The Issue The issues to be determined in this case are whether the amendments to the Martin County Comprehensive Growth Management Plan (CGMP) adopted by Ordinance Nos. 843, 845 (as amended by Ordinance No. 847), 846, 847, 851, 853, and 854 are “in compliance” as that term is defined in Section 163.3184(1)(b), Florida Statutes.1/
Findings Of Fact The Parties The Department is the state land planning agency and is charged with the duty to review comprehensive plan amendments and to determine whether they are “in compliance,” as that term is defined in the Section 163.3184(1), Florida Statutes. Martin County is a political subdivision of the State of Florida and has adopted a comprehensive plan that it amends from time to time. Groves Holdings, LLC, is a Florida limited liability company. Groves Holdings, LLC operates a real estate management and investment business in the County that manages the leasing, entitlement, and disposition of lands owned by its related subsidiaries Groves 12, LLC, and Groves 14, LLC. Groves 12, LLC, and Groves 14, LLC, are Florida limited liability companies wholly owned by Groves Holdings, LLC. Groves 12, LLC, owns 2,800 acres of citrus grove. Groves 14, LLC, owns 1,700 acres of land being developed as a residential community and equestrian club known as Hobe Sound Polo Club. The land owned by Groves 12, LLC, is located in the rural area of the County, approximately one mile from the closest boundary of an urban service district. The land being developed by Groves 14, LLC, is also located in the rural area. Groves 14, LLC, also owns 450 acres not being developed that are located partially within the rural area and partially within an urban service district The Groves submitted written comments regarding the Plan Amendments to the County during the period of time beginning with the transmittal hearing and ending with the adoption of the Plan Amendments. Donna Melzer and Eliza Ackerly each owns real property in and resides in Martin County. Melzer and Ackerly each submitted comments regarding the Plan Amendments to the County during the period of time beginning with the transmittal hearing and ending with the adoption of the Plan Amendments. MCCA is a not-for-profit Florida corporation incorporated in 1997 for the purposes of conserving the natural resources of Martin County, and maintaining and improving the quality of life for residents of the County. Its members include individuals and corporate and non-corporate entities. A substantial number of its members reside, own property, or operate a business in Martin County. MCCA engages primarily in lobbying, public advocacy, and litigation in Martin County regarding the CGMP. MCCA conducts membership meetings, sends a newsletter to members and others, and sometimes hosts meetings open to the general public. MCCA is also involved in environmental preservation activities in Martin County, including educational meetings, field trips, and lobbying for public purchase of lands for conservation. No evidence was presented to show that MCCA owns property in the County, maintains an office in the County, or holds a business or occupational license. MCCA submitted comments to the County regarding the Plan Amendments, on behalf of its members, during the period of time beginning with the transmittal hearing and ending with the adoption of the Plan Amendments. Hereafter, MCCA, Donna Melzer, and Eliza Ackerly will be referred to collectively as MCCA. The Plan Amendments Section 163.3191(1), Florida Statutes, requires each local government to conduct an evaluation and appraisal of its comprehensive plan every seven years and to prepare an Evaluation and Appraisal Report (“EAR”). Martin County initiated its second evaluation and appraisal process in 2007, culminating in the adoption of an EAR in July 2008. Section 163.3191(10), Florida Statutes, requires a local government to adopt comprehensive plan amendments based on the recommendations in the EAR in a single amendment cycle within 18 months after adopting the EAR. The County’s proposed EAR-based amendments were sent to the Department in September 2009. The Department issued its Objections, Recommendations, and Comments (“ORC”) Report the next month. After considering and responding to the ORC Report, the County adopted Ordinance Nos. 842 through 856 on December 16, 2009, amending all the elements of the CGMP. The Department reviewed the Plan Amendments and determined that a new “Essential Services Nodes” policy of the FLUE adopted by Ordinance No. 845 was not in compliance. The Department determined that all of the other amendments adopted by Martin County were in compliance. The County adopted Ordinance No. 857, which rescinded the Essential Services Nodes policy to which the Department had objected. The decision to rescind the policy was made unilaterally by the County. The rescission was not pursuant to a compliance agreement with the Department. Based on the County’s rescission of the Essential Services Nodes policy, the Department determined that Ordinance No. 845, as amended by Ordinance No. 857, was in compliance. All of the Plan Amendments are text amendments. The Future Land Use Map (“FLUM”) is not changed. Urban Service Districts The CGMP establishes urban service districts (USDs) in the County. There is an Eastern USD and an Indiantown USD. These USDs are subdivided into a primary USD and a secondary USD. About 87 percent of the County’s population resides east of the Florida Turnpike in the Eastern USDs. The Indiantown USDs, which are west of the Florida Turnpike, are separated from the Eastern USDs by more than 20 miles of mostly agricultural lands. The primary purpose of the USDs is to prevent urban sprawl by directing growth to those areas where urban public facilities and services are available or are programmed to be available at appropriate levels of service. The provision of urban public facilities and services is generally limited to USDs. The term “public urban facilities and services” is defined in the CGMP as “regional water supply and wastewater treatment/disposal systems, solid waste collection services, acceptable response times for sheriff and emergency services, reasonably accessible community park and related recreational facilities, schools and the transportation network.” Under FLUE Policy 4.7A.2, urban development, including commercial, industrial, mixed-use, and urban residential land uses may only be located within the Primary USDs. FLUE Policy 4.7B.1 permits low density residential use (half-acre lots or greater) in the Secondary USD. No urban or suburban uses and no utility services such as water and sewer may extend outside the USD boundaries. Most of the lands outside the Primary and Secondary USDs are designated Agricultural, but there are also lands designated Public Conservation and Public Utilities. MCCA’s Issues Section 1.10 Chapter 1 of the CGMP is entitled “Preamble” and addresses general topics such as the legal status of the CGMP, the continuing evaluation of the CGMP, and amending the CGMP. The Preamble contains no goals, objectives, or policies. MCCA objects to a sentence in Section 1.10 of the Preamble, adopted by Ordinance No. 843, which states, “This Plan shall be adopted by ordinance and shall supersede the 1990 Comprehensive Plan and all related amendments.” MCCA contends that this sentence will create problems and confusion if some of the Plan Amendments are determined to be in compliance, but other amendments are determined to be not in compliance. There is no confusion. The reference to “This Plan” in Section 1.10 is reasonably interpreted to refer to the entire CGMP, as amended by the latest EAR-based amendments that are either already in effect or will become effective following the conclusion of these consolidated cases.2/ Chapter 2 Definitions MCCA objects to several definitions added in Chapter 2 of the CGMP, but the evidence presented does not show an internal consistency or other "in compliance" issue. FLUE Goal 4.7 MCCA objects to the changes in FLUE Goal 4.4G, which would be re-designated Goal 4.7. Existing Goal 4.4G states: 4.4G Goal (encourage urban development in urban service areas) Martin County shall regulate urban sprawl tendencies by directing growth in a timely and efficient manner to those areas where urban public facilities and services are available, or are programmed to be available, at the levels of service adopted in this Growth Management Plan. (italics in original) New Goal 4.7 states: Goal 4.7. To regulate urban sprawl by directing growth in a timely and efficient manner to areas with urban public facilities and services, where they are programmed to be available, at the levels of service adopted in this Plan. (italics in original) MCCA contends that the removal of the word “shall” in the new goal “removes the mandatory restriction.” The County did not intend to make a substantive change to Goal 4.4G. In this particular context, the removal of the word “shall” does not require a different interpretation or application of the goal. It is not a substantive change. FLUE Policy 4.12A.2 MCCA’s major objection to Ordinance No. 845 is with new FLUE Policy 4.12A.2. Most of the objections raised by MCCA to other changes in the CGMP are directly related to MCCA's objection to Policy 4.12A.2. MCCA contends that this new policy, which allows “small-scale service establishments” outside the USDs, fails to include reasonable controls on commercial development and will adversely affect agricultural uses and the quality of life of rural residents.3/ Policy 4.12A.2 states: Restrictions outside urban service districts. Outside urban service districts, development options shall be restricted to low-intensity uses, including Agricultural lands, not exceeding one unit per 20 gross acres; Agricultural Ranchette lands not exceeding one unit per five gross acres; and small-scale service establishments necessary to support rural and agricultural uses. (italics in original) Martin County contends that this policy is not a substantive change because nearly the same wording already exists as Section 4.6.D.4 in a part of the FLUE entitled “Implementation Strategies,” and the section was merely re- located and re-designated as Policy 4.12A.2. Section 4.6.D.4 provides: Development outside the urban services district shall be restricted to low intensive development in order to promote cost-effective practices in the delivery of public services. Outside Urban Service Districts development options shall be restricted to low intensity uses including agriculture and agricultural ranchettes, not exceeding one unit per 5 gross acres, and small-scale service establishments necessary to support rural and agricultural uses as provided by section 6.4.A.5.e., Housing Service Zones in the Housing Element. (italics in original) The reference in this policy to Housing Service Zones is an error. Sometime in the past, the County deleted provisions in the CGMP regarding Housing Service Zones, but overlooked this particular reference. Comparing Section 4.6.D.4 with new Policy 4.12A.2, the significant changes appear to be that Section 4.6.D.4 is transformed from a “strategy” to a “policy,” and the new policy no longer ties small-scale service establishments to Housing Service Zones. However, the determination of whether a substantive change was made in the replacement of Section 4.6.D.4 with new Policy 4.12A.2 also requires consideration of Policy 4.4.G.1.e, which states: Martin County shall provide reasonable and equitable options for development outside of Primary Urban Service Districts, including agriculture and small-scale service establishments necessary to support rural and agricultural uses. Policy 4.4.G.1.e is already designated as a policy and it does not tie small-scale service establishments to Housing Service Zones. Therefore, although Section 4.6.D.4 differs from new Policy 4.12A.2, there is no substantive difference between new Policy 4.12A.2 and existing Policy 4.4.G.1.e. MCCA asserts that Policy 4.12A.2 and Policy 4.4.G.1.e differ substantively because the former does not have the “agricultural land use designation limits on uses allowed” that are in Policy 4.4.G.1.e. However, as shown above, both policies allow for small-scale service establishments that support rural uses as well as agricultural uses. In support of its arguments about small-scale service establishments, MCCA also points to existing FLUE Policy 4.4.G.1.b (re-designated Policy 4.7A.2) and “implementation strategy” 4.6.D.3 (to be deleted) which require commercial uses to be located in the Primary USDs. The policy and implementation strategy that restrict commercial uses to the Primary USDs co- exist in the CGMP with Policy 4.4.G.1.e, which allows small- scale service establishments outside the Primary USDs. Therefore, in whatever manner the County currently reconciles these policies and strategies, that reconciliation pre-dates the EAR-based amendments. The FLUE amendments adopted by Ordinance No. 845 do not alter the situation. MCCA refers to the County planning staff's report associated with another proposed plan amendment known as "Becker B-4" in support of MCCA's argument that the amendments at issue in the present case have substantively changed the FLUE with regard to small-scale service establishments. However, none of MCCA's allegations regarding the relevance of the Becker B-4 staff report are borne out. If the Becker B-4 amendment is adopted by the County, it will be subject to its own "in compliance" review. In summary, when all relevant provisions of the CGMP are taken into account, the changes made by Ordinance No. 845 that are related to small-scale service establishments are not substantive changes to the CGMP. MCCA’s claims of internal inconsistency that are based on MCCA’s objections to new Policy 4.12A.2 must also fail as unsupported by evidence of a substantive change. MCCA’s claim that the County did not demonstrate a need for more commercial uses outside the USDs (based on the allowance for small-scale service establishments) must also fail as unsupported by evidence of a substantive change. MCCA’s claim that the allowance for small-scale service establishments constitutes a failure of the County to discourage urban sprawl must also fail as unsupported by evidence of a substantive change. FLUE Policy 4.5F.4 MCCA objects to the changes to Policy 4.5F.4, which allows planned unit developments (PUDs) designed to preserve open space, environmentally sensitive lands, and agricultural land uses. These PUDs can be located in areas currently designated Agricultural and can include residential lots greater than two acres in size if certain criteria are met. MCCA contends that this policy is inconsistent with Policy 4.13A.1, which restricts residential densities in agricultural areas to 20-acre residential lots. The allowance in Policy 4.5F.4 for PUDs with residential lots smaller than 20 acres already exists. Therefore, in whatever manner the County currently reconciles Policies 4.5F.4 and 4.13A.1, that reconciliation pre-dates the EAR-based amendments. The FLUE amendments adopted by Ordinance No. 845 do not alter the situation. Furthermore, a PUD created under Objective 4.5F requires a plan amendment. It appears that one of the purposes of this requirement is to re-designate any agricultural lands to a residential future land use designation.4/ FLUE Objective 4.7A MCCA objects to the removal of the word “shall” from existing FLUE Objective 4.4.G.1 (which would be re-designated as Objective 4.7A). MCCA argues that the existing objective prohibits commercial uses outside the Primary USDs and that the removal of the word “shall” will allow commercial uses outside the USDs. However, the objective does not prohibit commercial uses outside the Primary USDs. The objective states that the County “shall concentrate higher densities and intensities of development” in the Primary USDs. To concentrate a land use in one location does not mean to prohibit it elsewhere. It is Policy 4.7A.2 that requires new commercial uses to be located in the Primary USDs. In this particular context, the removal of the word “shall” does not require a different interpretation or application of Objective 4.7A. It is not a substantive change. FLUE Policy 4.9H.2 MCCA objects to new Policy 4.9H.2, regarding residential PUDs, because the policy indicates that commercial uses can be included in a residential PUD, even if the PUD is located outside the Primary USDs. Policy 4.7A.2 requires all new commercial development to be located in the Primary USDs. Objective 4.5F and its associated policies allow for residential PUDs in agricultural areas outside the USDs, but do not indicate that the PUDs in agricultural areas can include commercial uses. Policy 4.9H.2 conflicts with Policy 4.7A.2 and with Objective 4.5F and its associated policies FLUE Policy 4.13A.7.(1)(d) MCCA objects to new Policy 4.13A.7.(1)(d), which allows one “accessory dwelling unit” on a residential lot. Accessory units cannot be sold separately from the primary dwelling unit and are not counted as separate units for purposes of density calculations. MCCA's argument regarding accessory dwelling units assumes that the new policy allows accessory units in the rural areas of the County, outside the Primary USDs. However, Policy 4.13A.7.(1)(d) appears under the heading "General policies for all urban Residential development." The term "urban" is not defined in the CGMP, but there are several FLUE policies that direct urban residential densities to the Primary USDs, such as Policies 4.7A.2 and 4.7A.3. Objective 4.7A directs densities greater than two units per acre to the Primary USDs, which indicates that densities greater than two units per acre are urban densities. In order to maintain internal consistency, accessory units would have to be confined to areas of the FLUM designated for urban residential density. See FLUE Objective 4.13A.7. The County's proposal to not count accessory uses for density purposes was shown to be a professionally acceptable planning practice. Accessory units are similar to residential additions, converted garages, and other changes that can add bedrooms and residents on a residential lot, but which traditionally have been disregarded when calculating density. FLUE Policy 4.13A.8.(5) MCCA contends that changes made to Policy 4.13A.8.(5), regarding Expressway Oriented Transient Commercial Service Centers ("Expressway Centers"), combined with the proposed deletion of Section 4.6.D.3 of the "Implementation Strategies," allows for more commercial development without data and analysis to support the need for additional commercial development. Policy 4.13A.8.(5) creates Expressway Centers at three large Interstate 95 interchange locations in the County as a special land use designation to accommodate the unique needs of people traveling through the County. Section 4.6.D.3 (which ordinance No. 845 would delete) allows a waiver for Expressway Centers from the general requirements applicable to the USDs if an applicant for a waiver meets certain criteria. MCCA contends that the waiver process weighs "the traveling public’s needs against the value of the urban boundary." That is not an accurate description of the waiver process, because none of the criteria mentions the urban boundary. MCCA contends that the waiver process has been replaced with a "market need test" in Policy 4.13A.8.(5) without supporting data and analysis and that the change encourages urban sprawl. Policy 4.13A.8.(5) requires a market feasibility analysis to show that "the uses proposed are warranted by the traveling public they are intended to serve." MCCA presented no evidence on the County's past applications of Section 4.6.D.3 and Policy 4.13A.8.(5). MCCA failed to show how the demonstration required for a waiver under Section 4.6.D.3 is substantively different and more protective than the demonstration required to establish an Expressway Center under Policy 4.13A.8.(5). MCCA failed to show how the creation of Expressway Centers or the specific amendments to Section 4.6.D.3 and Policy 4.13A.8.(5) will lead to more commercial uses outside the Primary USDs, so as to encourage urban sprawl. State Comprehensive Plan MMCA failed to present evidence or argument to demonstrate that any of the Plan Amendments is inconsistent with the State Comprehensive Plan. Other Issues MCCA raised other issues in its petitions for which it did not present evidence at the final hearing. With regard to all the issues raised by MCCA that are not specifically addressed above, MCCA failed to prove an inconsistency. The Groves' Issues The Groves’ principal objection to the Plan Amendments is with the County’s methodology for determining the need for residential dwelling units, which is based in large part on the a residential capacity analysis (RCA) set forth in FLUE Policy 4.1D.4, adopted by Ordinance No. 845. The Groves contend that the RCA overestimates the capacity or supply of dwelling units on vacant lands that can be used to meet projected population growth. Because need is derived from a comparison of supply and demand, the Groves contend that the RCA’s overestimation of supply will always cause the County to underestimate the need for additional dwelling units. FLUE Policy 4.1D.4 provides: The County shall consider the following factors in its residential capacity analysis: The current peak population, based on the University of Florida’s Bureau of Economic and Business Research (BEBR) medium population, shall be used to demonstrate the unit need in the fifteen year planning period; A market factor of 125 percent shall be applied to the unit need; The Eastern Urban Service District and the Indiantown Urban Service District shall be considered separately; Maximum density shall be calculated for Future Land Use categories in which residential development is allowed; Wetland acreage shall be subtracted from the vacant, undeveloped acreage; Because some land will be taken up by non-residential uses such as roads and utilities, a reduction of 8.5 percent shall be calculated to account for such uses. In the past, Martin County used a similar methodology for determining residential need, but it was not a part of the CGMP. New FLUE Policy 4.1D.3 requires that a new RCA be performed every two years. The RCA is to be used to evaluate future plan amendments and future changes to USD policies. The Groves did not dispute the County’s calculation of residential demand, the number of dwelling units needed to serve the projected population through the planning period 2010 to 2025. As stated in FLUE Policy 4.1D.4, demand is based on mid- range population projections from the University of Florida’s Bureau of Economic and Business Research, which is then adjusted by a 125 percent market factor. A market factor is a multiplier that is applied to account for factors that prevent the full or efficient use of densities allowed by a FLUM. FLUE Policy 4.1D.4 requires that the Eastern USDs and the Indiantown USDs be considered separately. This requirement is based on an historical pattern of higher population growth east of the Florida Turnpike and the expectation that the pattern will continue into the foreseeable future. The County projected an increase of 17,598 new residents in the Eastern USDs and an increase of 754 in the Indiantown USDs by 2025. When these figures are divided by average persons per household (2.21), the result is a demand for 7,963 dwelling units in the Eastern USDs and 341 dwelling units in the Indiantown USDs. Applying the market factor of 125 percent results in a demand for 9,954 dwelling units in the Eastern USDs, and 426 units in the Indiantown USDs for the 2010-2025 planning period. To calculate the residential supply of dwelling units that can be developed on existing vacant lands, FLUE Policy 4.1D.4 directs that the calculation begin by determining the maximum density allowed under each future land use category of the vacant lands. In the following discussion, the maximum density allowed under a future land use designation will be referred to as the “theoretical” maximum density. It is the general practice of the Department to require local governments to use theoretical maximum densities in a need analysis unless there are policies in the comprehensive plan preventing landowners from attaining the theoretical maximum densities. However, like the Department's general practice to accept a market factor no greater than 125 percent, these are not requirements explicitly stated in Department rules from which the Department never deviates. FLUE Policy 4.1D.4 incorporates two limiting factors that prevent the attainment of theoretical maximum densities: (1) wetlands and (2) roads rights-of-way and utility easements. Development is generally prohibited in wetlands. However, landowners whose lands contain wetlands can transfer half of the “lost” density associated with the wetland acreage to the uplands. Therefore, in calculating the acreage of vacant lands that are available for residential development, the RCA subtracts half the wetland acreage. The County also reduces the total vacant land acreage by 8.5 percent to account for the loss of developable acreage due to the presence of road rights-of-way and utility easements within which development is prohibited. After reducing the total acres of vacant lands in the USDs to account for wetlands and for rights-of-way and utilities, the County determined that there is a supply or vacant land capacity of 5,790 dwelling units in the Eastern USDs and 5,335 units in the Indiantown USDs. The County then adjusted these numbers to account for approved residential developments that have not yet been constructed. This adjustment resulted in final calculation of the existing supply in the Eastern USDs of 9,339 dwelling units and an existing supply in the Indiantown USDs of 6,686 dwelling units. The Groves' Critique of the RCA The Groves argue that the RCA overestimates supply by failing to account for other policies of the CGMP that restrict development and prevent a landowner from attaining the theoretical maximum density. Conservation and Open Space Element (COSE) Policy 9.1G.4 requires the preservation of a wetland buffer around a wetland. There was conflicting evidence about whether the County credits the landowner for the acreage set aside as a wetland buffer. The Groves contend that no credit is given and cites Table 4-2 of the FLUE, which indicates that wetland buffer acreage is not subtracted to arrive at the total available acreage that can be developed. The Groves also point to the testimony of a County planner, who stated that the County intended to subtract buffer acreage from vacant land acreage, but ultimately did not do so "based on adamant public comment." However, the County's planning director, Nicki Van Vonno, stated that "[Y]ou do get the full density off of the buffer land." It would be logical for the County to not subtract wetland buffer acreage when calculating residential capacity if the landowner is getting full credit for the buffer acreage. Therefore, it is found that the County allows a full transfer of the density associated with wetland buffer acreage to the uplands. COSE Policy 9.1G.5 requires that 25 percent of upland native habitat on a site be preserved. The landowner is allowed to transfer density from these native upland habitat areas to the unaffected areas of the property. Nevertheless, the Groves contends that COSE Policy 9.1G.5 impairs the ability of landowners to attain the theoretical maximum density. The CGMP also requires a portion of the site be set aside for sufficient water retention and treatment. The RCA does not account for any loss of density caused by water retention and treatment areas. The County had proposed to reduce the theoretical maximum density by 15 percent to account for "surface water management and required preservation,” but abandoned the idea when the Department objected to it as not adequately supported by data and analysis. The evidence presented at the hearing was insufficient to establish that the requirements of the CGMP associated with surface water management and preservation reduces the theoretical maximum density of residential lands by 15 percent. The County has a mixed-use land use category called Commercial-Office-Residential (COR). The County allows only a third of a COR parcel to be developed for residential uses and this practice reduces the theoretical maximum density of COR lands. However, the RCA assumes 100 percent of the COR acreage is available for residential use. The County attempted to justify this discrepancy by pointing out that the limitation of residential uses on COR lands is not incorporated into the CGMP. However, it is an undisputed fact (datum) that the County's practice reduces residential capacity on COR lands. The RCA fails to account for this fact. If the RCA accounted for the limitation of residential development on COR lands, the supply of dwelling units in the Eastern USDs would be reduced by 733 units. FLUE Policy 4.13A.7.(1)(a) establishes a 40-foot height limit countywide which sometimes prevents a landowner from attaining the theoretical maximum density. The RCA does not account for any loss of density caused by building height restrictions. FLUE Policies 4.1F.1 through 4.1F.3 require transitional density zones when land is developed at a higher density than adjacent lands. FLUE Policy 4.1F.2 establishes a zone (or “tier”) abutting the adjacent land, equal to the depth of an existing adjacent residential lot in which development is restricted, to the same density and compatible structure types (e.g., height) as on the adjacent property. The RCA does not account for any loss of density due to the tier policies. Although the landowner is allowed to transfer density to the unaffected portion of the property in the case of some development restrictions imposed by the CGMP, there is not always sufficient acreage remaining to make full use of the transferred density. The Groves' expert witness, Rick Warner, reviewed residential development projects that had been approved or built during the past 15 years in the Eastern USDs and compared the actual number of approved or built units to the theoretical maximum density allowed by the applicable land use designation for the property at the time of approval. Warner determined that, on average, the projects attained only about 45 percent of the theoretical maximum density. The Groves presented the testimony of Morris Crady, who testified that, of the 14 development projects in the County that he was involved in, CGMP policies caused the projects to be developed at 1,285 units fewer than (about 41 percent of) the maximum theoretical density. Comparing the County’s estimated demand for 9,954 dwelling units in the Eastern USDs through 2025 with the County’s estimated supply of 9,339 dwelling units, indicates a deficit of 615 dwelling units. Comparing the County’s estimated demand for 426 dwelling units in the Indiantown USDs through 2025 with the County’s estimated supply of 6,686 dwelling units, indicates a surplus of 6,260 dwelling units. The County decided to make no changes to the FLUM because it believes the projected population can be accommodated with existing land use designations. The Groves argue that, because the RCA overestimates supply, the deficit in the Eastern USDs is actually substantially larger.5/ For example, taking into account the County's policy regarding limiting residential uses on COR lands, the deficit would be 1,348 units in the Eastern USDs. The deficit would be enlarged by the effects of the other factors discussed above that reduce a landowner's ability to attain the theoretical maximum density. The County contends that there is additional residential capacity outside the USDs that should be considered. The County also points to the large surplus of available dwelling units in the Indiantown USDs. The County asserts that there is excess supply to meet the need when all the available dwelling units in the County are considered. These other considerations, however, are not a part of the RCA and, therefore, are in conflict with the RCA. Acres vs. Dwelling Units The Groves assert that County's determination of residential does not identify the amount of land needed for each category of land use as required by law, but, instead, expresses need solely in terms of total dwelling units. The Department has accepted residential need analyses expressed in dwelling units. Dwelling units can be converted into acreages, but only if one is told what density to apply. A local government must determine how many dwelling units it wants in each land use category in order to convert a need expressed in total dwelling units into a need expressed in acreages. Martin County believes that it has a sufficient supply of dwelling units to meet the projected population through the planning period. Apparently, the County is also satisfied with the existing size and distribution of future land use categories as depicted on the FLUM. The existing vacant land acreages for each land use category, set forth in the CGMP, represents the amount of land in each land use category that the County believes is needed to meet the projected population. However, there is an imbalance in the various types of residential land uses in the Eastern USDs. For example, there are only 13 acres of high density residential land and 57 acres of medium density residential land remaining in the Eastern USDs. In contrast, there are 2,950 acres of rural residential lands. The County has acknowledged that its past emphasis on low-height and low-density has contributed to a lack of affordable housing. The Treasure Coast Regional Planning Council noted that the small amount of vacant land in the County available for medium and high residential development contributes to the lack of affordable housing in the County. The Plan Amendments include policies which are designed to address the imbalances in land uses and the lack of affordable housing. These policies include permitting accessory dwelling units for urban residential development; allowing a 10 du/ac density bonus and an affordable housing density bonus in Medium Density Residential developments; reducing the criteria for an affordable housing density bonus in High Density Residential developments; and reviewing residential capacity in the Indiantown USDs. Commercial Need There is no state-wide standard for the amount of commercial, industrial, institutional, conservation, or agricultural lands that a local government must identify in its comprehensive plan in order to accommodate its projected population. The County acknowledges that there is a deficit of commercial land necessary to accommodate economic needs, but no changes in the FLUM are proposed as part of these EAR-based amendments.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order determining that Plan Amendments are “in compliance,” except for the following policies adopted by Martin County Ordinance No. 845, which the Department should determine are not "in compliance": FLUE Policy 4.1D.4; and FLUE Policy 4.9H.2. DONE AND ENTERED this 3rd day of September, 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 3rd day of September, 2010.
