagreed on whether "down-planning" is a concept in land use planning that can eliminate or minimize the requirement for data and analysis. In any event, the FLUM Amendment in this case could not be characterized as "down- planning." See Findings 57-59, supra. The MCNP's pyramid concept does not dispense with the need for data and analysis, and the data and analysis in this case was minimal and inadequate. The primary data and analysis in this case was the "Analysis for Land Use Change Request" (Analysis) that resulted from the City staff's review. After identifying the proposed land use designation and the uses permitted on it the Analysis recommended "Approval" of the FLUM Amendment and made four findings in support of "the position that the existing land use pattern in this neighborhood should be changed. These findings are as follows: It is found that the subject property is part of the Mercy Hospital and do [sic] not front South Miami Avenue. It is found that the "Major Institutional, Public Facilities, Transportation & Utilities" category allows 150 residential units per acre and the requested "High Density Multifamily Residential" designation will allow a maximum density of 150 residential units per acre. It is found that the requested change to "High-Density Multifamily Residential" designation will allow greater flexibility in developing the property at the above described location and therefore should be changed as part of the MUSP. It is found that MCNP Goal LU-1 maintains a land use pattern that (1) protects and enhances the quality of life in the city's residential neighborhoods, and (5) promotes the efficient use of land and minimizes land use conflicts. Id. (Emphasis in original.) As to the City’s third finding, a particular developer's flexibility is irrelevant to the determination of whether the land use change is consistent with the MCNP. To the extent that flexibility in general could be relevant to the inquiry, the finding was incorrect. While allowing a free- standing high-density residential project that would not otherwise be possible, the FLUM Amendment eliminates all of the non-residential uses permitted within the "Major Institutional" category. The second finding was based on the City's incorrect interpretation of the "pyramid concept" of the MCNP, which led the City to wrongly equate a primary use with an ancillary use and to simply assume no population increase would result from the FLUM Amendment, and that the FLUM Amendment would result in "down-planning." Attached to the City's Analysis was a separate "Concurrency Management Analysis," which addressed in summary form the data and analysis generated by the applicant and by the City's staff to address the "impact of [the] proposed amendment to land use map within a transportation corridor." The "Concurrency Management Analysis" also was predicated on the assumption that the FLUM change to HD Residential would not increase population. Essentially, it assumed without any data or analysis that infrastructure was available for 1,008 people living on the Site, even though the Site is being used as a parking lot at this time. This data and analysis was inadequate to support the FLUM Amendment. As to transportation, there was additional evidence of a traffic analysis performed by the City in support of the Project’s MUSP. This MUSP traffic analysis utilized a proper starting point of zero population on the Site at this time. It then projected the impact of the addition of 300 units. This was more than the 225 units ultimately approved in the MUSP but did not analyze the much larger potential increases in traffic that would be allowed under the FLUM Amendment, which is not limited to 300 units. There also was no data or analysis to show that limiting the analysis to 300 units was reasonable. It also only looked two years into the future. The MUSP traffic analysis also did not address the 2005 EAR finding that Bayshore Drive will be at level of service F by year 2025, without even any development on the Site. In short, the MUSP traffic analysis was inadequate to support the FLUM Amendment. The City and Intervenor took the position that the designation of the entire City as an urban infill area meant that every parcel is appropriate for high-density multi-family residential development. This is not correct. It is still necessary to look at comprehensive plan to determine which areas are appropriate for that kind of future land use and to have data and analysis to support it. See Payne et al. v. City of Miami et al., 32 Fla. L. Weekly D1885, *10-13 (Fla. 3d DCA Aug. 8, 2007) (on motion for rehearing). For these reasons, the Petitioners proved by a preponderance of the evidence that the data and analysis supporting the FLUM Amendment were inadequate. Inconsistency with City's Comprehensive Plan The Petitioners failed to prove beyond fair debate that the FLUM Amendment is inconsistent with any MCNP goals, objectives, or policies. State Comprehensive Plan Petitioners did not prove that the FLUM Amendment at issue is inconsistent with the State Comprehensive Plan.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order that the FLUM Amendment adopted by City of Miami Ordinance 12911 is not "in compliance," as defined by Section 163.3184(1)(b), Florida Statutes. DONE AND ENTERED this 10th day of July, 2008, 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 10th day of July, 2008. COPIES FURNISHED: Barbara Leighty, Clerk Transportation and Economic Development Policy Unit The Capitol, Room 1801 Tallahassee, Florida 32399-0001 Jason Gonzalez, General Counsel Office of the Governor The Capitol, Suite 209 Tallahassee, Florida 32399-0001 Jorge L. Fernandez, City Attorney City of Miami Miami Riverside Center, Suite 945 444 Southwest 2nd Avenue Miami, Florida 33130-1910 Patrick J. Goggins, Esquire Patrick J. Goggins, P.A. Sun Trust Building, Suite 850 777 Brickell Avenue Miami, Florida 33131-2811 John Charles Lukacs, Esquire John C. Lukacs, P.A. 201 Sevilla Avenue, Suite 305 Coral Gables, Florida 33134-6616 H. Ray Allen, II, Esquire Carlton Fields, P.A. Post Office Box 3239 Tampa, Florida 33601-3239 Stephen J. Darmody, Esquire Shook, Hardy & Bacon, LLP Miami Center - Suite 2400 201 South Biscayne Boulevard Miami, Florida 33131-4339 Lewis W. Fishman, Esquire Lewis W. Fishman, P.A. Two Datran Center, Suite 1121 9130 South Dadeland Boulevard Miami, Florida 33156-7848 John K. Shubin, Esquire Shubin & Bass, P.A. 46 Southwest First Street, Third Floor Miami, Florida 33130-1610
Conclusions An Administrati ve Law Judge of the Division of Administrative Hearings has entered an Order Closing File in this proceeding. A copy of the Order is attached to this Final Order as Exhibit A.
The Issue The issue is whether plan amendments adopted by Respondent in Ordinance No. 5-1998 are not in compliance, for the reasons set forth in the Statement of Intent that is incorporated into the Petition of the Department of Community Affairs.
Findings Of Fact The Plan and the Adoption Ordinance Petitioner challenges Respondent's redesignation of a 198-acre parcel (Parcel) from Suburban Density Residential to Industrial on the future land use map (FLUM) of Respondent's comprehensive plan. This is the Plan amendment that is the subject of the present case. Respondent's comprehensive plan consists of a document that was restated through 1990 (Petitioner Exhibit 22) and a set of plan amendments adopted on October 13, 1997 (Petitioner Exhibit 13). This recommended order will refer cumulatively to the 1990 restated plan and the 1997 plan amendments as the Plan. Two conditions govern reliance upon Petitioner Exhibits 22 and 13 as the sources of Plan provisions. First, Petitioner Exhibits 22 and 13 do not contain all of the textual Plan amendments adopted by Respondent between 1990 and 1997. For example, Text Amendment T-1 in Plant City Plan Amendment 95-1, as adopted by Ordinance 34-1994 on October 10, 1994, is missing from Petitioner Exhibit 22. It is unlikely, though, that the missing Plan provisions would have a bearing on the present case. Second, and more important, Petitioner Exhibit 13 contains proposed plan language that Respondent never adopted. Similarly, Respondent did not adopt the plan language or recommendations for the addition, deletion, or amendment of plan language contained in Petitioner Exhibits 6 and 8. Petitioner Exhibit 6 is Respondent's evaluation and appraisal report (EAR). Required by law to be prepared at stated intervals, the EAR is the document by which a local government assesses the performance of its comprehensive plan and recommends needed amendments. In this case, Petitioner objected to portions of the EAR, so Respondent adopted a revised EAR (REAR), which is Petitioner Exhibit 8. After Petitioner determined that the REAR was sufficient, subject to the conditions noted below, Respondent adopted Plan amendments by Ordinance 23-1997, as adopted October 13, 1997; these amendments are contained in Petitioner Exhibit 13, which, as already noted, is part of the Plan. However, Petitioner Exhibit 13 is a composite exhibit and contains plan language that Respondent did not adopt. It is not entirely clear from the exhibit exactly what Respondent is adopting because Ordinance 23-1997 does not contain, identify, or describe the Plan amendments, nor is a copy of the Plan amendments attached to the ordinance. As incorporated into Petitioner Exhibit 13, the adopted Plan amendments precede the ordinance. These amendments change the Public Facilities Element (PFE), Intergovernmental Coordination Element, and Capital Improvements Element (CIE), including the schedule of capital improvements, and substitute a comprehensive set of definitions for the sets of definitions that previously were contained in several of the elements. Incorporated into Petitioner Exhibit 13 between the adopted Plan amendments and the ordinance are a small number of pages concerning legal advertising and regional plan review, but these pages, which are irrelevant to the present case, were not adopted. Following the ordinance are additional pages concerning advertising and county plan review and a set of documents entitled, "Section A, Summary of Proposals for Plan Amendment Group 97-01." It is unclear to what Section A is supposed to be attached, but most likely Section A contains the proposed amendments that Respondent submitted to the Hillsborough County Planning Commission. In any event, Respondent never adopted Section A, as such. About six months later, Respondent adopted the Plan amendment that is the subject of this case. By Ordinance 5-1998, adopted April 13, 1998, Respondent adopted "amendments" to the Plan. The finding that this ordinance contains the subject Plan amendment is not entirely free of doubt because it is based on inference and implied stipulation; as is apparently Respondent's practice, the actual amendment is in no way identified in Ordinance 5-1998. The ordinance states only that a "copy of [the] amendment is filed in the office of the City Clerk . . .." Nothing in the record actually describes the contents of Ordinance 5-1998, but the parties and reviewing agencies, such as the Hillsborough County Planning Commission, have treated this ordinance as the one that adopted the redesignation of the Parcel, so the administrative law judge will too. The title of the adoption ordinance is: "AN ORDINANCE ADOPTING AMENDMENTS TO THE COMPREHENSIVE PLAN FOR THE CITY OF PLANT CITY, FLORIDA; REPEALING ALL ORDINANCES OR PARTS OF ORDINANCES IN CONFLICT HEREWITH; AND PROVIDING AN EFFECTIVE DATE (97-1)." This is the only reference to "97-1" in the ordinance. Respondent attached several documents to the submittal package to Petitioner. The amendment is identified as Amendment 97-2 in the minutes of the City Commission meeting at which Respondent adopted the ordinance; however, the ordinance does not mention this amendment number. The amendment is identified as Amendment 97-2, Map Amendment 1, in the resolution of the Hillsborough County City-County Planning Commission, which approved an amendment changing the designation of 198 acres on the Future Land Use Map (FLUM) from Suburban Density Residential to Industrial. The amendment is identified as proposed Amendment 98-1 in Respondent's responses to the Objections, Recommendations, and Comments of Petitioner, although the context of these responses reveals that they pertain to the redesignation of 198 acres from Suburban Density Residential to Industrial. The submittal package also includes a map that shows the area to be redesignated Industrial from Suburban Density Residential and a staff report that includes a textual and graphic analysis of the land uses surrounding the Parcel. Background The west boundary of the Parcel abuts Jim Johnson Road and a main north-south railroad line, the south boundary abuts an east-west railroad line, and the east boundary abuts Coronet Road. The Parcel is designated Suburban Density Residential, although, according to the staff report, a poor legal description leaves some doubt as to whether the westernmost part of the Parcel might already be designated Industrial. This recommended order treats the entire Parcel as Suburban Density Residential. The Parcel lies at the extreme southeast corner of Plant City. The surrounding land in Plant City is entirely Industrial. The Parcel lies at the southeast corner of one of the two largest areas designated Industrial in Plant City. Both of these areas are in the city's southern half, which is otherwise devoted to medium- and high-density residential and commercial uses. The vast portion of low-density residential, which is designated Suburban Density Residential, is in the city's northern half, which also includes some commercial, medium- and high-density residential uses. The staff report analyzes the surrounding existing land uses within this Industrial area of Plant City. On the eastern half of the north border of the Parcel is "expansive wooded fenced pasture land" with one single-family home and some stored mobile homes. On the western half of the north border and the northern half of the west border is a Food Lion distribution center on a 150-acre parcel. Immediately west, across Jim Johnson Road, is a developed industrial park. On the east border is a golf course, a power plant, and vacant, wooded land. On the south border, within Plant City, is a small area of Suburban Density Residential not proposed for redesignation. This area appears to be wooded and adjoins another wooded area that adjoins a residential area a short distance to the east. On the south border, within unincorporated Hillsborough County, of which Plant City is a part, are low- density residential uses in an area designated in the Hillsborough County plan for up to six dwelling units per acre. (All references to density shall state a ratio with the number of dwelling units followed by the number of acres; in this case, the density is 6:1). The Parcel contains fenced pasture land, one single- family residence, and a rail spur leading from the south border to the south boundary of the Food Lion distribution center. The Parcel contains three areas of wetlands totaling about 37 acres. The wetlands are at the south and west side of the Parcel, the middle of the Parcel, and the east side of the Parcel. The wetlands are contiguous and convey water to the upper part of the Howell Branch, which empties into the South Prong of the Alafia River. The Alafia River runs west through Hillsborough County and empties into Hillsborough Bay or upper Tampa Bay. The record provides no basis to infer that the railroad track running along the southern boundary of the Parcel has impounded stormwater runoff. To the contrary, the presence of culverts and elevated tracks suggest that the spur crossing the Parcel and ending at the Food Lion property does not cut off the flow of