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 amendments to the Palm Beach County (County) Comprehensive Plan (Plan) adopted by Ordinance Nos. 2004-34 through 2004-39, 2004-63 and 2004-64 (Amendments) to accommodate the County's development of a biotechnology research park on 1,900 acres known as the Mecca site are "in compliance," as defined in Section 163.3184(1)(b), Florida Statutes.1
Findings Of Fact Overview of the County's Pre-Scripps Plan The County's first Plan was adopted in 1980. Its 1989 Plan, the first adopted under the 1985 Local Government Comprehensive Planning and Land Development Regulation Act (also known as the 1985 Growth Management Act, or GMA) built upon the strengths of the first Plan. In 1995, the County evaluated and appraised its 1989 Plan, completed an Evaluation and Appraisal Report (EAR), and subsequently adopted a substantially-amended EAR-based Plan. In 1999, the Plan again was amended by the addition of a Managed Growth Tier System (MGTS) as a new growth management tool.2 The County's Plan recognizes that development in the County has generally moved from eastern coastal areas to the west and from the southern part of the County to the north. Generally, the Plan has attempted to direct growth towards the eastern part of the County and to encourage infill and redevelopment in that part of the County. Redevelopment is underway in older areas, usually under the auspices of local governments. At the same time, the Plan now recognizes that another growth corridor is located along SR 7 and US 441. Even with the efforts to encourage infill and redevelopment in the eastern part of the County, growth pressures have led to 18,000 acres of new land use approvals in the County north of Lake Worth Boulevard in the last 10 years. The Future Land Use Element (FLUE) of the County's Plan contains County Directions, GOPs (i.e., Goals, Objectives, and Policies), the MGTS Map, and the Future Land Use Atlas. The County Directions "provide the basis for preparation of the [GOPs]." The GOPs "provide the framework for decisions that direct the location, pattern, character, interrelationships and timing of development, which ultimately affects the distribution of facilities and services to support it." The MGTS Map "defines distinct geographical areas within the County that currently either support or are anticipated to accommodate various types of development patterns and service delivery provisions that, together, allow for a diverse range of lifestyle choices, and livable, sustainable communities." The Atlas "graphically depicts the future distribution, general use and densities and intensities of [land use] within each tier." (FLUE Introduction, pp. 1-2) The County also routinely employs geographic-specific planning tools. The Plan creates at least 15 overlays to meet planning challenges for specific areas. It also recognizes 10 neighborhood plans. Optional sector planning for a large part of the Central-Western Communities of the County also is underway. The FLUE's County Directions include: Livable Communities (with "a balance of land uses and [other features]"); Growth Management (to "provide for sustainable urban, suburban, exurban and rural communities and lifestyle choices by: (a) directing . . . development that respects the characteristics of a particular geographic area; (b) ensuring smart growth . . . ; and (c) providing for facilities and services in a cost efficient timely manner"); Infill Development (to increase efficiency); Land Use Compatibility; Neighborhood Integrity; Economic Diversity and Prosperity (to promote the growth of industries that are high-wage and diversify the economic base); Housing Opportunity ("by providing an adequate distribution of very-low and low-income housing, Countywide"); Economic Activity Centers (to encourage manufacturing and other value-added activities); Level of Service Standards ("to accommodate an optimal level . . . needed as a result of growth"); Linear Open Space and Park Systems; Environmental Integrity (to "[e]ncourage restoration and protection of viable, native ecosystems and endangered and threatened wildlife by limiting the impacts of growth on those systems; direct incompatible growth away from them; encourage environmentally sound land use planning and development and recognize the carrying capacity and/or limits of stress upon these fragile areas"); Design; A Strong Sense of Community; and Externalities (placing "major negative" ones "away from neighborhoods"). (Id. at pp. 5-6) FLUE Goal 1 is to establish the MGTS. Objective 1.1 recognizes five geographic regions (tiers) of land with "distinctive physical development patterns with different needs for services to ensure a diversity of lifestyle choices": Urban/Suburban (land within the Urban Service Area (USA), generally along the east coast but also along the southeast shore of Lake Okeechobee in the extreme west of the County, having urban or suburban density and intensity and afforded urban levels of service); Exurban (land outside the USA and generally between the Urban and Rural Tiers, platted prior to the 1989 Plan and developed at densities greater than 1 dwelling unit per 5 acres (du/ac); Rural (land outside the USA and east of the Water Conservation Areas, Twenty Mile Bend, and the J.W. Corbett Wildlife Management Area (Corbet WMA), including large tracts of land, as well as lands platted prior to the 1989 Plan, that had a predominant density of 1 du/10 ac, but less than 1 du/5 ac, and afforded rural levels of service); Agricultural Reserve (primarily for agricultural use, reflecting the unique farmlands and wetlands within it, to be either preserved or developed only at low residential density); and Glades (all land west of the Water Conservation Areas, Twenty Mile Bend, and Corbett WMA, predominantly supporting large-scale agricultural operations, and afforded rural levels of service.) The five tiers are depicted graphically in Map LU 1.1, MGTS, of the Map Series. Conservation lands are also depicted on Map LU 1.1 but are not assigned to a tier. The Map also depicts the United Technologies (Pratt-Whitney) (UT) Overlay and the North County General Aviation Airport (North County Airport), neither one which appears from Map LU 1.1 to lie within a tier. The UT Overlay is in the north-central part of the County, sandwiched between Rural Tier on the north, east, and southeast and Conservation land, including Corbett WMA on the west and southwest, and roughly bisected by the Beeline Highway (Beeline), which runs diagonally through the overlay between its northwest and southeast extremes. The Airport lies farther to the southeast along the Beeline, essentially surrounded by Rural Tier land, except for relatively small pieces of Conservation land contiguous to it along its western boundary and at its southeast corner (the North County Airport Preserve.) Notwithstanding the possible appearance from the depictions on Map LU 1.1, the County has no general planning jurisdiction in any of the incorporated areas of the County.3 Map LU 2.1 depicts the three service areas to guide delivery of public services that are established under FLUE Goal 3. These are the Urban Service Area (USA), the Rural Service Area (RSA), and the Limited Urban Service Areas (LUSA). The USA essentially follows the boundaries of the Urban/Suburban Tier. The LUSA is relatively limited geographically and includes the Agricultural Reserve Tier, the UT Overlay, and the North County Airport (with contiguous Conservation lands). The rest of the County is in the RSA. The verbiage of Goal 3, its Objectives and Policies and other parts of the Plan, gives the impression that provision of services is fine-tuned to the character and needs of a particular locale. For example, Goal 3 is "to define graduated service areas for directing services to the County's diverse neighborhoods and communities in a timely and cost- effective manner, reflective of the quality of life associated with each respective Tier." But actually the Plan assigns countywide level-of-service standards (LOSS's) to seven of nine types of facilities. All urban services can be provided in all areas of the County except that County centralized water and sewer services cannot be provided in the RSA. While theoretically intended to be geographically limited, the main difference between the USA and the LUSA is that the LUSA is outside the USA. The Agricultural Reserve part