The Issue The issue in this case is whether comprehensive plan future land use map amendment (FLUMA) 07-L25, adopted by Marion County Ordinance 07-31 on November 20, 2007, which changed the FLUM designation on 378 acres of Urban Reserve and on 17.83 acres of Rural Land to Medium Density Residential, is "in compliance," as defined in Section 163.3184(1)(b), Florida Statutes.1
Findings Of Fact The parcel that is the subject of the FLUMA at issue (the Property) is approximately 395.83 acres in size. The existing FLUM designation for 378 acres of the Property is Urban Reserve, and the remaining 17.3 acres are designated as Rural Land. Both designations allow a maximum of 1 dwelling unit per 10 acres. The FLUMA would change the designation of the entire parcel to Medium Density Residential (MDR). MDR generally allows up to four dwelling units per acre. However, Future Land Use Element (FLUE) Policy 12.5.k, which also was adopted as part of County Ordinance 07-31, limits the maximum density on the Property to two dwelling units per acre. FLUE Policy 12.5.k also requires: that development on the Property "be served by central potable water and central sanitary sewer services available concurrent with development" and be a Planned Unit Development "to address site design, buffering, and access issues"; and that NW 90th Avenue be reconstructed from U.S. Highway 27 north to the north-eastern corner of the Property and that all traffic facility improvements needed at the NW 90th Avenue/U.S. 27 intersection, including signalization if approved by the Florida Department of Transportation, be constructed prior to the issuance of any certificates of occupancy for the Property. Finally, with respect to the 17.3 acres formerly designated as Rural Land, FLUE Policy 12.5.k defers compliance with the County's Transfer of Development Rights (TDR) Program until application for assignment of a zoning classification for the land. Petitioners' Challenge Intervenors own the Property. Petitioners own property nearby in Marion County. Intervenors and Petitioners commented on the proposed FLUMA between transmittal to DCA and adoption by the County. Petitioners contend: The FLUMA is not consistent with the stormwater drainage, retention, and management policies contained in Policies 1.1.a. and 1.1.d. of the Natural Groundwater Aquifer Recharge Sub-Element of the Infrastructure Element of the Comprehensive Plan. MDR is not suitable or compatible with existing and planned development in the immediate vicinity, as required by FLUE Policy 12.3 of the Comprehensive Plan. The Board of County Commissioners failed to evaluate the FLUMA's impact on “the need for the change” as provided in FLUE Policy 12.3 of the Comprehensive Plan. The FLUMA fails to take into account its impact on “water quality and quantity, the availability of land, water and other natural resources to meet demands, and the potential for flooding,” as required by Section 187.201(15)(b)6., Florida Statutes. The FLUMA is not consistent with Transportation Policy 1.0 of the Comprehensive Plan, which states: "Marion County shall create and maintain transportation facilities that operate in a safe and efficient manner within an established level of service." The FLUMA is not consistent with the State's Comprehensive Plan in that it does not "ensure that new development is compatible with existing local and regional water supplies," as required by Section 187.201(7)(b)5., Florida Statutes. The FLUMA does not direct development away from areas without sediment cover that is adequate to protect the Floridan Aquifer and does not prohibit non-residential uses within 200 feet of a sinkhole, solution channel, or other karst feature, in violation of FLUE Policy 4.2 of the Comprehensive Plan. The FLUMA does not comply with Section 187.201(7), Florida Statutes, concerning the protection of surface and ground water quality in the State. Recharge Sub-Element Policy 1.1.a. and d. Policy 1.1 of the Natural Groundwater Aquifer Recharge Sub-Element of the Infrastructure Element of the Marion County Comprehensive Plan provides in part: The County’s land development regulations shall implement the following guidelines for stormwater management consistent with accepted engineering practices by October 1, 2007: Stormwater retention/detention basin depth will be consistent with the water management district's storm water requirements for Karst Sensitive Areas so that sufficient filtration of bacteria and other pollutants will occur. Avoidance of basin collapse due to excessive hydrostatic pressure in Karst Sensitive Areas shall be given special consideration. * * * d. Require the use of swales and drainage easements, particularly for single family residential development in Karst Sensitive Areas. These are requirements for land development regulations (LDRs); they do not apply to comprehensive plan amendments. In any event, the evidence did not prove that the site is unsuitable for the density allowed under the adopted FLUMA due to karst features. The admissible evidence presented by Petitioners regarding stormwater management in karst topography generally related to flooding problems on the property contiguous to the Property, and to a karst feature referred to as the “63rd Street Sinkhole,” which is located in the general vicinity of the Property. Fay Baird, an expert hydrologist called by Petitioners, testified that the 63rd Street Sinkhole allows stormwater run- off to enter the upper aquifer. Ms. Baird testified generally of the problems and concerns regarding development and stormwater management systems in karst topography. She testified that the Property should be properly inventoried, that specific karst features should be identified, and that any stormwater system designed or developed should take into account karst features to protect against groundwater contamination and flooding. She testified that she had not been on the Property, had not seen or reviewed core borings or other data to determine the depth and nature of the sub-surface, and was not in a position to provide opinions as to whether or not a particular stormwater management system would or could adequately protect against her concerns. Intervenors’ expert, Richard Busche, testified that a stormwater management plan like the one recommended by Ms. Baird was being developed. Compatibility under FLUE Policy 12.3 FLUE Policy 12.3 provides in pertinent part: Before approval of a future land use amendment, the applicant shall demonstrate that the proposed future land use is suitable, and the County will review, and make a determination that the proposed land use is compatible with existing and planned development in the immediate vicinity . . . . Petitioners argued that the proposed MDR development of the Property is incompatible with surrounding agricultural uses. Actually, the Property is surrounded by a mixture of agricultural and residential uses, including residential subdivisions, a golf course, and scattered large-lot residential and equestrian uses. The properties immediately to the south and east of the Property are developed residential properties and are designated MDR. Before the FLUMA, most of the Property was designated Urban Reserve under the County's Comprehensive Plan. Such land "provides for expansion of an Urban Area in a timely manner." FLUE Policies 1.24.B and 2.18. "For an Urban Reserve Area to be designated an Urban Area, it must be compact and contiguous to an existing Urban Area, and central water and sewer must be provided concurrent with development within the expanded area." FLUE Policy 2.18. The Property is compact and is contiguous to existing Urban Area designated MDR. This indicates that the County already has planned for timely conversion of the Urban Reserve land on the Property to urban uses, including MDR. It also means that the County already has determined that at least certain urban uses, including MDR, are compatible with adjacent agricultural uses. The Property is in the receiving area under the County's Farmland Preservation Policy and TDR Program in FLUE Objectives 13.0 and 13.01 and the policies under those objectives. This means that the County already has determined that residential density can be transferred to the Property from the Farmland Preservation sending areas to increase residential density up to one dwelling unit per acre. See FLUE Policy 13.6. This would constitute Low Density Residential, which is an urban use under the County's Comprehensive Plan. See FLUE Policy 1.24.A. By establishing the Farmland Preservation Policy and TDR Programs, the County already has determined that Low Density Residential is compatible with adjacent Rural Land. In addition, Low Density Residential clearly is compatible with MDR. Although not raised in the Petition, Petitioners argued that the Urban Reserve and Farmland Preservation eastern boundary was improperly moved west to NW 90th Avenue. However, that change was made prior to the adoption of Ordinance 07-31 and the FLUMA at issue in this case and is not a proper subject of this proceeding. Demonstration of Need under FLUE Policies 13.2 and 12.3 FLUE Policy 13.2 provides: The Transfer of Development Rights program shall be the required method for increasing density within receiving areas, unless, through the normal Comprehensive Plan Amendment cycle, an applicant can both justify and demonstrate a need for a Future Land Use Map (FLUM) amendment. FLUE Policy 12.3 provides: Before approval of a future land use amendment, . . . the County . . . shall evaluate its impact on: The need for the change; The availability of facilities and services; The future land use balance; and The prevention of urban sprawl as defined by Rule 9J-5.006(5)(g), Florida Administrative Code. The evidence proved that the County interprets FLUE Policy 12.3 to require need and future land use balance to be assessed within the planning districts it has established. There is no need for additional MDR in the County's Planning District 5, where the Property is located. To accommodate the projected population increase in Planning District 5 by 2010, which is the planning horizon for the County’s Comprehensive Plan, an additional 644 dwelling units are needed. There are 1,893 vacant acres of MDR available in Planning District 5. At four units per acre allowed in MDR, the County has an available supply of 7,572 MDR dwelling units in Planning District 5. In the absence of a need in Planning District 5, the County relied on a need demonstration prepared for the Intervenors by Fishkind and Associates.6 Besides being a County-wide analysis instead of a planning district analysis, the Fishkind analysis assumed a planning horizon of 2015, rather than the 2010 horizon established in the Comprehensive Plan. Finally, the Fishkind analysis applied an allocation factor to the total projected need for residential use, most of which already is supplied, resulting in a projection of residential far in excess of the incremental need for additional residential land by 2015, much less by 2010. The result of the Fishkind approach was to allocate enough land for residential use to meet the County-wide projected incremental need for additional residential land use for approximately 45 years, which is five times the calculated incremental need for 2015. Even assuming that a County-wide demonstration of need complied with Marion County's Comprehensive Plan, this is much too high an allocation ratio to use to meet the incremental need projected for a 2015 plan, much less for a 2010 plan. The expert for Intervenors, Stanley Geberer, defended the Fishkind analysis in part by stating that it was comparable to demonstrations of need accepted by DCA in other cases. However, there was no evidence that the facts of those other cases were comparable to the facts of this case. Mr. Geberer also asserted that holding the County to its 2010 planning horizon would make it impossible for the County to plan for the future. However, nothing prevents the County from revising its Comprehensive Plan to plan comprehensively for a longer timeframe. There was no evidence of any other circumstances that would demonstrate a need for the FLUMA at issue in this case. State Comprehensive Plan Policy 187.201(15)(b)6. Petitioners did not prove that the FLUMA fails to take into account its impact on "water quality and quantity, the availability of land, water and other natural resources to meet demands, and the potential for flooding." To the contrary, the evidence was that those items were taken into account as part of the FLUMA. (However, as to the FLUMA's impact on the availability of land to meet demands, see "Demonstration of Need under FLUE Policies 13.2 and 12.3," supra.) Transportation Element Objective 1.0 Transportation Element Objective 1.0 provides: Marion County shall create and maintain transportation facilities that operate in an efficient and safe manner within established levels of service. Petitioners presented no expert testimony or admissible evidence that the FLUMA will change established levels of service or result in transportation facilities operating in an unsafe or inefficient manner. Intervenors presented the testimony of Jonathan Thigpen, an expert traffic engineer, who prepared and submitted to the County a Traffic Impact Study and testified that the FLUMA would not change established levels of service or result in transportation facilities operating in an unsafe or inefficient manner. The ultimate need for transportation improvement, such as turn lanes and traffic lights to mitigate the impacts of development under the FLUMA, will be determined at later stages of development. Petitioners suggested that the FLUMA will result in delays caused by additional traffic, frustrate drivers waiting to turn east on U.S. 27, and induce large numbers of them to seek an alternative route to the north through agricultural areas, some of which have inadequate slag roads. However, Petitioners failed to prove that this result is likely. State Comprehensive Plan Policy 187.201(7)(b)5 Petitioners presented no evidence that the designation of MDR on the Property is incompatible with existing local and regional water supplies. The evidence was that adequate local and regional water supplies exist. Even if they did not exist, the consequence would be less development than the maximum allowed by the FLUMA. FLUE Policy 4.2 FLUE Policy 4.2 provides in pertinent part: In order to minimize the adverse impacts of development on recharge quality and quantity in high recharge Karst sensitive and springs protection areas, design standards for all development shall be required and defined in the LDRs to address, at a minimum, the following: * * * f. Directing development away from areas with sediment cover that is inadequate to protect the Floridian [sic] Aquifer. * * * h. Prohibiting nonresidential uses within 200 feet of a sinkhole, solution channel, or other Karst feature. This policy sets forth requirements for the content of LDRs, not FLUMAs. Petitioners presented no evidence that sediment cover on the Property is inadequate to protect the Floridan Aquifer or that any non-residential uses would be constructed within 200 feet of a sinkhole, solution channel, or other karst feature under the FLUMA. Marion County has adopted amendments to its Comprehensive Plan to protect springs and karst features.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department determine the FLUMA at issue in this case to be not "in compliance" and take further action as required by Section 163.3184(9)(b), Florida Statutes. DONE AND ENTERED this 4th day of February, 2009, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 2009.