surface water. However, the record does not contain much detail as to the level to which the onsite wetlands function as natural drainage or habitat. The economic value of the Parcel would be enhanced if its designation were Industrial rather than Suburban Density Residential. However, the record does not permit the inference that development would take place sooner in the event of such a redesignation. Jim Johnson Road is scheduled to be expanded to four lanes from a point to the north down to nearly the south end of the Food Lion parcel. At this point, Jim Johnson Road, which continues farther south as a two-lane road, intersects the eastern terminus of the four-lane extension of Alexander Street. The Parcel is not presently served by central wastewater, but, by 2000, such service should be extended to within one-half mile of the Parcel. The nearest lift station operated at only nine percent of capacity in 1988. The unadopted text accompanying the Plan states that Plant City, which is about 20 miles east of Tampa and 10 miles west of Lakeland, has experienced "steady industrial growth over the past years with almost total utilization of its industrial park . . .." Plan, Future Land Use Element, p. 20. The central business district of Plant City is at the intersection of State Road 39 and U.S. Route 92. When this central business district began to form over 100 years ago, it occupied the intersection of important rail lines traveling north-south and east-west--the two lines that continue to operate in the vicinity of the Parcel. Decades later, the interstate highway system added to Plant City's industrial development. Interstate 4, which runs east-west, passes just north of the central business district. Interstate 75, which runs north-south, is a little over 10 miles west of Plant City. In the 1970s, Respondent annexed the land in the southwest part of the city for the mixed-use planned residential development known as Walden Lake. In the same decade, Respondent annexed the land in the western part of the city for industrial uses in the vicinity of the city airport. Ensuing industrial development in the Walden Woods Business Center, of which the Parcel is a part, has resulted in the location of a distributor of bottled detergents on a two-acre parcel, a boxmaker on a 20-acre parcel, and an automated operation to upgrade used cars on another 20-acre parcel. In the 1980s, as the western industrial lands developed, Respondent facilitated the industrial development of land in the eastern part of the city. Recent industrial development has shifted toward the east, absorbing land between Plant City and Lakeland. The unadopted text in the Plan predicts strong industrial growth in the future: Recent events have indicated that Plant City will have a significant expansion in its industrial base through the location of major industrial employers to the east of the city providing jobs and revenue to Plant City. This will, of course, have an effect upon the facilities of Plant City in maintaining current levels of service and the concurrent provision of facilities with the impacts of development as the City's currently adopted plan requires. Due to the impact that industrial developments have upon adjacent land uses, including residential areas, the City will require all future industrial developments to be planned development. Plant City is expected to maintain a suburban, commuter and local job market through the planning period. Job growth in the reserve area will create more nearby employment opportunities for the city's residents with the workforce travelling shorter distances to employment centers in the immediate area. Plan, Future Land Use Element, p. 20. The testimony at the hearing established that Plant City occupies the I-4 technology corridor. Aided by the efforts of the University of South Florida, in Tampa, and the University of Central Florida, in Orlando, this corridor is designed to attract high-tech manufacturing. Plant City and Lakeland are important segments of this corridor because they have sufficient utilities to serve such manufacturers. Persons involved in the marketing and developing of industrial land contend that, from a marketing standpoint, there is a shortage of affordable, usable industrial land in Hillsborough County. Land in Tampa is expensive, and relatively little land exists in unincorporated Hillsborough County. One broker/developer estimated that there has not been so little land of this type in this area since the early 1980s--a situation exacerbated by the conversion of some industrial office parks to office and residential uses. Respondent has enjoyed favorable newspaper publicity concerning its industrial growth. In its Responses to Petitioner's Objections, Recommendations, and Comments, dated March 23, 1998 (ORC Response), Respondent's staff summarized numerous newspaper articles noting the number of high-paying jobs attracted to Plant City by its proximity to Interstates 4 and 75, the Tampa port and railroad lines, 75 percent of all food- distribution sites in Florida, a new technical-education center, major universities in Tampa and Orlando, and Respondent's pro- industrial policies, including reduced fees on new construction to pay for infrastructure. ORC Response (part of Petitioner Exhibit 4), pp. 9-12. The unadopted text in the Plan analyzes the relationship of allocations to future needs by residential and nonresidential categories. As of 1990, the projected population for Plant City for 2010 was 27,700, and the residential designations on the FLUM accommodated a buildout population of 29,921. For nonresidential calculations, Respondent determined the potential employment-generating capacity of Respondent's available Commercial and Industrial land by considering square feet per acre, vacancy rates, and employees per square foot. Respondent concluded that the Commercial and Industrial future land use designations could accommodate an additional 36,694 employees to its employment base by 2010. Referring to the employment capacity stated in the preceding paragraph, the unadopted text concludes: This capacity is significantly greater than the estimated employment growth potential for the city and could potentially contribute to a dramatic change in the city's future socio- economic profile. Plan, Future Land Use Element, p. 32. As Petitioner considered the subject FLUM amendment, it became readily apparent that Petitioner and Respondent differed as to the extent of analysis required to support the conversion of 198 acres of Suburban Density Residential to Industrial. In its REAR, Respondent updated its acreage allocations by future land use category, showing 1989 and 1995 acreages. From 1989 to 1995, Suburban Density Residential increased from 1215 acres, or 9.8 percent of the City, to 2272, or 15.7 percent of the City. (Annexations raised the total acreage in the City from 12,344 acres to 14,452 acres.) During the same period, Industrial increased from 3573 acres, or 28.9 percent, to 4385 acres, or 30.2 percent. After Suburban Density Residential, the largest percentage change during this period was Environmentally Sensitive, which decreased from 1958 acres, or 15.9 percent, to 1433, or 9.9 percent. Addressing wetlands-protection issues, the REAR states that the Conservation Element in the Plan, "as implemented through the City's Land Development Code and the requirements and processes of the Environmental Protection Commission," is "consistent with the new State requirements." Petitioner Exhibit 8, p. 9. The REAR asserts that the Conservation Element protects wetlands through discussion in the unadopted text of the Plan and "outlines wetlands protection strategies in the adopted portion of the [Conservation Element], Objective C and Policies C.1-C.9. Wetlands protection is also addressed in the FLUE [Future Land Use Element]." Petitioner Exhibit 8, p. 9. However, the REAR promises an expanded Conservation Element with mapping of the wetlands on the FLUM. The REAR contends that: [u]pon adoption of revised [Plan] provisions, all wetlands in the City will be protected by the [P]lan, by existing or revised Land Development Code provisions, by the [Environmental Protection Commission's] Wetlands Rule (which includes more stringent protection for more types and sizes of wetlands than that available at any other level of government), by the state through its Environmental Resources Permit (ERP) process, and by the U.S. Army Corps of Engineers, in accordance with the requirements of the National Environmental Policy Act (NEPA) and various other laws and procedures. The City believes that this system will ultimately offer an extremely high level of [P]lan-based wetlands protection. Petitioner Exhibit 8, pp. 9-10. The REAR contains a table showing proposed changes to the Plan. Among the proposed changes is FLUE Policy 6.B.4, which was proposed to provide: The City may allow wetland encroachment as a last option only when other options to avoid wetland impacts are unavailable. When this occurs, the City in cooperation with the Environmental Protection Commission of Hillsborough County, shall ensure the permitted activities are compatible with maintaining the area as a viable productive vegetative and wildlife habitat that protects its natural function based on the following criteria: allow only minimum impact projects such as piers, docks, walkways in wetlands; require development to be transferred to adjacent uplands outside wetland areas; restrict density in wetland areas to one residential unit for each identified wetland area. Petitioner Exhibit 8, p. 32. Petitioner determined that the REAR was in compliance, although on the condition that Respondent agree to work on the issues of wetlands, urban sprawl, and transportation. The Plan amendments adopted on October 13, 1997, did not address many of the issues discussed in the EAR and REAR. Notably, the Plan amendments did not include the revised FLUE Policy 6.B.4, quoted above. Following Respondent's transmittal of the subject Plan amendment, Petitioner submitted objections, recommendations, and comments. In its ORC Response, Respondent stated: The consideration of this plan amendment does not rest on a need to show a demand generated by residents of the City for more industrial land. The City has shown that it has provided for, and can continue to provide for, adequate provision of residential and other uses. ORC Response, p. 3. Using updated figures, the ORC Response states that Respondent had an excess residential designation of over 12,000 persons by 2015. The designation change of the Parcel would still leave an excess residential capacity of 10,443 persons. Using an updated population projection of 36,300 persons by 2015, the removal of the Parcel from Suburban Density Residential reduces Plant City's residential overallocation, in 2015, from 33.1 percent to 28.77 percent--which is still in excess of Petitioner's 25-percent guideline for residential overallocations. Addressing wetlands-protection issues, the ORC Response states that a developer could not develop Industrial land until it showed that "environmental damage would not occur" and compliance with the requirements of the Southwest Florida Water Management District, County Environmental Protection Commission, and Florida Department of Environmental Protection. ORC Response, p. 5. Citing a provision of Respondent's land development regulations, the response adds that Respondent would require a "detailed site plan." Id. The ORC Response acknowledges that Petitioner was seeking the adoption of additional Plan provisions, in accordance with Rule 9J-5.013, Florida Administrative Code, to "exclude future land uses which are incompatible with the protection and conservation of wetlands and wetland function." ORC Response, p. 5. The ORC Response assures that Respondent will propose language requiring the developer to document the environmental conditions at the time of a proposed Plan amendment, rather than at the time of the issuance of a development permit, as the Plan reportedly provides at present. The ORC Response adds that, at the time of the issuance of a development permit, the new language will require that "an environmental review would ensure than the proposed development, under the applicable land use category, does not impact any natural resources located on the site. The protection rests with the site plan review process, detailed in the City's Land Development code." ORC Response, p. 5. Addressing transportation issues, the ORC Response relies on the concurrency provisions of the Plan to ensure that adequate traffic capacity will exist to serve the industrial development of the Parcel. Addressing buffering issues, the ORC Response assures that adequate buffering with nearby residential areas will result from the requirement, in the land development regulations, that the developer provide adequate buffering through a "detailed site plan." The Plan The definitions define Industrial as: The future land use plan category used to designated geographically on the Future Land Use Map and/or textually in the Future Land Use Element those areas in the City that are potentially suitable for industrial activities that create a minimal degree of impact to the surrounding area, particularly in terms of non-objectionable levels of noise, vibration, dust, and/or odor, and for convenience commercial uses that are limited to serving the development. All new development and major expansions of existing uses are subject to site plan review with the intent to integrate and minimize adverse impacts upon adjacent land uses. No new residential development is allowed. Development in these areas is subject to the Goals, Objectives and Polices of the Comprehensive Plan and applicable development regulations pursuant thereto which allows [sic] up to a floor area ratio (FAR) of .50 and a maximum commercial area limited to 10 [percent] of the planned development industrial building square footage. Petitioner Exhibit 13, p. B9-21. The definitions define Suburban Density Residential as: The future land use plan category generally used to designated geographically on the Future Land Use Map and/or textually in the Future Land Use Element those areas that are best suited for single family detached residential uses although other housing approaches and compatible related uses such as churches and public utilities serving the neighborhood can be integrated in the area, subject to the Goals, Objectives and Policies of the Comprehensive Plan and applicable development regulations pursuant thereto. A density range of 0-4 dwelling units per gross acre may be achieved within SDR. Petitioner Exhibit 13, p. B9-39. The definitions section defines "Environmentally Sensitive Overlay Areas (E), Future Land Use Category" as: The future land use plan category is generally used to designate, geographically on the Land Use Map and/or textually in the Future Land Use Element, those areas in the City that are potentially environmentally sensitive and thereby subject to classification as Conservation or Preservation areas under the provisions of the Conservation . . . Element The Environmentally Sensitive Overlay Areas future land use plan category on the Future Land Use map is generalized and not exhaustive of all environmentally sensitive sites. Therefore, actual on-site environmental evaluations must occur for any specific project review, and development of any lands containing environmentally sensitive areas is restricted by applicable federal, state, and/or local environmental regulations and by the applicable Goals, Objectives, and Policies of the Comprehensive Plan. (Refer also to the definitions of Preservation Area and Conservation Area and to the polices, land use category description, and density computation provisions related to environmentally sensitive areas). In