of the LUSA is actually a westerly extension of the USA. The North County Airport part of the LUSA is surrounded by Rural Tier land; the UT part of the LUSA is surrounded by Rural Tier and Conservation lands, the same as the UT Overlay. The County has re-examined its policy decision not to provide centralized water and sewer services in the RSA because it has resulted in various municipalities and utilities special districts and perhaps private alternative providers extending services while the County excludes itself. The County has adopted plan amendments to change this to allow the County to provide such services and to exclude others. Those plan amendments are under administrative challenge at this time and are not yet in effect. The County has three priorities for extending services. One is to encourage development of basic industry to further the Economic Element. The County Plan's Economic Element is optional. It reflects a concerted effort to diversify the economy of the County by encouraging growth in cluster industries, including medical products. Taken together, the Plan reflects a desire to accommodate growth in the Urban/Suburban Tier, especially in the eastern part of the County. Many GOPs in the Plan promote and encourage infill and redevelopment. However, pressure to grow in other parts of the County are undeniable. It appears that, under the Plan, the County will be completely built-out within 30 years. The County's current Plan is detailed and complicated. Many other parts of it, some of which will be addressed later in this Recommended Order, also are implicated in some manner and in different degrees by the Amendments at issue. Scripps Florida In the early 1990s, a County study indicated concern about the three main elements of the local economy: tourism was low-paying; agriculture was low-paying and a declining sector; and construction and development would decline as the County built out. In 1998, a consulting firm (SRI) proposed an action plan for the County to develop economic clusters. The action plan addressed several industry clusters, including medical/pharmaceuticals. SRI recommended, among other things, attracting a biomedical park development, a satellite campus of a medical school, venture capital providers, and a medical research institute. Meanwhile, in the same general time frame, the State’s economic development arm, Enterprise Florida, Inc., targeted the biomedical industry for development in Florida. The Scripps Research Institute in La Jolla, California (Scripps), is the largest not-for-profit biotechnology research organization of its kind in the world. In 2003, Scripps decided to expand its operations. Florida Governor Bush, along with several Florida legislators, personally and through Enterprise Florida and OTTED, actively pursued Scripps to locate in Florida. During the same timeframe, the Federal Government made funds available to Florida under the Jobs and Growth Tax Relief Reconciliation Act of 2003, for the essential governmental service of improving economic opportunities available to the people of this state by attracting new or expanding businesses to, and retaining businesses in, the State. It was decided to use $310,000,000 of these funds in the pursuit of Scripps and hoped-for related economic and other benefits. By October 2003, Scripps agreed to negotiate expansion to Florida and chose Palm Beach County as its preferred location in the State. Also in October 2003, the Florida Legislature met in special session and, on November 3, 2003, enacted Chapter 2003-420, Laws of Florida, which created the Scripps Florida Funding Corporation to facilitate establishment and operation of a biomedical research institution for the purposes of enhancing education and research and promoting economic development and diversity. The Funding Corporation was required by the law to negotiate a contract with the Scripps Research Institute of La Jolla, California, for Scripps to establish a state-of-the-art biomedical research institution and campus in Florida. After disbursement of $300,000 to OTTED to cover staffing and administration expenses of the Funding Corporation, and upon execution of the contract with Scripps, the balance of the $310,000,000 was to be disbursed to the Funding Corporation subject to the terms of the contract. The Scripps Grant Agreement Scripps Florida and the County entered into a Grant Agreement on February 9, 2004, with a term of 30 years. In the Grant Agreement, the County agreed to pay for or provide: a 100-acre campus for Scripps Florida in the 1,919-acre site at Mecca Farms (Mecca), with a funding limitation of $60,000,000; the construction of initial temporary facilities for Scripps Florida at the Florida Atlantic University (FAU) campus in Jupiter, with a funding limitation of $12,000,000; the construction of permanent facilities for Scripps Florida at the Mecca site, with a funding limitation of $137,000,000; 400 adjacent acres for development of “related uses”; and applications for approvals for Scripps Florida to develop 2 million square feet at Mecca. The Grant Agreement’s definition of “related uses” was intended to be broad so that the County can open the 400 acres to computer research, telecommunications and other economic clusters if not enough pharmaceutical or life-science research firms are attracted. The Grant Agreement requires Scripps Florida to create or relocate at least 545 new jobs to the Mecca site; to strive to create 2,777 new or relocated jobs; and to work with the County to create a total 6,500 jobs. In the Grant Agreement, the County expressly reserves all legislative and quasi-judicial powers, acting only in its proprietary capacity. The County's Purchase of Mecca Site In accordance with the Grant Agreement, the County proceeded with the purchase of the Mecca site. In October 2003, the Business Development Board (BDB), a non- profit organization that is funded primarily by and reports to the County, already had obtained an option to purchase the site for $60,000,000, if certain government approvals could be obtained. In February 2004, the County acquired the option on the Mecca property from the BDB and exercised it. Including the cost of some "oral add-ons," the purchase price for Mecca was approximately $60,500,000. Characteristics of the Mecca and Surroundings The Mecca site is in the shape of a rectangle located in the north-central part of the County. It is designated in the Rural Tier. For approximately 50 years, most of the site has been used as a citrus grove with trees grown in rows 15 feet apart, 73-acres of agricultural ditches, and a 272-acre above-ground water impoundment area in the northeast quadrant of the site used for irrigation. There also is a 30-acre sand mine operation in the southwestern quadrant. At this time, the Mecca site is accessible by road only by Seminole Pratt-Whitney Road (SPW), a two-lane paved road from the south. When SPW reaches the southwest corner of Mecca, it becomes a dirt road as it continues along the west side of the property. While Mecca itself is in the Rural Tier, it is not surrounded by Rural Tier land. The land to the west is designated Conservation, and the land to the north and south is designated Exurban Tier. The land to the east is designated Rural Tier, but it actually is within the jurisdictional boundaries of the City of Palm Beach Gardens. The area around Mecca is a “mosaic” of uses, including undeveloped agricultural lands, conservation lands, and lands developed predominantly as undesirable residential sprawl with limited employment and shopping. The nearby Beeline, part of the Florida Intrastate Highway System (FIHS), is classified by the State as “urban” to the east and “transitional” to the west of SPW. Significant among the developed areas near Mecca is The Acreage, abutting Mecca to the south. The County designated The Acreage as part of the Exurban Tier. It is a large, 76 percent built-out, antiquated subdivision with a density of 1 du/1.25 ac and a population of approximately 42,000. As such, it can be characterized as either urban or suburban, but not rural. To the south and west of The Acreage are large citrus groves in the Rural Tier. Farther south and west of The Acreage is Loxahatchee Groves, another antiquated subdivision in the Exurban Tier, with a density of 1 du/5 ac that is just 18 percent built-ut with 1,216 homes built. Farther south, just south of Southern