The Issue The issue is whether the plan amendment adopted by Ordinance No. 2003-45 on September 4, 2003, is in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background 1. E. K. Edwards (Edwards) and Richard J. Clark (Clark), who are non-parties, own two tracts of land totaling 43.76 acres approximately four or five miles west-northwest of the City of Pensacola in unincorporated Escambia County. The larger tract (known as the Northern Parcel and owned by Edwards) consists of one parcel totaling 26.76 acres and is located at 2700 Blue Angel Parkway, also known as State Road 173. The second tract (known as the Southern Parcel and owned by Clark) consists of four contiguous parcels totaling around 17 acres and is located approximately 560 feet south of the Northern Parcel at the northeastern quadrant of the intersection of Blue Angel Parkway and Sorrento Road (intersection). The two tracts are separated by two large privately-owned lots that currently have residential uses. (However, the land use on one of those parcels, totaling almost 9 acres, was recently changed to a Commercial land use designation. See Finding of Fact 15, infra.) On July 10, 2002, a realtor (acting as agent on behalf of the two owners) filed an application with the County seeking to change the land use on the FLUM for both the Northern and Southern Parcels from LDR to Commercial. The LDR category allows residential densities ranging from one dwelling unit per five acres to 18 dwelling units per acre, as well as neighborhood commercial uses. The Commercial category would allow the owners to place a broad range of commercial uses on their property, such as shopping centers, professional offices, medical facilities, convenience retail, or other similar uses. On November 20, 2002, the County Planning Board (on which Petitioner was then a member) considered the application and voted unanimously to change the land use classification on the Southern Parcel to Commercial. It also voted to change the non-wetlands portion of the Northern Parcel to Commercial. However, the request to change the land use on the wetlands portion of the Northern Parcel was denied. This recommendation was forwarded to the Board of County Commissioners (Board), which modified the Planning Board's recommendation and approved the application as originally submitted. The amendment was then sent to the Department for an in compliance determination. On June 13, 2003, the Department issued its Objections, Recommendations, and Comments (ORC) Report. In the ORC, the Department expressed concerns that there were insufficient "adequate data and analyses to demonstrate the suitability of the [Northern Parcel] for the proposed Future Land Use designation" because of the presence of on-site wetlands. The ORC went on to say that the County had failed to demonstrate how the proposed amendment would be consistent with four other Plan provisions that prohibit the location of commercial and industrial land uses in certain types of wetlands. The ORC recommended that the County "provide a more detailed characterization of the site and the surrounding area relative to the natural resources [wetlands] on the amendment site and the general area." After the issuance of the ORC, Mr. Edwards retained an ecological consultant, Dr. Joe A. Edmisten, to address the Department's concerns. On July 16, 2003, Dr. Edmisten submitted a 14-page Report in which he essentially concluded that while there were wetlands on the site, there were no endangered, threatened, rare, or listed plant or animal species. That Report has been received in evidence as Petitioner's Exhibit 4. In light of this new information, the Planning Board again considered the matter on August 20, 2003, and by a four- to-one-vote recommended that the application, as originally filed, be approved. The matter was then forwarded to the Board. In response to an inquiry by a Board member at the Board's meeting on September 4, 2003, Dr. Edmisten stated that he found a "few pitcher plants in the wetlands [on Mr. Edwards' property]," including Sarracenia leucophylla, which is on the State (but not federal) Endangered Plant List. See Fla. Admin. Code R. 5B-40.0055(1)(a)334. Even though this information had not been disclosed in the Report, by a three- to-two vote, the Board adopted Ordinance No. 2003-45, which approved the change to the FLUM for both the Northern and Southern Parcels. On October 24, 2003, the Department issued its Notice of Intent to Find the Escambia County Comprehensive Plan Amendment in Compliance. On November 17, 2003, Petitioner, who resides, owns property, and operates a business within the County, and submitted written or oral comments, objections, or recommendations to the County before the amendment was adopted, filed his Petition alleging that the plan amendment was not in compliance. Petitioner is an affected person within the meaning of the law and has standing to file his Petition. In the parties' Pre-Hearing Stipulation, Petitioner contends that there is inadequate data and analyses relative to the natural environment (wetlands), traffic concurrency, and urban sprawl to support the amendment. As further clarified by Petitioner, he does not challenge the change in the FLUM for the Southern Parcel, but only contests that portion of the amendment which changes the land use on the Northern Parcel, on which wetlands are sited. In view of this, only the Northern Parcel will be considered in this Recommended Order. The Property The Northern Parcel fronts on the eastern side of Blue Angel Parkway approximately 1,400 feet north of the intersection. In broader geographic terms, the property is in western Escambia County and appears to be several miles west- northwest of the Pensacola Naval Air Station (which lies west- southwest of the City of Pensacola) and several miles south of U.S. Highway 98, which runs east-west through the southern part of the County. Blue Angel Parkway is a minor arterial roadway (at least where it runs in front of the Northern Parcel) and begins at the Pensacola Naval Air Station (to the south) and runs north to at least U.S. Highway 98. From the Naval Air Station to the intersection, Blue Angel Parkway appears to have four lanes, and from that point continuing past the Northern Parcel to U.S. Highway 98, it narrows to two undivided lanes. At the present time, an old borrow pit sits on the eastern side of the land, for which the property was given a special exception by the County's Zoning Board of Adjustments in March 1995. Also, there are at least three other ponds (or old borrow pits) formerly used by the owner for catfish farming; two large, unused metal buildings (apparently hangars) moved from the Naval Air Station to the property as military surplus; and numerous stored empty tanks in the southeastern corner of the property. The remainder of the property is vacant. When Dr. Edmisten's Report was submitted in July 2003, all of the ponds were filled with water due to recent heavy rains. Because of existing development at all corners of the intersection except the southwest corner, the intersection has been designated by the County as a commercial node, and the County considers the node to extend from the intersection northward along the eastern side of Blue Angel Parkway to the Northern Parcel. (However, on the western side of the road, the County has determined that the node terminates at the end of a parcel on which a Wal-Mart Super Center sits, and that further commercial development beyond that point would be inappropriate.) This determination is consistent with the Commercial land use classification found on the western portion of the Northern Parcel. See Finding of Fact 13, infra. The property presently carries a split future land use: an approximate 150-foot deep sliver of land which fronts on Blue Angel Parkway is classified as Commercial, while the remainder of the parcel is LDR. This dichotomy in land uses stems from a decision by the County in 1993 (when the Plan was adopted) to designate a narrow commercial strip on both sides of Blue Angel Parkway from just south of the intersection to Dog Track Road, which lies north of the Northern Parcel. The property also carries an Industrial zoning classification (presumably related to the mining activities), even though the land use on most of the parcel is residential. By his application, Edwards is seeking to "unify" the back or eastern portion of his property, which is now LDR, with the western portion fronting on Blue Angel Parkway, which is classified as Commercial. To the east of the Northern Parcel is Coral Creek, a fairly large residential subdivision platted in the 1990s. Some of the single-family lots in that subdivision back up to the eastern boundary of the property. The property to the north is vacant, is populated with some pitcher plants, and is classified as residential. Across the street and to the southwest is a new Wal-Mart Super Center which opened in the last year or so at the northwestern quadrant of the intersection. (The northern boundary of the Wal-Mart Super Center parcel is directly across the street from the southern boundary of the Northern Parcel.) The property directly across the street and extending to the north is vacant and classified as Residential. That parcel also contains pitcher plants and is informally designated as "pitcher plant prairie." The property which separates the Northern and Southern Parcels is classified as Residential, except for 8.98 acres which were recently changed from LDR to Commercial through a small-scale development amendment approved by the Department. See Gregory L. Strand v. Escambia County, DOAH Case No. 03-2980GM (DOAH Recommended Order Dec. 23, 2003; DCA Final Order Jan. 28, 2004). The Final Order in that case, however, has been appealed by Petitioner. While the precise amount of wetlands on the site is unknown, the record does indicate that wetlands exist on "approximately" one-half of the Northern Parcel, or around thirteen or so acres, leaving a like amount of uplands. (Therefore, even if the property is reclassified, the amount of development on the property will be restricted in some measure through the application of the County's Wetlands Ordinance found in the Land Development Code.) A small area of wetlands exists on the western side of the property near Blue Angel Parkway while a larger wetland system lies on the eastern side of the property and acts as a buffer with the Coral Creek subdivision. The wetlands are under the permitting jurisdiction of the United States Corps of Engineers, the Department of Environmental Protection, and the County. Petitioner's Objections Petitioner contends that the amendment is not in compliance because there is inadequate data and analyses relative to conservation (wetlands), traffic, and urban sprawl to support the change in the land use.2 These issues will be addressed separately below. Wetlands As to this objection, Petitioner's principal concern is that if the land use change is approved, there will be much more intense development on the property which will result in a loss of wetlands, even with mitigation. Citing Policy 11.A.2.6.d of the Coastal Management Element of the Plan, he contends that there is insufficient data and analyses to support the plan amendment's distribution of land uses in such a way as to minimize the effect and impact on wetlands. The cited policy contains provisions which govern the development of lands within wetland areas, including one provision which states that "commercial and industrial land uses will not be located in wetlands that have a high degree of hydrological or biological significance, including the following types of wetlands: . . . Wetlands that have a high degree of biodiversity or habitat value, based on maps prepared by the Florida Fish and Wildlife Commission or Florida National Areas Inventory, unless a site survey demonstrates that there are no listed plant or animal species on the site." In Case No. 03-2980GM, supra, which involved a change in the FLUM on a parcel of property which separates the Northern and Southern Parcels, Petitioner contended, among other things, that the terms of Policy 11.A.2.6.d should apply whenever the FLUM is being amended, and that because there were wetlands on the parcel, along with two types of endangered plants, the policy prohibited a change from a residential to a commercial land use. In rejecting that contention, however, the Department approved and adopted language by the Administrative Law Judge which concluded, for several reasons, that "the County intended Policy 11.A.2.6.a through e to apply to decisions of the County regarding development applications and not to changes in future land use designations or categories in a FLUM." (Recommended Order, page 19). Therefore, the policy applies to development applications, and not to FLUM amendments, and does not have to be considered at this juncture. (That policy, and the County's Wetlands Ordinance, will obviously come into play at the time a site plan is filed and the owner seeks to develop the property.) As such, there is no need for data and analyses at this time to demonstrate that the policy has been satisfied. As noted above, after the Department issued its ORC, Mr. Edwards engaged the services of Dr. Edmisten, who performed a study and prepared a Report that evaluated the wetlands on the Northern Parcel. That Report constitutes much of the data and analyses which support the amendment. Despite the presence of one endangered plant species, the Report indicates that the wetlands do not have a high degree of hydrological or biological significance; that the change in the FLUM is consistent with all relevant policies in the Plan, including those cited in the ORC; that a mitigation plan will be offered prior to any development; and that all wetlands issues will be addressed during the development stage. The Report also indicates that among other things, Dr. Edmisten utilized the National Wetlands Inventory Map in reaching his conclusions. The Department reviewed the document and found that it constituted the best available data and analyses, that the data were analyzed in a professional manner, and that the County reacted to the data in an appropriate manner when it adopted the amendment. This is especially true since the County has provisions in its Plan for wetlands avoidance and fully considers these issues through the site-review process. Given these considerations, it is at least fairly debatable that there exist adequate data and analyses regarding wetlands to support the change in the land use on the property. Traffic Petitioner also contends that there is a lack of adequate data and analyses to demonstrate that the proposed change in land use will not adversely impact traffic in the area. More specifically, he contends that the County failed to perform an analysis of infrastructure capacity, and that it also failed to include information that Blue Angel Parkway is not in its five-year plan for improvements. Data and analyses were provided in the form of a spreadsheet dated November 6, 2002, and entitled Traffic Volume and Level of Service Report (Traffic Report). The Traffic Report contained several categories of information regarding traffic volume, Level of Service (LOS), and other transportation information. (See Petitioner's Exhibit 1) The data were far more detailed than data previously used by the County on other amendments of this size and character, and they were based on Florida Department of Transportation (DOT) accepted standards of traffic calculations. The data and analyses were the best available at the time the plan amendment was adopted. The data shows that the section of Blue Angel Parkway on which the Northern Parcel fronts has an adopted LOS of "D." At the time the amendment was adopted, the service volume on that portion of the road was 74 percent, which means that the roadway was operating at 74 percent of its capacity. Therefore, when the amendment was adopted, the roadway was not failing, and it could handle additional traffic, including any that might be associated with the future development of the land. Petitioner also contends that the County's study was flawed because the County used so-called "Art Tab" software, which became outdated after September 1, 2002. (Art-Tab software has now been updated and is called Free Plan software.) He further suggests that the County should have performed a new study using updated software. Under DOT requirements set forth in its Quality/Level of Service Handbook, however, the County was not required to redo its analysis; rather, it was required to use the new software only in the event further studies were required. Because Blue Angel Parkway was not failing at the time the study was performed, it was not necessary for the County to undertake a new study. During the interagency review process, the DOT did not issue any objections, recommendations, or comments to the Department concerning the amendment. Finally, Petitioner contends that because the County did not have Blue Angel Parkway on any road improvement list at the time the amendment was adopted, its analysis of infrastructure capacity was flawed. See Section 163.3177(3)(a), Florida Statutes, which requires that each local government's comprehensive plan contain a capital improvements element with a component which outlines the principles for correcting public facility deficiencies covering at least a five-year period. Whether the County's Plan contains such a component is not of record. In any event, even if the County failed to consider the fact that Blue Angel Parkway was not scheduled for upgrading when the amendment was adopted, given the other data and analyses available at that time (the traffic spreadsheet), which reflected that the roadway was operating below capacity, the County had sufficient information regarding infrastructure capacity to support the amendment. Based on the foregoing, it is at least fairly debatable that the amendment has adequate data and analyses relative to traffic impacts to support the land use change. Urban sprawl Finally, Petitioner asserts that no data were gathered and no analyses were performed to demonstrate that the change in land use will discourage urban sprawl. In this case, the Department did not require that the County perform an urban sprawl analysis, given the type of surrounding land uses; the relative small size of the Northern Parcel; the absence of any land use allocation problems; the ability of the owner to now place up to 18 units per acre and/or neighborhood commercial development on the property under the current LDR classification; and the fact that the Northern Parcel is located on the edge of a rapidly urbanizing area of the County. At the same time, Petitioner presented no evidence which supported the need for such a study. The Northern (and Southern) Parcel is located in a rapidly urbanizing area of the County and is close to several other urban uses. Indeed, as noted earlier, there is a Wal- Mart Super Center across the street at the northwestern quadrant of the intersection, and a mix of commercial and residential uses abut the intersection to the southeast. All four corners of the intersection have been designated as a commercial node in the County's draft Southwest Sector Plan, and the County has determined that the node continues northward on the eastern side of the road to and including the Northern Parcel. As a general rule, the Department considers the size and shape of nodes to be a local government decision, and it found no reason here to question that determination. The Plan encourages commercial development at intersectional nodes. Under Florida Administrative Code Rule 9J- 5.003(134), urban sprawl is defined in part as "urban development or uses which are located in predominately rural areas." Indicators of urban sprawl include "[t]he premature or poorly planned conversion of rural land to other uses," and the "creation of areas of urban development or uses which are not functionally related to land uses which predominate the adjacent area." The evidence does not support a finding that the amendment will result in the poorly planned conversion of rural lands, or the creation of a land use that is not functionally related to land uses that predominate the adjacent area. Given these considerations, Petitioner has not proven beyond fair debate that the plan amendment will result in urban sprawl, or that the County lacked adequate data and analyses related to urban sprawl to support the change in the land use.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining that the plan amendment adopted by Ordinance No. 2003-45 on September 4, 2003, is in compliance. DONE AND ENTERED this 6th day of May, 2004, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of May, 2004.
The Issue The issue to be determined in this case is whether the amendment of the Town of Eatonville Comprehensive Plan adopted through Ordinance 2014-2 (“Plan Amendment”) is “in compliance” as that term is defined in section 163.3184(1)(b), Florida Statutes (2014).
Findings Of Fact The Parties Respondent Town of Eatonville is a municipality in Orange County with a comprehensive plan which it amends from time to time pursuant to chapter 163, Florida Statutes. Intervenor Lake Weston, LLC, is a Florida limited liability company whose sole member is Clayton Investments, Ltd. It owns approximately 49 acres of land along Lake Weston on West Kennedy Boulevard in Eatonville (“the Property”), which is the subject of the Plan Amendment. Petitioners Sharon Leichering, Lori Erlacher, George Perantoni, Valerie Perantoni, and Doreen Maroth own or reside in unincorporated Orange County near Lake Weston. The record does not establish whether Dale Dunn lives or owns property in the area. Petitioner Kingswood Manor Association, Inc., is a non- profit corporation whose members are residents of Kingswood Manor, a residential subdivision near the Property. Petitioner Friends of Lake Weston and Adjacent Canals, Inc., is a non-profit corporation whose objective is to protect these waters. Standing Petitioners Sharon Leichering and George Perantoni submitted comments to the Eatonville Town Council on their own behalves and on behalf of the Kingswood Manor Association and Friends of Lake Weston, respectively, regarding the Plan Amendment. Petitioner Valerie Perantoni is the wife of Petitioner George Perantoni. She did not submit comments regarding the Plan Amendment to the Town Council. Petitioner Dale Dunn did not appear at the final hearing. There is no evidence Mr. Dunn submitted oral or written comments to the Town Council regarding the Plan Amendment. Petitioner Doreen Maroth did not appear at the final hearing for medical reasons. Ms. Maroth submitted oral comments to the Town Council regarding the Plan Amendment. Respondent and Intervenor contend there is no evidence that Lori Erlacher appeared and gave comments to the Town Council, but the Town Clerk testified that Petitioner Leichering was granted an extension of time “to speak for others” and Petitioner Leichering testified that the “others” were Lori Erlacher and Carla McMullen. The Plan Amendment The Property is zoned “Industrial” in the Town’s Land Development Code, but is designated “Commercial” on the Future Land Use Map in the Comprehensive Plan. The Town adopted the Plan Amendment to make the zoning and future land use designations consistent with each other. The Plan Amendment attempts to resolve the inconsistency by designating the Property as the “Lake Weston Subarea” within the Commercial land use category. The designation would appear on the Future Land Use Map and a new policy is made applicable to the Subarea, allowing both industrial and commercial uses: 1.6.10. Lake Weston Subarea Policy. Notwithstanding the provisions of Policy 1.6.9, within the Lake Weston Subarea Policy boundaries as shown on the Future Land Use Map, light industrial uses may be allowed in addition to commercial uses. The specific permitted uses and development standards shall be established by the Lake Weston Overlay District, which shall be adopted as a zoning overlay district in the Land Development Code; however, the wetlands adjacent to Lake Weston within the Lake Weston Subarea Policy boundaries are hereby designated as a Class I Conservation Area pursuant to Section 13-5.3 of the Town of Eatonville Land Development Code and shall be subject to the applicable provisions of Section 13-5 of the Land Development Code. The intent of this subarea policy and related Lake Weston Overlay District is to allow a range of commercial and industrial uses on the subject property with appropriate development standards, protect environmental resources, mitigate negative impacts and promote compatibility with surrounding properties. Subject to requirements of this subarea policy and of the Lake Weston Overlay district, the current industrial zoning of the property is hereby deemed consistent with the Commercial Future Land Use designation of the area within the boundaries of this subarea policy. Data and Analysis Petitioners contend the Plan Amendment is not supported by relevant and appropriate data and analysis. Relatively little data and analysis were needed to address the inconsistency between the Land Development Code and the Comprehensive Plan or to address the protection of Lake Weston and adjacent land uses. The need to protect environmental resources, to mitigate negative impacts of development, and to promote compatibility with surrounding land uses was based on general principles of land planning, the report of a planning consultant, as well as public comment from Petitioners and others. A wetland map, survey, and delineation were submitted to the Town. The effect of the Class I Conservation Area designation is described in the Land Development Code. The availability of public infrastructure and services was not questioned by Petitioners. The preponderance of the evidence shows the Plan Amendment is based on relevant and appropriate data and analysis. Meaningful Standards Petitioners contend the Plan Amendment does not establish meaningful and predictable standards for the future use of the Property. It is common for comprehensive plans to assign a general land use category to a parcel, such as Residential, Commercial, or Industrial, and then to list the types of uses allowed in that category. The Plan amendment does not alter the Comprehensive Plan’s current listing of Commercial and Industrial uses. The Plan Amendment designates the wetlands adjacent to Lake Weston as a Class I Conservation Area subject to the provisions of the Eatonville Wetlands Ordinance in the Land Development Code. This designation means the littoral zone of the lake and associated wetlands would be placed under a conservation easement. This is meaningful guidance related to the future use of the Property. The Plan Amendment directs the Land Development Code to be amended to create a Lake Weston Overlay District with the expressed intent to “protect environmental resources, mitigate negative impacts and promote compatibility with surrounding properties.” This direction in the Plan Amendment is guidance for the content of more detailed land development and use regulations. Contemporaneous with the adoption of the Plan Amendment, the Eatonville Land Development Code was amended to establish the Lake Weston Overlay District, which has the same boundaries as the Property. The Land Development Code describes in greater detail the allowed uses and development standards applicable to the Property. The preponderance of the evidence shows the Plan Amendment establishes meaningful and predictable standards. Internal Consistency Petitioners contend the Plan Amendment is inconsistent with the relatively recent Wekiva Amendments to the Comprehensive Plan, but Petitioners failed to show how the Plan Amendment is inconsistent with any provision of the Wekiva Amendments. Petitioners contend the Plan Amendment is inconsistent with objectives and policies of the Comprehensive Plan that require development to be compatible with adjacent residential uses. Compatibility is largely a matter of the distribution of land uses within a parcel and measures used to create natural and artificial buffers. These are matters usually addressed when a landowner applies for site development approval. Protection is provided in the Plan Amendment for Lake Weston and its wetlands. Petitioners did not show there are other factors that make it impossible to make light industrial uses on the Property compatible with adjacent residential uses. The preponderance of the evidence shows the Plan Amendment is consistent with other provisions of the Comprehensive Plan. Urban Sprawl Petitioners contend the Plan Amendment promotes urban sprawl based on the potential for more impervious surfaces and less open space. However, this potential does not automatically mean the Plan Amendment promotes urban sprawl. Section 163.3177(6)(a)9. sets forth thirteen factors to be considered in determining whether a plan amendment discourages the proliferation of urban sprawl, such as failing to maximize the use of existing public facilities. The Plan Amendment does not “trigger” any of the listed factors. The preponderance of the evidence shows the Plan does not promote the proliferation of urban sprawl.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity enter a final order determining that the Plan Amendment adopted by Eatonville Ordinance No. 2014-02 is in compliance. DONE AND ENTERED this 3rd day of June, 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 3rd day of June, 2015. COPIES FURNISHED: George Anthony Perantoni Friends of Lake Weston and Adjacent Canals, Inc. 5800 Shasta Drive Orlando, Florida (eServed) 32810 Dale Dunn 5726 Shasta Drive Orlando, Florida 32810 Lori A. Erlacher 1620 Mosher Drive Orlando, Florida 32810 (eServed) Sharon R. Leichering Kingswood Manor Association, Inc. 5623 Stull Avenue Orlando, Florida 32810 (eServed) Doreen Lynne Maroth 5736 Satel Drive Orlando, Florida 32810 (eServed) Valerie Lolita Perantoni 5800 Shasta Drive Orlando, Florida 32810 (eServed) Debbie Franklin, City Clerk Town of Eatonville, Florida 307 East Kennedy Boulevard Eatonville, Florida 32751 Joseph Morrell, Esquire Town of Eatonville 1310 West Colonial Drive, Suite 28 Orlando, Florida 32804 (eServed) William Clay Henderson, Esquire Holland and Knight, LLP 200 South Orange Avenue, Suite 2600 Orlando, Florida 32801 (eServed) Robert N. Sechen, General Counsel Department of Economic Opportunity Mail Stop Code 110, Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed) Jesse Panuccio, Executive Director Department of Economic Opportunity Mail Stop Code 110, Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed) Katie Zimmer, Agency Clerk Department of Economic Opportunity Mail Stop Code 110, Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed)
The Issue The issue in this case is whether it should be determined that the Highlands County Comprehensive Plan, as amended, was in compliance with Chapter 163, Fla. Stat. (1993), as of the adoption of the County Ordinance 94-1 on March 2, 1994.