conjunction with on- site environmental evaluation, the adjacent land use designation shall provide guidance as to the development potential that may be considered once environmentally sensitive areas are surveyed and mapped on site. Petitioner Exhibit 13, p. B9-16. The definitions define "Environmentally Sensitive" as: Descriptive of lands which, by virtue of some qualifying environmental characteristic (e.g., wildlife habitat) are regulated by either the Florida Department of Natural Resources (FDNR), the Florida Department of Environmental Protection (FDEP), the Southwest Florida Water Management District (SWFWMD), or any other governmental agency empowered by law for such regulation. Petitioner Exhibit 13, p. B9-15. The definitions do not define "Preservation Area," except to refer to "Conservation Area." Petitioner Exhibit 13, B9-31. For "Conservation Area," the definitions state: Means land designated to: protect the following preservation areas from any further development, except in extreme cases of overriding public interest: --Critical habitat for species of endangered, threatened, or rare status; --Class I and II waters; --Unique environmental features such as springs, steep natural slopes, cavernous sinkholes, and major natural rock outcrops. be environmentally sensitive areas in the Comprehensive Plan and the City's Land Development Code. Development of these areas is limited to conservation uses. be set aside specifically for the protection and safekeeping of certain values within the area, such as game, wildlife, forest, etc. Preserved areas may or may not be outdoor recreation areas, depending on the use allowed therein. Petitioner Exhibit 13, pp. B9-10 and 11. The definitions define "Conservation Uses" as: Activities within the land areas designated for the purpose of conserving or protecting natural resources or environmental quality and includes areas designated for such purposes as flood control, protection of quality or quantity of groundwater or surface water, floodplain management, fisheries management, or protection of natural vegetative communities or wildlife habitats. [F.A.C. 9J-5.003(30)] Petitioner Exhibit 13, p. B9-11. The definitions define "Wetlands" as: those areas that are inundated or saturated by surface water or ground water at a frequency and a duration sufficient to support, and under normal circumstances, do support, a prevalence of vegetation typically adapted for life in saturated soils. Soils present in wetlands generally are classified as hydric or alluvial, or possess characteristics that are associated with reducing soil conditions. The prevalent vegetation in wetlands generally consists of facultative or obligate hydrophytic macrophytes that are typically adapted to areas having soil conditions described above. These species, due to morphological, physiological, or reproductive adaptations, have the ability to grow, reproduce or persist in aquatic environments or anaerobic soil conditions. Florida wetlands generally include swamps, marshes, bayheads, bogs, cypress domes and strands, slough, wet prairies, riverine swamps and marshes, hydric seepage slopes, tidal marshes, mangrove swamps and other similar areas. Florida wetlands generally do not include longleaf or slash pine flatwoods with an understory dominated by saw palmetto. The delineation of actual wetland boundaries may be made by any professionally accepted methodology consistent with the type of wetlands being delineated but shall be consistent with any unified statewide methodology for the delineation of the extent of wetlands ratified by the legislature. [F.A.C. 9J-5.003(149)] Petitioner Exhibit 13, p. B9-43. The definitions define "Planned Development" as: "Development governed by the requirements of a site plan zoning district." Petitioner Exhibit 13, p. B9-31. FLUE Policy 1.C.3 states: Higher intensity non-residential land uses that are adjacent to established neighborhoods shall be restricted to collectors and arterials and to locations external to established and developing neighborhoods. FLUE Goal 2 is: To sustain the viability of existing and emerging commercial and industrial park areas to achieve an integrated land use fabric which will offer a full range of employment, shopping, and leisure opportunities to support the city's residential areas. FLUE Policy 2.A.3 provides: Buffer residential uses from the negative impacts of non-residential development (physical, visual, or auditory), through the use of walls, berms, landscaped areas. FLUE Objective 2.E is: Support the downtown, stadium, community college, hospital, airport and the industrial areas of the city as the major employment and regional attractors of the Plant City area. FLUE Policy 2.E.1 states that Respondent will ensure that "adequate transportation, water, sewer, solid waste, and drainage facilities will be provided concurrent with the impacts of development " FLUE Policy 6.A.4 provides: The City shall regulate land use and development in all areas subject to flooding by prohibiting all development within the 100 year floodplain which is not in strict conformance with the provisions of the City of Plant City Flood Hazard Ordinance. FLUE Policy 6.A.6 is: The City shall investigate incentives to encourage the clustering of development away from environmentally sensitive lands. FLUE Objective 7.A states: In all actions of the City, urban sprawl shall be discouraged and a compact urban pattern of development shall be provided for in a manner which will promote the full utilization of existing public infrastructure and allow for the orderly extension and expansion of municipal facilities in a fiscally responsible manner. FLUE Policy 7.A.3 provides: The City shall permit new development which lies contiguous to existing urbanized lands only if public facilities are available or can be provided concurrent with the impacts of the development. All development shall be consistent with and maintain the adopted levels of service. FLUE Objective 7.B restates the concurrency requirement at the time of "approving new development and redevelopment." FLUE Policy 7.B.1 prohibits the issuance of "development orders or permits" that would result in "a reduction of the level of service (LOS) established for public facilities as adopted in the Capital Improvements Element." FLUE Objective 7.E restates the commitment to serve all new development and redevelopment with public facilities at or above the adopted LOS standard. FLUE Objective 7.F again restates this commitment, as it pertains to roads. The Goal of the Conservation Element is to: Preserve, conserve, restore, and appropriately manage the natural resources of the City of Plant City, in order to maintain or enhance environmental quality for present and future generations. Acknowledging the role of land-use planning in protecting natural resources, the Conservation Element states: In past decades, land use decisions were based primarily upon socio-economic and demographic factors, with little consideration given to preserving or conserving the natural attributes of the land. As a result, urban land uses were often allowed to replace or permanently alter environmentally sensitive lands and natural systems. With a better understanding of the ecological impacts of land uses, it has become clear that the natural carrying capacity of the land must be carefully considered in land use decisions if the natural attributes and functions of the environment are to be maintained for future generations. Policies and regulations that appropriately preserve or conserve valuable natural resources, while allowing for orderly economic growth, are needed. Petitioner Exhibit 22, Conservation Element, pp. 63-64. The Conservation Element contains 12 objectives under eight categories--air quality, surface water, soil, hazardous materials, flora and fauna, natural preserves, land uses, and minerals. The objectives are specific and measurable. However, the policies in the Conservation Element are vague and unlikely to contribute significantly to the attainment of the Conservation objectives. Only 11 policies (A.7, B.1, B.7, C.2, E.2, E.6, E.7, F.6, H.2, H.4, and L.1) specifically describe a program or activity that will assist in the attainment of any objective. The remaining policies require Respondent only to "cooperate" (14 times), "promote" (9 times), "participate" (5 times), "request" (4 times), "support/encourage" (4 times), "assist" (3 times), and even "consider requiring" (1 time). Other policies promise compliance with the law, public education, and recommendations. Six policies promise some action in the land development regulations or the "land use planning process"-- evidently referring not to the preparation of the Plan, but to some part of the permitting process that may be described in the land development regulations, but is not described in the Plan. Several of the Conservation provisions more directly affect the present case. Acknowledging that "more stringent regulations for stormwater discharges should be considered," Conservation Objective B states: By 1990, discharges to all natural surface water bodies in the City of Plant City shall meet or exceed State water quality standards . . .. Cognizant that increased growth will continue to pressure wetlands, a "significant percentage" of which have already been lost, Conservation Objective C states: "By 1992, no net loss of natural wetland acreage and 100-year floodplain storage volume shall occur in the City." However, Conservation Policy C.3 implements this promise through reliance on the activities of the Hillsborough County Environmental Protection Commission and the previously described, unspecified permitting process that appears to be part of Respondent's land development regulations. Conservation Policy C.4 defers to "appropriate environmental regulatory agencies" the responsibility of developing a comprehensive wetland mitigation and restoration program. Conservation Policy C.9 states that Respondent will cooperate with Hillsborough County and the Southwest Florida Water Management District to develop comprehensive floodplain management regulations for the 100-year floodplain. In the restated 1990 plan, Public Facilities Element (PFE) Objective 1.C provided: By 2000, the City will implement mandatory requirements for discontinuing the use of all septic tanks[,] providing sanitary sewer facilities for the affected residents is available. In the 1987 amendments, Respondent weakened this objective by substituting for it the following: The City shall encourage the discontinuance of all on-site wastewater systems and private water wells upon the availability of public sanitary sewer facilities and public water utilities for the affected residents. However, PFE Policy 1.C.1, also part of the 1987 amendments, somewhat limits the circumstances under which landowners may continue to use onsite wastewater disposal systems. PFE Objective 1.A states: By February 1, 1990, the City . . . will implement procedures to ensure that at the time a development permit is issued, capacity consistent with the level of service standards is available or will be available when needed to serve the development. PFE Policy 1.A.1 adopts LOS standards of 89 gallons per capita per day for residential sewer, 7 gallons per employee per day for commercial sewer, and 43 gallons per employee per day for industrial sewer. Traffic Circulation Element (TCE) Policy A.1 adopts LOS standards for city roads. TCE Objective B requires Respondent to adopt land development regulations to ensure that transportation improvements further the provisions of the FLUE. TCE Policy D.1 is to provide transportation infrastructure to accommodate the impacts of growth consistent with the requirements of the provisions of the Capital Improvements Element (CIE). CIE Objective 1 is to set LOS standards for each public facility and identify the capital improvements needed to ensure that the adopted LOS standards are met. CIE Objective 2 is to provide needed public facilities that are within Respondent's ability to fund. CIE Policy 2.B attempts to allocate the costs of additional public facilities between existing and new development; ensuing policies largely assign the responsibility for curing deficiencies to existing development and adding capacity to new development. CIE Objective 3 is to provide needed public facilities to compensate for depletion and to accommodate new development and redevelopment. Ultimate Findings of Fact Adequacy of Ordinance On its face, Ordinance 5-1998 provides no basis whatsoever for inferring that it implements a change in the Parcel's designation on the FLUM. The contents of the ordinance presumably emerges only upon examination of the original ordinance file kept in the City Clerk's office. Supporting Data and Analysis--General Need for Conversion from Suburban Density Residential to Industrial Designation As for the need for more Industrial land, Petitioner failed to prove by a preponderance of the evidence that the data and analysis fail to support this Parcel's redesignation from Suburban Density Residential to Industrial. Petitioner contends that this change in designation is not supported by the data and analysis because it results in an overallocation of Industrial. This argument fails for several reasons. First, Petitioner failed to prove any standards by which to determine an overallocation of Industrial, at least given the circumstances of this case. Already characterized by considerable industrial development, Respondent has successfully promoted more industrial development. Perhaps most important, Respondent's unique locational advantages promise more industrial development, given Respondent's proximity to the major population areas of East Central Florida, the Tampa Bay area, and Southwest Florida and its proximity to the large-scale transportation facilities of two major interstates, two rail lines, the Tampa port, and the airports of Tampa and Orlando. Second, under these unique circumstances, Petitioner failed to prove that market demand coupled with the need for larger blocks of land do not justify the new Industrial designation for the Parcel. Third, Petitioner failed to prove that the redesignation from Suburban Density Residential to Industrial is not supported by the data and analysis because this redesignation reduces an overallocation of residential land while adding to employment opportunities for present and future residents of Plant City. 2. Wetlands and Conversion from Suburban Density Residential to Industrial Designation As for the protection of wetlands, Petitioner failed to prove by a preponderance of the evidence that the data and analysis fail to support the Parcel's redesignation from Suburban Density Residential to Industrial. This finding is not based on the strength of the wetland-protection provisions in the Plan. To the contrary, the Plan is remarkably free of such provisions. Rather, this finding is based on the lack of evidence that an Industrial designation would more greatly imperil the wetlands than does the Suburban Density Residential designation. The record provides little basis to compare the effects on the wetlands of the Industrial intensity of .5 FAR as opposed to the Suburban Density Residential density of 4:1. Respondent's contentions that it permits only light industrial are more notable for their recurrence, rather than their support, in the record. The Plan contains no such limitation. In fact, the Plan's definition of Industrial minimally limits uses only in terms of common-law nuisance--e.g., noise, vibration, sound, and dust; nothing in the definition or elsewhere in the Plan limits Industrial uses in terms of effects on wetlands or other natural resources. Perhaps Respondent's land development regulations may further restrict industrial uses, but such easily-amended land use restrictions