Boulevard, is the Village of Wellington, which is a municipality located within the boundaries of the Urban/Suburban Tier. South and east of The Acreage is the Village of Royal Palm Beach, also a municipality within the Urban/Suburban Tier. The 60,288-acre Corbett WMA is located immediately west of Mecca and is owned and managed by the State as a hunting preserve. It has no tier designation. Corbett has a variety of habitats for endangered or threatened species (wood storks, eagles, red-cockaded woodpeckers, gopher tortoises and indigo snakes), including wet prairie, freshwater marsh and pine flatwoods. Corbett could provide habitat for Florida panthers although there have been no confirmed panther sightings in the area in a number of years. Immediately north of Mecca is another antiquated subdivision, Unit 11 of the Indian Trail Improvement District (Unit 11). The County is buying Unit 11 for preservation as Hungryland Slough, a regional off-site mitigation area. Unit 11 is designated in the Exurban Tier. Hungryland contains habitat similar to that found in Corbett WMA. North of Hungryland, and south of the Beeline, is a small triangle of Rural Tier land, which is just south and south east of the UT Overlay, which includes the Park of Commerce (a/k/a Florida Research Park). The Rural Tier land to the northeast of Hungryland, across the Beeline, is Caloosa, a large-lot residential development with a density of 1 du/5 ac. To the northeast of Caloosa is Jupiter Farms, another large, 81 percent built-out antiquated residential subdivision with a density of 1 du/2 ac and a population of about 12,600. Jupiter Farms is designated in the Rural Tier although it also seems to fit the criteria for the Exurban Tier. The Vavrus Ranch, a 4,600-acre landholding, is located immediately east of Mecca. Approximately half of Vavrus Ranch is wetlands, and the remainder is improved pasture. The Vavrus Ranch appears to be designated in the Rural Tier, but it actually is in the City of Palm Beach Gardens. Existing urban-scale public facilities between Mecca and Southern Boulevard to serve the suburbs include five fire stations, two post offices, eight elementary schools, two middle schools and two branch libraries, with one high school and one middle school planned or under construction. Existing public facilities north of Mecca in Caloosa include one fire station and one elementary school. East of Mecca and the Vavrus Ranch is the North County General Aviation Airport. To address land use deficiencies in this area, the County has agreed with DCA to prepare a plan for a 52,000-acre sector, which originally included Mecca. Current development has committed approximately two- thirds of lands in the sector to an inefficient pattern that is not “sustainable.” This pattern increases reliance on the automobile; may not be served long-term by private wells and septic tanks; and does not pay for itself, requiring substantial taxpayer subsidies. The sector has a serious jobs/housing imbalance, resulting in more congestion and longer commutes for residents. The County’s sector planning consultants identified Mecca as an appropriate site for an intensive employment center in two out of three initial scenarios. Subsequent studies identified Mecca for other uses, and the site was deleted from the sector planning area in 2004 when the Scripps Florida opportunity arose at Mecca. Development of Regional Impact (DRI) and Plan Amendments Since the Scripps opportunity arose, the County's primary vision for Mecca has been to transform its 1,919 acres into a very special place that would be able not only to satisfy the needs of Scripps, but also would have all of the essential elements and many extra amenities so as to enable the County to compete with other areas of the country (and, indeed, the world) to attract related research and development (R&D) and, especially commercial activity in order to reap the maximum possible economic benefits of a biotechnology cluster. This vision included not only onsite opportunities for development of related biotechnology R&D and related commercial ventures, but also a university campus, a hospital/clinic, expansive green spaces and water features, onsite residential opportunities, including affordable housing, and onsite commercial and retail uses, including a town center. The County prepared plans by first reviewing and considering other R&D complexes, companies potentially interested in new locations, views of university officials, the Scripps experience at La Jolla, employees per square foot per industry type, and its own allowable floor area ratios (FARs) in order to identify the developable square footage for R&D at Mecca. As applicant for the necessary DRI approval and Plan amendments, the County’s staff and consultants initially requested approval of 10.5 million square feet for R&D use after balancing space needs, traffic impacts, environmental needs, buffering and other factors. The County’s real estate consultant concluded that a minimum of 2 to 3 million square feet of R&D space would be necessary for the venture to be successful, and that the absorption of 8 to 8.5 million square feet over a long-term build-out period of 30 years was a reasonable expectation. That view was bolstered by the potential establishment of other R&D users, if biotechnology firms do not absorb the entire capacity of the project. Ultimately, the Board of County Commissioners (BCC) approved a development of regional impact (DRI) for 8 to 8.5 million square feet of R&D, including the 2 million square feet for Scripps Florida, in order to provide economic opportunities while avoiding the need for eight-lane roads in the area. In order to accommodate this project, amendments to the County's Plan were necessary. Changes to the Plan adopted October 13, 2004, included Ordinance Nos. 2004-34 through 2004-39. Changes to the Plan adopted December 14, 2004, included Ordinance Nos. 2004-63 and 2004-64. Ordinance No. 2004-34 removes the 1,919-acre Mecca site from the Rural Tier; creates a scientific community overlay (SCO) on Mecca; establishes its allowed uses; imposes controls to balance residential and non-residential uses by phase; sets design principles; designates Mecca as a LUSA; and makes related changes to the FLUE and Economic Element and the FLUE Map Series. Ordinance No. 2004-35 modifies FLUE Policy 3.5-d to exempt the SCO from a County-imposed limitation on allowed land use changes expected to generate significant impacts on any roadway segment projected to fail to operate at LOSS "D" based on the adopted Long-Range Transportation Plan. Ordinance No. 2004-36 amends the FLUE Atlas to change the land use on Mecca from Rural Residential with a density of 1 du/10 ac (RR-10) to Economic Development Center with an underlying density of 2 du/ac (EDC/2). This amendment also sets minimum and maximum amounts of each use and incorporates by reference the land use conversion matrix in the DRI development order (DO). Ordinance No. 2004-37 amends the FLUE Atlas to change the land use on a 28-acre Accessory Site obtained from Corbett WMA from Conservation to Transportation and Utilities Facilities. Ordinance No. 2004-38 amends the Transportation Element (TE) to lower the adopted LOSS on 37 road segments and 6 intersections from the generally applicable standard of “D” to “Constrained Roadway at Lower Level of Service” (CRALLS). Ordinance No. 2004-39 amends the Thoroughfare Right- of-Way (ROW) Identification Map (TIM) and the 2020 Roadway System Map to reflect certain road improvements to accommodate SCO-generated traffic. Ordinance No. 2004-63 updates Tables 1 through 16 of the 2005-2010 Capital Improvement Schedule (CIS), and includes road, water, and sewer facilities to serve the SCO. Ordinance No. 2004-64 updates Table 17 of the CIS, which addresses schools. g. The Petitioners, Their Burden, and Their Issues DCA’s notices of intent to find the Amendments in compliance were challenged by four not-for-profit organizations and one resident of Palm Beach County. All of the Petitioners timely commented, orally or in writing, to the County regarding the Amendments. Additional standing evidence was presented as to each Petitioner. Standing as an "affected person" under Section 163.3184(1)(a) was disputed as to all but one Petitioner. As to Petitioner, Maria Wise-Miller, it was undisputed that she is an "affected person" under Section 163.3184(1)(a). It was