Findings Of Fact Adoption History Highlands County adopted its first Comprehensive Plan with a land use map in 1991. The Department of Community Affairs (the DCA or Department) took the position that the initial comprehensive plan was not in compliance. On September 15, 1993, the County adopted an amended comprehensive plan. (County Exhibit 6) The DCA took the position that the amended comprehensive plan, in particular its natural resources element, did not adequately protect areas of important plant and animal habitat from agricultural land uses. (County Exhibit 8). Highlands County adopted remedial amendments on March 2, 1994. (County Exhibit 9) On March 16, 1994, DCA published a Cumulative Notice of Intent to find the Highlands County Comprehensive Plan and Remedial Comprehensive Plan Amendments in compliance. (County Exhibit 13) The Petition for Administrative Hearing by Heartland Environmental Council, Inc. (HEC) was filed on or about April 6, 1994. The HEC Petition was signed by Kris Delaney, as its president. The parties' Prehearing Stipulation filed on October 17, 1994, eliminated several of the issues initially raised in the HEC Petition. The Lake Wales Ridge Highlands County is special because of the presence of a feature known as the Lake Wales Ridge, which is only between five and 14 miles wide but stretches for about 100 miles in a north-south orientation through the County. Most of the Ridge is contained within Highlands County, but smaller portions extend into neighboring counties. The Lake Wales Ridge had its beginnings when the sea covered much of what is now the Florida peninsula. A paleo beach and dune system was formed at the edge between the sea and the Ridge. When the waters receded, it left behind a ridge of relatively high ground characterized by generally coarse sands. These sands, which began as beach sand, have been weathered for millions of years, rendering them very sterile and low in nutrients. Water passes very quickly through these sands, making the soil and environment resemble those occurring in much drier places. Although created through the same processes, the Ridge contains many different unique and specialized habitats. Because of these habitats, the Ridge is a national "hot spot" for endemism. This means that many different species of organisms occur in this relatively small area; many of these species occur exclusively or primarily on the Ridge. At least two dozen plant species are found exclusively or primarily on the Ridge, and it is believed that many species have yet to be discovered. In more recent times, the high and dry Ridge also has attracted a disproportionate share of the residential, commercial and agricultural development in the County. Development pressures have conflicted with the habitat needs for the survival of many of the plant and animal species that occurred on the Ridge. Urban and citrus development tend to obliterate habitat; they also compete for available water supply. In addition, as the Ridge has developed, the natural fires that served an important role in maintaining the special habitats of the Ridge were suppressed. More recently, although man has come to understand the importance of fire to these habitats and the species that thrive in them, the increasing presence of man's development has made fire management more problematic and, in some cases, impossible. With more and more development, the habitats of the Ridge with their many endemic plant and animal species have come under increasing pressure. The most widespread kind of natural habitat on the Ridge is called scrub. Scrub consists mainly of scrub oak and shrubs adapted to dry, low nutrient conditions. Scrub contains a disproportionate share of the threatened and endangered plant and animal species on the Ridge. These include the Florida scrub jay, the gopher tortoise, the sand skink, the scrub lizard and the Florida mouse. Natural scrub habitat is rapidly disappearing from the Ridge. By 1981, about 64 percent of the scrub on the southern Ridge had been severely altered. Along the central Ridge, losses were even greater--about 74 percent. By 1991, losses were estimated to be approximately 70 to 90 percent. Sandhill is the rarest natural community in the County. It is the historic high pineland community dominated by long leaf pines. (A vegetative community known as southern sandhill is not dominated by long leaf pines and is not true sandhill; it actually is a type of scrub.) Only about one percent of the original true sandhill still existed as of March, 1994. Although altered by fragmentation and fire suppression, the remaining sandhill still supports several important endemic plant and animal species, such as the gopher tortoise, Sherman's fox squirrel, and a plant called the clasping warea. A type of natural habitat unique to Highlands County portion of the Ridge is cutthroat seep. Cutthroat seeps occur where groundwater near and at surface elevation flows rapidly through areas usually adjacent to true wetlands, keeping the area wet but not ponded. These areas are dominated by cutthoat grasses, which require periodic burning to maintain their dominance. Drainage related to development lowers the water table and otherwise interrupts the needed lateral flow of water, allowing the invasion of woody species. In addition, development makes fire management more problematic and, in some cases, impossible. The most effective protection of cutthroat seep requires preservation of relatively large parcels, approximately ten acres or more. Smaller parcels are harder to fire manage. In addition, smaller parcels could be subjected to inadvertent hydrologic interruption from nearby development. There are about 18 plant species that occur only on the Ridge. Forty plant species occur only in Florida scrub and occur on the Ridge. Twenty-two plants on the Ridge are federally listed as either endangered or threatened. The Florida scrub jay is a federally listed endangered species that occurs only in peninsular Florida. The scrub jay also serves as an indicator species--management for scrub jay habitat will meet the habitat requirements of most other species that occur in scrub habitat. Scrub jays require the presence of scrub oak, as well as bare ground and low growing scrub. Periodic fire is necessary to maintain this mix. Scrub jays are very territorial. The tend to stay on one specific site. Scrub jays are monogamous, pairing to breed for life. Juveniles help feed and protect younger birds before dispersing to find a territory of their own. Dispersal distance typically is less than a mile. Each family group occupies a relatively large area--approximately 25 acres. Large sites are necessary to maintain a viable scrub jay population. Population viability models indicate that 150-200 individuals are needed for a population to persist for 200 years. Using this standard, fewer than ten potentially secure populations of scrub jay exist. It is believed that as much as 750 acres of scrub oak may be required to give a such a population a 90 percent chance of survival for 100 years. Development destroys scrub jay habitat. In addition, nearby development not only makes fire management difficult, if not impossible, it increases scrub jay mortality from feral cats and dogs and from motor vehicles. In the Base Documents supporting the Highlands County Plan, as amended, the County recognized the unique and sensitive natural resource represented by the Lake Wales Ridge. The Base Documents acknowledged that, before the comprehensive plan was adopted, the County did not have a "formal mechanism to examine the effects of proposed development and agricultural uses on natural vegetation and wildlife." The Base Documents also acknowledged that the Ridge required "more stringent controls and greater incentives for resource protection." Conservation, Use, and Protection of Natural Resources Natural Vegetation and Wildlife Subelement [sic] Highlands County has adopted, as the Natural Vegetation and Wildlife Subelement [sic] of its Natural Resources Element, Objective 3 providing that the County shall protect and acquire native vegetative communities which are endemic to Central Florida and shall restrict activities known to adversely affect the endangered and threatened species and their habitat. Under that Objective, Highlands County has adopted a number of Policies. Highlands County's approach to conservation, use, and protection of natural resources under Objective 3 and its policies is to identify, evaluate, and protect natural resources on a site-by-site basis. (County Exhibit 6, Pages NRE-10 through NRE-25, inclusive, and County Exhibit 9) The review procedures prepared by Petitioner's representative, Kris Delaney, for the Central Florida Regional Planning Council (CFRPC) also used a site-by-site approach. (Petitioner Exhibit 56) Kris Delaney is the immediate past president of HEC and was described by Petitioner's counsel as its main representative. Highlands County's approach to evaluation of natural resources also is comparable to the review processes adopted by federal statute and state law for the protection of threatened and endangered species. Site specific evaluation was necessary due to the variety of protected species needs, site conditions, and legal constraints. Under Policy 3.1, A., Highlands County has adopted a number of source documents to identify endangered or threatened species, including species of special concern. Under Policy 3.1, B., Highlands County has adopted a number of documents as guidelines for establishing mitigation, on-site protection, and remedial actions for the protection of habitats and listed species in the County's land development regulations. Under Policy 3.2, Highlands County adopted a Conservation Overlay Map series to be used as a general indicator for the presence of xeric uplands, wetlands, cutthroat seeps, historical and archeological resources, cones of influence for potable wells, and aquifer recharge areas. (See Findings 52-59, infra, for a detailed description and explanation of these maps.) Whenever a particular site is in an area where one of those resource categories is mapped on the Conservation Overlay Map series or are otherwise known to occur, Policy 3.3 of the Natural Resources Element requires the applicant to submit to the Highlands County Planning Department a preliminary field investigation report prepared by a County-approved professional, firm, government agency, or institution. If that field investigation determines that any of those resources actually exist on the site, an Environmental Impact Report is required of the applicant. Those Environmental Impact Reports (EIR's) must also be prepared by a County approved-professional, firm, agency, or institution. Policy 3.3, E., specifies the content of the EIR: (1) maps and a description of natural vegetative communities occurring on the proposed development site in terms of their habitat functions and significance; (2) maps and a description of the aforementioned natural resource categories which may be impacted by the proposed development; (3) an assessment of the potential impacts which would be sustained by a natural resource as a result of the proposed development; (4) an evaluation of water quality inputs and outputs; recommendations for appropriate mitigation and on-site protection measures; recommended land maintenance and management procedures to assure the continued viability or function of the natural resource after development; and a list of agencies which may have permit requirements pertaining to the proposed development. Under Policy 3.3, F., the application package and the EIR are transmitted for review and comment to the agencies listed in the Environmental Impact Report as having permit requirements and to the Highlands County Natural Resources Advisory Committee. Responsive comments and recommendations which are received are forwarded to the County employee or board having decision-making authority concerning the applicable permit and included in the County records pertaining to the project. Under Policy 3.3, G., after receiving the application packet, the EIR, and the comments and recommendations from other permitting agencies and the Highlands County Natural Resources Advisory Committee, the County evaluates and determines the permit conditions required to: (1) protect and preserve the water quality or natural functions of flood plains and drainage ways, potable water wells, and wetlands; (2) protect and preserve the function of native vegetative communities which are endemic to Central Florida or the habitats of endangered species, threatened species, or species of special concern; (3) preserve and protect historical and archeological resources; (4) establish measures to protect life and property from flood hazard; and (5) establish land maintenance and management procedures for the natural resource to assure its continued viability or function after development. Policy 3.3, G., further requires that the County's final development order must be conditioned upon adequate avoidance, preservation, mitigation, or remedial actions for the protection of the aforementioned resources and must be consistent with the wetlands, flood plain, aquifer recharge, water quality, and cultural resource protection measures set forth within the policies of the Comprehensive Plan. It also requires the County to require that the necessary state and local permits be obtained as a condition of approval for the project's final development order. In determining the appropriate conditions for the County's final development order, Policy 3.3, B., states that avoidance and preservation of the resource shall be the first choice for protecting the resource. Acquisition, conservation easements or dedications, and site design methods (including clustering development to the portion of the site where the resource does not exist or, if that is not possible, to the least environmentally sensitive portion of the site), are among the methods allowed to accomplish that purpose. Appropriate buffers between the development and the resource are also required. Policy 3.3, C., also provides that a mitigation fee may be imposed by the Board of County Commissioners for small, isolated tracts containing less significant habitat and that the mitigation fees collected would be used to fund off-site mitigation in order that preservation of equal or greater habitat type, function, and quantity can be achieved. This is consistent with the "Review Procedure for Special Habits: Xeric Uplands" prepared by Kris Delaney for the CFRPC which provides that "[L]ocal government may wish to establish procedural relationship with such agencies and, based on locally determined criteria, a minimum parcel size requiring review." Similarly, Policy 3.4 provides an environmental mitigation fee alternative for construction of single-family residences on preexisting lots of records to the extent consistent with state and federal regulations. These mitigation fee provisions are consistent with existing state and federal programs for protection of threatened and endangered species and species of special concern (Petitioner Exhibit 53, Pages 58 through 60; Petitioner Exhibit 56, Page 25, Level III, G.1 (cont.); and Petitioner Exhibit 78, Page 16) Policy 3.15 identifies several mitigation options which are consistent with those found in the "Review Procedure for Special Habitats: Xeric Uplands" prepared by Kris Delaney for the CFRPC. Policy 3.5, A., requires the County to institute an ongoing program to define, identify, and conserve its native vegetative communities and the habitats of endangered or threatened species and species of special concern and states that the conservation program must include the following implementation measures: (1) acquisition of lands using public funds and grants; (2) lease of land; (3) tax abatement; (4) land swaps and transfers of title; (5) establishment of conservation or open space easements; (6) density bonuses for cluster development; (7) density bonuses for development that preserves habitat and avoids impact on endangered or threatened species, including species of special concern; (8) density transfers for conservation set-asides to buildable portions of sites; and (9) mitigation fees and mitigation fee credits. Under Policy 3.5, B., the County has established as the top priority of its conservation program working with public and private agencies to acquire and preserve in their natural state: (1) scrub or sand hill habitats (xeric uplands); (2) endemic populations of endangered or threatened species, including species of special concern; (3) wetlands, cutthroat grass seeps, and estuaries; (4) important aquifer recharge areas; and (5) unique scenic or natural resources. In Policy 3.6, the County specifically references the "Review Procedure for Special Habitats: Xeric Uplands" prepared by Kris Delaney for the CFRPC as the model for its development review process for coordination with local, state, and federal regulatory agencies. Policy 3.6(g) specifically provides for coordination with local, state, and federal agencies concerning native vegetative communities or habitat areas spanning more than one local jurisdiction. Policy 3.7 establishes funding sources for the County's conservation trust fund and requires that the fund be used exclusively for the acquisition of the priorities listed in Policy 3.5, B., or the enhancement of other publicly- owned conservation-valued lands, as determined by the Board of County Commissioners. To discourage clearing of land prior to environmental review, the County adopted Policy 3.13, which requires property owners to obtain a County land clearing permit prior to land clearing. Issuance of the land clearing permit is conditioned upon completion of the environmental review process adopted in Policy 3.3. If property is cleared without a County land clearing permit, no development orders may be issued for that site for a period of three years after such clearing. Under Policy 3.13, C., of the Plan, as amended, no land clearing permit is required for "any agricultural activity not requiring a Highlands County land development order conducted by a lawfully operating and bona fide agricultural operation" on property "designated by the Future Land Use Map as either General or Urban Agriculture . . .." Under the policy, such operations are "encouraged to implement a Soil and Water Conservation District approved conservation plan, including the use of Best Management Practices, as applicable to the specific area being cleared, and [to secure all other permits required by State and federal agencies exercising jurisdiction over the natural resources referred to in Policy 3.2 and found on said property]." [Emphasis added.] In addition, Policy 3.9 of the Natural Resources Element provides for encouraging agricultural uses which are compatible with wildlife protection and water quality outputs, implementation of erosion control and Best Management Practices. Highlands County also has adopted many other policies in the Natural Vegetation and Wildlife Subelement [sic] of the Natural Resources Element for the protection of natural resources, including: Policy 3.8, providing for the removal and control of exotic plant species; Policy 3.10, requiring the County to incorporate the protection and conservation measures adopted under the Natural Vegetation and Wildlife Subelement [sic] into all County surface water management plans, public works projects and infrastructure improvement plans; Policy 3.11, encouraging the expansion of wildlife/greenbelt corridors; Policy 3.12, encouraging the creation of parks for the protection, preservation, and conservation of natural resources; Policy 3.14, requiring setbacks from environmentally sensitive land; Policy 3.16, providing for transfers of density and density bonuses to encourage preservation of environmentally sensitive lands and listed species through the use of planned unit developments; Policies 3.17 through 3.19, providing for the appointment, functions and responsibilities of the Highlands County Natural Resource Advisory Committee; Policy 3.20, providing for the adoption of a five-year acreage target for acquisition of natural resource lands; and Policy 3.21, providing for a buffer around Highlands Hammock State Park, publicly-owned conservation lands, and conservation lands being considered for acquisition with public funds. Wetlands Subelement [sic] Highlands County has adopted, as the Wetlands Subelement [sic] of its Natural Resources Element, Objective 4 providing for the protection of wetlands systems and their ecological functions to ensure their long term, economic, environmental, and recreational value and to encourage restoration of wetlands systems to a functional condition. Under Objective 4 of the Natural Resources Element, Highlands County has adopted a number of policies to protect wetlands systems. Policy 4.1 provides for the protection of ecological functions of wetlands systems by the County through actions such as supporting the restoration of wetlands systems, protecting the natural functions and hydrology of wetlands systems by buffering against incompatible land uses and mitigating development impacts, providing for clustering and open space buffering, intergovernmental cooperation, and the acquisition of wetlands systems, including cutthroat grass seeps. In Policy 4.2, Highlands County adopted definitions for wetlands and cutthroat seeps which are required to be mapped according to Policies 3.2 and 4.3. In Policies 4.4 through 4.7, the County provided for the adoption of land development regulations which: encourage the restoration of wetlands systems; provide that development orders in cutthroat seeps be conditioned upon the issuance of wetlands permits by the Army Corps of Engineers, the Florida Department of Environmental Protection, and the South and Southwest Florida Water Management Districts, as their jurisdictions apply, as a condition of approval of the project's final development order or land clearing permit; prevent the net loss or alteration of wetlands on a County-wide basis; and require conservation easements and delineation on final plats for wetland and cutthroat grass seep areas used for mitigation purposes. State and Federal Protections State and federal permitting processes protect threatened and endangered species and species of special concern found in Highlands County. See Conclusions 125-130 and 140-147, infra. The review processes required to obtain the state and federal permits pertaining to threatened and endangered species require site-specific review, comparable to obtaining environmental clearance from the County under Policy 3.3 of the Natural Resources Element. In view of the diversity of threatened and endangered species and species of special concern and their habitat needs, variations in quantity and quality of resources existing on site, and statutory and constitutional property rights protection, the County has chosen not to establish fixed set asides for every resource under every circumstance on a County-wide basis. By including in its permitting process notification to federal and state agencies having permitting responsibilities, Highlands County will be providing valuable assistance to state and federal environmental protection by bringing those agencies in at an early stage of the review process. Moreover, the County's requirements that the necessary federal, state, and local permits be obtained as a condition of approval for a project's final development order will assist those federal and state agencies in enforcing environmental permits in Highlands County. Measuring Success of Protection Measures Extensive work by federal and state agencies has been devoted to identifying and studying threatened and endangered species, both plant and animal. Threatened and endangered species and the habitats necessary for their survival exist throughout the State of Florida. Listed species found in Highlands County are also found in other areas of the State of Florida. The amount and land-cover types of conservation areas have been extensively studied for the entire State of Florida. The percentage of conservation lands in Highlands County (9.4 percent) exceeds the statewide median for the portion of conservation lands within individual counties (8.6 percent). The land cover types for the entire State of Florida have been identified and quantified by location and number of acres and the amounts of those habitats in conservation lands have also been determined. Likewise, for every county, the land cover types have been located, identified, mapped, and acreage determined for "natural" upland cover types, "natural" wetland cover types, and "disturbed" cover types. The "natural" upland cover type category includes coastal strand, dry prairie, pine lands, sand pine scrub, sand hill, xeric oak scrub, mixed hardwood-pine forest, hardwood hammocks and forest, and tropical hard wood hammocks. "Natural" wetland cover types include coastal salt marshes, fresh water marsh and wet prairie, cypress swamp, mixed hardwood swamp, bay swamp, shrub swamp, mangrove swamp, and bottomland hardwood forest. "Disturbed" cover types include grass land and agriculture, shrub and bush land, exotic plant communities and barren and urban land. Open water areas were also identified, located, mapped, and the acreage areas determined. The amounts of land in each of those land cover categories has been tabulated by county and for the State as a whole. The amount of land in each of those categories located in conservation lands has also been tabulated for each county and for the State as a whole. The tabulation for land cover types for Highlands County and the amount of conservation lands for each cover type are as follows: "Natural" upland cover types - coastal strand (0/0), dry prairie (427/112), pine lands (167/41), sand pine scrub (14/3), sand hill (0/0), xeric scrub oak (112/12), mixed hardwood-pine forest (4/0), hardwood hammocks and forests (46/5), tropical hardwood hammocks (0/0); "Natural" wetland cover types - coastal salt marshes (0/0), freshwater marsh and wet prairie (129/34), cypress swamp (21/8), mixed hardwood swamp (41/5), bay swamp (17/0), shrub swamp (21/5), mangrove swamp (0/0), bottomland hardwood forest (0/0); Open water (202/1); and "Disturbed" cover types - grass land and agriculture (1086/15), shrub and brush land (271/18), exotic plant communities (0/0), barren and urban land (307/11) Within the parenthesis above, the first number represents the total area in square kilometers and the second number represents the conservation lands in that category, also in square kilometers. There are approximately 247 acres per square kilometer. For Highlands County, these identified land cover types cover 2,866 square kilometers of which, 270.8 square kilometers are conservation lands. In addition to mapping those important habitat areas in each county in the State of Florida, the threatened and endangered species and species of special concern found in those habitat areas have also been identified. Those habitat areas and the threatened and endangered species and species of special concern which they support have been specifically identified and mapped for Highlands County. Since the land cover types in Highlands County have been identified, located, mapped, and quantified and the threatened and endangered species and species of special concern, both plant and animal, supported by those land cover types have been identified, Highlands County has the ability to objectively measure the success of its adopted Goals, Policies, and Objectives in protecting natural resources. Data and Analysis and Maps Eugene Engman, AICP, a planner/economist, was the principal author of the conservation element and Base Documents of supporting data and analysis for the County's 1991 Plan. The Base Documents indicate extensive analysis of the County's natural resources, including: surface waters; floodplains; mineral deposits; areas with erosion