are irrelevant to a Plan case. Respondent also contends that Industrial requires site- planning. The Plan permits Respondent to require site-plan review, but does not require it to do so. Presumably, Respondent would be free to do so for a large-scale residential development, even though its Plan does not expressly mention the possibility. Although the Plan does not prohibit Industrial use of septic tanks, it is more likely that 4:1 residential development would rely on septic tanks than would .5 FAR industrial development. The three wetlands in question would likely fare better in the absence of a proliferation of nearby septic tanks, as would be permitted under Suburban Density Residential. Internal Inconsistency Future Land Use Element Petitioner failed to prove to the exclusion of fair debate that the Plan amendment is inconsistent with FLUE Objectives 7.A, 7.B, 7.E, and 7.F, and the policies supporting these objectives, as well as FLUE Policies 2.A.3 and 2.E.1. These Plan provisions address buffering residential uses from nonresidential uses, urban sprawl, the efficient provision of public facilities, conformance to adopted LOS standards, and concurrency. As for buffering, the buffering requirement of FLUE Policy 2.A.3 is sorely tested by the presence of a railroad line running through the Parcel. Converting the designation of the Parcel from Suburban Density Residential to Industrial, to the railroad track, serves the purpose of this policy. The problem here is not the railroad track, but the Suburban Density Residential designation; if anything, FLUE Policy 2.A.3 militates for the elimination of an arguably inappropriate residential designation immediately south of the railroad line. As for urban sprawl, the redesignation from Suburban Density Residential to Industrial does not encourage the kind of inefficient land uses targeted by the Plan provisions discouraging urban sprawl, nor does the redesignation encourage an inefficient or costly extension of infrastructure. This recommended order has already found a viable functional relationship between the Parcel, if designated Industrial, and the larger region of which the Parcel and Plant City are a part. This is the key finding on the urban-sprawl issue. This order cites Petitioner's rule as it identifies the indicators and relevant development controls that are relevant to an urban-sprawl analysis. Although the Plan is nearly free of useful development controls, all of the urban- sprawl indicators suggest either that the new Industrial designation, as compared to the Suburban Density Residential designation, will discourage urban sprawl or have no effect on urban sprawl. The greater weight of the indicators suggests that the new designation will discourage urban sprawl. These indicators are the encouragement of a functional mix of uses, absence of excessively large areas of single use, absence of Industrial uses in excess of demonstrated need, absence of development forms (such as leapfrog and radial) suggestive of premature development, absence of poor accessibility among related uses, and achievement of a separation of rural and urban uses. Inconclusive indicators involve the protection of natural resources, agriculture, and open areas, the effective use of existing and future public facilities, and the discouragement of infill development. The commitment of FLUE Objectives 7.B, 7.E, and 7.F and FLUE Policy 2.E.1 to provide each public facility at its adopted LOS concurrent with new development is not compromised by either designation. A designation of Suburban Density Residential or Industrial is merely a future land use designation; it is not a development order. When Respondent issues a development order for the Industrial Parcel, the Plan's adequate concurrency provisions ensure that public facilities must be available at the time of the impacts of development. However, Petitioner correctly contends that concurrency is no substitute for the correlation or coordination of future land uses with the planned availability of public facilities. If Respondent's planning strategy were to rely on concurrency to time the issuance of development orders for the Parcel, then Respondent would be inviting a sudden and possibly catastrophic disruption of its real estate market and economy. At its worst, such a planning strategy would probably cause the plan to fail to achieve consistency with the criterion of financial feasibility, but Petitioner makes no such allegation in this case. On the present record, though, it is equally possible that Respondent will timely revisit its schedule of capital improvements in order to serve the Parcel with the necessary public facilities, such as roads, or Respondent may timely exact money from its taxpayers, the developers, or the ultimate purchasers through the wide variety of means available to fund infrastructure. In any event, Respondent's planning strategy for public facilities is not, to the exclusion of fair debate, internally inconsistent with the cited Plan provisions under the present circumstances, including the unambiguous requirements of the Plan's concurrency provisions, relatively small area involved (198 acres), economic likelihood in a tight market for industrial land that Respondent can exact from the developer and/or purchasers sufficient contributions to meet the demands of concurrency, and planned extension of central wastewater into the general area by 2005. Another distinguishing factor is that, according to Respondent's unrebutted analysis, only a worst-case development scenario would violate the traffic LOS standards and trigger concurrency. 2. Conservation Element Petitioner failed to prove to the exclusion of fair debate that the Plan amendment is inconsistent with Conservation Objectives C and J, and the policies supporting these objectives. Conservation Objective C is to ensure no net loss of natural wetlands or 100-year floodplain storage, and Conservation Objective J is to ensure the protection of the functions of the natural environment. The policies under these objectives are so vague as to be irrelevant. The focus in this case is not on the Plan itself, but on the Plan amendment; the sole question is therefore whether Petitioner has proved to the exclusion of fair debate that the redesignation from Suburban Density Residential to Industrial is inconsistent with objectives to ensure no net loss of natural wetlands or floodplain and to ensure the protection of the functions of the natural environment. As already noted, despite clear deficiencies in the Plan in its treatment of these natural resources, Petitioner has failed to prove how this redesignation negatively impacts any of these natural resources. 3. Traffic Circulation and Capital Improvements Elements For the reasons already discussed, Petitioner failed to prove to the exclusion of fair debate that the Plan amendment is inconsistent with TCE Objective B, the TCE policies supporting this objective, TCE Policy D.1, CIE Objectives 1, 2, and 3, or the CIE policies supporting these objectives. Inconsistency with Other Criteria Future Land Use Map Petitioner proved by a preponderance of the evidence that the Plan amendment is inconsistent with the criteria of depicting on the future land use map conservation uses (Rule 9J-5.006(4), Florida Administrative Code) and wetlands and floodplains (Rule 9J-5.006(2)(b), Florida Administrative Code). The FLUM does not depict any conservation uses or floodplains. As for wetlands, the FLUM, according to its legend, depicts only those larger than 40 acres. Placing these omissions in the context of the entire Plan does not alter this inconsistency finding. When not omitted, Plan provisions addressing natural-resources criteria are vague. Many of such Plan provisions repeatedly relegate to the land development regulations or delegate to federal, state, regional, or local agencies the responsibility for protecting wetlands and other natural resources. Especially for a relatively small municipality like Respondent, the entire FLUM must contain these required natural resources. Even if Respondent had added the missing natural resources to the 198-acre area subject to this amendment, the omission of these natural resources from the rest of the FLUM would have rendered the Plan amendment inconsistent with the criteria covered in this section. The requirement of depicting on the FLUM wetlands, floodplains, and conservation uses includes the requirement that FLUM graphically inform as to their size, scale, and proximity--relative to all other items required to be depicted on the FLUM and relative to the site that is the subject of a plan amendment. Provisions Protecting Wetlands and Floodplains Petitioner failed to prove by a preponderance of the evidence that the Plan amendment is inconsistent with the criteria of an objective ensuring the protection of natural resources (Rule 9J-5.006(3)(b)4, Florida Administrative Code), an objective protecting and conserving the natural functions of floodplains and wetlands (Rule 9J-5.013(2)(c)6, Florida Administrative Code), and a policy protecting wetlands (Rule 9J- 5.013(3), Florida Administrative Code). Although stronger Plan provisions protecting natural resources might have saved this flawed FLUM amendment, a FLUM amendment does not raise issues concerning the consistency of other Plan provisions, as such. As already noted, Conservation Objectives C and J ensure the protection of wetlands and floodplains and their natural functions. Although no policy provides effective protection of wetlands, this is a deficiency of the Plan, not the Plan amendment. The failure of the Plan to contain the required policy protecting wetlands does not affect the change in designations. 3. Urban Sprawl Petitioner failed to prove by a preponderance of the evidence that the Plan amendment is inconsistent with the criteria of supporting data and analysis because it fails to discourage urban sprawl, establish an efficient land use pattern, coordinate land uses with the availability of facilities and services, protect agriculture and natural resources, ensure a separation between urban and rural land uses, promote a mixed-use development or compact urban form, and avoid the designation of vast areas of single-use development, overallocation of Industrial land, and leap-frog development of rural areas at great distances from urban areas. Petitioner has alleged that the Plan amendment is inconsistent with the criteria of objectives to discourage urban sprawl (Rule 9J-5.006(3)(b)8, Florida Administrative Code) and to use innovative land development regulations and mixed uses (Rules 9J-5.006(3)(b)10 and (4)(c), Florida Administrative Code) and a policy to provide for the compatibility of adjacent land uses (Rule 9J-5.006(3)(c)2, Florida Administrative Code). Petitioner has alleged that the Plan amendment does not discourage urban sprawl (Rule 9J-5.006(5)(g)1, Florida Administrative Code). For the reasons already discussed, the Plan amendment is not inconsistent with these urban-sprawl provisions. 4. Transportation Facilities Petitioner failed to prove by a preponderance of the evidence that the failure to update the Capital Improvements and Traffic Circulation elements at the time of adopting the Plan amendment is inconsistent with the criteria of basing the Plan amendment on a land use suitability analysis (Rule 9J-5.006(2), Florida Administrative Code); including all of the required elements in a future land use map (Rule 9J-5.006(4), Florida Administrative Code) (except with respect to the omitted items already found to result in an inconsistency); basing the Plan amendment on data concerning needed transportation improvements (Rule 9J-5.016(1)(a), Florida Administrative Code); basing the Plan amendment on analysis concerning the fiscal implications of public-facility deficiencies and a prioritization of needed public facilities by type of facility (Rule 9J-5.016(2)(b), Florida Administrative Code); including objectives to use the capital improvements element to accommodate future growth (Rule 9J-5.016(3)(b)1, Florida Administrative Code), to coordinate land use decisions and available or projected fiscal resources with a schedule of capital improvements that maintains adopted level of service standards and meets the existing and future facility needs (Rule 9J-5.016(3)(b)3, Florida Administrative Code), to demonstrate the ability to provide or require the provision of the improvements identified as necessary elsewhere in the Plan and to manage the land development process so that public facility needs created by previously issued development orders or future development do not exceed Respondent's ability to fund and provide or require provision of the needed capital improvements (Rule 9J-5.016(3)(b)5, Florida Administrative Code); and to coordinate the transportation system with the FLUM and ensure that existing and proposed population densities, housing and employment patterns, and land uses are consistent with the transportation modes and services proposed to serve these areas (Rule 9J-5.019(4)(b)2, Florida Administrative Code); and including a policy to set peak-hour LOS standards to ensure that adequate facility capacity will be provided to serve the existing and future land uses (Rule 9J-5.019(4)(c)1, Florida Administrative Code). For the reasons already discussed, the Plan is not inconsistent with these provisions. Inconsistency with State Comprehensive Plan For the reasons already discussed, Petitioner failed to prove by a preponderance of the evidence that the Plan amendment is inconsistent with the cited provisions of the State Comprehensive Plan.
Recommendation It is RECOMMENDED that, pursuant to Section 163.3184(10), the Administration Commission enter a final order determining that the plan amendment is not in compliance due to the omissions of conservation uses, wetlands, and floodplains from the future land use map and the failure of the adoption ordinance to comply with Section 166.041(2), Florida Statutes. DONE AND ENTERED this 20th day of January, 1999, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 20th day of January, 1999. COPIES FURNISHED: Kathleen R. Fowler Assistant General Counsel David Jordan Deputy General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Kenneth W. Buchman City Attorney City of Plant City 212 North Collins Street Plant City, Florida 33566 Steven M. Seibert Secretary Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 100 Tallahassee, Florida 32399-2100 Barbara Leighty, Clerk Administration Commission Growth Management and Strategic Planning 2105 Capitol Tallahassee, Florida 32399