Petitioners' burden to prove beyond fair debate that the Plan Amendments were not "in compliance." See Conclusions 210-211, infra. Essentially, Petitioners are concerned that development of the SCO on Mecca's 1,919 acres is poor planning because of its present agricultural use, its location in relation to nearby natural areas and rural areas, and its distance from more urban areas and transportation facilities. More specifically, the issues raised by Petitioners as reasons why the Plan Amendments are not "in compliance" are framed in their Amended Petition.4 Implicating numerous applicable statutory and rule provisions, Petitioners' issues involve: urban sprawl; capital improvements (infrastructure); transportation concurrency; data and analysis; internal consistency; natural resources; community character and compatibility with adjacent uses; the Treasure Coast Regional Planning Council (TCRPC's) Strategic Regional Policy Plan (SRPP); and State Comprehensive Plan (SCP). No other issues have been added by further amendment, and no additional issues were heard by consent of the parties. See Conclusion 212, infra. H. Urban Sprawl Whether the Plan Amendments are consistent with relevant provisions of the state comprehensive plan, regional policy plan, the GMA, and Rule Chapter 9J-5 regarding discouraging urban sprawl, including provisions concerning the efficiency of land use, the efficient provision of public facilities and services, the separation of urban and rural land uses, and the protection of agriculture and natural resources, is determined by application of Rule 9J-5.006(5).5 Exceedingly detailed and complex, Rule 9J-5.006(5) provides in pertinent part: (d) Paragraph (5)(g) describes those aspects or attributes of a plan or plan amendment which, when present, indicate that the plan or plan amendment may fail to discourage urban sprawl. For purposes of reviewing the plan for discouragement of urban sprawl, an evaluation shall be made whether any of these indicators is present in a plan or plan amendment. If an indicator is present, the extent, amount or frequency of that indicator shall be considered. The presence and potential effects of multiple indicators shall be considered to determine whether they collectively reflect a failure to discourage urban sprawl. * * * Primary indicators. The primary indicators that a plan or plan amendment does not discourage the proliferation of urban sprawl are listed below. The evaluation of the presence of these indicators shall consist of an analysis of the plan or plan amendment within the context of features and characteristics unique to each locality in order to determine whether the plan or plan amendment: Promotes, allows or designates for development substantial areas of the jurisdiction to develop as low-intensity, low-density, or single-use development or uses in excess of demonstrated need. Promotes, allows or designates significant amounts of urban development to occur in rural areas at substantial distances from existing urban areas while leaping over undeveloped lands which are available and suitable for development. Promotes, allows or designates urban development in radial, strip, isolated or ribbon patterns generally emanating from existing urban developments. As a result of premature or poorly planned conversion of rural land to other uses, fails adequately to protect and conserve natural resources, such as wetlands, floodplains, native vegetation, environmentally sensitive areas, natural groundwater aquifer recharge areas, lakes, rivers, shorelines, beaches, bays, estuarine systems, and other significant natural systems. Fails adequately to protect adjacent agricultural areas and activities, including silviculture, and including active agricultural and silvicultural activities as well as passive agricultural activities and dormant, unique and prime farmlands and soils. Fails to maximize use of existing public facilities and services. Fails to maximize use of future public facilities and services. Allows for land use patterns or timing which disproportionately increase the cost in time, money and energy, of providing and maintaining facilities and services, including roads, potable water, sanitary sewer, stormwater management, law enforcement, education, health care, fire and emergency response, and general government. Fails to provide a clear separation between rural and urban uses. Discourages or inhibits infill development or the redevelopment of existing neighborhoods and communities. Fails to encourage an attractive and functional mix of uses. Results in poor accessibility among linked or related land uses. Results in the loss of significant amounts of functional open space. Evaluation of land uses. The comprehensive plan must be reviewed in its entirety to make the determinations in (5)(g) above. Plan amendments must be reviewed individually and for their impact on the remainder of the plan. However, in either case, a land use analysis will be the focus of the review and constitute the primary factor for making the determinations. Land use types cumulatively (within the entire jurisdiction and areas less than the entire jurisdiction, and in proximate areas outside the jurisdiction) will be evaluated based on density, intensity, distribution and functional relationship, including an analysis of the distribution of urban and rural land uses. Each land use type will be evaluated based on: Extent. Location. Distribution. Density. Intensity. Compatibility. Suitability. Functional relationship. Land use combinations. Demonstrated need over the planning period. Local conditions. Each of the land use factors in (5)(h) above will be evaluated within the context of features and characteristics unique to each locality. These include: Size of developable area. Projected growth rate (including population, commerce, industry, and agriculture). Projected growth amounts (acres per land use category). Facility availability (existing and committed). Existing pattern of development (built and vested), including an analysis of the extent to which the existing pattern of development reflects urban sprawl. Projected growth trends over the planning period, including the change in the overall density or intensity of urban development throughout the jurisdiction. Costs of facilities and services, such as per capita cost over the planning period in terms of resources and energy. Extra-jurisdictional and regional growth characteristics. Transportation networks and use characteristics (existing and committed). Geography, topography and various natural features of the jurisdiction. Development controls. Development controls in the comprehensive plan may affect the determinations in (5)(g) above. The following development controls, to the extent they are included in the comprehensive plan, will be evaluated to determine how they discourage urban sprawl: Open space requirements. Development clustering requirements. Other planning strategies, including the establishment of minimum development density and intensity, affecting the pattern and character of development. Phasing of urban land use types, densities, intensities, extent, locations, and distribution over time, as measured through the permitted changes in land use within each urban land use category in the plan, and the timing and location of those changes. Land use locational criteria related to the existing development pattern, natural resources and facilities and services. Infrastructure extension controls, and infrastructure maximization requirements and incentives. Allocation of the costs of future development based on the benefits received. The extent to which new development pays for itself. Transfer of development rights. Purchase of development rights. Planned unit development requirements. Traditional neighborhood developments. Land use functional relationship linkages and mixed land uses. Jobs-to-housing balance requirements. Policies specifying the circumstances under which future amendments could designate new lands for the urbanizing area. Provision for new towns, rural villages or rural activity centers. Effective functional buffering requirements. Restriction on expansion of urban areas. Planning strategies and incentives which promote the continuation of productive agricultural areas and the protection of environmentally sensitive lands. Urban service areas. Urban growth boundaries. Access management controls. Evaluation