problems; and fisheries, wildlife habitat and vegetative communities. The Conservation Overlay Maps The Base Documents also contain a "methodology for conservation designation," that applies to areas identified as areas of outstanding natural resources and to areas containing special habitat (high quality scrub habitat, cutthroat grass seeps with predominantly native vegetation, and forested wetlands on and near the Ridge). With respect to the latter, it was not Engman's intention to map all vegetative communities on and near the Ridge; oak hammock and palm hammock, for example, was not mapped. It also was not Engman's intention to map the entire County. Engman did not believe that mapping of high quality scrub habitats, seeps and wetland forest was required, but he mapped them at no charge to the County to enable the County to better protect endangered species and other resources on and near the Ridge where most the special habitat and most development coincided. Following the methodology, Engman and his colleagues prepared the Resource Base Maps--County Exhibit 40. They consisted of 27 USDA Soil Conservation Service (SCS) quadrangle maps, two with acetate overlays. The quad maps themselves show some resources indicated by a separate legend available from the SCS. In addition, Engman and his colleagues indicated the location of scrub habitats, seeps and wetland forest through use of an additional legend they wrote on the quad maps. Some legends applied to more than one quad map. In addition to the SCS quad maps themselves, Engman and his colleagues used the Soil Survey field notes of Lew Carter of the SCS, 1985 infrared aerial photographs, and local knowledge of the Dr. James Layne of the Archbold Research Station, Lew Carter of the USDA Soil Conservation Service, Mike Sawyer of the Florida Division of Forestry, and County sources. The Base Documents also contains a Generalized Soils Map which references as its source "USDA/SCS, Soil Survey of Highlands County, Florida, July, 1989." The Base Documents also contained two maps at the scale of one inch equals three miles--one mapping outstanding natural resources, and the other mapping special habitat. These two maps were then combined into a third map at the scale of one inch equals five miles. This third map was designated the Conservation Overlay Map in the Base Documents. Each quarter section (160 acres) of the County that contained any of the identified resources depicted on the Resource Base Maps was depicted as "Conservation" on the Conservation Overlay Map. The Conservation Overlay Map advised that: "This map is for comprehensive planning purposes only. Specific locations are identifiable on the Resource Base Maps located in the Office of the County Planning Director." No duplicates or copies of the Resource Base Maps--County Exhibit 40-- were made before the final hearing in this case. They were available to the public during the development of the 1991 Plan, and they were forwarded to the County Planning Department when Engman's work was finished. There, they remained available for use by the County Planning Department in implementing the Plan, and remained available for public inspection, except for a period of approximately one year when they were misplaced and could not be located. FLU-54, the Conservation Overlay Map in the Future Land Use Map series, is the same map that is contained in the Base Documents as the Conservation Overlay Map. The Future Land Use Map Series In addition to FLU-54, the Future Land Use Map Series in the adopted plan, as amended through 1993, contained a Future Land Use Map Set of three large maps--a one inch equals two miles base map, and two one inch equals one/half mile maps--together with several letter-size maps at one inch equals five miles (one is at one inch equals four miles), which are FLU-55 through FLU- 62. The adopted plan, as amended through 1994, contained the same text as the plan as amended through 1993, along with an updated Future Land Use Map Set of six large color sheets. The base map is at a scale of one inch equals two miles and is a colorized version of the base map contained in the 1993 version of the plan; the other five maps are color insets from the base map at a scale of one inch equals one quarter mile. The rest of the Future Land Use Map Series is the same as in the Plan as amended through 1993. In addition to the FLU-54 Conservation Overlay Map, the future land use map series included: a Generalized Soils Map which identifies its source as "USDA/SCS, Soil Survey of Highlands County, Florida, July, 1989"; Highland's County Peat Deposits, whose source is "Adley Associates, Inc. September, 1988"; Wetlands 600, whose legend identifies "wetlands" and "ridge," and whose source is "Adley Associates, Inc. September, 1988"; Floodplains, whose legend identifies "floodplains" and "ridge," and whose source is "Adley Associates, Inc. September, 1988"; Water and Canal Map 500, whose legend identifies "generalized interim well protection zones (cones of influence) for potable water supply wells" and whose source is "Adley Associates, Inc., Highlands County Building and Zoning Department and DER," and which is dated December, 1990; Future Traffic Circulation Map State Roads, which depicts various types of roads and whose source is "Highlands County Engineering Department and FDOT"; Future Traffic Circulation Map County Roads, which depicts various types of roads and whose source is "Highlands Co. Engineering Department and FDOT"; Future Traffic Circulation Map County Roads, which depicts various types of roads and whose source is "Highlands Co. Engineering Dept. (9/88) and FDOT (11/90)"; and Modified Community Parks which depicts existing and proposed parks and "existing urban land use" and whose source is "Adley Associates, Inc. April, 1990". FLU-55, the Generalized Soils Map, was prepared using the 1989 USDA SCS Soil Survey. Major field work for the USDA/SCS Soil Survey was completed in 1986. It is the same map as the Generalized Soils Map contained in the Base Documents. FLU-57 maps wetland features which are not depicted on either the Resource Base Maps (County Exhibit 40) or the Conservation Overlay Map. The 1989 USDA SCS Soil Survey was used to identify wetlands on FLU-57. HEC's Contentions HEC contended that the maps in the Plan, as amended, were deficient. It became apparent during the course of the final hearing that HEC considered the FLU-54 Conservation Overlay Map in the Plan, as amended, to be the only map pertinent to the designation of conservation lands. HEC contended that FLU-54 is too small, not clear and legible enough, and inadequate for its purposes. It appeared that HEC learned of the existence of the Resource Base Maps (County Exhibit 40) during the final hearing. HEC contended that the Resource Base Maps were deficient because they were not based on the appropriate and best available data. As a result, HEC contended, the Base Resource Maps and FLU-54 Conservation Overlay Map "missed" some significant resources. Kris Delaney quickly reviewed the Resource Base Maps during the course of the final hearing and testified that on the Frostproof, Lake Arbuckle, Sebring, and Fort Kissimmee quad sheets some "significant areas of native vegetation were not shown on the mylar overlays." Delaney's observations regarding the five allegedly-inaccurate mylar quad map overlays were made with reference to the USDA Soil Conservation Service Soil Survey and what he believed was a wetland symbol on the underlying quad map. But it is not clear that Delaney understood the legend to the Resource Base Maps. Furthermore, he was not offered as an expert in photogrammetry, geography, or surveying, and the specifics of his personal knowledge of the areas in dispute were not made clear. Another HEC witness, Dr. Menges, testified to his opinion that the Base Resource Maps and FLU-54 Conservation Overlay Map did not map all native vegetative communities throughout the County. He testified that, to map native vegetative communities on a species-specific basis, Steve Christman's 1988 report for the Florida Game and Fresh Water Fish Commission would provide the best available data. (He also mentioned data from the Florida Natural Areas Inventory, but it was not clear that those data were not used or how available those data were.) However, it was not clear from the evidence that the Christman report was not used as a data source. In addition, Menges conceded that "the primary source for the distribution of (native vegetative) communities" (in Highlands County) would be the "Soil Conservation Service Survey map," and it is clear that the County's consultants used this data source, together with other soil survey information and aerial photography, as was appropriate. It should not be surprising that the Base Resource Maps and FLU-54 Conservation Overlay Map did not map all native vegetative communities throughout the County. As previously, stated, the effort was limited to high quality scrub habitat, cutthroat grass seeps with predominantly native vegetation, and forested wetlands on and near the Ridge. There was no intention to map all native vegetative communities throughout the County. Regardless of the alleged deficiencies with the Resource Base Maps and the FLU-54 Conservation Overlay Map, HEC did not take into account all of the maps in the Future Land Use Map series in contending that the mapping was deficient. HEC did not recognize that Policy 3.2 provides for the use of the "adopted Conservation Overlap Map series contained in the Future Land Use Element" as the "general indicator" for the resources described in the policy. The Future Land Use Map series includes not only FLU-54 and the Resource Base Maps (County Exhibit 40) but also: FLU-55 (the Generalized Soils Map), FLU-57 (the Wetlands 600 map), FLU-58 (the Floodplains map), and FLU-59 (the Water and Canals Map 500). HEC also did not recognize that the environmental clearance procedures under Policies 3.3 and 3.13 are triggered not only if the presence of the resources described in Policy 3.2 is mapped on the Conservation Overlay Map (which includes not only FLU-54, but also the Resource Base Maps), but also if they are known to occur by reference to any of the maps in the Future Land Use Map series, or are otherwise known to occur. The references acknowledged by the County in Policy 3.1 can serve as the source of knowledge of where the resources described in Policy 3.2 occur. It is not beyond debate that these sources of information, taken together, are adequate for purposes of indicating the existence of the resources described in Policy 3.2 and triggering environmental clearance review under Policy 3.3. HEC did not establish beyond debate that the County did not use appropriate or the best available data, that the County did not apply the data in a professional manner, or that the Plan, as amended, did not react to the data in an appropriate way. Future Land Use Element Residential Land Use Density In Agricultural Land Use Categories HEC presented no credible testimony or evidence to substantiate its allegation that the land use densities for agriculture and urban agriculture encourage "urban sprawl" or are not supported by adequate data. No expert testimony in land use planning was offered, although HEC had identified such potential experts on its witness list. The Base Documents stated that agricultural density was at 1 unit/acre prior to the adoption of the Plan and recommended that the density be decreased to 1 unit/10 acres. The draft of the Base Documents recommended a density of 1 unit/ 5 acres. The Plan established the General Agriculture land use category as the predominant land use for rural areas. It has the lowest development potential of all adopted land use categories. The General Agriculture land use category has a density range of one unit per ten acres. The Urban Agriculture land use category was established as a transitional zone between urbanized and rural lands. The Urban Agriculture land use category has a density range of one unit per five acres. (County Exhibit 6, Pages FLU-6 and FLU-7 There was no evidence to prove that lesser densities are required to discourage urban sprawl, to protect natural resources, to protect agricultural lands, or for any other reason. Population Accommodation Data and Analysis HEC did not present any population accommodation analysis. There was no competent evidence presented in this case as to the population accommodated in the year 2000 under either the Plan as amended and adopted on March 2, 1994, or the Plan as amended and adopted on September 15, 1993. HEC pointed to a projection in the Housing Element in the County's Plan indicating a need for 10,075 new housing units to accommodate 16,977 new residents by the year 2000. HEC also pointed to data and analysis indicating that there are approximately 108,000 residential lots in existing subdivisions of 100 lots or more in the County that potentially could be developed to accommodate new housing units. But HEC did not establish that it is realistic to project maximum development in those subdivisions at one unit per lot; nor did HEC establish the extent of vested rights to development in those subdivisions. Protection of Water Quality and Quantity The Base Documents contain extensive data and analysis of County geology and soils, including water supply considerations, and recharge. Aquifer recharge in Highlands County occurs primarily on the Lake Wales Ridge. Contamination of groundwater has been documented from hazardous waste associated with landfills, agricultural use of the pesticides EDB (ethylene dibromide) and Bromicil, and leaking underground storage tanks. Of these, only the agricultural pesticide use is documented to have impacted potable water supplies. EDB, the primary source of contamination noted, has not been used since 1983. While the presence of Bromacil is also noted, the number of wells is not mentioned. Moreover, the evidence does not mention a single health- related case. Where EDB contamination has been found, the State of Florida has paid the cost of connecting to public water supplies or installing carbon filters. There is no evidence that stormwater management activities has caused groundwater contamination. Highlands County has adopted a number of objectives and policies in both the Infrastructure Element and the Natural Resources Element of the Plan, as amended, intended to protect potable water wells, conserve potable water resources, and reduce the risk of groundwater contamination. Objective 6 under the Potable Water Subelement [sic] of the Infrastructure Element is to ensure public health by protecting the water quality of potable wells. Among the policies adopted to implement that objective is Policy 6.4, adopting stringent restrictions on activities within a 600 feet radius around public potable water wells. Highlands County also adopted Objective 7 and Policies 7.1 through 7.3 under the Potable Water Subelement [sic] to establish minimum design and construction requirements for all potable water wells to protect and assure delivery of potable water. Highlands County has also adopted a number of other objectives and policies under the Natural Resources Element intended to protect groundwater quality, including: prohibiting the location of hazardous waste treatment facilities in the County; requiring cooperation with the DEP "DRASTIC" program; prohibiting discharges of untreated stormwater and waste material into underground formations; adopting stormwater quality and quantity standards; mapping wellhead protection zones; and encouraging implementation of best management practices for agricultural operations in the County. HEC did not prove beyond fair debate that, taken together, the Goals, Objectives, and Policies of the Plan, as amended, do not ensure the protection and conservation of potable water supplies.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Community Affairs enter a final order determining that the Highlands County Plan adopted through County Ordinance 91- 1, as amended by County Ordinances 93-16 and 94-1, is "in compliance." DONE and ENTERED this 15th day of October, 1996, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 15th day of October, 1996.
The Issue The issue in this case is whether the Bradford County Board of County Commissioners should approve or deny an application to rezone a 12.76-acre parcel located at the southwest corner of Highway 301 and County Road 18 in unincorporated Bradford County (“the Property”) from Residential, (Mixed) Single Family/Mobile Home (RSF/MH-1) to Commercial Intensive (CI).
Findings Of Fact The Parties Petitioners Craig W. Patterson and Timothy Buffkin own the Property and are the applicants for the proposed re-zoning. Bradford County is the local government responsible for determining the land use designation and zoning classification for the Property and has adopted a comprehensive plan and LDRs which it amends from time to time. The Property The Property is a 12.76-acre parcel located at the intersection of U.S. Highway 301 (US 301) and County Road 18 (CR 18) in unincorporated Bradford County. US 301 is a four-lane divided principal arterial roadway, and CR 18 is a two-lane major collector roadway. The intersection has a traffic light and left turn lanes on US 301. This is the only intersection of a principal arterial road and a major collector road in unincorporated Bradford County. The Property is roughly rectangular, with approximately 1,240 linear feet fronting on US 301 (eastern boundary of the Property) and approximately 450 feet fronting on County Road 18 (northern boundary). The Property is not located within a flood-prone area and has little or no wetlands. Approximately a half mile to the east of the Property is Hampton Lake. The Property is relatively flat. The soils on the property are poorly drained soils, but not indicative of wetlands. The soils and topography of the property do not preclude its development with a system to control stormwater and drainage. Currently, the Property contains one single-family dwelling unit. The Property is bounded on the north by a commercial land use and single-family residences, on the east by vacant and commercial land use, on the south by vacant land, and on the west by vacant land and single-family residences. Current Zoning and Land Use Designations Before October 2004, the Property was designated on the County’s Future Land Use Map (FLUM) as “Residential Low Density,” which authorizes residential development at a density of less than or equal to two dwelling units per acre. On October 21, 2004, the County amended the FLUM to re-designate the Property as “Commercial.” However, the zoning for the Property remained “Residential, (Mixed) Single Family / Mobile Home (RSF/MH-1). The current zoning does not allow the types of uses appropriate under its Commercial land use designation. The Property is also located within an Urban Development Area which is defined in the Future Land Use Element of the comprehensive plan as an “area to which higher density agricultural, residential (single family, multi-family and mobile homes) and commercial and industrial uses are to be directed.” Within Urban Development Areas, lands classified as “Commercial” are to be used for the “sale, rental and distribution of products or performance of services, as well as public, charter and private elementary, middle and high schools.” Certain other uses may also be approved as special exceptions or special permits. Surrounding Land Uses A portion of the land to the north of the Property and all of the land immediately east are within the municipal boundaries of the City of Hampton. The City of Hampton has zoned property at the US 301/CR 18 intersection as “CG”, a commercial designation which includes all of the uses authorized under Bradford County’s CI zoning district. Within the past several years, a truck repair and auto parts facility was located and is still operating east of the Property, across US 301. Farther east, but bordering those commercial lands, a residential subdivision (Fox Hollow) is under development. The Requested Re-zoning The Applicants seek to re-zone the Property to Commercial Intensive (CI). Permitted principal uses and structures allowed within the CI zoning district are consistent with the types of commercial uses listed in the comprehensive plan for the Commercial land use designation, namely retail outlets for the sale of food, home furnishings, vehicles, etc.; service establishments such as barber shops, shoe repair shops, repair and service garages; medical or dental offices; and wholesaling. The CI zoning district is described as “intended for intensive, highly automotive-oriented uses that require a conspicuous and accessible location convenient to streets carrying large volumes of traffic and shall be located within commercial land use classifications on the [FLUM].” The Property meets the description of a conspicuous and accessible location that is convenient to streets carrying large volumes of traffic. Concurrency Management Assessment The requested re-zoning is a “straight” re-zoning request, meaning that the re-zoning is not associated with any particular proposed use. Future development of the site will be subject to development plan review and approval, pursuant to Article Fourteen of the County LDRs. A concurrency reservation is not available until final site plan approval. However, at the County’s request, the North Central Florida Regional Planning Council (NCFRPC) performed concurrency management assessments of the re-zoning in 2006 and again in 2008. In 2006, the NCFRPC provided the County with nonbinding concurrency determination that the applicable service levels would be met or exceeded for potable water (to be supplied by potable water wells); sanitary sewer (to be served by on-site septic tanks); solid waste; drainage; recreation; affordable housing; and historic resources. As to transportation facilities, the 2006 concurrency management assessment determined that the maximum potential development of the Property would generate 389 trips on US 301 at “PM peak hour.” When added to the then-existing PM peak hour trips, based on Florida Department of Transportation (FDOT) traffic count data, US 301 would continue to operate within the adopted level of service (LOS). Between 2006 and 2008, the adopted LOS standard for US 301 was raised from “C” to “B,” meaning that the governmental objective was changed to maintain a freer flow of traffic during evening peak traffic. Therefore, despite the reduction of “background” trips on US 301, the 2008 concurrency management assessment determined that maximum development of the Property would cause the new LOS “B” standard to be exceeded. Petitioners presented a traffic analysis based upon more recent FDOT traffic count data than was used by the NCFRPC for its 2008 concurrency management assessment. The newer data showed a further decline in background trips on US 301, so that adding the maximum potential trips from the Property would no longer result in total PM peak hour trips that would exceed the adopted LOS standard. Petitioners’ more recent data and analysis is professionally acceptable and should be used. At the time of site plan review for any future development of the Property, an updated concurrency assessment will be required and will be based on the number of trips generated by the actual proposed use, rather than the trips that would be generated by the maximum development potential of the Property. The assessment will also use the most current FDOT traffic count data. Compatibility with Surrounding Land Uses The County’s Planning and Zoning Board reviewed the application for re-zoning at its July 10, 2006, meeting. It recommended denial of the re-zoning based upon the impact of the proposed change upon living conditions in the neighborhood. As factual support for the recommended denial, the Planning and Zoning Board’s report cites “all comments received during the said public hearing and the Concurrency Management Assessment concerning said application.” At the August 19, 2008, public hearing held before the Administrative Law Judge, members of the public expressed concern that the CI zoning would be incompatible with the existing residential development to the west, in the Hampton Lake area. Some members of the public also expressed concern about possible future uses of the Property, such as a truck stop or bar. Package stores for the sale of alcoholic beverages, bars, taverns, cocktail lounges, truck stops and automotive service stations can only be approved as special exception uses in the CI zoning district. Special exception uses require approval of the County’s Board of Adjustment after a public hearing, upon a finding that granting the special exception use would promote the “public health, safety, morals, order, comfort, convenience, appearance, propriety or the general welfare.” The Board of Adjustment must also determine that the special exception use would be compatible with adjacent properties. A favorable decision here on the requested re-zoning to CI is not a determination that a bar or truck stop on the Property would be compatible with the adjacent residential area. The LDRs impose site use and design criteria for commercial uses that adjoin residential districts. Site plan approval for commercial developments in CI zoning districts requires the consideration of landscape buffers, height restrictions, off-street parking requirements, lot coverage and yard standards. These development conditions are designed to minimize impacts to adjacent residential areas. Stormwater Some of the speakers at the public hearing expressed concern about stormwater runoff from the Property. One speaker, Michael Davis, testified that stormwater from the Property currently flows across his property. Another expressed concern that runoff from the Property would flow directly to Hampton Lake. On-site stormwater retention facilities would be required for the Property in conjunction with its development. The LDRs require that post-development runoff rates not exceed pre-development conditions. The objective of the required stormwater runoff controls is to approximate the rate, volume, quality, and timing of stormwater runoff that occurred under the site’s unimproved or existing state. There is no basis, at this stage of analysis, to determine that the County’s stormwater regulations are not adequate to prevent adverse stormwater impacts to adjacent residences or to Hampton Lake. Traffic on CR 18 Several speakers expressed concerns regarding increased traffic on CR 18. Petitioners conducted a site-specific traffic count for CR 18 east of US 301 and determined that the peak hour trips are now 131. The capacity for CR 18 is approximately 600. Based upon the total of 389 additional trips generated by the maximum potential development of the Property (on either US 301 or CR 18), the adopted LOS standard for CR 18 would not be exceeded. Petitioners demonstrated that the proposed re-zoning is consistent with the comprehensive plan and the LDRs.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Bradford County Board of County Commissioners approve the requested re-zoning. DONE AND ENTERED this 18th day of September, 2008, in Tallahassee, Leon County, Florida. BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of September, 2008. COPIES FURNISHED: Ray Norman, Clerk of the Board Bradford County Board of County Commissioners 945 North Temple Avenue Starke, Florida 32091 Marcia Parker Tjoflat, Esquire Charles L. Gibbs, Esquire Pappas Metcalf Jenks & Miller, P.A. 245 Riverside Avenue, Suite 400 Jacksonville, Florida 32202 William E. Sexton, Esquire Brown & Broling 486 N. Temple Avenue Starke, Florida 32091
The Issue The issue in this case is whether an amendment to the future land use map of the Martin County comprehensive plan, Amendment No. 98-3, is "in compliance" as those terms are defined in Section 163.3184(1)(b), Florida Statutes (2000).