Findings Of Fact The Parties. Petitioner, the Environmental Coalition of Broward County, Inc. (hereinafter referred to as the "Coalition"), is a Florida corporation. The Coalition has offices located in Broward County. The Coalition has approximately 500 members, most of whom reside in Broward County. A substantial number of the Coalition's members own property in Broward County and/or operate businesses within Broward County. The Coalition is a not-for-profit corporation, chartered for educational and scientific purposes. The primary purpose of the Coalition is to present objections and recommendations to local governments concerning planning issues on behalf of its membership. The Coalition is authorized to participate in actions of this type and to represent its membership in administrative proceedings. The Coalition presented oral and written objections to Broward County during the review and adoption process concerning the plan amendment at issue in this proceeding. Respondent, the Department of Community Affairs (hereinafter referred to as the "Department"), is the state agency charged with the responsibility of implementing the Local Government Comprehensive Planning and Land Development Act, Chapter 163, Part II, Florida Statutes (hereinafter referred to as the "Act"). Among other things, the Department is required to review local government comprehensive plans and amendments thereto for compliance with the Act. Respondent, Broward County (hereinafter referred to as the "County"), is a political subdivision of the State of Florida. The County is the local government with the authority pursuant to the Act and the Broward County Charter to adopt and amend a comprehensive plan. The County has adopted the 1989 Broward County Comprehensive Plan (hereinafter referred to as the "Plan"). The Broward County Board of County Commissioners (hereinafter referred to as the "County Commission"), is the local planning agency for the County. The County Commission is advised on land use planning issues by the Broward County Planning Council (hereinafter referred to as the "Planning Council"). The Planning Council was created by the County Charter. Intervenors, Miramar Lakes, Inc., d/b/a Miramar Rock, Robert A. Whitcombe, Trustee, and the South Broward Trust own or have under contract virtually all of the property affected by the Plan amendment which is the subject of this proceeding. These Intervenors have entered into a joint venture agreement with Intervenor Atlantic Gulf Communities Corporation to develop the subject property. Intervenors applied for the amendment that is the subject of this proceeding and presented oral or written comments, recommendations and objections during the period of time between the transmittal hearing and adoption of the subject Plan amendment. The County's Plan. The County adopted a comprehensive plan as required by the Act in 1989. The planning horizon of the plan is 2010. The Plan includes two volumes of text, two volumes of support documents and associated maps. See Petitioner's exhibit 8. Volume One is text and is effective countywide. Volume Three contains support documents for the Plan. The Plan also includes the 1989 Broward County Future Land Use Plan Map (Series) (hereinafter referred to as the "FLUM"). The FLUM depicts the proposed distribution, extent and location of categories of land uses allowed under the Plan. Among others, those land uses include "residential" at various densities and "agricultural". Pursuant to the Plan, the eastern approximately one-third of the County may be developed. The developable area consists of approximately 400 square miles of land area. The western approximately two-thirds of the County are designated as water conservation areas and are separated by a levee from the developable one- third. Future land use elements of municipal comprehensive plans in the County must be in substantial conformity to the Plan. The Subject Property. The property which is the subject of the Plan amendment at issue in this case consists of 1,280 acres of a total of 1,965 acres (hereinafter referred to as the "Property"). The Property is located in the City of Miramar, in southwest Broward County, Florida, Sections 25, 26, 27 and 36, Township 51 South, Range 39 East. The Property is located in the southwestern portion of the developable one-third of the County. See Map 1 of Broward County exhibit 1. The Property is bounded on the east by S.W. 184th Avenue and on the north by Honey Hill Road. It is east of U.S. Highway 27. Part of the Property is vacant. Part of the Property is being used as cattle pasture and for a rock mining, batching, mixing and crushing operation. Existing land uses in the vicinity of the Property include vacant land, rock mining and some development to the north, single-family residential development to the east, rock mining and vacant land to the south, in Dade County, Florida. Residential development immediately to the east in a development known as "Silverlakes" is being developed at a density of three dwelling units per acre. Further to the west of the Property is the eastern boundary of the water conservation areas of the Everglades. These areas are separated from the rest of Broward County by a levee. The land use designation of the Property and other property in the surrounding area is "agricultural". Under the Plan, the land use designation allows agricultural uses and residential development of one dwelling per 2.5 acres. Under its current land use designation, a total of 786 dwelling units may be developed on the Property. The First Amendment Requested by the Intervenors. In early 1994 Intervenors filed an application with the County seeking an amendment of the FLUM to modify the future land use designation of all 1,965 acres of the Property to "Low (2) Residential". "Low (2) Residential" allows the development of two dwelling units per acre. The Planning Council conducted a review of the proposed amendment. The Broward County Department of Natural Resource Protection raised objections to the proposed amendment because the Property is located in an area of water recharge and wetlands. The area is identified as within a general wetlands area on the "Southwestern Generalized Wetlands Map" of the Plan. 30 Based upon the objections of the County Department of Natural Resource Protection, the staff of the Planning Council recommended denial of the proposed amendment. The South Florida Water Management District (hereinafter referred to as the "SFWMD"), an agency with broad regional responsibility for water management in southeast Florida, raised objections with the Planning Council concerning the location of the property in an area which was being considered for use as part of a project to restore the Everglades. The SFWMD was concerned that the Property is located within an area which has come to be known as the "East Coast Buffer". In early 1994, at the time of the initial review of the proposed amendment, the East Coast Buffer was a study area abutting the eastern water conservation areas of southeast Florida. The SFWMD was studying the East Coast Buffer for use in water conservation efforts in southeast Florida. At the time of the first review of the proposed amendment, the portion of the East Coast Buffer in which the Property is located was being considered for preservation as a reservoir site. The Planning Council transmitted the proposed amendment to the County Commission without recommendation. The County Commission decided not to transmit the proposed amendment to the Department for its review, ending review of the initial application. The Initial Review of the Subject Amendment. A second application on the Property was resubmitted by the Intervenors in March of 1994. The application was designated Application PC 94- 15. Application PC 94-15 sought an amendment of the FLUM to modify the future land use designation of all 1,965 acres of the Property to "Irregular 1.5 Residential". "Irregular 1.5 Residential" allows 1.5 dwelling units per acre. The amendment sought by Intervenors would have allowed an increase from 786 dwelling units to 2,947 dwelling units on the Property. An increase of 2,161 units. Application PC 94-15 was again reviewed. The same comments about, and objections to, the proposed amendment were raised concerning groundwater and aquifer recharge. The staff of the Planning Council again recommended denial of the proposed amendment. 41 The Planning Council recommended transmittal of the application, subject to the Intervenors satisfying the concerns raised by the SFWMD. On August 17, 1994, the County Commission transmitted Application PC 94-15 to the Department, conditioned upon the Intervenors satisfying the concerns of the SFWMD. The SFWMD objected to Application PC 94-15 because of its conclusion that the proposed future land use designation was not compatible with the East Coast Buffer then under evaluation by the SFWMD. SFWMD had developed data and conducted computer modeling concerning the utilization of a buffer for a variety of purposes, including reducing seepage of water from the Everglades, increasing groundwater recharge into aquifers and creating a natural buffer to protect the Everglades from the impacts of development. The SFWMD had commissioned a worldwide engineering firm, CH2M Hill to prepare a report on the East Coast Buffer. The SFWMD recommended that Application PC 94-15 not be approved until it had completed its study of the East Coast Buffer because the land use designation being sought might be incompatible with the conclusions reached from the SFWMD's and CH2M Hill's evaluation. The Department reviewed Application PC 94-15 and, based upon comments from the SFWMD similar to those raised before the County Commission, issued an Objections, Recommendations and Comments report concerning Application PC 94-15. The Department raised objections consistent with the adverse comments from the SFWMD. Modification of the Proposed Amendment. Parts of southwestern Broward County and northwestern Dade County were designated "Management Unit 5" by the SFWMD. Management Unit 5 was being considered, as recommended by CH2M Hill, as a reservoir area. Development of the Property was, therefore, not considered to be a use comparable with the concept of the East Coast Buffer being considered by the SFWMD at the time of the County's and Department's decision to reject Application PC 94-15. Intervenors worked with the SFWMD in an effort to find a way of modifying Application PC 94-15 to satisfy the SFWMD's concerns. SFWMD utilized computer modeling to simulate groundwater and surface water flows in Management Unit 5 to determine the impact of allowing development of the Property. The SFWMD concluded that Management Unit 5 was more suitable as a recharge area rather than as a reservoir. This conclusion was based, in part, of the transmissibility of the soil and other site conditions which were not conducive to storing water above ground for long periods of time. Use of Management Unit 5 as a recharge area and not a reservoir requires less surface area. Therefore, it was concluded that development in the area might be compatible with the SFWMD's East Coast Buffer concept. The SFWMD modeled four development alternatives for Management Unit 5 and analyzed the impact of each alternative on the efforts to retard seepage, provide groundwater recharge and enhance wetland benefits: (a) retaining the Property as a recharge area and allowing no development; (b) retaining the entire western two-thirds as a recharge area and allowing development of the eastern one-third; (c) retaining the western one-third as a recharge area and allowing development of the eastern two-thirds; and (d) allowing development of the entire management unit. Alternatives (b) and (c) assumed that a berm would be constructed between the recharge area and the developed area. After meeting with Intervenors and discussing the results of the modeling, Intervenors indicated willingness to remove the western portion of the Property from the proposed development. The SFWMD then conducted a more detailed, computer analysis of the following alternatives: (a) continuing existing conditions; (b) constructing a berm around Management Unit 5 and utilizing the entire area as a recharge area; (c) constructing a berm between the eastern and western sections of the Management Unit 5 and utilizing the western section for recharge with no development in the eastern section; and (d) alternative "(c)" with development of the eastern section. As a result of computer modeling of the alternatives, it was concluded that alternatives (b), (c) and (d) could significantly reduce seepage from the Everglades and increase groundwater recharge in to the aquifers when compared to development under the agricultural land use designation of alternative (a). As a result of the more detailed analysis, the SFWMD concluded that essentially all of its goals could be achieved for Management Unit 5 if the western section of Management Unit 5 is preserved even if development is allowed in the eastern section. The SFWMD concluded that the eastern two-thirds of the Property, consisting of approximately 1,280 acres, could be developed as "Irregular 1.5 Residential" if the western one-third, consisting of approximately 685 acres, was utilized as a recharge area. Intervenors agreed to preserve the western third of the Property (685 acres) and grant the SFWMD a flowage easement, consistent with the East Coast Buffer and at a savings of $43 million. On December 14, 1994, the staff of the SFWMD presented the results of the computer modeling to the SFWMD. On December 15, 1994, the SFWMD withdrew its objection to Application PC 94-15, conditioned upon the deletion of the 685 acres from the application and the granting of a flowage easement. The County and the Department were informed of the decision of the SFWMD. Approval of Application 94-15. On December 20, 1994, the County Commission adopted by Ordinance 94-55 an amendment to the Plan, Amendment PC 94-15 (hereinafter referred to as the "Amendment"), subject to the conditions suggested by the SFWMD, which resolved the SFWMD's objections. The Amendment included modifications to the FLUM and text amendments. The Amendment, in relevant part, modifies the future land use designation of approximately 1,280 acres of the Property from "Agricultural" to "Irregular 1.5 Residential". This will allow the construction of a total of 1,920 dwelling units on the Property, or an increase of 1,408 dwelling units over the number of dwelling that may be constructed under the current future land use designation for the Property. In light of Intervenor's modifications of the application, the removal of the SFWMD's objections and the approval of the application by the County, the Department found the Amendment to be in compliance with the Act. On February 14, 1995, the Department issued a notice of intent to find the Amendment in compliance. The County and the Department accepted and relied upon the data and methodology employed by the SFWMD and the conditions for removal of the SFWMD's objections. Petitioner's Challenge. On or about March 8, 1995, Petitioner filed a Petition for Formal Administrative Hearing with the Department challenging the Amendment. Petitioner filed an Amended Petition on April 25, 1995. At the commencement of the final hearing, Petitioner withdrew all issues it had raised in the Amended Petition except the issues of: (a) whether the data and analysis available supports a conclusion that there is a need for additional residential development; and (b) whether the Amendment is supported by data and analysis in light of an ongoing study of the East Coast Buffer. Residential Housing Need. The Plan includes the following Goal and Objective concerning the provision of adequate areas for residential use: Goal 01.00.00 Provide residential areas with a variety of housing types and densities offering convenient and affordable housing opportunities to all segments of Broward County's population while maintaining a desired quality of life and adequate public services and facilities. Objective 01.01.00 Accommodate the projected population of Broward County by providing adequate areas on the Future Broward County Land Use Plan Map (Series) intended primarily for residential development, but which also permit those non-residential uses that are compatible with and necessary to support residential neighborhoods. The Plan, including the methodology utilized to determine residential need, was found to be in compliance by the Department. The residential need methodology of the Plan utilized the Broward County Population Forecasting Model to project the population of southwest Broward County in 1994 to be 225,489 people. This projected population formed the basis for the allocation of residential housing units for Subregion 5 under the Plan. The Property is located in an area of southwest Broward County designated as Subregion 5 in the Plan. In reviewing the Amendment, the County conducted an analysis of the need for additional residential development in southwest