of factors. Each of the land use types and land use combinations analyzed in paragraph (5)(h) above will be evaluated within the context of the features and characteristics of the locality, individually and together (as appropriate), as listed in paragraph (5)(i). If a local government has in place a comprehensive plan found in compliance, the Department shall not find a plan amendment to be not in compliance on the issue of discouraging urban sprawl solely because of preexisting indicators if the amendment does not exacerbate existing indicators of urban sprawl within the jurisdiction. Innovative and flexible planning and development strategies. Notwithstanding and as a means of addressing any provisions contained in Rules 9J-5.006(3)(b)8., 9J- 5.011(2)(b)3., 9J-5.003(140), F.A.C., and this subsection, the Department encourages innovative and flexible planning and development strategies and creative land use planning techniques in local plans. Planning strategies and techniques such as urban villages, new towns, satellite communities, area-based allocations, clustering and open space provisions, mixed-use development and sector planning that allow the conversion of rural and agricultural lands to other uses while protecting environmentally sensitive areas, maintaining the economic viability of agricultural and other predominantly rural land uses, and providing for the cost- efficient delivery of public facilities and services, will be recognized as methods of discouraging urban sprawl and will be determined consistent with the provisions of the state comprehensive plan, regional policy plans, Chapter 163, Part II, and this chapter regarding discouraging the proliferation of urban sprawl. Of the 13 urban sprawl indicators in Rule 9J- 5.006(5)(g), Petitioners alleged the existence of only 2, 4, 6, 7, 8, 9, and 10. While there was evidence from which Petitioners reasonably could argue that the Plan Amendments promote urban sprawl, all of the Rule's indicators are at least fairly debatable. Indicator 2 As to Indicator 2, Petitioners' arguments on urban sprawl hinge in large part on characterization of Mecca as being rural land in the midst of likewise rural and conservation land far distant from any land use that could be characterized as urban or suburban. But while Mecca is distant from most of the Urban/Suburban Tier, neither the Village of Wellington nor Royal Palm Beach, both in the Urban/Suburban Tier, is very far away. The Acreage to Mecca's south, moreover, can be characterized as either urbanizing or suburban, but not rural. To the extent that Mecca is separated from other urban or suburban uses to the east by conservation lands (namely, the Loxahatchee Slough and Grassy Waters Preserve, a/k/a the West Palm Beach Water Catchment Area), no urban, suburban or even rural development of those conservation lands should be expected, making it fairly debatable whether "leaping over" those undeveloped lands should be considered an indicator of sprawl. In that sense, those conservation lands are similar to bodies of water. The “patchwork” pattern of developed, rural, and conservation uses near Mecca, including the adjacency of extensive residential development in The Acreage, also is significant. Nearby subdivisions including Jupiter Farms and Caloosa add further context for the sprawl analysis. The multi-use development at the SCO allowed by the Amendments may remediate the existing sprawl pattern near Mecca. Indicator 4 As to Indicator 4, it is at least fairly debatable whether conversion of rural land to urban uses on Mecca is premature in light of the Scripps opportunity and existing development pressures in the area. According to expert planning testimony for DCA and the County, the County is obliged to plan for growth in accordance with GMA and Rule 9J-5 up to its "sustainable carrying capacity," which has not been reached. Whether or not they believe the County has the option to plan to slow or stop growth before reaching "sustainable carrying capacity," it is clear from the evidence that the County is not doing so, but instead is planning for continued growth within the framework of its Plan until reaching what it considers to be "build-out" conditions. Given the County's basic growth policy, the County’s analysis of population projections for the next 20 years, compared to available vacant lands planned for residential use, shows the County has a “tight” plan with a restricted supply of land for development. This land use needs analysis shows that the eastern half of Palm Beach County (which includes Mecca) is experiencing intensive growth pressures due to the restricted supply of developable land, and that it will likely build out in approximately 20 years. Conservative assumptions in the County’s analysis suggest build-out in this area could occur even sooner. In its 1997 EAR, the County also concluded that eastern Palm Beach County would build out in approximately 20 years. The report noted that the approaching build-out of Dade and Broward counties to the south in the near future would further exacerbate growth pressures in Palm Beach County. Industrial lands in eastern Palm Beach County are expected to be exhausted by 2026. Because communities typically need greater locational variety for industrial uses compared to other uses, and in light of the many different activities that constitute an industrial use, the amount of land in eastern Palm Beach County designated for industrial use may be adequate but is not excessive. Besides, a numeric analysis is not necessary to justify industrial uses since they may be goal-based and aspirational. Seeking to diversify the local economy is an appropriate goal to support additional industrial land. Having a committed end-user for an industrial site is appropriate data to consider in evaluating such a land use change. Onsite residential and commercial uses will support the industrial use and better achieve a balance of uses, which will relieve the necessity to be evaluated against a numeric need test. Likelihood of Economic Benefits Petitioners argue that the proposed development at Mecca is not needed because significant economic benefits are so unlikely that the costly planned use of Mecca's 1,919 acres cannot be justified. Ordinarily, the likelihood of success of planned land uses would not be relevant to the compliance of a comprehensive plan or plan amendment. In this case, however, the County's vision for a Scripps-anchored biotechnology cluster at Mecca was the impetus for the major and important changes embodied in the Plan Amendments and is part of the demonstration of need. For that reason, consideration of the issue is appropriate in this case. The evidence is clear that the County's vision is not guaranteed success as planned and that there are significant risks involved. To maximize economic benefits, the County will have to not only attract R&D but also generate commercial spin-offs, where maximum economic benefits result. R&D requires research funding, and commercial spin-offs require venture capital. It also is essential to establish relationships with hospitals or clinics where clinical trials can take place. The predominant source of biotech research funding has been the National Institutes of Health (NIH). In the mid- 1990s, NIH funding increased dramatically, but significant increases in the coming years cannot be counted on, and other sources of research funding will have to replace the deficit. To the extent that pharmaceutical companies are resorted to for this purpose, they may require participation in any resulting commercialization, which could reduce local economic benefits if the funding source is not local. The evidence was that, over the last 30 years or so, significant economic benefits from biotechnology clusters achieving effective commercialization have been concentrated in just nine areas of the country. One is San Diego, California; none are in Florida. These nine areas also have garnered a disproportionate share of NIH research funding (although the percentage has declined a little in the last few years.) They also tend to have scientists inclined towards commercialization of the results of research and businessmen having the special abilities needed in the unique world of biotech, where years can pass before a business begins to see profits, and many start-ups fail. These nine areas also have access to venture capital, a good percentage