Findings Of Fact The Parties. Hobe Sound Citizens Alliance, Inc. (hereinafter referred to as the "Alliance"), is a not-for-profit corporation organized under the laws of Florida. The Alliance was organized in July 1998 primarily to respond to proposed land use designation changes for the property that is the subject of this proceeding and for other property. The Alliance has three officers (a President, Secretary, and Treasurer) and an eight-member Board of Directors. The officers and directors of the Alliance all reside in Martin County, Florida. The members of the Board of Directors are from different neighborhoods in Martin County. The Alliance maintains a mailing list of approximately 500 individuals who are considered "members" of the Alliance. These individuals have all expressed interest in the activities of the Alliance, but have not taken any formal steps to join the Alliance, such as paying dues or completing an application for membership. In fact, the Alliance does not collect dues or have a membership application. Petitioner, Mary A. Merrill, is an individual who resides in an area of unincorporated Martin County, Florida, known as "Hobe Sound." Ms. Merrill serves as President of the Alliance. During the process of adopting the amendment which is the subject of this matter, Ms. Merrill and the Alliance made comments and objections. Respondent, Martin County (hereinafter referred to as the "County"), is a political subdivision of the State of Florida. The County is located on the east coast of Florida. The County is bordered on the east by the Atlantic Ocean, on the south by Palm Beach County, on the north by St. Lucie County, and on the west by Lake Okeechobee and a portion of Okeechobee County. Intervenor, Hobe Sound Land Company, Ltd. (hereinafter referred to as the "Land Partnership"), is a limited partnership organized under the laws of Florida. The Land Partnership's general partner is Hobe Sound Land Company, Inc. (hereinafter referred to as the "Land Company") and the limited partners are a number of trusts organized for the benefit of various members of the Reed family. The Land Partnership is the owner of the property which is the subject of this proceeding (hereinafter referred to as the "Subject Property"). The County's Comprehensive Plan. General The County has adopted a comprehensive land use plan as required by the Local Government Comprehensive Planning and Land Development Regulation Act, Part II, Chapter 163, Florida Statutes (hereinafter referred to as the "Act"). The Martin County Florida Comprehensive Growth Management Plan 1999/00 (hereinafter referred to as the "Plan"), has been determined to be "in compliance" as those terms are defined in the Act. The Future Land Use Element The Plan includes a Future Land Use Element (hereinafter referred to as the "FLUE"), consisting of the following: Section 4-1, "Background Information"; Section 4-2, "Analysis of Land Use Features"; Section 4-3, the "Future Land Use Map and Map Series"; Section 4-4, "Goals, Objectives and Policies"; Section 4-5, "Performance Standards"; and Section 4- 6, "Implementation Strategies." Sections 4-1 and 4-2 consist of what the County refers to as "narrative" sections which the County gives less weight to in determining whether an amendment to the Plan is "in compliance" than it gives Section 4-4, which contains the Goals, Objectives, and Policies of the Plan. These narrative sections of the Plan, however, are not "data and analysis." They were adopted as a part of the Plan. See the second unnumbered page of the Plan. The FLUE establishes 13 separate and distinct land-use categories. These land-use categories determine the uses to which property subject to the Plan may be put. The Plan's Future Land Use Map and Map Series (hereinafter referred to as the "FLUM"), depicts all property subject to the Plan and depicts the land use category assigned to all property in the County. Among the land use categories established in the FLUE pertinent to this proceeding is the "Institutional" land use category. To distinguish this category from the "Institutional- County" land use designation of the FLUE, the category is referred to as the "General Institutional" category. Property designated as General Institutional is subject to the following sub-categories or intensities of use: "retirement home, churches, schools, orphanages, sanitariums, convalescent, rest homes, cultural organizations, military, colleges, hospitals, federal, municipal, utilities, and rights- of-way." Section 4-4.M.1.h.(3). of the FLUE, provides the following Policy governing the use of General Institutional property: General Institutional - The General Institutional category accommodates public and not-for-profit facilities such as, but not limited to schools, government buildings, civic centers, prisons, major stormwater facilities, fire and emergency operation center facilities, public cemeteries, hospitals, publicly owned public water and sewer systems, dredge spoil management sites, and airports. Investor owned regional public water and sewer systems and private cemeteries may be allowed in General Institutional. . . . While Institutional use is reserved for the above uses, this shall not prohibit for- profit medical offices and other ancillary facilities owned by a non-profit hospital as long as they are part of a Planned Unit Development. . . . . . . . The Plan also establishes land use categories in the FLUE for the residential use of property. All land which is designated for residential development on the FLUM is subject to Section 4-4.M.1.e. of the FLUE: The Land Use Map allocates residential density based on population trends; housing needs; past trends in the character, magnitude, and distribution of residential land consumption patterns; and, pursuant to goals, objectives, and policies of the Comprehensive Growth Management Plan, including the need to provide and maintain quality residential environments, preserve unique land and water resource and plan for fiscal conservancy. There are seven types of designated residential land use categories created by the Plan. Those uses include the following: 10 units per acre for "high density;" 8 units per acre for "medium density;" 5 units per acre for "low density residential;" 2 units per acre and 1 unit per acre for "estate density;" .5 units per acre for rural areas. There is also a "mobile home density" category. The lowest density of .5 units per acre is reserved for those areas that are designated as rural. The estate density categories are used for areas are located "generally on the fringe of the urban service districts and generally are not accessible to a full complement of urban services." Sections 4-4.M.1.e.(1) and (2) of the Plan. Of primary pertinence to this proceeding is the residential land use designation of "Low Density Residential." Residential land designated "Low Density Residential" is limited by Section 4-4.M.1.e.(3). of the FLUE as follows: Low Density Residential Development. The low density residential designation is reserved for land accessible to existing urban service centers or located in the immediate expansion area. Densities permitted in this area shall not exceed five (5) units per gross acre. Review of specific densities shall be directed toward preserving the stability and integrity of established residential development and toward provided equitable treatment to lands sharing similar characteristics. Design techniques such as landscaping, screening and buffering shall be employed to assure smooth transition in residential structure types and densities. Generally, where single family structures comprise the dominant structure type within these areas, new development on undeveloped abutting lands shall be required to include compatible structure types on the lands immediately adjacent to existing single family development. Excessive Residential Property and the Active Residential Development Preference Planning System. Section 4-2.A.6.c. of the Plan recognizes that the County has designated an excessive amount of land for residential use. This section of the Plan indicates that, at the time the Plan was adopted, there was a projected need for 26,231 acres of land to accommodate the projected population of the County to the Year 2005. It also indicates that, as of the date of the Plan, 35,834 acres of vacant land had been designated for residential use, well in excess of the amount of land necessary to meet demand. Despite the requirements of the Act and Chapter 9J-5, Florida Administrative Code, requiring appropriate planning for residential needs within a local government's jurisdiction, the Plan was approved by the Department as being "in compliance" with the designation of an excessive amount of land for residential use in the County. Instead of requiring strict compliance with the provisions of the Act and Chapter 9J-5, Florida Administrative Code, dealing with planning for future residential land use needs, the County and the Department entered into a Stipulated Settlement Agreement specifying that the Plan include a requirement that the County undertake the collection of more current land use data and refine the various land use predictive factors it had been using. The Stipulated Settlement Agreement also required that the County institute an Active Residential Development Preference Planning System (hereinafter referred to as the "ARDP System"), to monitor the timing and location of residential development in the County. Section 4-2.A.8. of the Plan provides a Policy dealing with future residential land use requirements for the County. The Policy reports the over-allocation of vacant land designated for residential uses in the County and the need for the ARDP System. The Policy specifically provides, in part: While the current pattern on the Future Land Use Map will remain as is, an active residential development "125% test" will be used in conjunction with location and land suitability requirements in the review and approval of future land use and/or project requests. These requirements shall include, at a minimum, location within the Primary, or Secondary Urban Service District; consistency with the Capital Improvement Element; protection of natural resources; and adequate provision of facilities and services at the adopted level of service. The Policy goes on to provide that residential development in the County will be maintained at 125 percent capacity through the ARDP System and describes other measures to reduce the amount of excessive residential property to be developed in the County. Section 4-4.A.6. of the Plan establishes a Policy requiring that the County implement the ARDP System by May 1991. Consistent with Section 4-4.A.6. of the Plan, the County has adopted the ADRPP System. Environmental Protection Considerations in the FLUE Section 4-2.A.6.d. of the Plan recognizes that residential use of land located near or on the coast can threaten the "preservation of the very attributes of the area which make it attractive for growth." Therefore, the Policy provides that any such development is to be planned to minimize the threat by "assuring that the environmentally sensitive and threatened habitats are preserved." The Policy also provides: Certain areas in Martin County are recognized and beginning to be identified by federal, state and local programs as environmentally sensitive. These areas provide special value in producing public benefits, including: recreational opportunities, life support services, tourism, commercial and sport fishing, scenic values, water purification, water recharge and storage, and sensitive habitats critical to the survival of endangered wildlife and plants. Urban development in or adjacent to environmentally sensitive areas can significantly reduce their environmental values. Additionally, there are important public health concerns associated with development in these areas, particularly in relation to potable water and waste disposal in low lying areas. . . . Section 4-2.A.6.f. of the Plan recognizes the importance of natural vegetation. The Policy also recognizes that urban development removes or alters the County's natural vegetation. Coastal Management Element Section 8.4 of the Plan establishes the Goals, Objectives, and Policies for the Coastal Management Element of the Plan. The area subject to this Element is described on maps adopted as part of the Element, including the map depicted in Figure 8-1. The Subject Property is not located within the coastal management area established by the Element. Section 8.4.A.2.a. of the Plan provides "land use decisions guidelines" requiring a consideration of the impacts of development on fish, wildlife, and habitat, including cumulative impacts. These guidelines, however, apply to development within the coastal management area established by the Plan. Conservation and Open Space Element Chapter 9 of the Plan establishes the Conservation and Open Space Element. The Goals, Objectives, and Policies of the Element are set out in Section 9-4 of the Plan. Section 9-4.A. of the Plan establishes the following Goal: The goal of Martin County is to effectively manage, conserve and preserve the natural resources of Martin County giving consideration to an equitable balance of public and private property rights. These resources include air, water, soils, habitat, fisheries and wildlife with special emphasis on restoring the St. Lucie Estuary and the Indian River Lagoon. Section 9-4.A.2.a. of the Plan requires that the County continue to enforce and improve its Wellfield Protection Ordinance. The Wellfield Protection Ordinance is intended to regulate land use activities within the zones of influence of major wellheads. Section 9-4.A.2.b. of the Plan provides the following: New potable water wells and wellfields shall be located in areas where maximum quantities of regulated materials (e.g. hazardous and toxic materials) do not exceed the proposed criteria of the Wellfield Protection Ordinance. At the time future wellfield locations are identified, establishment of incompatible land uses within the zones of influence of such wells shall be prohibited. Objective 9-4.A.9. of the Plan provides for the protection and enhancement of wildlife and habitat. Policy 9- 4.A.9.a. of the Plan provides the following: Land use decisions shall consider the effects of development impacts on fish, wildlife and habitat and the cumulative impact of development or redevelopment upon wildlife habitat. In cases where rare, endangered, threatened or species of special concern are known to be present, a condition of approval will be that a preserve area management plan be prepared at the time of site plan submittal. . . . To ensure adequate protection, protected plants and animals, which cannot be provided with sufficient undisturbed habitat to maintain the existing population in a healthy, viable state on site, shall be effectively relocated in accordance with local, state and federal regulations. Potable Water Service Element Chapter 11 of the Plan establishes a Potable Water Service Element. The Goals, Objectives, and Policies of this Element are contained in Section 11-4. Section 11-4.A.5 of the Plan provides that, by 1991, the County was to establish programs to conserve and protect potable water resources within the County. The specific components of the programs are provided. None of those provisions are relevant to this matter. Drainage and Natural Groundwater Aquifer Recharge Element Chapter 13 of the Plan establishes a Drainage and Natural Groundwater Aquifer Recharge Element. The Goals, Objectives, and Policies of this Element are contained in Section 13-4. Section 13-4.A.1. of the Plan establishes the following Objective: Martin County will maintain existing ground water and surface water quality, improve areas of degraded ground water and surface water quality and prevent future contamination of ground water supply sources. Section 13-4.A.2. of the Plan establishes the following Objective: "Enhance the quantity of ground water recharge and maintain desirable ground water levels." The Objectives, and the Policies established to carry them out, recognize the significance of ground waterrecharge and groundwater levels in the County. Preservation of groundwater recharge and groundwater levels is a significant goal of the County. None of the Policies established to carry out the foregoing Objectives specifically eliminate the use of vacant land located near wells for residential purposes. Plan Amendment Adoption Procedures Procedures for the adoption of amendments to the Plan are established in Section 1.11, "Amendment Procedures," of the Plan. Section 1.11.C.2. of the Plan provides the following procedures for evaluating changes to the FLUM: In evaluating each land use map amendment request, staff begins with the assumption that the 1982 Land Use Map, as amended, is generally an accurate representation of the Board of County Commissioners and thus the community's intent for the future of Martin County. Based on this assumption, staff can recommend approval of a requested change providing consistency is maintained with all other Elements of this Plan if one of the following four items is found to be applicable. That past changes in land use designations in the general area make the proposed use logical and consistent with these uses and there is adequate availability of public services; or That the growth in the area, in terms of development of vacant land, redevelopment and availability of public services, has altered the character of the area such that the proposed request is now reasonable and consistent with area land use characteristics; or That the proposed change would correct what would otherwise appear to be an inappropriately assigned land use designation. That the proposed change would meet a necessary public service need which enhances the health, safety or general welfare of County residents. In the event that staff can not make a positive finding regarding any of the above items, then staff would recommend denial. (Emphasis added). The Plan requires that the Director of the County's Growth Management Department, after review of a proposed amendment, submit recommendations to the Local Planning Agency for consideration. The Local Planning Agency is required to certify its findings and recommendations to the Board of County Commissioners of Martin County (hereinafter referred to as the "Board"). Miscellaneous Provisions of the Plan. Section 4-2.A.6.e. of the Plan deals with agricultural use and vacant land. The evidence failed to prove that the amendment at issue in this case is inconsistent with this portion of the Plan. Section 4-4.A.1.a. of the Plan establishes a Policy that requires that the County revise its Land Development Regulations in existence at the time the Plan was adopted. The evidence failed to prove that the amendment at issue in this case is inconsistent with this portion of the Plan. Section 4-4.E.1. of the Plan requires that the County revise its Land Development Code by July 1990. The evidence failed to prove that the amendment at issue in this case is inconsistent with this portion of the Plan. The County's Sustainable Communities Designation Agreement. The County and the Department of Community Affairs (hereinafter referred to as the "Department"), entered into a Sustainable Communities Designation Agreement (hereinafter referred to as the "Designation Agreement"). The Designation Agreement was entered into pursuant to Section 163.3244 of the Act. Pursuant to the Designation Agreement, the Department designated the County as a "sustainable community." Among other things, the designation of the County as a sustainable community eliminates the need for the County to have the Department review and comment on amendments to the Plan that affect areas within the urban growth boundary or "Primary Urban Services District" created by the Plan. The Subject Property. The Subject Property is a parcel of real property located in the Hobe Sound area of unincorporated Martin County. The Subject Property consists of approximately 24.5 acres of land. The land use designation for the Subject Property on the FLUM is General Institutional. The Subject Property is undeveloped, vacant land. It is comprised of sandy soils, native upland scrub habitat with native Sand Pine groundcover. The Subject Property was described in an Executive Summary of the proposed plan amendment considered by the County as follows: The parcel is located in an area considered to be one of the last contiguous large areas of native upland scrub habitat in Florida. Groundcover is almost entirely native Sand Pine with some primitive trails and small areas of disturbed land. Endangered species found on the parcel include the Florida Scrub Jay and Gopher Tortoise. Sand Pine is considered to be endangered, unique or rare and the Comprehensive Plan policy 9- 4.A.7.f(2) states that "Where possible, increased conservation (twenty-five (25) percent of the total upland area) of native upland habitats which are determined to be endangered, unique or rare in Martin County, or regionally rare will be required by Martin County." The Subject Property is bounded on the north by Saturn Avenue, a two-lane residential street; on the south and west by undeveloped land; and on the east by U.S. Highway One, a multi- lane divided highway. The property to the north is designated Low Density Residential; the property to the east is designated for commercial uses; and the property to the south and west is designated General Institutional. While located relatively close to the Intercoastal Waterway, the Subject Property is not located on the "coast." The Subject Property was previously owned by the Hobe Sound Water Company, a privately owned water utility. At the request of Hobe Sound Water Company, the Subject Property was designated as General Institutional. No wells currently are located on the Subject Property. The Subject Property was acquired from the Hobe Sound Water Company by the Land Partnership. The undeveloped land located to the south of the Subject Property is owned by South Martin Regional Utilities (hereinafter referred to as "SMRU") and is utilized for a water plant and wells. SMRU acquired this land and the remainder of the land used by the Hobe Sound Water Company from the water company. There are five wells located on the property to the south of the Subject Property. The property to the west of the Subject Property is also owned by SMRU but is not being utilized for wells. The property acquired by SMRU was, and remains, designated as General Institutional. The Subject Property serves as a significant ground water recharge area because of the porous nature of the soils of the Subject Property. The Subject Property is located within the Primary Urban Services District of the Plan. The Subject Amendment and Its Review. The amendment at issue in this proceeding was initiated by the Land Partnership after it acquired the Subject Property from the Hobe Sound Water Company. At the time of the acquisition of the Subject Property, the Land Partnership knew or should have known that it was designated for General Institutional use. The Land Partnership requested a change in the land use designation for the Subject Property on the FLUM from General Institutional to Low Density Residential or "the most appropriate land use designation." The proposed amendment was reviewed by the staff of the County's Growth Management Department. Among other things, the staff considered whether any of the four items specified in Section 1-11.C.2 of the Plan applies to the amendment. The staff determined that the first and fourth items listed in finding of fact 41 did not apply, that the second item was somewhat applicable, and that the third item applied to the amendment. The proposed amendment was also reviewed by the Treasure Coast Regional Planning Council (hereinafter referred to as the "TCRPC"). Comments concerning the proposed amendment were prepared by the TCRPC, but were withheld because review by the TCRPC is not required due to the sustainable communities designation for the County. The draft comments of the TCRPC, however, raised objections to the proposed amendment due to concerns over the potential endangerment to the wellfields in the area and the potential destruction of critical habitat and vegetation. No copy of the TCRPC's regional plan was offered in evidence in this case. Nor did anyone associated with TCRPC testify about the draft comments. The Department also informally reviewed the proposed amendment. Rather than prepare an Objections, Comments, and Review report on the proposed amendment, the Department prepared informal comments, which it provided to the County. Those comments were responded to by the County. Hearings to consider the proposed amendment were conducted by the Local Planning Agency. On January 21, 1999, the Local Planning Agency voted to recommend that the proposed amendment not be adopted. The proposed amendment was designated Amendment No. 98-3 (hereinafter referred to as the "Amendment"). The Amendment was adopted by the Board on September 28, 1999, as a part of Ordinance No. 553. The evidence failed to prove that any relevant procedure for adopting the Amendment was violated by the County. The Amendment changed the land use designation for the Subject Property from General Institutional to Low Density Residential on the FLUM. This designation would allow the development of the Subject Property for a maximum of 122 residential units. Data and analysis supporting a potential increase of 122 units of additional residential property did not exist when County adopted the Amendment. Nor does such data and analysis exist now. ARDP System Data. Since the implementation of the ARDP System the County has been collecting and analyzing data concerning residential development in the County. No timely annual update of that data and analysis had been prepared prior to the adoption of the Amendment. The most recent data available was from 1995. During the adoption process for the Amendment, at the request of a member of the Board, an ad hoc report containing data and analysis concerning residential development in the County was prepared and presented to the Board. A full and detailed report was prepared subsequent to the adoption of the Amendment. The report, the ARDP Memorandum of June 7, 2000 (hereinafter referred to as the "ARDP Memo"), was reviewed and approved by the Board. The report was also received in evidence during this de novo proceeding and has been fully considered in preparing this Recommended Order. Pursuant to the ARDP Memo for the five-year period 2000-2004, there is a need for 6,252 residential units needed to serve population increases. The 125 percent cap of the ARDP System on new residential units allowed in the County is 7,816 units. This amounts to an additional 1,564 units authorized by the ARDP System over the actual number of units needed based upon population projections. The number of approved/unbuilt units and other offsets against the number of allowed new residential units for the County during this period totals 7,015 units. Consequently, there are 801 units (7,816 minus 7,015) available for development through the end of 2004. These available units are more than sufficient to cover the additional units which may arise as a result of the development of the Subject Property pursuant to the Amendment. For the five-year periods of 2005-2009 and 2010-2014, there are 6,314 and 6,578 units available for development through the end of these periods, respectively. Despite the foregoing, the approval of an addition of 122 units of residential property will increase an already excessive designation of property for residential use. The Impact of the Amendment. The most significant impact of the Amendment is to further increase the amount of land allocated for residential use in the County. An estate density designation, although generally used for urban fringe areas, with a density of 1 or 2 units per acre, would reduce the amount of the increase in the amount of land allocated for residential use in the County. The Amendment will also negatively impact sensitive habitat for endangered species of plants and animals. Development of the Subject Property, however, as Low Density Residential or General Institutional has the potential for the same general negative impact on sensitive habitat. That negative impact is not inconsistent with what the Plan allows. The Amendment will not have a negative impact on the role of the Subject Property as a ground water recharge area or the availability of potable water in the County. Any development of the Subject Property will be subject to County and South Florida Water Management District regulations requiring that there be no effect on the quality or quantity of ground water in and around the Subject Property as a result of development. The only action that will preserve the environmental features of the Subject Property and its role as a recharge area would be to keep the property undeveloped. Neither the current land use designation of General Institutional nor the proposed land use designation of Low Density Residential will ensure that the Subject Property remains undeveloped. An estate density designation, although generally used for urban fringe areas, with a density of 1 or 2 units per acre, would reduce the negative impacts of the environmental features of the Subject Property and its role as a recharge area. The evidence failed to prove that the Amendment constitutes "urban sprawl" as defined in the Plan. The Need for a FLUM Amendment. In order for the Amendment to be approved, since it is an amendment to the FLUM, it must be shown that one of the four items listed in Section 1.11.C.2. of the Plan is met. The evidence proved, and the parties agreed, that the first and fourth items listed in Section 1.11.C.2. of the Plan do not apply to this Amendment. The remaining two items of Section 1.11.C.2. of the Plan are: That the growth in the area, in terms of development of vacant land, redevelopment and availability of public services, has altered the character of the area such that the proposed request is now reasonable and consistent with area land use characteristics; or That the proposed change would correct what would otherwise appear to be an inappropriately assigned land use designation. While there has been an increase in the amount of development to the north of the Subject Property, the area immediately around the Subject Property has not changed. The evidence failed to prove that any change in the character of the area surrounding the Subject Property "has altered the character of the area such that the proposed request is now reasonable and consistent with area land use characteristics. . . ." The second item listed in Section 1.11.C.2. of the Plan has not been met. The County's determination that the remaining item, that the proposed change would correct what appears to be an inappropriately assigned land use designation, is based upon the fact that the current owner, the Land Partnership, is not the type of entity the Plan identifies as an appropriate owner of General Institutional property. Section 4-4.M.1.h. of the Plan provides the following concerning the ownership of General Institutional designated property: Except for investor owner public water and sewer systems and private cemeteries, Institutional land shall be owned by public agencies or non-profit service providers. As a consequence of the foregoing, the only use to which the Land Partnership may put the Subject Property under its current land use classification would be as a cemetery, public water, or sewer system. The latter two uses are not practicable uses for the Subject Property. Although the fact that the Land Partnership knew or should have known of the land use category of the Subject Property and the limitation of the uses to which it could put the property before it purchased it, it still appears reasonable to conclude that the third item of Section 1.11.C.2. of the Plan applies to the Amendment. I. Petitioners' Challenge. On October 28, 1999, the Alliance and Ms. Merrill, jointly filed a Petition for Administrative Hearings with the Division challenging the Amendment pursuant to Section 163.3244(5)(a), Florida Statutes. Petitioners requested a formal administrative hearing pursuant to Sections 163.3187(3)(a) and 120.57, Florida Statutes. On February 1, 2000, Petitioners filed an Amended Petition for Administrative Hearing. Pursuant to the Amended Petition, Petitioners alleged that the Amendment is inconsistent with the requirements of Sections 163.3177 and 163.3180 of the Act, the TCRPC's strategic regional policy plan, and portions of Chapter 9J-5, Florida Administrative Code. Petitioners also alleged in the Amended Petition that the Amendment is inconsistent with Sections 163.3161, 163.3167, 163.3194, and 163.3244 of the Act. These allegations are not relevant to the determination of whether the amendment is "in compliance" as those terms are defined in the Act.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administrative Commission enter a final order finding that the Amendment is not "in compliance" as defined in Section 163.3184(1)(b), Florida Statutes. DONE AND ENTERED this 27th day of February, 2001, in Tallahassee, Leon County, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of February, 2001. COPIES FURNISHED: Virginia P. Sherlock, Esquire Howard K. Heims, Esquire Littman, Sherlock & Heims, P.A. Post Office Box 1197 Stuart, Florida 34995 David A. Acton Senior Assistant County Attorney Martin County Administration Center 2401 South East Monterey Road Stuart, Florida 34996-1197 Raymond W. Royce, Esquire Carrie Beth Baris, Esquire Holland & Knight LLP 625 North Flagler Drive, Suite 700 West Palm Beach, Florida 33401-3208 Steven M. Seibert, Secretary Department of Community Affairs Suite 100 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Cari L. Roth, General Counsel Department of Community Affairs Suite 315 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Barbara Leighty, Clerk Growth Management and Strategic Planning The Capitol, Suite 2105 Tallahassee, Florida 32399 Charles Canaday, General Counsel Office of the Governor The Capitol, Suite 209 Tallahassee, Florida 32399-0001
The Issue The issue in this case is whether the Small Scale Comprehensive Plan Amendment No. 2003-03 adopted by Escambia County (County) through enactment of Ordinance No. 2003-40 (Plan Amendment) is "in compliance," as that term is defined by Section 163.3184(1)(b), Florida Statutes.