Broward County. This analysis utilized, and was consistent with, the residential need methodology of the Plan. A summary of the data and analysis utilized by the County was provided to the Department. The County's analysis indicated that the population of Subregion 5 has exceeded the population projections for the Subregion of the Plan. By 1994, there were 284,361 people living in Subregion 5 or 17,872 more than projected in the Plan. The increased population rate of growth in Subregion 5 was projected to represent an increase in projected demand for approximately 6,847 residential units in excess of the projected demand expected under the Plan. The analysis also took into account amendments to the Plan which have resulted in a reduction of 1,087 residential units for Subregion 5. When combined with the increased population, the data and analysis supports a conclusion that there is a need for 7,934 additional residential units in Subregion 5. The Amendment increases residential housing in Subregion 5 by 1,134 dwelling units (1,920 units allowed under the Amendment, less 786 dwelling units allowed under the current agriculture classification), well below the projected need for additional residential units for Subregion 5. The data and analysis relied upon by the County and submitted to the Department supports the conclusion of the County that there is need for the proposed additional residential development approved by the Amendment. The data and analysis relied upon by the County and the Department was professionally acceptable and adequate to support the Amendment. The evidence presented by Petitioner failed to prove that the data and analysis relied upon by the County and the Department was not professionally acceptable and adequate. Rather than attempting to prove that the County's methodology was not professionally acceptable or was flawed, Petitioner utilized a methodology based upon an annualized population growth rate for Subregion 5. Petitioner offered evidence that there is sufficient residential housing approved under the Plan to meet the projected population for 15.6 years, beyond the remaining life of the Plan. The methodology utilized by Petitioner was, by the admission of the Petitioner's own witness, not a professionally acceptable methodology. The evidence failed to prove that the data and analysis relied upon by the County does not support its conclusion that there is sufficient need for the additional residential housing authorized for the County by the Amendment. The East Coast Buffer Zone. Efforts to restore the Everglades have been initiated and are ongoing. As a part of these efforts a group of technical and scientific staff members of various federal agencies involved in the restoration efforts were formed as the "Science Sub Group." The Science Sub Group was formed as an advisory group to provide guidance towards ecosystem restoration efforts. The Science Sub Group had no implementing authority. It issued at least one report in late 1993 which included an East Coast Buffer concept. The East Coast Buffer identified by the Science Sub Group included the area in which the Property is located. The Science Sub Group relied upon data obtained from the SFWMD and various computer models developed by the SFWMD, and SFWMD personnel contributed to the preparation of the report. The East Coast Buffer concept generally includes a series of interconnected water flow-ways along the eastern edge of the water conservation areas necessary to restore the Everglades. The federal government has also instituted a study known as the "Central & South Florida Project: Comprehensive Review Study" (hereinafter referred to as the "Restudy"). The United States Corps of Engineers is the lead agency of the Restudy. The first phase of the Restudy's efforts has resulted in a "Reconnaissance Report", also known as the "Recon Study". The second phase of the Restudy's efforts will be the feasibility phase. The feasibility phase will begin in the summer of 1995 and will be completed several years later. The purpose of the Restudy is to bring together the interested federal agencies to review the current management of the Everglades and identify strategies for altering management practices and systems to improve the Everglades. The Recon Study was completed in late 1994. It describes various conceptual strategies for restoring the Everglades. The determination of the feasibility of the strategies has not, however, been started, much less completed. Therefore, although the East Coast Buffer concept is considered in the Recon Study, the actual identification of the area which will constitute the Buffer has not been identified. Nor has the area which should constitute the East Coast Buffer been recommended in the Recon Study. The Recon Study identifies problems and opportunities, formulates alternative plans, evaluates conceptual alternative plans and recommends further study. The Recon Study is advisory. It does not identify, recommend or implement a plan of action. The Coalition presented evidence concerning the ongoing analysis of Everglades restoration efforts. That evidence proved that the Property is located within a very large area, which completely surrounds the Everglades, which is being considered as part of the Everglades restoration effort because of the impact of this large area on restoration efforts. The evidence presented by the Coalition, however, failed to prove that the Property has been, or will be, determined to be essential or even necessary for future Everglades restoration efforts. At the time of the approval of the Amendment and, even at the time of the final hearing of this case, no such determination had been made. Nor had any determination been made as to what will be necessary for the restoration of the Everglades or whether decisions will be made to carry out the necessary restoration efforts. As recognized by the Coalition in its proposed order: 52. The study necessary to make [a determination of the water levels needed] for the areas which are implicated by this amendment will be done in the next two years or three years. * * * 55. There is no way of telling, based on the data and analysis available at this point, how much water will be necessary in order to fully restore the Everglades. . . . Coalition proposed findings of fact 52 and 55. The Coalition also recognized the following: The Reconnaissance study has not reached the point where conclusions can be drawn about parcel specific uses. The next step is the feasibility planning phase, which is a much more detailed phase which will run for several years. . . . Coalition proposed finding of fact 107. Instead of attempting to prove that the data and analysis at the time of adoption of the Amendment indicated that development of the Property authorized by the Amendment would be detrimental to restoration efforts, the Coalition attempted to prove that development of the Property should be delayed until data and analysis is available indicating conclusively what the impact of development of the Property will be on restoration efforts. The Act does not require such delay. In addition to failing to prove what the impact of development of the Property will be on restoration efforts, the evidence presented by the Coalition also failed to prove that the conclusions reached by the Science Sub Group and the Restudy will even be implemented. The evidence presented by the Coalition failed to prove that the conclusions of the SFWMD with regard to the impact of the Amendment are not supported by data and analysis or were not arrived at by professionally acceptable methods. While the evidence proved that there will be some reduction in the amount of groundwater recharge function and seepage control function as a result of the Amendment, the evidence failed to prove what ultimate impact the reductions in recharge and seepage control will be or that the SFWMD's conclusions are not reasonable. While the Coalition proved that the SFWMD's conclusions were not based upon a consideration of what should be done to restore the Everglades, the evidence failed to prove that the information available was sufficiently conclusive that the SFWMD should have objected to the Amendment. The data and analysis relied upon by the County in approving the Amendment was collected and applied in a professionally acceptable manner. None of those agencies charged with responsibility to review the Amendment raised objections to its approval. The evidence failed to prove that the state of the data and analysis available to the County from the Science Sub Group and the Restudy or any other source concerning the area referred to as the East Coast Buffer and the Property is such that it proved that the data that was relied by the County upon was inadequate.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department dismissing finding the Amendment "in compliance" and dismissing the petition in this case. DONE AND ENTERED this 19th day of July, 1995, in Tallahassee Florida. LARRY J. SARTIN, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of July, 1995. APPENDIX The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Coalition's Proposed Findings of Fact Accepted in 1-2. Accepted in 2. 3-4 Accepted in 3. Accepted in 4. Accepted in 5 Accepted in 4. Accepted in 5. Accepted in 4-6. Accepted in 5-6. Accepted in 6. Hereby accepted. Accepted in 12 14-15 Not relevant. 16-18 Not relevant. See 81-84. 19-25 Not relevant and not supported by the weight of the evidence. See 81-84. Accepted in 29. Not supported by the weight of the evidence. Hereby accepted. Accepted in 26 and hereby accepted. 30-31 See 24. Accepted in 26. Accepted in 36 and 62. Accepted in 62. 35-41 Hereby accepted. 42-48 These proposed findings are generally correct. They are not, however, relevant to the ultimate determination in this case. 49-50 Too speculative. Not supported by the weight of the evidence. The first sentence is hereby accepted. The last sentence is not relevant. See 96. Not supported by the weight of the evidence and not relevant. Not supported by the weight of the evidence. The first sentence is accepted in 96. The last sentence is not relevant. Hereby accepted. 57-63 Too speculative. Not supported by the weight of the evidence. 64-65 Not relevant. Hereby accepted. Accepted in 89 and 91 and hereby accepted. Accepted in 90 and 92. See 86 and 92. Hereby accepted. Although generally true, the evidence failed to prove that this finding specifically applies to the Property. Except for the first sentence, not supported by the weight of the evidence. Hereby accepted. Accepted in 31-33. Not supported by the weight of the evidence. 76-87 Although generally correct, these findings were too broad and the evidence failed to prove that they specifically apply to the Property. 88-90 Although generally correct, these proposed findings are not relevant. Not supported by the weight of the evidence. Although generally correct, these proposed findings are not relevant. Too speculative. Not supported by the weight of the evidence. 94-97 Although generally correct, these proposed findings are not relevant. 98 Too speculative. Not supported by the weight of the evidence. 99-100 Not relevant. Hereby accepted. Not supported by the weight of the evidence. Although generally correct, these proposed findings are not relevant. 104-105 Not relevant. Too speculative. Not supported by the weight of the evidence. Accepted in 97. Accepted in 90. Too speculative. Not supported by the weight of the evidence. Not supported by the weight of the evidence. 111-114 Too speculative. Not supported by the weight of the evidence. The County's Proposed Findings of Fact 1 Accepted in 1. 2 Accepted in 7. 3 Accepted in 8. 4 Accepted in 11. 5 Hereby accepted. 6 Accepted in 12. 7 Accepted in 13. 8 Accepted in 14. 9 Accepted in 15. 10 Accepted in 9-10. 11 Accepted in 18. 12 Accepted in 16. 13 Accepted in 17. 14 Accepted in 61. 15 Accepted in 60. 16 Accepted in 19-20, 26 and 62. 17 Accepted in 23. 18 Accepted in 21-22 19-20 Accepted in 24. 21 Hereby accepted. 22 Accepted in 37. 23-24 Hereby accepted. 25 Accepted in 68. 26 Accepted in 65-67. 27-28 Accepted in 67. 29-30 Hereby accepted. 31-32 Accepted in 28. 33 Accepted in 29. 34 Accepted in 30. 35 Accepted in 34. 36 Accepted in 31 and hereby accepted. 37 Accepted in 32-33. 38 Accepted in 31. 39 Accepted in 33. 40 Accepted in 35. 41 Accepted in 316. 42 Accepted in 37. 43 Accepted in 39. 44 Accepted in 40. 45 Accepted in 41. 46 Accepted in 42. 47 Accepted in 72. 48-49 Hereby accepted. Accepted in 73-77 and hereby accepted. Accepted in 76-77. Accepted in 38. Accepted in 79-80 Accepted 58 and 62. 55-57 Hereby accepted. Accepted in 82. Hereby accepted. 60-61 Accepted in 81-84. 62 Hereby accepted. 63-65 Accepted in 46 and hereby accepted. Accepted in 43 and 45. Accepted in 88. Accepted in 89-90. 69-70 Accepted in 85-86. 71 Accepted in 90 and 92-93. 72-77 Hereby accepted. Accepted in 32 and 44. Hereby accepted. None proposed. Accepted in 33. Hereby accepted. Accepted in 50. Accepted in 51. Accepted in 49 and hereby accepted. Hereby accepted. 87-88 Accepted in 52. 89-90 Hereby accepted. Accepted in 53 and 58 and hereby accepted. Accepted in 54. Accepted in 56. Accepted in 58. 95-96 Accepted in 59. Accepted in 60. Accepted in 61. The Department's and Intervenors' Proposed Findings of Fact Accepted in 1. Accepted in 7. Accepted in 8. Accepted in 11. Hereby accepted. Accepted in 12. Accepted in 13. Accepted in 14. Accepted in 15. Accepted in 9-10. Accepted in 18. Accepted in 16. Accepted in 17. Accepted in 61. Accepted in 11 and 19-20. Accepted in 20. Accepted in 23. Accepted in 24-25. Accepted in 26. Accepted in 27. Accepted in 36-38. 22-37 Hereby accepted. Accepted in 43. Accepted in 88. Hereby accepted. Accepted in 31. 42-43 Accepted in 44. Accepted in 43 and hereby accepted. Hereby accepted. Accepted in 42. Accepted in 42 and 46. Accepted in 46 and hereby accepted. Accepted in 46. Accepted in 50. Accepted in 46. 52-53 Accepted in 48. Accepted 49. Accepted in 49, 52 and 54. Accepted in 50. Accepted in 51. Accepted in 54 and 57. 59-60 Accepted 54. 61-63 Accepted in 54 and hereby accepted. Accepted in 55. Accepted in 56-57. 66-67 Accepted in 58. 68-70 Accepted in 59. Accepted in 64. Accepted in 58 and 62. Accepted in 60 and 62. Accepted in 63. Accepted in 67. Hereby accepted. Accepted in 67 and hereby accepted. Accepted in 37 and hereby accepted. Not relevant. Accepted in 86. Hereby accepted. 82-83 Accepted in 86. Accepted in 87. Accepted in 89 and hereby accepted. Accepted in 90. Accepted in 90 and 92-93. Accepted in 93. 89-90 Hereby accepted. Not supported by the weight of the evidence. Accepted in 72-78. Accepted in 69-71. Accepted in 70. Accepted in 73-74 and hereby accepted. Accepted in 75. Accepted in 76. Accepted in 77. Accepted in 78. Accepted in 79-80. 101-102 Accepted in 82. Accepted in 83. Accepted in 83-84. Accepted in 81 and 84. COPIES FURNISHED: Linda Loomis Shelley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399 Dan Stengle, General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399 Brion Blackwelder, Esquire Jack Milbery, Esquire 8751 West Broward Boulevard, #206 Plantation, Florida 33324 Sherry A. Spiers Assistant General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Tracy Lautenschlager, Esquire Broward County Attorney's Office 115 South Andrews Avenue Suite 423 Fort Lauderdale, Florida 33301 Glenn Smith, Esquire Michael A. Cohn, Esquire Ruden, Barnett, McClosky, Smith, Schuster & Russell, P.A. 200 East Broward Boulevard Post Office Box 1900 Fort Lauderdale, Florida 33302 Honorable Gerald F. Thompson Chairman, Broward County Board of County Commissioners Governmental Center 115 South Andrews Avenue Fort Lauderdale, Florida 33301
The Issue Whether Comprehensive Plan Amendment 96-2 adopted by the County on September 24, 1996, is in compliance.