of which has tended to be local, since many venture capitalists also want to be more active in monitoring and participating in the businesses they fund than most other investors. On the other hand, there was evidence acknowledging that at least some venture capital will seek out and follow good opportunities for profit wherever they may exist. Historically, at least through 2001, the biotech industry has become increasingly concentrated in these nine areas of the country, and they continue to have competitive advantages that the County's vision for the SCO would have to overcome. (On the other hand, several of these nine areas also have competitive disadvantage in the form of high taxes, high real estate costs, high cost-of-living, and less-than- ideal quality of life. So far, however, their advantages have surpassed their disadvantages.) There also is competition from many other cities and counties throughout the country desiring, like Florida and the County, to develop a biotechnology cluster. Recognizing the intense competition, the County's vision is to create a world-class setting for its effort at Mecca. Allowable facilities at the SCO include not just R&D space, but also a clinical hospital of up to 300 beds, a university campus of up to 2,000 college and university students, public facilities supporting environmental amenities, community facilities and retail facilities in a “town center,” and 2,000 or more housing units, including affordable housing. The SCO contemplates a mixture of uses that is hoped will lead to synergistic relationships and exchange of “tacit knowledge,” which are important to the success of a biotechnology cluster. Scripps Florida, as the anchor institution, will bring critical world renown and credibility. The principles of adjacency within the SCO are intended to promote synergy that transcends local competition and attracts regional and national users. In planning the SCO, Scripps’ experience in La Jolla and the views of Scripps officials were taken into account. Scripps’ campus at Torrey Pines Mesa has been in existence for almost 30 years, and has worked well. Scripps attempts to keep its buildings close to one another and has met with difficulty finding scientists willing to fill workspace four miles from the main Scripps campus. The FAR for the 500 acres of R&D use at the SCO is very low, at 0.39.6 By comparison, there was evidence that the FAR of the 900-acre University of Florida campus in Gainesville, Florida, is 2.00. Petitioners contend that much less than 500 acres is needed for the 8.5 million square feet of R&D provided in the SCO. However, the County found that Scripps’ buildings in California are constructed in horizontal fashion, with three, four and rarely five stories. Taller buildings have lower net-to-gross floor area, so they have significant added cost. Scripps considers close-by affordable housing desirable, especially for graduate and post-doctoral students. For other occupants of the SCO, low-rise construction makes it easier for companies to add space as they grow. High-rise construction is more expensive, harder to finance because of pre-leasing requirements, and less efficient. Based on the evidence, the FAR is fairly debatable. Venture capital from within and outside Florida is growing, as is capital interest in the Scripps initiative in Florida. Four clinical hospitals have expressed interest in participating in the SCO. In the year after announcement of Scripps Florida, the number of new life-science projects announced in Florida quadrupled in comparison to recent years. Workforce training and educational improvement are contemplated as support for and results of the SCO. The State has implemented and funded workforce programs in the life sciences, including in the County. The County has participated in the development of a consortium of Florida institutions of higher learning aimed at creating a specialized campus in the SCO. Scripps Florida is obligated to establish accredited science degree programs and internship programs for educators and secondary, post- secondary, graduate and post-doctoral students. Petitioners’ economic witness testified that the County lacks key competitive ingredients for developing a successful biotechnology cluster. Other witnesses, however, explained the level of efforts that the State, the County, and Scripps Florida are making to bring those ingredients to fruition. In addition, while Petitioners’ economic witness recited past experience of the biotechnology industry and forecast limited success for Scripps Florida primarily based on year seven, the last year of presently-committed State funding, he acknowledged that biotechnology research parks tend to experience a slow ramp-up, and the County anticipates a 30-year build-out. Of course, other sources of needed funding would have to be found after year seven. The evidence was that the chances for successful development of a biotechnology cluster at Mecca will decrease if no universities or hospitals are established onsite at Mecca and will decrease the longer it takes to establish them. If the planned biotechnology cluster does not succeed as well as planned, the SCO incorporates flexibility for absorption of R&D floor space by other types of research and development occupants. Often, when a large development project does not succeed as planned, pressures develop for investors to change the project's characteristics in an attempt to cut losses and increase profitability by selling land more quickly. In the case of the SCO, the investors are the taxpayers of Palm Beach County. It cannot be predicted what kind of pressures the County would feel, or what changes to the planned build-out would occur, if the SCO does not succeed as planned. Based on all the evidence, it is fairly debatable whether the likelihood of economic benefit is enough to justify the planned use of Mecca's 1,919 acres. Other Alternatives Petitioners also contend that the proposed development at Mecca is not needed because better alternatives exist. Specifically, they contend that the Scripps project could be sited: on the Briger site adjacent to the Florida Turnpike on its west and straddling I-95 in the City of Palm Beach Gardens; on Parcel 19 just west of I-95 and the Florida Turnpike, straddling Indiantown Road in the Town of Jupiter; or in the Park of Commerce (a/k/a Florida Research Park) in the unincorporated County near Mecca in the northeast quadrant of the intersection of the Beeline and SPW. Although the County had a contract with Scripps Florida to be located at Mecca, during the review process the BCC requested a study of possible alternative sites. The number of sites reduced rather quickly to three: Briger; Parcel 19; and the Park of Commerce. Data and analysis at the time of adoption of the Plan Amendments indicated that each of these alternative sites had flaws and risk factors, making it fairly debatable whether Scripps should be sited at any one of them instead of at Mecca. All three proposed alternatives have less acreage than Mecca and do not provide the same opportunities for affordable housing, open space, or flexibility of design, so as to be able to be developed in accordance with the vision the County has for development on its own 1,919 acres at Mecca. The Park of Commerce has limited opportunity for affordable housing, is limited in permitted uses, and is limited in flexibility by existing and platted infrastructure and industrial uses. It is now being used for industrial purposes--a railroad, a General Motors distribution facility, and a Walgreen's distribution facility--not considered to be consistent with the County's vision for a biotechnology research park. In addition, it may become necessary in the future to construct an overpass at the Beeline and SPW directly over the only suitable location for construction of the Scripps facilities at that site. Parcel 19 cannot accommodate affordable housing and would require $75 million in construction of major interchanges at I-95 and Indiantown Road, after which Indiantown Road still would be seriously over capacity, creating great traffic problems. In addition, it would be difficult to achieve the County’s targeted development program of 8 to 8.5 million square feet of R&D uses. The 682-acre Briger site favored by the Petitioners is bisected by I-95 into two triangular pieces. It would not meet the acreage requirements of the County’s