Findings Of Fact The Parties Petitioner, Gregory L. Strand, resides in Escambia County, Florida. Petitioner submitted oral written comments to the County at the adoption hearing on August 7, 2003, regarding the Plan Amendment and Ordinance No. 2003-40. The parties agree that Petitioner has standing in this proceeding. The County is a political subdivision of the State of Florida. The County adopted a Comprehensive Plan (Plan) which has been subjected to a sufficiency review by the Department of Community Affairs (DCA), and found "in compliance." The Property T. Riley Shipman, Sandra I. Shipman, and Betty J. Shipman (Shipman's) own the 8.98-acre parcel (parcel) that is the subject of the Plan Amendment. The total contiguous land owned by the Shipmans is approximately 12.7 acres. The parties stipulated that the legal description of the property attached to Ordinance No. 2003-40 contains less than 10 acres. The parcel extends 850 feet east of, and parallel to, the right of way of Blue Angel Parkway, and north of Sorrento Road, but does not front on Sorrento Road. The future land use designation of the 250-foot width of the property that fronts Blue Angel Parkway is Commercial, with only approximately 150 feet outside of the road right-of-way. Two single-family homes, a mobile home, and a storage building are located on the parcel. A Wal-Mart Super Store is at the intersection of Blue Angel Parkway and Sorrento Road, across Blue Angel Parkway from the parcel. Approximately 3,300 acres across Blue Angel Parkway west of the parcel is managed by the State of Florida's Board of Trustees of the Internal Improvement Trust Fund, and preserved as part of the Pitcher Plant Prairie. Two man-made lakes are located on the parcel. Wetlands likely exist on the parcel. The parcel is surrounded by LDR future land use, and proximate to Commercial future land use to the west. The zoning for the parcel is Commercial (C-1). The County's Comprehensive Plan In 1993, the County adopted its Comprehensive Plan and associated FLUM. The Plan established an area of Commercial future land use following Blue Angel Parkway from just south of Sorrento Road and Dog Track Road. The area is approximately 450 feet to 500 feet wide, and centers on and curves with the road. The result is a future land use of Commercial for the 250 feet of the subject parcel fronting on Blue Angel Parkway, with approximately 150 feet outside of the road right-of-way. The balance of the property is LDR. The Small Scale Development Application On or about May 28, 2003, the Shipman's agent filed a "Future Land Use Map Amendment Application" with the County. The application requests a change in the FLUM category or designation for the 8.98-acre parcel from LDR to Commercial. In part, the change was sought so that the property could be used for ". . . small businesses that could be represented in an area where large businesses already have been permitted." The application was reviewed by the County's Department of Growth Management staff and presented to the Escambia County Planning Board (Planning Board). Staff prepared a "Memorandum" which recites, in part, a positive staff recommendation. A Staff Analysis was prepared which analyzes the existing and proposed land uses in and around the parcel which is described above. The Staff Analysis also favorably evaluates infrastructure availability, such as potable water, sanitary sewer, solid waste disposal, stormwater management, traffic, and recreation and open space. Comprehensive Plan consistency is also discussed. The "Impact on Natural Environment" is also discussed in the Staff Analysis. The Shipman's agent provided the County with a study prepared by Billy H. Owen, MPA, Coastal Zone Management Consultant, which "examines potential effects that recent, environmental, land use, regulatory, changes might have upon the future use, of a tract of land owned by Riley Shipman." The study is mentioned in the Staff Analysis. Mr. Owen performed on-site investigations of the parcel from April 24 through April 30, 2003. Mr. Owen used a "test- site" which "constitutes approximately two of a total of thirteen, or so, acres, and is situated directly adjacent to Blue Angel Parkway." Mr. Owen discusses, in part, the nature of wetlands on the parcel, whether these wetlands are jurisdictional wetlands (he concludes they are not), and provides an assessment of a two-acre parcel regarding "vegetation, soil, and hydrology." He states, in part: "The surface of this area has a patchy cover of similar sandy clay soil material as is found in the reclaimed fishpond region. Where the sandy clay fill is thin, that is less than one inch thick or not present, scattered collections of white pitcher plants, Sarracenia Leucophylla, an endangered plan [Rule 5B- 40.0055(1)(a) 165, F.A.C.], were noted. Thin patches of Large- leaved Jointweed, Polygonella macrophylla, a rare vascular plant, were present in this site, which is dominated by wiregrass." See Fla. Admin. Code R. 5B-40.0055(1)(a)334 and (1)(b)73. The Staff Analysis refers, in part, to Comprehensive Plan Policy 11.A.2.6.c and d, see Finding of Fact 27, and states: NESD Staff reviewed the consultant's study submitted by the Agent and provided input to Growth Management Staff regarding the potential wetlands impacts on the subject property. A subject matter expert from NESD Staff is available for specific comments if requested. Of note is the current policy that requires the degree of hydrological or biological significance to be determined prior to applying to the Florida Department of Environmental protection (FDEP) and/or the Corps of Engineers for permits. Without an exemption as recommended by the Agent's consultant in his study, the owners will be required to apply to the relevant agencies for mitigation if impacts to the wetlands are proposed. Furthermore, enforcement of the "Wetlands Ordinance" (Ordinance 2003-9, Attachment "C") will assure clustered development with wetland buffers outside any wetland portions on the site, as well as compliance with Comprehensive Plan Policy 11.A.2.6. County staff also discuss "changed conditions and development patterns," and noted that while "[l]arge portions of this area are now designated as Pitcher plant Prairie Preserve," "uplands within this area, especially at or near the intersection of main roads, are ripe for development. To further protect the wetlands from development impacts, commercial development should be clustered at these intersections. The intersection of Blue Angel Parkway and Sorrento Road is designated as a 'commercial node' in the draft Southwest Area Sector Plan currently being completed by EDAW. This amendment will further increase the concentration of commercial uses near the intersection, defining a sizable commercial node and reducing the potential for strip commercial development along Blue Angel Parkway." In the conclusion to the Staff Analysis, staff stated: The requested Future Land Use amendment from Low Density Residential to Commercial follows a logical plan for development. A re-survey of the parcels is recommended to clearly define the subject area and to delineate potential wetland impacts. Understanding that wetland mitigation or, alternatively, a re- survey of the property may be necessary to reduce potential wetland impacts, Staff recommends that the future land use of the designated areas within the subject parcels be changed from Low Density Residential to Commercial. On July 16, 2003, the Planning Board considered the Plan Amendment. County growth management staff, including the Director of the Growth Management Department and the Escambia County Neighborhood and Environmental Services Department (NESD), provided the Planning Board with information during the hearing. Petitioner, a Planning Board member, raised several concerns, including whether the proposed FLUM amendment was inconsistent with Plan Policy 11.A.2.6.d. The Planning Board recommended the approval of the Plan Amendment by a vote of four to one (Petitioner). The matter was presented to the Board of County Commissioners of Escambia County (Board). The Board was presented with, among other documents, the Memorandum and Staff Analysis mentioned above. After a properly noticed public hearing, the Board approved the Plan Amendment on August 7, 2003, in Ordinance 2003-40. The Plan Amendment, as a future land use designation on the FLUM is not a development order. The Plan Amendment does not authorize development on or of the parcel, which includes any wetlands on the parcel. Internal consistency Petitioner contends that the Plan Amendment is inconsistent with Plan Goal 11.A, Objective 11.A.1, Policy 11.A.1.2, Policy 11.A.2.6.d, and Policy 11.A.2.7, because the Plan Amendment re-designates the parcel from a LDR future land use to a Commercial future land use, notwithstanding that the parcel has "wetlands that have a high degree of hydrological or biological significance." Petitioner also contends that the Plan Amendment in inconsistent with Section 163.3177(6)(a), Florida Statutes, because the County approved the Plan Amendment without utilizing "its own surveys, studies, or data regarding the property, including the character of the undeveloped land." See Petitioner's Proposed Recommended Order, pp. 12-13. The County adopted Chapter 11 of the Comprehensive Plan Coastal Management and Conservation Element. Material here and under the heading "Coastal Management," Goal 11.A. provides: "Protect people and property by limiting expenditures in areas subject to destruction by natural disasters and by restricting development activities that would damage or destroy coastal resources." (Emphasis added.) Objective 11.A.1, "Coastal and Upland," provides: "Continually, the county shall protect, conserve and enhance coastal ecosystems, environmentally sensitive areas, wetlands, water resources, living marine resources, remaining coastal barriers and wildlife habitats by monitoring these areas and implementing Policies 11.A.1.1 through 11.A.1.7, among others, upon adoption of this ordinance (reference Section 15.01)." Policy 11.A.1.2, "Future Land Use Element Resource Protection Policies," provides: "Limit the specific impacts and cumulative impacts of development or redevelopment upon wetlands, water quality, wildlife habitats, living marine resources or other natural resources." (Emphasis added.) Policy 11.A.2.6, "Wetland Development Provisions," provides: Development in wetland areas as defined by the FDEP shall be subject to the following provisions: Where sufficient uplands exist to locate the proposed development in the upland portion of the site, the county may allow the transfer of development at the future land use densities established on the future land use map from the wetlands to the upland portion of the site. The transfer of density may occur provided all other plan provisions regarding upland and floodplain resource protection, compatibility of adjacent land use, stormwater management, airport environs, etc., are met. Development in wetlands shall not be allowed unless sufficient uplands do not exist to avoid a taking. In this case, development in the wetlands shall be restricted to allow residential density use at a maximum density of one unit per five acres or to the density established by the future land use map containing the parcel, whichever is more restrictive, or one unit per lot of record as of the date of this ordinance if the lot of record is less than five acres in size. (Lots of record do not include contiguous multiple lots under single ownership). Prior to construction in wetlands, all necessary permits must have been issued by the Florida Department of Environmental Protection, and/or the U.S. Army Corps of Engineers, as required by the agency or agencies having jurisdiction and delivered to the county. With the exception of water-dependent uses, commercial and industrial land uses will not be located in wetlands that have a high degree of hydrological or biological significance, including the following types of wetlands: Wetlands that are contiguous to Class II or Outstanding Florida Waters; Wetlands that are located in the 100-year floodplain; Wetlands that have a high degree of biodiversity or habitat value, based on maps prepared by the Florida Fish and Wildlife Conservation Commission or Florida Natural Areas Inventory, unless a site survey demonstrates that there are no listed plant or animal species on the site. Also, see Policies 7.A.5.7, 7.A.5.8 and 11.A.1.7.1 (Emphasis added.) Policy 11.A.2.7, "LDC and Wetlands," provides: "The county shall implement the land use categories shown on the future land use maps by inclusion of the appropriate regulations within the LDC. Such implementation will ensure the protection of environmentally sensitive land adjacent to the shoreline and near any wetlands." Objective 7.A.2. of the Plan dealing with "Future Land Use and Natural Resources" provides "Amendments to future land uses will be required to demonstrate consistency with the appropriate topography, soil conditions and the availability of facilities and services." Policy 7.A.4.7 provides future land use categories, including the low density residential category that is, in part, "intended to provide for the protection of important natural resources." Policy 7.A.4.7.c. Neighborhood commercial uses that are not a part of a predominantly residential development or planned unit development are allowed when they meet locational and other criteria of Plan Policy 7.A.4.13(A). Policy 7.A.4.7.c. Furthermore, "[r]ezonings and future land use map amendments to categories allowing higher densities will be discouraged consistent with Policy 7.A.4.3." Policy 7.A.4.7.c.(4). Policy 7.A.4.1 requires that all new development be consistent with the Comprehensive Plan. In his testimony at the final hearing, Richard Duane, P.E., Director of Planning and Engineering for the County, stated that when a land use change is sought as here, "[t]here is a policy to know what's on there [regarding wetlands]," but "[t]here is not a policy to delineate specific wetlands on future land use maps" nor whether they are high quality, bio- diverse wetlands. He further stated that the policy of Planning and Engineering "is to let the Land Development Code dictate to the Wetlands Ordinance [Section 7.13.00, "Wetlands and environmentally sensitive lands," Escambia County Land Development Code (Wetlands Ordinance)] through the development process." He discussed this policy with Keith T. Wilkins, Director of the Neighborhood Environmental Services Department (NESD) of the County.2 Mr. Duane stated that this is not an official policy of the Board of County Commissioners. But see Policy 7.A.5.8, Endnote 1. Mr. Duane stated that the reason for the policy is that a ". . . future land use map will not impact any wetlands on any site. Only through the development of the site will any impact to any site be made, and those impacts will be mitigated or determined through the development and review process." (The parties stipulated that "Escambia County has a Wetlands Ordinance in its Land Development Code that governs development in areas that have wetlands present.") Mr. Duane testified that the provision in Comprehensive Plan Policy 11.A.2.6.d would be met at the Development Review Committee (DRC) phase when wetlands would be delineated by the NESD staff. He also stated that this provision would not "impact his decision involving the small scale amendment." However, he did not ignore this provision; he discussed it with Mr. Wilkins and thought the wetlands should be reviewed through the Land Development Code. J. Taylor Kirschenfeld, now Senior Water Quality Scientist and formerly (as of two weeks before the final hearing) Senior Environmental Scientist in the NESD of the County, was requested by the Growth Management Department to review Mr. Owen's study. (Carol Heileman, Planning Board Coordinator provided the study to Mr. Kirschenfeld.) After reading the study, Mr. Kirschenfeld opined "that there are wetlands on the property." Mr. Kirschenfeld did not personally verify or view the conditions on the parcel. Mr. Kirschenfeld testified that the applicant's consultant's (Mr. Owen) report listed species of plants that would only occur in wetland areas, and in his opinion, there are wetlands on the property, which is consistent with the parties stipulation - "Wetlands likely exist on the property." Mr. Kirschenfeld sent an e-mail to Ms. Heileman that the parcel would meet the wetland definition in Section 3 of the County's Land Development Code and would be jurisdictional to the County, and, as such, Policy 11.A.2.6.d would apply to the parcel and the Plan Amendment. The e-mail was not provided to the Planning Board or to the Board of County Commissioners. On cross-examination by the County, Mr. Kirschenfeld testified that Policy 11.A.2.6.b refers to development of the wetlands and provides: "Development in wetlands shall be restricted to allow residential density use. . . ." He further stated that this provision does not refer to commercial density use or industrial density use. It simply talks about development in the wetlands being restricted to allow residential density use. He further stated that Policy 11.A.2.6.d ". . . talks about the exception of the water- dependent uses" and again states: "commercial [and] industrial land uses will not be located in wetlands." He then stated that the provision further talks about high degree of hydrological or biological functions. Upon further questioning of Mr. Kirschenfeld on cross- examination, Mr. Kirschenfeld stated that he understood that his supervisors believe that the NESD staff responsibility is to do wetlands review during the DRC process. However, he stated further that, particularly subparagraph d refers to land uses, making him think of zoning and future land uses, not just development.
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. 2003- 03, adopted by the Board of County Commission of Escambia County in Ordinance No. 2003-40, is "in compliance" as defined in Section 163.3184(1)(b), Florida Statutes. DONE AND ENTERED this 23rd day of December, 2003, in Tallahassee, Leon County, Florida. S CHARLES A. STAMPELOS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of December, 2003.
The Issue The issue in this case is whether the small-scale comprehensive plan amendment adopted by the Town of Pomona Park (Town) through enactment of Ordinance No. 01-7 (the Plan Amendment) is "in compliance," as defined by Section 163.3184(1)(b), Florida Statutes (2001).
Findings Of Fact The Town's current Future Land Use Map (FLUM) (Exhibit H) depicts the subject parcel and Petitioner's adjoining parcel as fronting on the western shore of Lake Broward and being within a primarily residential land use area that encompasses most of the Town's land area lying west of Lake Broward and northeast of Highway 17. The parcels immediately to the north and south of the subject parcel and Petitioner's adjoining parcel are in Low Density Residential future land use, which allows densities up to two units per acre; the lake is to the east. The eastern five acres of the 13-acre subject parcel, including the lake frontage, were not included in the amendment; only the western eight acres were changed to Agricultural land use, which allows densities up to one unit per five acres (unless occupied only by the owner's family members, in which case densities up to one unit per acre are allowed). The property owner, Town Council member Barry Fouts, had previously requested to have the entire 13-acre parcel changed to Agricultural land use but withdrew that request. Fouts testified that, in requesting the same change for only eight acres of his parcel, he took into consideration that keeping the request under 10 acres would avoid review by the Department of Community Affairs (DCA). Several parcels near the Fouts parcel, including some of the parcels across the street to the west, are designated for Agricultural future land use. However, those parcels across the street to the west of the subject parcel are actually being used for residential rather than agricultural purposes. The nearest parcel that might be considered to be in actual use for agricultural purposes is a horse farm located approximately one quarter mile to the north. However, the present Town Clerk testified in her capacity as Town zoning officer that a horse farm (or an exotic bird breeding operation) is not to be considered an agricultural use because the animals are not being raised for human consumption. Fouts has voluntarily provided some visual buffering along his property line, but there is no requirement in the Plan Amendment that it be maintained in the future, nor would visual screening be particularly effective in protecting nearby Residential properties against noises and odors produced by some common types of agricultural livestock. The Plan Amendment was not initiated by the Town; rather, it was requested by the subject parcel's owner, Barry Fouts, whose request for a change in land use stated that his purpose was to bring his "established agricultural activities, which include horse and bird breeding" into conformity with "Putnam County [sic] zoning recommendations." Fouts gave no other reasons for wanting the change. The former Town Clerk (and zoning officer) testified that there were no restrictions on keeping any type or number of animals in Residential future land use, that Fouts could engage in horse and bird breeding without changing the future land use or zoning, and that there was no need for the land use change. No survey, study, or analysis of the Plan Amendment is reflected anywhere in the Town's files relating to the Plan Amendment, and it is found that there were none. When the Plan Amendment was presented to the Town Council for consideration, all that the former Town Clerk and present Town Clerk presented to the Town Council was a one-page note prepared by the former Town Clerk relating Fouts' desire to continue with his agricultural activities, including horse and bird breeding. At final hearing (with the assistance of leading questions on cross-examination by the Town's attorney), the present Town Clerk and former Town Clerk testified that, notwithstanding the absence of any written survey, study, or analysis, they made a site visit and recalled reviewing the Plan Amendment in relation to the Town's Comprehensive Plan, including the FLUM, as well as analyzing and considering the need for more agricultural land use within the Town's municipal boundaries and the desirability of keeping residential development and septic tanks away from the lake, in arriving at a recommendation to approve the land use change. Regardless whether any such analyses actually occurred by the time of adoption of the Plan Amendment, they clearly were presented as part of the evidence at final hearing. The analysis presented at final hearing that the Town's Comprehensive Plan calls for more land area to be designated for Agricultural future land use was based on an erroneous reading of the Comprehensive Plan adopted by the Town in 1991. The analysis presumed that, under the plan, 1220.3 acres of agricultural land use was "desired" (compared to less that 600 acres in actual agricultural use in 2001). This presumption was based on parenthetical references to 1220.3 acres next to the word "Agricultural" in two places in the plan. But it is clear from a fair reading of the plan that, in designating Agricultural future land use, the plan transferred all 648.6 acres in the "Vacant or Undeveloped" existing land use category to the Agricultural future land use category "for lack of a better land use designation," in addition to the 571.7 acres of existing agricultural land use, for a total of 1220.3 acres. (Other future land use designations mirrored 1991 existing land use.) There was no intention to indicate a need for 1220 acres of agricultural land use in the Town. To the contrary, the plan projected a need for 170 additional housing units through 2001 and stated that "[m]ost of the Town's . . . agricultural and vacant/undeveloped land is suitable for development." Consistent with that, the evidence showed that in the vicinity of the subject parcel most if not all of the parcels designated for Agricultural land use are actually being used for residential purposes and not for agriculture. If anything, it would seem that in 1991 the Comprehensive Plan anticipated a need to designate more acreage for Residential future land use and less for Agricultural. Even if the Comprehensive Plan reflected a perceived need for 1220 acres of actual agricultural use, 1220 acres already is designated for Agricultural future land use, and no reason was given for designating additional acreage for the category. Finally, this part of the Town's analysis makes no sense in light of the undisputed testimony of the Town Clerk, as zoning officer, that "agricultural use" consists of the raising of plants or animals for human consumption. The evidence was clear that the horses, cows, and exotic birds on the Fouts property are not for human consumption. It was not clear from the evidence what the 15-20 chickens on the Fouts property are used for. The analysis that the Plan Amendment was to protect Lake Broward from septic tanks associated with residential land use also is shallow and faulty. While it is true that allowable development densities are lower in the Agricultural future land use category, the five acres of the Fouts parcel that were nearest the lake were not included in the amendment but remained in Residential future land use. Second, the present Town Clerk testified that there never have been any negative effects on the lake from septic tanks, which are regulated, whereas she had no way of knowing whether the unregulated effects of agricultural runoff might be worse than any effects from septic tanks. Objective A.1.1 provides that the Town "shall coordinate future land uses with . . . adjacent land uses, . . . through implementing the following policies . . ..". In this case, the immediately adjacent land uses are designated on the FLUM as Residential, and most if not all of the nearby parcels that are designated Agricultural are actually being used for residential purposes. But Petitioner did not allege that the Plan Amendment was inconsistent with any of the policies listed under Objective A.1.1, and the evidence did not prove any such inconsistencies. Policy A.1.3.2 requires that the Town's Subdivision and Zoning Code shall require buffering and separation between land uses of different densities or intensities of use sufficient to ensure compatibility between uses and also requires the elimination of non-conforming land uses. In this case, the Plan Amendment did not provide for separation or buffering between the newly designated Agricultural future land use and the directly adjoining Residential properties, but neither did it have any effect on the Policy requiring the Town's Subdivision and Zoning Code to require such buffering and separation. Policy A.1.9.3.C.1 provides in pertinent part: "Residential land use is intended to be used primarily for housing and shall be protected from intrusion by land uses that are incompatible with residential density." The Plan Amendment intrudes a small area of Agricultural future land use into an area that is primarily designated for Residential land use and that is in actuality almost exclusively used for residential purposes. The sounds and smells associated with at least some types of agricultural activity, such as the pasturing and raising of livestock and poultry, are capable of adversely affecting nearby residents and are incompatible with residential land use. Policy A.1.9.3.C.4 provides in pertinent part: "Agricultural land is intended to be used primarily for pasture, grove operations or silviculture with possibly some row crops." In this case, the evidence shows that the primary purpose of the Plan Amendment was to allow the landowner to breed horses and operate an exotic bird breeding facility. The Town Clerk, as zoning officer, has taken the position that those activities do not fit within the definition of agriculture. But the Plan Amendment itself is not inconsistent with this Policy.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order finding that the Town's small-scale amendment adopted by Ordinance No. 01-7 is not "in compliance." DONE AND ENTERED this 18th day of June, 2002, in Tallahassee, Leon County, Florida. ___________________________________ J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of June, 2002. COPIES FURNISHED: James L. Padgett, Esquire 3 North Summit Street Crescent City, Florida 32112-2505 Michael W. Woodward, Esquire Keyser & Woodward, P.A. Post Office Box 92 Interlachen, Florida 32148-0092 Barbara Leighty, Clerk Growth Management and Strategic Planning The Capitol, Room 1801 Tallahassee, Florida 32399-0001 Charles Canaday, General Counsel Office of the Governor The Capitol, Suite 209 Tallahassee, Florida 323999-0001 Cari L. Roth, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325 Tallahassee, Florida 32399-2100