Findings Of Fact Based upon all of the evidence, including the stipulation of counsel, the following findings of fact have been determined: Background The parties Respondent, Sumter County (County), is a local government subject to the comprehensive land use planning requirements of Chapter 163, Florida Statutes. Respondent, Department of Community Affairs (DCA), is the state land planning agency charged with the responsibility of reviewing comprehensive land use plans and amendments made thereto pursuant to Part II, Chapter 163, Florida Statutes. Petitioners, T. D. Farnsworth, Russell E. Weir, Jack Burchill, Linda Latham, and Terry Forsman, own property and reside within Sumter County. Petitioner, Sumter Citizens Against Irresponsible Development, Inc. (SCAID), is an organization founded by a small group of citizens for the purposes of preserving the "rural lifestyle" of the county, preventing urban sprawl, and ensuring "that development will not be a burden to the taxpayers" of the County. Farnsworth is president of the group. By stipulation of the parties, Petitioners are affected persons within the meaning of the law and have standing to bring this action. Intervenor, Pringle Communities, Inc. (Pringle), is a Florida corporation and the potential developer of the subject property of this proceeding. Pringle submitted oral and written comments during the plan amendment review and adoption proceeding and thus has standing as an affected person to participate in this proceeding. The amendment On May 13, 1996, the County adopted plan amendment 96A01 by Ordinance No. 96-17. On November 7, 1996, the DCA published a Notice of Intent to find the amendment in compliance. Amendment 96A01 amended the Sumter County Comprehensive Plan's (the Plan) Future Land Use Map (FLUM) to revise the land use designations on approximately 510 acres of land. Specifically, the plan amendment converted the land use designation for the Pringle parcel from an Agricultural to a Planned Unit Development (PUD) land use, limited to 499 residential units. The plan amendment also revised the FLUM by extending the Urban Expansion Area to include the Pringle parcel and an adjacent parcel immediately to the north of the Pringle parcel, which had apparently been inadvertently omitted from the Urban Expansion Area in the final draft of the Plan. The data and analysis accompanying the amendment included a compatibility and land use suitability analysis, a soils analysis, an evaluation of urban sprawl related to issues, a preliminary environmental assessment, a population and housing analysis, a concurrency analysis, building permit information and analysis, and an analysis to ensure that the amendment was consistent with the adopted comprehensive plan. The data and analysis submitted up until the time the DCA issued its Notice of Intent to find amendment 96A01 in compliance, and at the final hearing, collectively demonstrate that the amendment is appropriate for the designated area. Is the Plan Amendment in Compliance? Petitioners have alleged the amendment is not in compliance for the following reasons: (a) the amendment fails to protect agricultural lands; (b) the amendment encourages urban sprawl; (c) the future land use map fails to reflect the goals, objectives, and policies of the Plan; (d) there is no demonstrated need for 510 acres of PUD land use; (e) the amendment does not demonstrate compatibility with adjacent agricultural and rural residential land uses; (f) the amendment does not provide for concurrency for adopted levels of services pursuant to the Plan; (g) the amendment does not comply with stormwater and drainage requirements of the Plan; (h) the amendment fails to satisfy the capital improvements element of the Plan; and (i) affordable housing needs are not met. These contentions will be discussed separately below. Protection of agricultural lands Under the amendment, 510 acres of land designated on the FLUM as agricultural land use will be converted to urban type uses. Petitioners contend that the amendment fails to protect agricultural land as required by Plan Objective 7.1.2 and Rule 9J-5.006(5)(g)5., Florida Administrative Code. The cited objective "establishes agriculture as the primary use outside of the urban expansion area" and "insure(s) retention of agricultural activities." If the plan amendment fails to adequately protect adjacent agricultural areas, the cited rule considers this failure to be one of the thirteen primary indicators that the amendment does not discourage the proliferation of urban sprawl. The rule and objective do not prohibit the conversion of agricultural lands to urban uses. Indeed, Plan Objective 7.1.2 and the corresponding policies allow for the conversion of suitable agricultural lands as the need for additional urban land is demonstrated. The policies also require that the conversion be done in a well planned, orderly, and logical fashion based on need and suitability. The agricultural lands being converted to urban land uses as a result of the plan amendment are appropriate for conversion. The Plan designates the Pringle parcel as an area appropriate for urban development. This determination was based on an extensive analysis of various factors including soil suitability, environmental constraints, and other planning criteria such as proximity to existing urbanized areas. In fact, the Plan contains a series of maps which specifically locate agricultural areas appropriate for conversion to urban uses, and the Pringle parcel is located within such designated areas. The evidence establishes that the conversion of agricultural land contemplated by the plan amendment was justifiable because of the extent of urban development already existing in the area and the requirement within the Plan that infrastructure be in place concurrent with development. In addition, future populations will be directed away from the remaining agricultural lands throughout the County and to the development proposed by the plan amendment. The open space required by the PUD will also serve to buffer and ensure compatibility of land covered by the plan amendment and the adjacent agricultural and rural lands. Because Rule 9J-5.006(5)(g)5., Florida Administrative Code, deals exclusively with "adjacent" agricultural land, the conversion of any agricultural uses on the Pringle parcel is not relevant to the cited rule. The Plan requires the County to retain a minimum of ninety percent of its land area in rural (agriculture, timberland, and vacant) and conservation land use. The County has no "mining" zoning or land use designation, but includes mining as an agricultural use. Including the land covered by mining permits in the County, more than ninety percent of the County's land area is maintained in rural (agriculture, timberland, and vacant) and conservation land use, even after the adoption of the amendment. In view of the above, Petitioners have not shown to the exclusion of fair debate that the plan amendment fails to protect agricultural land, either on or adjacent to the Pringle parcel. Urban sprawl In the same vein, Petitioners contend that the amendment fails to discourage urban sprawl because it converts 510 acres of agricultural land to urban uses. In support of this contention, they cite a number of provisions within Chapter 9J-5, Florida Administrative Code, all dealing with urban sprawl, which have allegedly been violated. Petitioners also allege the multiplier for the plan amendment is in excess of 1.25, which is an indicator of urban sprawl, and no future public facilities and services are planned for the lands covered by the amendment prior to its adoption. The plan amendment includes an evaluation of urban sprawl. That evaluation references Plan Policy 7.1.2.5(a), which was adopted by the County specifically as a mechanism for discouraging urban sprawl. A review of that policy indicates that, for a PUD to be allowed in an agricultural land use area, it must score at least 50 points, applying a point system based on factors including, but not limited to, proximity to the urban expansion area, proximity to urban services, including water, sewer, and roads, and proximity to other services such as fire protection and emergency medical services. If a proposed amendment or PUD fails to score 50 points, it is deemed to encourage urban sprawl and would not be approved by the County. Amendment 96A01 scored 100 points, well in excess of the 50-point threshold. While the point system does not apply directly because the amendment alters the Urban Expansion Area to include the Pringle parcel, it is evidence that the amendment does not fail to discourage urban sprawl. In addition to satisfying Plan Policy 7.1.2.5.(a), the plan amendment is consistent with Future Land Use maps VII-18a and VII-18c, which are the future land use constrained area overlay and urban sprawl evaluation overlay, respectively. As the Plan data and analysis indicate, these maps were prepared for the purpose of directing urban development into areas most suitable for such development. Map VII-18a demonstrates that the land included in the plan amendment has only slight limitations in regard to urban sprawl. If the amendment allows a strip development, this is another of the thirteen primary indicators that an amendment may fail to discourage urban sprawl. The evidence shows, however, that the subject property is not a strip development because it is not a linear development that runs parallel to a highway. Finally, the PUD mixed land use category adopted by the plan amendment is a planning method specifically recognized by Rule 9J-5.006(5)(1), Florida Administrative Code, as a method of discouraging urban sprawl. Indeed, the rule provides in part that: mixed use development . . . will be recognized as [a method] 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. Because the PUD adopted by the amendment is designed to provide a mix of land uses, the amendment does not fail to encourage an attractive and functional mix of uses. Given the above, it is found that Petitioners have not shown to the exclusion of fair debate that the plan amendment encourages urban sprawl. Demonstrated need and adequate data Petitioners allege the plan amendment "fails to provide demonstrated need" as required by various provisions within Chapter 9J-5, Florida Administrative Code. They further allege amendment 96A01 "is not based upon adequate surveys, studies, or data regarding the amount of land needed to accommodate anticipated growth." Initially, it is noted that the data and analysis in the plan are not subject to the compliance review process. Section 163.3177(10)(e), Florida Statutes, authorizes the DCA in a compliance review to determine only if the plan or plan amendment is based on appropriate data and analysis and whether the data was collected in a professionally acceptable manner. Planning methodologies used in analysis of the data, such as the calculation of a multiplier, must also be prepared in a professionally acceptable manner. Demonstrated need is only a subset of one of the thirteen primary indicators that an amendment or plan may fail to discourage urban sprawl. Rule RJ-5.006(5)(g)1, Florida Administrative Code, lists as one of the thirteen indicators whether the amendment: [p]romotes, 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. (Emphasis added) The thirteen primary indicators are evaluated as a whole, not as a "one strike and you're out" list, to determine one aspect of compliance -- whether the amendment fails to discourage the proliferation of urban sprawl. "Multipliers" are a planning tool generally utilized by professional planners to aid in determining the need for additional allowable densities. Multipliers are generally expressed as a percentage or ratio of the estimated population in a given time period compared with the total residential units allowed by the comprehensive plan. For example, a multiplier of 2.0 would mean that, over the particular planning time frame, there existed twice as many residential units allocated as the population projections estimated would be utilized. At hearing, Petitioners raised issues concerning the methodology used in calculating the County's residential land use allocation multiplier and contended (a) seasonal population and planned federal prison expansions contained within the approved Plan were in error and therefore should not be used to support the amendment; (b) the agricultural land use acreage should be included in the multiplier calculation; and (c) the PUD maximum allowable density of eight units per acre should be used to calculate the multiplier rather than the approved density of just under one unit per acre. The preparation of the multiplier in issue came as a result of the DCA's Objections, Recommendations, and Comments (ORC) report and preparation for the hearing in this matter. The ORC report recommended that the County provide data and analysis which demonstrated that the land use change requested in the plan amendment was based on the amount of additional land needed to accommodate the projected population. Based on historic data, the County utilized a multiplier which had been calculated in 1995 in Case No. 94-6974GM, judicial recognition of which was taken in this hearing. In that case, the multiplier depicted the allocation of residential land countywide. The multiplier was 1.87, which means that the County allocated residential land uses approximately eighty-seven percent above its demonstrated need for the planning period. The evidence shows that, in order to allow some degree of development flexibility, a local government will routinely allocate more land than is actually needed. Indeed, a multiplier of 1.87 is low when compared to the other multipliers found in compliance in adjacent local governments as well as in other local governments statewide. In an effort to provide a more accurate multiplier, prior to the hearing, utilizing data available when the amendment was adopted, the County recalculated the multiplier and determined the updated multiplier to be 1.3. The County's calculation of a multiplier excludes agricultural land from consideration, in order to protect agricultural lands as required by the Plan. In some rapidly urbanizing jurisdictions vacant land labeled agricultural or rural on a future land use map may simply be future development land. However, the County has as one of its primary land use goals to protect agricultural land. To include agricultural land use acreage in the multiplier calculation could lead to an under- allocation of density which would jeopardize agricultural land by encouraging development in the very areas the plan is designed to protect. The DCA has utilized multiplier calculations in other counties that do not include agricultural lands. Therefore, because of the unique situation of the County and its land use plan's emphasis on protecting agricultural land, in this case it is professionally acceptable to exclude agricultural land from the multiplier calculation. In the County, PUD is a land use category rather than merely a zoning category as in many other jurisdictions. The effect of that designation is to limit the density of the development by land use designation to 499 units. Any increase in the density or intensity of the development would require a land use plan amendment. Consequently, when calculating the multiplier, the density approved for this PUD (499 units) should be utilized rather than the PUD maximum allowable density of eight units per acre. Petitioners developed a multiplier of their own of 4.1. However, they failed to show that the County's multiplier was not developed in a professionally acceptable manner. Intervenor's marketing scheme for its residential developments is directed at persons moving to Florida from other states. Intervenor plans to use the same marketing scheme for the Pringle parcel, and most residents are not expected to be from the County. The proposed development, along with the Villages development in the northeast section of the County, which is subject to age restrictions which limit its availability to families, is a new type of development for the County. This new population was not taken into account in the original comprehensive plan which also had a low multiplier. Therefore, the need for residential allocation for this new population was not addressed. Between 1992 and 1996, the federal prison facility located near the Pringle property hired new employees, many of whom relocated from outside the area. However, the vast majority of these immigrants located outside of the County because of a lack of available appropriate housing. The federal prison facility is to be expanded in the near future, with the next phase to employ approximately 250 new employees. This expansion has already been funded by the federal government. Although the federal prison and its expansions were contemplated as part of the Plan adoption process, the impact of the federal prison and its expansions were not included in the population projections as calculated in the Plan. The seasonal population of the County was not included in the Plan's population projection. Rule 9J-5.005(2)(e), Florida Administrative Code, requires both resident and seasonal population estimates be used to determine population estimates for plan and plan amendment purposes. Therefore, the seasonal population estimate and the impact of the federal prison should be included in determining need. Given these considerations, Petitioners have not shown to the exclusion of fair debate that the plan amendment was not based on a demonstrated need, or was not adequately supported by data and analysis. Compatibility with adjacent agricultural lands Petitioners have also alleged the County has not demonstrated compatibility with adjacent agricultural and rural residential land uses. The Plan allows for the well planned conversion of agricultural lands in the County. One of the requirements of the Plan's PUD provisions is that PUD development be buffered from adjacent lands and contain open space. The purpose of this provision is to ensure compatibility. A review of the PUD application and Master Development Plan, both incorporated into the plan amendment, shows that the Pringle development will provide approximately 225 acres of open space. Much of this open space, as required by the Plan, will act as a buffer between the development and the adjacent agricultural and rural land uses. The project will also cluster its development, which serves to separate the more urban development from the adjacent agricultural and rural uses. In view of these considerations, it is found that Petitioners have not shown to the exclusion of fair debate that the plan amendment is incompatible with adjacent agricultural land uses. Level of services In their Petition, Petitioners assert that amendment 96A01 violates Plan Objective 7.1.6, Policy 7.1.6.1, Objective 8.1.1, and Policy 8.1.1.1, Rules 9J-5.005(3), 9J-5.011(2)c., and 9J-5.015(3)(b)1., Florida Administrative Code, and Section 187.201(16)(b)6., Florida Statutes, pertaining specifically or generally to levels of service for recreational facilities, schools, fire protection, emergency medical services, stormwater, and flooding. The stated policies and rules require adoption and adherence to specific levels of service prior to development of land. The amount of facilities required is based on population. Under the Plan, the County must take the necessary steps to insure the availability of these facilities. The development order in this case also requires the developer to provide for adequate public facilities. Petitioners offered no testimony, exhibits, or evidence regarding the following: Plan Objective 7.16, as alleged in paragraph 15.F. of their petition; Objectives 4.4.1, 4.5.1, and 4.5.2, and Policies 4.4.1.1, 4.4.1.2, 4.4.1.3, 4.5.1.2, and 4.5.2.1, as alleged in paragraph 15.G of their petition; Objective 8.1.1, as alleged in paragraph 15H of their petition; and Objective 1.3.5, as alleged in paragraph 15.I of their petition. Petitioners also specifically stated they are not contesting any issues regarding flooding. In view of this lack of presentation of evidence, Petitioners have failed to show to the exclusion of reasonable debate that the plan amendment is inconsistent with any of the above Plan Objectives and Policies.