contract with Scripps Florida unless the City of Palm Beach Gardens waives certain upland preservation requirements. In addition, at this time Briger remains on the County’s list of properties for acquisition for preservation (although its placement on the list may be out-of-date since Briger's hydrologic connection to the Loxahatchee River Slough has been more disrupted by development since its listing). Even if the Scripps contract requirements could be met, it would require higher vertical construction, which would be less compatible with surrounding residential uses, would provide less open space, and would have reduced flexibility. The County's complete vision for onsite incorporation of uses and amenities would not fit on Briger. For example, the university tie-in, the hospital, and residential features would have to be offsite. Briger might have a short-term marketing advantage over Mecca (in part because hospitals and FAU's Jupiter campus already exist in close enough proximity). Briger also would be closer to major transportation facilities, but that advantage would not necessarily offset Briger's deficiencies. It is fairly debatable whether long-term success would be more likely at Mecca or at Briger. All four sites–-Mecca, Briger, Parcel 19, and the Park of Commerce-–are located in the eastern half of Palm Beach County, where growth pressures are strong, the County’s Plan is "tight," and build-out is anticipated within the next 30 years, even without the SCO, based on County data compilations for land use need purposes. Natural Resources Protection and Conservation While they may not protect and conserve natural resources in an absolute sense (as is rarely if ever possible when development takes place near natural areas), it is at least fairly debatable whether measures in the Plan and Plan Amendments to protect and conserve natural resources are adequate. See Findings 146-182, infra. Indicator 6 As to Indicator 6, significant new infrastructure will have to be extended to Mecca under the Plan Amendments. Development closer to existing roads and, to a lesser extent, the existing USA and LUSA might make more use of existing facilities and services possible. But the evidence was that most of the $15 million of centralized water and sewer lines that will serve the SCO at Mecca already are planned for extension of service to the UT Overlay. Many of the road improvements planned for the SCO at Mecca also are already planned. See Findings 116-117 and 152-155, infra. In addition, it is at least fairly debatable whether and to what extent greater use could be made of existing public facilities and services by locating the Scripps elsewhere in the County, or whether location elsewhere in the County would be better or even possible, especially given the County's complete vision for development of the SCO at Mecca. See Findings 85-92, supra. Given the decision to develop at Mecca, there was no evidence that existing public facilities and services will not be used to the maximum extent possible. Indicator 7 As to Indicator 7, there is no reason to believe that the development at Mecca resulting from the Plan Amendments will not maximize the use of future public facilities and services. (The County has not planned to provide centralized water and sewer service to the Vavrus property because it does not have the legal right or ability to provide services within the boundaries of the City of Palm Beach Gardens.) Indicator 8 As to Indicator 8, a disproportionate increase in the cost in time, money, and energy may result from providing and maintaining facilities and services to the SCO. However, while this indicator may be in evidence short-term due to the cost of constructing facilities to the SCO, over time these costs would be ameliorated as more development occurs in the area. Indicator 9 As to Indicator 9, as depicted on Map H of the DRI application, which is referenced in new Policy 1.2-f as a “land use/site planning measure,” it is at least fairly debatable whether the Plan Amendments provide a clear separation between rural and urban uses. The only rural uses adjacent to Mecca are the Vavrus land to the east, and Map H depicts a 50-foot buffer there. There was evidence that the 50-foot buffer on the east is sufficient for the current use and the rural residential land use designation (1 du/10ac) placed on the Vavrus site at this time by the City of Palm Beach Gardens. The Mecca project has been designed so that, if there are changes in the future in the land use on the Vavrus property, those buffers would continue to provide compatibility. Indicator 10 As to Indicator 10, no language contained in the Plan Amendments discourages or inhibits infill or redevelopment, and the Plan still contains several provisions encouraging infill and redevelopment. On the other hand, development occurring at Mecca obviously will not result in infill or redevelopment. To the extent that the availability of economic incentives for infill and redevelopment is limited, the significant economic incentives committed to the Mecca project will not be available for infill and redevelopment. However, it is at least fairly debatable whether the infill and redevelopment measures in the Plan will be compromised by the Amendments in view of the increasing growth pressures in the County and the “tight” supply of land for development. The Plan Amendments include numerous anti-sprawl development controls that also are considered in the urban sprawl analysis. The principal controls are in the structure of the Plan Amendments, primarily the minimum and maximum amounts established for specific uses, a requirement for phasing, and a required balance of residential and non- residential uses for each phase. To mitigate sprawl, development controls should be meaningful and predictable, but also flexible. They need not include numeric setbacks and building spacing requirements, or a site plan. It is at least fairly debatable that the controls in the Amendments satisfy the State’s criteria. Cf. Rule 9J-5.006(5)(j). Petitioners' Evidence One planning witness for Petitioners who opined that the Amendments constitute sprawl did not consider the extent, amount or frequency of any indicator, contrary to Rule 9J-5.006(5)(d). He also opined there is no need for the Amendments. However, in analyzing this issue, he only reviewed portions of the Plan and a six-page summary of the EAR prepared by Petitioners’ counsel. He did not examine the 2003 Population Allocation Model or the County’s population projections and land use need analysis.7 Another planning witness for Petitioners rendered opinions about the interpretation of several indicators in the urban sprawl rule, but his testimony did not constitute expert opinions as to whether the Amendments constitute sprawl, or are "in compliance." A third planning witness for Petitioners, from the TCRPC, opined that the Amendments are sprawl, as is the existing development near Mecca. However, he admitted the definition of “sprawl” in the TCRPC's SRPP is not the same as the definition in Rule 9J-5. Urban Sprawl Summary Based on the foregoing, the determinations by the County and DCA in this case that the Plan Amendments are consistent with the state comprehensive plan, regional policy plan, the GMA, and Rule Chapter 9J-5 regarding discouraging urban sprawl, including provisions concerning the efficiency of land use, the efficient provision of public facilities and services, the separation of urban and rural land uses, and the protection of agriculture and natural resources are subject to fair debate. Capital Improvements In this category, Petitioners contend that the Plan Amendments are inconsistent with Section 163.3177(3)(a) and Rule 9J-5.016(2) and (3)(b). The statute provides: The comprehensive plan shall contain a capital improvements element designed to consider the need for and the location of public facilities in order to encourage the efficient utilization of such facilities and set forth: A component which outlines principles for construction, extension, or increase in capacity of public facilities, as well as a component which outlines principles for correcting existing public facility deficiencies, which are necessary to implement the comprehensive plan. The components shall cover at least a 5-year period. Estimated public facility costs, including a delineation of when facilities will be needed, the general location