Findings Of Fact The Parties Coniglio through a profit sharing plan owns property in Sumter County which is affected by the plan adoption at issue here. He submitted written and oral comments, objections and recommendations during the plan review and adoption proceedings. He is a person affected by the plan adoption. Similarly Pownall, Cherry, Jones, the Turners and the Dixons as property owners and individuals who submitted written and oral comments, objections and recommendations during the plan review and adoption proceedings are affected persons. Moreover, Pownall, Cherry, Jones and Turner reside in Sumter County. The Dixons own and operate mining sites within Sumter County. Their residence and business interests in Sumter County create additional bases for determining that those individuals are affected persons. The department is the state land planning agency which has the responsibility of reviewing comprehensive plans in accordance with Chapter 163, Part II, Florida Statutes. That function was performed on this occasion associated with the comprehensive plan submitted by the county. The county is a local government required to adopt a comprehensive plan in accordance with Chapter 163, Part II, Florida Statutes. This county is a non-coastal county located in central Florida which is bordered by Citrus, Hernando, and Pasco counties to its west, Polk county to the south, Marion county to the north and Lake county to the east. It has within its boundaries five incorporated municipalities, Bushnell, Center Hill, Coleman, Webster and Wildwood. The unincorporated area of the county include approximately 350,000 acres. The 1991 unincorporated population of the county was 25,030 and was projected to increase to 30,773 within the ten-year planning horizon contemplated by the plan, in the year 2001. Plan Preparation, Adoption and Approval On March 27, 1991, the county submitted its proposed plan to the department for review as contemplated by Section 163.3184(3)(a), Florida Statutes. By such submission the county did not commit itself to the terms found within the proposed plan. Chapter 163, Part II, contemplates that the text within the proposed plan may change through the review, adoption and approval process that follows that submission. As anticipated by Section 163.3184(4), Florida Statutes, the department forwarded copies of the proposed plan to other agencies for review. The department in accordance with Section 163.3184(6), Florida Statutes, took into account the comments received from the other governmental agencies and prepared and transmitted its report of written objections, recommendations and comments (the ORC). The transmittal date for the ORC was July 2, 1991. The purpose of the ORC was to acquaint the county in detail concerning the department's objections, recommendations and comments. It was left over to the county to decide whether the suggested modifications recommended by the department would be adopted in an effort at establishing a plan which would be found "in compliance". The county considered the ORC report, to include the recommendations and made revisions to the text in the proposed plan when it adopted its plan on February 3, 1992. The adopted plan was transmitted to the department on February 28, 1992, for final review. In preparing and adopting the plan the county gave appropriate notice and provided the opportunity for public participation envisioned by law. On March 31, 1992, the department's secretary determined that the adopted plan met the requirements set forth in Chapter 163, Part II, Florida Statutes, and Rule 9J-5, Florida Administrative Code. Thus, the plan was found "in compliance". The determination finding the plan "in compliance" was memorialized through a memorandum dated March 24, 1992. On April 9, 1992, the department gave notice of its intent to find the plan "in compliance". The Coniglio Petition The Coniglio profit sharing plan owns 19.44 acres in Sumter County which Coniglio claims should be classified on the future land use map to the plan as industrial property not commercial property as the plan now describes. In particular, Coniglio asserts that the 19.44 acres that were designated as commercial was not by a decision based upon a survey, studies or data concerning that parcel and that the designation as commercial is inconsistent with the character of other parcels found within the immediate area. Coniglio argues that the analysis that was performed in classifying the property for designation in the future land use map has resulted in a land use which does not allow the best use or highest economic use of the subject property. This 19.44 acres is depicted on map VII-19 and is located to the north and east of the City of Wildwood. There is commercial acreage in the plan immediately adjacent to the property in question, all of which is part of a triangular shaped piece of land. There are present commercial uses adjacent to the property. Generally, the triangular shaped property, to include the 19.44 acres, is surrounded by other properties whose classification is municipal, industrial and rural residential. The property is further detailed in a sketch which is Respondent's Exhibit No. 1 and a Joint Exhibit No. 2. The property is south of County Road 462, west of the Seaboard Coastline Railroad line and east of U.S. 301. The southern boundary of the property is adjacent to an overpass which is 40 to 45 feet high. Coniglio's property has its longest axis fronting the railroad, contact with County Road 462 but no immediate contact with U.S. 301. The railroad line which is adjacent to the parcel is a principal track for the Seaboard Coastline Railroad carrying north/south traffic between Jacksonville and Tampa and Jacksonville and Orlando. The track splits in the City of Wildwood with some traffic going to Tampa and some traffic going to Orlando. A manufacturing plant is located east of the railroad in the vicinity where the subject property is found. This plant is Florida Corrugated which makes corrugated boxes. West of U.S. 301 in the vicinity of the property in question is found a company known as AST that manufactures steel pipes. In the vicinity of the property in question at the junction of County Road 462 and U.S. 301 a business is located known as McCormick Electric. In the immediate vicinity of the property is also found a convenience store and what previously was a motel that has been turned into rental units. Northeast of the intersection of County Road 462 and the railroad is property owned by Florida Power Corporation which is classified as industrial. The corrugated box plant is also on property classified as industrial, again referring to classifications in the future land use map. The AST property where stainless steel pipes are manufactured is on a parcel which is classified as industrial on the future land use map. As stated, the parcel in question is part of a larger triangular shaped parcel, that had been the topic for establishing an industrial park. In the proposed plan the subject parcel, a part of the larger parcel, had been classified as industrial. That designation of the parcel in the proposed plan was through the future land use map. Arrangements were made to provide water service to the industrial park. At present that service is available at the property in question. Arrangements, though not consummated, have also been made to extend sewer service from the City of Wildwood to the subject parcel. In anticipation of the use of the subject property under an industrial classification, Coniglio expended large sums of money. That included $85,000 for a railroad spur and in addition; $12,000 for track extensions, $8,500 for a water line and contribution of right-of-way for water service, sewer service and a road. All this effort was made by Coniglio's in the anticipation of the opening of the industrial park. Sumter County had been involved in the industrial park project through the process of an application to the Florida Department of Commerce seeking appropriation of $96,000 to construct a road associated with the industrial park. The county administered construction of the road and it is that road which Coniglio had donated right-of-way for. The railroad spur, water and sewer services would serve parcels other than the subject parcel owned by Coniglio. The county in preparing its proposed plan had worked with the Sumter County Development Council and other persons in the community in establishing the location for commercial and industrial classifications. One reason for designating the parcel in question as industrial was based upon its proximity to the railroad and as part of the overall industrial park which was being projected in the planning efforts by the county, the development council and others. Chemical Development Corporation appeared before the Sumter County Board of Adjustments to seek approval to operate its business of storage and treatment of hazardous waste on the subject property. The need to appear before the Sumter County Board of Adjustments, which operates independent of Sumter County and its governing board, the Sumter County Commissioners, was to gain a special exception to operate that type business in the county. A special exception needed to be granted by the Sumter County Board of Adjustments because the business to be engaged in involved hazardous waste. The decision by the Sumter County Board of Adjustments was upon a vote of 8 to 2 to grant the special exception following visitation to a plant similar to those activities the applicant for special exception hoped to be engaged in. That approval was granted in May, 1991 by the Sumter County Board of Adjustments. Following that approval the plan was adopted on February 3, 1992, and it changed the classification from industrial in the proposed plan to commercial in the adopted plan. Chemical Development Corporation the prospective tenant for the parcel in question was not granted an occupational license by the county and could not proceed with its operations. One of the enterprises that located in the proposed industrial park was Dairyman's Supply. It had completed construction and was ready for business before the plan was adopted. It began its operations in July, 1991. The decision to change the designation in the parcel in question from industrial to commercial was upon the recommendation of Glen Nelson, Director of Public Services for Sumter County. Among other reasons for the change, according to Nelson, was to thwart the purposes of Chemical Development Corporation in recognition that the change in classification from industrial to commercial would prohibit activities by that company. Notwithstanding the decision by the Sumter County Board of Adjustments to grant the special exception, that prohibition existed because industrial zoning was necessary for the would be tenant to proceed with its business at the site in question. By way of history, following the decision by the Sumter County Board of Adjustments to grant the special exception there was some opposition to the activities envisioned by the Chemical Development Corporation. That is to say, the establishment of a hazardous waste treatment facility. This community opposition predated the recommendation by Mr. Nelson, the decision by the Sumter County Commissioners to reject the application for an occupational license issued from the county, and the determination to present the subject parcel on the future land use map in the adopted plan as a commercial classification. The principal planner whom the county relied upon in preparing its plan was Jack Sullivan. He did not participate in the decision to change the subject parcel from industrial to commercial as reflected on the future land use map in the adopted plan. As explained by Mr. Nelson, other reasons for changing the plan related to the overall attempt by the county to meet perceived needs for balancing the amount of commercial and industrial acres within its adopted plan. To that end the March, 1991, proposed plan had contained approximately 200 acres on State Road 44 east of Wildwood designated as commercial that had been put there at the request of the Sumter County Development Council based upon the Council's discussions with a company that was considering the establishment of a distribution center. Between the time the proposed plan had been transmitted and the plan adoption took place the potential project located in Pasco County or some county south of Sumter County. Therefore, as stated by Mr. Nelson, the commercial designation was no longer needed. The commercial designation at that site changed to rural residential in the plan as adopted. To compensate for the loss of commercial on that 200 acres Mr. Nelson requested that an approximately 40 acre tract of land adjacent to Wildwood on the east side of State Road 44 be placed in the adopted plan as commercial together with 30 to 35 acres including the subject parcel. In making his recommendation to place the subject parcel as commercial Mr. Nelson was aware of those industrial activities in the general area surrounding the parcel in question that have been described. Mr. Nelson made his recommendation for change in the classification one or two months before the February 3, 1992 plan adoption. At the plan adoption hearing on February 3, 1992, Mr. Nelson indicated that the reason for changing the classification for the subject parcel was that the existing uses there were commercial and that the future land use map should reflect that reality. At the hearing no mention was made, by the provision of details, that the reason for changing was to compensate for the loss of the aforementioned 200 acres of commercial acres between the time of the proposed plan and the adoption of the plan on February 3, 1992. As Mr. Nelson explains, the action by the Sumter County Board of Adjustments in granting a special use exception to Chemical Development Corporation did not preclude the necessity to acquire the proper zoning on the parcel before proceeding with the business. That zoning had to be industrial and not commercial. In the more ordinary course the industrial zoning would have been sought first before the Sumter County Commissioners and the Sumter County Board of Adjustments would then have considered the special use. In this instance the Board of Adjustments acted first and the county made its determination second. Bill Keedy who sells industrial real estate expressed the opinion that the 19.44 acres would not be saleable as commercial real estate at least in the foreseeable future. Jim Morton who sells commercial, residential and agricultural properties expressed the opinion that the parcel in question has limited commercial value. Willard Peeples who owns a number of commercial rental properties did not believe that the subject property had commercial value due to limited access to road frontage. None of these individuals are certified in real estate appraisal. Mr. Keedy pointed out that the majority of commercial activity in the Wildwood area is in the middle of the town. Mr. Peeples observed that the commercial activity in Wildwood was located south of the city hall and on U.S. 301 and east and west on State Road 44. Mr. Morton expressed the belief that the highest and best use of the subject property was industrial. Mr. Keedy expressed the belief that an industrial use was promoted by the fact that the property on its east side was bordered by the railroad track. Mr. Nelson in making his recommendation to classify the property in question as commercial made that choice outside any experience in selling, owning or dealing in commercial property. There had been no commercial development north of the City Hall in Wildwood in the preceding ten years prior to hearing. Tony Arrant is an expert in land use planning employed by the department. He had significant involvement in the plan review performed by the department. He pointed out that the department's concerns about the plan and its land use classifications were based upon distribution of land uses throughout the entire county. The ORC did not offer objections to classification of any particular parcel. In the ORC there had been objection as to the extent and distribution of land uses based upon the belief that inadequate data and analysis had been provided to support the extent and distribution of land use. Moreover, the ORC found the plan in its proposed form deferred the establishment of densities and intensities for some land use categories within the plan. The ORC expressed concern about data and analysis supporting the future land use map. Therefore, objection was directed to the future land use map. However, the impression of the proposed plan was not based upon a policy to avoid commenting on specific parcels when occasion arose for such criticism. Mr. Arrant did not perceive that a change in classification of land use between the time that the proposed plan was reviewed by the department and the adoption of a plan was an irregular outcome. In fact, that possibility is a normal expectation. Mr. Arrant recalls the explanation by Mr. Nelson on February 3, 1992, when the plan was adopted concerning the change from the proposed plan to the adopted plan affecting the parcel in question, to have been based upon existing circumstances, existing land uses at that place and a movement in the distribution of parcels in the overall county associated with commercial and industrial classifications. Mr. Arrant pointed out, in the final perception he held about the adopted plan, that if the suitability analysis provided would support a commercial classification, that is to say, that it was equally suitable for commercial development or industrial development and there was data and analysis providing the need and extent of distribution for the classification, then it is the local government's choice to determine which site will be designated commercial and which site will be designated industrial. With that in mind, Mr. Arrant found no reason to take issue with the county in its commercial classification for the subject parcel. Mr. Arrant in his knowledge of the parcel in question found no wildlife habitat, wetlands, topographical, geographical or geophysical constraints which would limit the use of this property as commercial or industrial. Consequently, the choice in classification was left to the local government. Having in mind the facts previously found, it is recognized that the reasons for changing the land use classification on the subject parcel from industrial to commercial had a political component, stopping Chemical Development Corporation from doing business in Sumter County, unrelated to appropriate land use planning. Nonetheless other reasons the county gave for changing the classification from industrial to commercial when compared to the criticisms directed to the classification do not convince, to the exclusion of fair debate, that the county should be required to change the plan to reflect an industrial classification for the parcel in question. This finding is supported by review directed to the overall plan for land use classification within the county which is supported by appropriate data and analysis. Finally, Coniglio's expenditures associated with this parcel are not an appropriate topic for disposition in this case. Mining Policy 1.9.1 at pages VII-48 and 49 states the following in its preamble: Mining uses shall be provided for in areas designated as agricultural on the Future Land Use Map and shall be permitted upon approval of a conditional use permit and approval of an operating permit pursuant to a mining site plan as provided for in the Land Development Regulations. It was not proven to the exclusion of fair debate, in fact, no proof was offered to suggest that the approval of a conditional use permit as opposed to a zoning permit should be the proper approach in describing this policy. Consequently, that allegation concerning the county's policy choice in the mining element is without merit. Policy 1.9.1 at page VII-49 goes on to describe the guidelines for controlling land allocation for mining purposes where it states: The following guidelines shall be used to control land allocation for mining: Allocation of mining land use shall be based on a projected average need of 100 acres per year or a total of 1,000 acres during the ten year time period of the Plan and may be permitted pursuant to the goals, objectives and policies of the Plan as needed up to 1,000 acres. Allocation of mining land use above this projected need shall require a Plan amendment. For purposes of determining the amount of mining land permitted, the Board of County Commissioners shall issue a finding with each operating permit that clearly delineates the amount of land dedicated to the actual mined area plus ancillary uses such as processing plants, overburden piles, roads, administrative offices and other buildings necessary for the actual mining of land. Areas allocated for wetlands, buffers and other lands required in the application to insure compatibility with adjacent land uses or protection of resources shall not be counted toward the ten-year allocation of land for mining purposes. To ensure that an equitable balance among applicants is maintained in allocation of mining land, the following criteria shall apply: Within each calendar year, no individual mining operation shall receive more than 10% of the ten year allocation; No individual mining operation shall receive more than 25% of the ten year allocation within any five year period; Any land allocation requirement for mining purposes larger than those indicated in 1-2 above shall require a plan amendment. The calculation concerning the number of acres per year and total acreage allocated during the ten year review is based upon data collected from the Withlacoochee Regional Planning Council field survey of 1975 incorporated into the county's 1976 comprehensive plan which showed 2190 acres in mining effective 1975. That constitutes the base point for calculation and is related to a further data point in 1986 taken from the county tax assessor's data which established that 3082 mining acres existed in the county upon that date. The use of the data points is described in the data and analysis at page VII-104 where it states: The 1991 acreage was assumed to be the same as the 1986 analysis. The following methodology was used to calculate mining growth to the year 2001: Assume an additional 100 acres per year from 1986-2001 including buffer area. This estimate is based on 2,190 acres in mining in 1976 (1976 Comprehensive Plan) and 3,082 acres in 1986 (See Appendix A). This yields an average of 89 acres per year for the ten year period. This has been rounded upward to 100 acres per year to allow for market fluctuations. Mining shall be a permitted activity in agriculture districts. Applicants shall secure a conditional use permit to mine in agriculture areas; then a mining operating permit will be secured to delineate the exact location of the mined area. 100 acres/year X 15 years = 1,500 acres. 3. 3,082 + 1,500 = 4,582 acres mining in 2001. The goals and policies concerning allocation of mining acreage is clearly based upon appropriate data. The methodology utilized for data collection was appropriately applied and the use of the methodology to derive the allocation was a professionally acceptable methodology. The Petitioners challenge to the county's treatment of the future land use element related to mining would substitute a methodology which examines the amount of land devoted specifically to the mining activity as contrasted with the methodology here which takes into account the mined areas plus ancillary uses such as processing plants, overburden piles, roads, administrative offices and other buildings. In addition, the methodology that the challengers would employ does not take into account that the 100 acre per year allocation excludes wetlands, buffers, and other land required to ensure compatibility with adjacent land uses and protection of resources. This attempt at comparison of methodologies is not allowed in the compliance review. In criticizing the data supporting the allocation process, the challengers question whether that data is the best available existing data. They have failed to prove beyond fair debate that the data used in the plan element is not the best available existing data. The decision to exclude areas allocated for wetlands, buffers and other lands required to ensure compatibility with adjacent land uses and to protect resources from the mining acreage count is not part of the allocation methodology. It is an appropriate planning decision in protecting wetlands and other resources and ensuring compatibility with adjacent land uses. In further describing the manner in which the county will ensure compatibility of the mining uses with adjacent land uses and the preservation of natural resources, Policy 1.9.2 at page VII-49 states: Sumter County shall insure compatibility of mining uses with adjacent land uses and preservation of natural resources through the following requirements: Sumter County shall regulate mining to control buffer areas, maintenance of the mining area, groundwater withdrawals, unpermitted deposition of materials, soil stabilization, disturbance of wetlands, noise, vibration, air quality, security and reclamation of mined lands pursuant to Sumter County Ordinance 90-12(1990). Blasting shall be regulated pursuant to Sumter County Ordinance 81-11(1981). All mining lands permitted pursuant to these policies must be adjacent to existing legally permitted mine sites with no intervening non-compatible uses. Lands proposed for mining that are not adjacent to an existing permitted mine site shall require a plan amendment prior to approval of zoning and the mining plan. Enforcement of mining regulations shall be funded through operating permit fees levied against mining operators. The Petitioners challenging the mining element take issue with the term "adjacent" found at Policy 1.9.2c. They note that Sumter County Ordinance No. 90-12(1990), the mining ordinance, uses the term "contiguous". They argue that this difference in terminology between the ordinance and the plan describes an inconsistency between that ordinance and the plan. Moreover, the challengers claim that there is an internal inconsistency between Policy 1.9.2 and Policy within the conservation element. Policy 1.7.1 in the conservation element at pages III-13 and 14 states: Sumter County shall insure compatibility of mining uses with adjacent land uses and preservation of natural resources through the following requirements: Sumter County shall regulate mining activities to control buffer areas, maintenance of the mining area, groundwater withdrawals, unpermitted deposition of materials, soil stabilization, disturbance of wetlands, noise, vibration, air quality, security and reclamation of mined lands pursuant to Sumter County Ordinance 90-12 (1990). Blasting shall be regulated pursuant to Sumter County Ordinance 81-11 (1981). All mining lands permitted pursuant to these policies must be adjacent to existing legally permitted mine sites with no intervening non-compatible uses. Lands proposed for mining that are not contiguous to an existing permitted mine site shall require a plan amendment prior to approval of zoning and the mining plan. Enforcement of mining regulations shall be funded through operating permit fees levied against mining operators. The challengers claim that Policy 1.9.2 is inconsistent with the Land Development Code for Sumter County, Chapter 13 as it discusses mining activities. Finally, the challengers take issue with the decision to change policy 1.9.2 in its use of the word "contiguous" in a plan draft and the final decision to use the word "adjacent". In Webster's New World Dictionary the word "adjacent" is defined as: near or close to something; adjoining, joining. "Contiguous" is defined as: 1. in physical contact; touching. 2. near; adjoining. To the extent that the county chose to change the previous terminology in policy 1.9.2 found within the earlier draft from the word "contiguous" to the word "adjacent" in the adopted plan, there is no impropriety in that choice. Such changes are anticipated as being involved in the process. The plan as adopted in its use of the terminology "contiguous" or "adjacent" in the conservation and future land use elements as they discuss mining activities is not an internal inconsistency. The terms adjacent and contiguous taken in context are the same. The use of those terms affords no greater nor lesser protection for the benefit of adjacent land owners or in the protection of resources. Treatment of the mining issue within Sumter County Ordinance 90-12 and the Land Development Code for Sumter County, Chapter 13, when compared to the plan does not point to some inconsistency in using the terms "contiguous" and "adjacent". On balance the treatment afforded the mining element within the plan has adequately responded to the need for proper allocation for future land use compatible with adjacent land uses and the protection of resources.
Recommendation Upon consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That a final order be entered which finds the plan for Sumter County to be "in compliance" and dismisses the petitions. DONE and ENTERED this 26th day of February, 1993, in Tallahassee, Florida. CHARLES C. ADAMS 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 26th day of February, 1993. APPENDIX CASE NO. 92-2683GM The following discussion is given concerning the proposed fact finding of the parties: Coniglio: The proposed facts are accepted with the exception that Paragraph 4 is contrary to facts found. and Paragraph (w) is not necessary to the resolution of the dispute. Department: Paragraphs 1-12 are subordinate to facts found. Paragraph 13 is contrary to the facts in its suggestion that there is a lack of significant industrial activity in the area of the subject parcel. Otherwise, that paragraph is subordinate to facts found. Paragraphs 14 through 18 are subordinate to facts found with the exception that the latter sentence in Paragraph 18 is not accepted in its suggestion that the allegation of political considerations has not been proven. Paragraphs 19 and 20 constitute legal argument. Paragraphs 21 through 23 are subordinate to facts found. Paragraphs 24 through 27 are subordinate to facts found. Paragraphs 28 and 29 constitute conclusions of law. Paragraphs 30 and 31 are subordinate to facts found. Paragraphs 32 and 33 constitute conclusions of law. Paragraph 34 is subordinate to facts found. Paragraph 35 constitutes conclusions of law. Paragraphs 36 through 40 are subordinate to facts found. Paragraph 41 is not necessary to the resolution of the dispute. Paragraph 42 is subordinate to facts found. Pownall, Cherry, Jones and Turner: Paragraph 1 is contrary to facts found in its suggestion that appropriate notice and opportunity for public participation was not afforded. Paragraph 2 through 4 are contrary to facts found. The County and Intervenors: Paragraphs 1 through 7 are subordinate to facts found. Paragraph 8 constitutes conclusions of law. Paragraphs 9 through 13 are subordinate to facts found. Paragraphs 14 and 15 constitute conclusions of law. Paragraphs 17 through 22 are subordinate to facts found. Paragraph 23 constitutes conclusions of law. Paragraphs 24 and 25 are subordinate to facts found. Paragraph 26 constitutes conclusions of law. Paragraphs 27 through 31 are subordinate to facts found. Paragraphs 32 and 33 constitute conclusions of law. Paragraphs 34 through 39 are subordinate to facts found. COPIES FURNISHED: Michael P. Donaldson, Esquire Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 C. John Coniglio, Esquire P. O. Box 1119 Wildwood, Florida 34785 Bill Pownall 202 W. Noble Street Bushnell, Florida 33513 Randall N. Thornton, Esquire P. O. Box 58 Lake Panasoffkee, Florida 33538 Theodore R. Turner Nancy Turner Carousel Farms Route 1 Box 66T Post Office Box 1745 Bushnell, Florida 33513 Frances J. Cherry 3404 C R 656 Webster, Florida 33597 Kenneth L. Jones 3404 CR 656 Webster, Florida 33597 Steven J. Richey, Esquire P.O. Box 492460 Leesburg, Florida 34749-2460 Felix M. Adams, Esquire 236 North Main Street Bushnell, Florida 33513 Randal M. Thornton, Esquire Post Office Box 58 Lake Pnasoffkee, Florida 33538 Linda Loomis Shelley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100