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Community Affairs enter a Final Order determining Plan Amendment 96-2 adopted by Sumter County by Ordinance Number 96-17 on September 24, 1996, to be in compliance. DONE AND ENTERED this 26th day of February, 1998, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 26th day of February, 1998. COPIES FURNISHED: James F. Murley, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Jane M. Gordon Environmental and Land Use Law Center 3305 College Avenue Fort Lauderdale, Florida 33314 T. Daniel Farnsworth 12364 County Road 223 Oxford, Florida 34484 Kathleen R. Fowler, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Felix M. Adams, Esquire 236 North Main Street Bushnell, Florida 33513-5928 Jimmy D. Crawford, Esquire Post Office Box 492460 Leesburg, Florida 34749-2460 Stephanie Gehres Kruer, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100
The Issue The issues to be determined in this case are whether the amendments to the City of Edgewater’s Comprehensive Plan, adopted by Ordinance No. 2008-O-10, and revised in part by the remedial amendments in Ordinance Number 2010-O-01 (“Plan Amendments”), are “in compliance,” as that term is defined in Section 163.3184(1)(b), Florida Statutes (2009).1/
Findings Of Fact The Parties The Department is the state land planning agency and is statutorily charged with the duty to review comprehensive plan amendments and to determine whether amendments are “in compliance,” as that term is defined in Section 163.3184(1)(b), Florida Statutes. The City is a municipality in Volusia County and has adopted a comprehensive plan that it amends from time to time pursuant to Chapter 163, Part II, Florida Statutes. Hammock Creek is a Delaware limited liability company registered with the State of Florida. It owns the property that is the subject of the Plan Amendments. Through its representatives, Hammock Creek submitted comments to the Edgewater City Council at the transmittal and adoption hearings for the Plan Amendments. Petitioner Richard Burgess resides in the City, owns real property in the City, and operates a business in the City. At the public hearings on the original amendment package adopted by Ordinance No. 2008-O-10, Petitioner made comments on behalf of Edgewater Citizens Alliance for Responsible Development, Inc. (ECARD), as its vice-president. ECARD was an intervenor in this proceeding, but voluntarily dismissed its petition before the final hearing. Petitioner submitted written comments on his own behalf at the adoption hearing for the remedial amendments adopted by Ordinance No. 2010-O-01. The Plan Amendments The Plan Amendments create a new land use category, the Restoration Sustainable Community Development District (“Restoration SCD”), which is described in a new Restoration SCD Sub-Element of the FLUE: The Restoration SCD is the result of a conscious planning approach based on the most current New Urbanist research and advanced practices. The compact development pattern is designed to and shall provide for a diverse community with distinct place types and multiple experiences that are appealing to residents, employees, and visitors. It shall provide for walkability, a broad range of inclusive household demographics, the ability to connect the community directly to a natural experience, transit ready design, and a high level of environmental stewardship and planning. * * * In order to facilitate this vision, the City shall recognize that density is important to the restoration SCD outcome, but no more important than the mixing of uses, the development of a diverse population through the provision of housing choice and employment centers, the connection of streets and the design of structures and spaces on a human scale. The Restoration SCD land use category applies to 5,187 acres of land on the west side of Interstate 95 that are owned by Hammock Creek. The Restoration SCD site is not currently being used, but in the past was used for silviculture. The Restoration SCD site was annexed into the City in 2005, but is being assigned a future land use designation for the first time. The Volusia County land use categories for the property are Environmental Systems Corridor, which allows a maximum residential density of one unit per 25 acres, and Forestry Resource, which allows a maximum residential density of one unit per 20 acres, or up to one unit per five acres with clustering. The Restoration SCD Sub-Element includes the Restoration SCD Conservation/Development Areas Map, which divides the site into three areas: Conservation, SCD Conservation/Restoration, and SCD Community Development. The SCD Community Development area is also referred to as the “Build Envelope” because it is the only area where development can occur. The Build Envelope is approximately 25 percent of the total land area. At least 50 percent of the Restoration SCD site is required to be permanently protected open space. The SCD District is integrally related to a Development of Regional Impact (DRI) proposed for the lands that are the subject of the Plan Amendments. The Resolution SCD includes several of the development controls listed in Florida Administrative Code Rule 9J- 5.006(5)(j) which discourage urban sprawl, including: open space requirements; clustering; the establishment of minimum development density and intensity; phasing of urban land use types, densities, and intensities; traditional neighborhood development form; buffering; planned unit development requirements; restriction of the expansion of the urban area; and jobs-to-housing balance requirements. Edgewater is a relatively old Florida City that was developed with strip commercial along the highway and other development forms that were typical before the enactment of Chapter 163 and the requirement for comprehensive planning. The Restoration SCD introduces modern development principles and forms. Within each element of the City’s Comprehensive Plan, there are data and analysis summaries. There is also a separate section entitled “Population Projections.” The Plan Amendments revise or add information to some of these data and analysis summaries. The Plan Amendments also include some “housekeeping” changes that delete obsolete portions of the Comprehensive Plan and extend several planning horizons in the plan from 2010 to 2020. Mixed Uses Petitioner contends that the Restoration SCD lacks adequate policies to implement the types of land uses allowed, the percentage distribution among the mixed uses, or other objective measurement, and the density or intensity of each use as required by Rule 9J-5.006(4)(c). Restoration SCD is the future land use designation for the entire site. Policy 3.1.1 describes seven subcategories of uses within Restoration SCD: Residential, Mixed-Use Town Center, Work Place, Transit-Ready Corridor, Utility Infrastructure Site, Schools, and Open Space. Various policies of the Restoration SCD Sub-Element establish minimum and maximum percentages for the subcategories of uses. Table I-4 in the Plan Amendments shows the various land uses, their densities and intensities, and their acreages. The Restoration SCD land use designation has an overall residential density cap of 8,500 residential units and a non-residential intensity cap of 3,300,000 square feet. Policy 7.1.1 ensures a continuing balance of residential and non-residential development by tying the number of residential building permits that can be issued to the square footage of non-residential development that has been constructed. For example, residential units cannot exceed 1,500 until 180,000 square feet of non-residential uses have been constructed. Format Petitioner contends that the Plan Amendments are not consistent with the format requirements of Rule 9J-5.005(1) because the sources, dates, and other information associated with tables, figures, and other materials included in the Plan Amendments are not identified. Exhibit A to the new Restoration SCD Sub-Element does not show a source, preparation date or name of the preparer. FLUE Table I-3 shows a source and name of the preparer, but not a preparation date. FLUE Table I-4 shows a source, a preparation date, and name of the preparer. Within the Population Projections section of the Comprehensive Plan, Table P-1 shows a source, but not a preparation date or name of the preparer. Table P-2, Figures P-1 and P-2, and Tables P-3 through P-5 do not show sources, preparation dates, or names of the preparers. Tables P-6 and P-7 show sources and names of the preparers, but no preparation dates. Table P-9 does not show a source, preparation date, or name of the preparer. Within the Housing Element, Tables III-13 through III- 15 and Tables III-17 through III-20 show sources and names of the preparers, but no preparation dates. The tables and figures that Petitioner objects to are included in the Comprehensive Plan as supporting data and analysis. They are not parts of goals, objectives, or policies. Rule 9J-5.005(2)(e) requires that maps include major natural and man-made geographic features and city and county boundaries. The Resolution SCD Conservation/Development Areas Map does not show geographic features or government boundaries. There are other maps in the FLUE that show natural and man-made geographic features and city and county boundaries. Policies 1.1.1 and 3.1.1 refer to Map “H”, which is part of the DRI Development Order. Petitioner objects to the omission of Map “H” from the Comprehensive Plan. The Director of the Department’s Division of Community Planning stated that it is not the practice of the Department to treat a format error or omission as requiring a determination that a plan amendment is not in compliance. Adoption by Reference Petitioner contends that the Plan Amendments adopt regulations and other materials by reference, but not in accordance with Rule 9J-5.005(2)(g), which requires that the reference “identify the title and author of the document and indicate clearly what provisions and edition of the document is being adopted.” Petitioner asserts that the following provisions include inadequate adoptions by reference: Policy 1.1.1, Policy 3.1.1, Objective 4.1, Policy 4.1.3, Policy 4.1.7, Policy 4.1.11, Goal 5, Policy 6.1.1, Policy 8.1.4, Policy 9.1.1, Policy 10.1.1, Policy 11.1.1, Policy 11.1.4, and Policy 12.1.6. Policies 1.1.1 and 3.1.1, Objective 4.1, and Policies 4.1, 4.1.3, 4.1.7, and 4.1.11 refer to state, regional, and federal laws or regulatory programs, but they do not purport to adopt these laws and programs by reference. The purpose of these provisions is not for the City to apply or have any role in the regulatory process or decision-making associated with the referenced laws and programs. The wording of these provisions is consistent with the City’s assertion that its intent is merely to provide notice of related permitting programs with which the developer will have to comply. Goal 5 refers to New Urbanism and other land use design principles as described in the literature of the Congress of New Urbanism, the Urban Land Institute and similar organizations, but the goal does not purport to adopt this literature by reference. The goal states that design policies will be adopted by the City in the future. No specific design principles are adopted, by reference or otherwise, in Goal 5. Policy 6.1.1 refers to affordable housing and defines the term as a percentage of Volusia County’s Average Median Income. The policy does not purport to adopt any materials by reference. Policies 8.1.4 and 11.1.1 refer to design principles which are to be adopted in the future. The policy does not purport to adopt this literature by reference. No specific design principles are adopted, by reference or otherwise, in Policies 8.1.4 or 11.1.1. Policy 9.1.1 addresses school concurrency and refers to a Capacity Enhancement Agreement (“CEA”) entered into by the City, the developer, and the Volusia County School Board to ensure that schools are timely planned and constructed to serve the student population. The policy does not purport to adopt the CEA by reference. Petitioner did not show that the CEA is not self-executing. Policy 10.1.1 refers to “green” development practices that meet the certification programs of the United States Green Building Coalition or the Florida Green Building Code, which will be incorporated into the DRI Development Order. The policy does not purport to adopt these certification programs by reference. No specific green design practices are adopted, by reference or otherwise, in Policy 10.1.1. Policy 11.1.4 refers to vehicle trips as calculated by the Institute of Transportation Engineers Trip Generation Manual. This is the standard manual used by all traffic engineers. The policy does not purport to adopt the manual by reference. Planning Timeframes Petitioner contends that the Plan Amendments cause the Comprehensive Plan to be internally inconsistent because there are different planning horizons in the Plan. The Plan Amendments extend several planning horizons to 2020, but the planning horizon in the Recreation and Open Space Element remains 2010, the water supply work plan has a planning horizon of 2018, and the Public School Facilities Element has a planning horizon of 2025. Petitioner did not identify an adverse effect created by the different planning horizons. The City is currently preparing its Evaluation and Appraisal Report (EAR)-based amendments. The EAR process is statutorily mandated, periodic review and update of the entire Comprehensive Plan. It is the logical process for reviewing and revising planning horizons in the plan. Conservation Element and Housing Element Data Petitioner contends that the support documentation that is included as part of the Conservation Element is not the best available data. However, Petitioner did not produce better data, except for the Florida Fish and Wildlife Conservation Commission’s more recent listed species rules, or show how better data do not support the Plan Amendments. Similarly, Petitioner contends that some of the support documentation that is included as part of the Housing Element is not the best available data. Petitioner did not produce better data or show how better data do not support the Plan Amendments. Need Petitioner contends that the best available data do not show a need for the residential and nonresidential land uses allowed by the Plan Amendments. The Population Projections section in the Comprehensive shows a projected City population of 34,481 by 2020. The Department determined that the 2020 population forecast was reasonable. It is not the practice of the Department to require local governments to update their population projections every time an amendment is adopted. The 2020 population projection is derived from forecasts of the University of Florida’s Bureau of Business and Economic Research BEBR. BEBR forecasts county populations, from which city population projections must be extrapolated. BEBR frequently under-forecasts population growth for cities. BEBR forecasts do not account for localized factors that can change the attractiveness of a particular area to prospective new residents and, therefore, stimulate population growth. Applying an “allocation factor,” the Department determined that the number of residential units allowed by the Plan Amendments was reasonably in line with the 2020 forecast. An allocation factor is a multiplier applied to account for factors that prevent the full or efficient use of densities allowed by a FLUM. In addition, population projections are not the sole consideration in determining the need for a plan amendment. In the case of the Restoration SCD, higher densities and intensities are necessary as a part of the intended development form. Higher densities and intensities are also necessary to achieve the objectives of Section 163.3177, Florida Statutes, including the encouragement of transit-oriented and energy-efficient communities. A need analysis for non-residential land uses in the Resolution SCD was not conducted by the City because the non- residential uses are intended to serve and be integrated with the residential uses, and are required to be developed in pace with the residential development. The Department found this approach acceptable.
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 the amendments to the City of Edgewater’s Comprehensive Plan, adopted by Ordinance No. 2008-O- 10 and revised by Ordinance Number 2010-O-01, are “in compliance.” DONE AND ENTERED this 27th day of July, 2010, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of July, 2010.