of the facilities, and projected revenue sources to fund the facilities. Standards to ensure the availability of public facilities and the adequacy of those facilities including acceptable levels of service. Standards for the management of debt. The Rule provides: Capital Improvements Analysis Requirements. The element shall be based upon the following analyses which support the comprehensive plan pursuant to subsection 9J-5.005(2), F.A.C. Current local practices that guide the timing and location of construction, extension or increases in capacity of each public facility; The general fiscal implications of the existing deficiencies and future needs for each type of public facility. This analysis shall be based on the needed improvements, as identified in the other local government comprehensive plan elements, and shall address the relative priority of need among facility types, and shall support the future land use element; The costs of needed capital improvements for mitigation of existing deficiencies, replacement and new growth needs pursuant to the future land use element and shall explain the basis of cost estimates; The impact of new or improved public educational and public health care systems and facilities on the provision of infrastructure; The use of timing and location of capital improvements to public facilities to support efficient land development and goals, objectives, and policies in the future land use element. This analysis must take into consideration plans of state agencies and water management districts that provide public facilities within the local government jurisdiction; and An assessment of the local government's ability to finance capital improvements based upon anticipated population and revenues including: Forecasting of revenues and expenditures for five years; Projections of debt service obligations for currently outstanding bond issues; Projection of ad valorem tax base, assessment ratio and millage rate; Projections of other tax bases and other revenue sources such as impact and user fees; Projection of operating cost considerations; and Projection of debt capacity. Requirements for Capital Improvements Goals, Objectives, and Policies. * * * (b) The element shall contain one or more objectives for each goal and shall address: The use of the capital improvements element as a means to meet the needs of the local government for the construction of capital facilities necessary to meet existing deficiencies, to accommodate desired future growth and to replace obsolete or worn-out facilities; The limitation of public expenditures that subsidize development in high hazard coastal areas; The coordination of land use decisions and available or projected fiscal resources with a schedule of capital improvements which maintains adopted level of service standards and meets the existing and future facility needs; The extent to which future development will bear a proportionate cost of facility improvements necessitated by the development in order to adequately maintain adopted level of service standards; and The demonstration of the local government's ability to provide or require provision of the needed improvements identified in the other local government comprehensive plan elements and to manage the land development process so that public facility needs created by previously issued development orders or future development do not exceed the ability of the local government to fund and provide or require provision of the needed capital improvements. There was no evidence that the Plan does not contain a CIE meeting these requirements or, more germane to this case, that the Plan Amendments undo the Plan's CIE, which already has been determined to be "in compliance." Actually, while seemingly focusing here on capital improvements other than those related to traffic circulation, Petitioners attempt to use these requirements primarily as additional bases for their urban sprawl arguments, supra, and their transportation concurrency and data and analysis arguments, infra. Chapter 2003-420, Laws of Florida, provides that the County in which Scripps is located shall have the exclusive right to provide central water and sewer service to the project. The County intends to provide such service to the SCO via lines extending from Okeechobee Boulevard and SR 7 about 12.5 miles away. The County has enough plant capacity to serve the SCO through build-out. Assuming Scripps Florida is located at the SCO, it would be expected to pay guaranteed revenue fees, connection fees, and on-line rates (which could be special rates set for Scripps and Mecca.) The evidence was that the total cost of construction for the lines to serve the SCO, while substantial at approximately $15 million (some of which would be expended with or without the SCO), is a relatively small percentage (5-6 percent) of the County's overall capital improvements budget, is relatively minor in light of the County’s strong financial condition, will enhance the use of existing assets and rate stability for customers, represents a least-cost and efficient approach for the area to be served, and will not cause other water and sewer needs to go unmet. The County’s 2005-2010 Capital Improvements Schedule (CIS) is financially feasible, as are each year’s program in the CIS. The CIS is based on best available data. Capital outlays to support the SCO will not deprive the County of money for other needed projects or distort the County’s fiscal priorities. Transportation Concurrency The Petitioners' focus here is on the CRALLS designations. CRALLS designations have been assigned to 37 different road segments and 6 intersections, not only near Mecca but also as far north as Indiantown Road, as far south as Okeechobee Boulevard, and as far east as I-95. They are set at vehicle loadings that match the traffic loads expected with development of the SCO. They only apply to the SCO. Other developments cannot rely on them but must use an applicable LOSS. In part, Petitioners frame their arguments on inconsistency with statutes and rules governing interim LOSS designed to correct existing deficiencies and set priorities for addressing backlogged facilities; Transportation Concurrency Management Areas used to promote infill and redevelopment; and Transportation Concurrency Exception Areas used to reduce the adverse impact transportation concurrency may have on urban infill and redevelopment and to achieve other goals and policies of the state comprehensive plan, such as promoting the development of public transportation. See Section 163.3180(9) and Rule 9J-5.0055(4)-(6). However, DCA and the County have made no effort to defend its CRALLS under those provisions.8 Rather, their position is that a CRALLS designation is a specialized LOSS that is "in compliance" without resort to those provisions of the law. DCA and the County seemed to come close to defending the CRALLS in part on the ground that the County has absolute discretion to establish these CRALLS and that they are not even subject to review for adequacy. Such a legal position would be untenable. Cf. Conclusion 217, infra. Assessment of the adequacy of the CRALLS is required. The transportation issues associated with the SCO are unprecedented in the County because of its size, location, and 30-year build-out. To address the challenges posed by these factors, the County relied on a combination of strategies to address transportation, including road improvements, CRALLS, adopting development controls for the SCO, and requiring mitigation. The initial transportation issue for the SCO was posed by FLUE Policy 3.5-d. This policy prohibits land use changes expected to generate significant impacts on any roadway segment projected to fail to operate at LOSS "D" based on the adopted Long-Range Transportation Plan. This policy is self-imposed and not required by the State. The SCO would generate trips beyond the significance thresholds in FLUE Policy 3.5-d. The County Engineer supported an exemption from this policy for the SCO because traffic considerations should not outweigh the economic and other land use goals the County is pursuing with the SCO. The first traffic analysis for the SCO was included in the DRI application, and was predicated on 10.5 million square feet of R&D. Later, in conjunction with re-zoning, the County’s consultants prepared a concurrency analysis for 8.5 million square feet of R&D, reflecting the maximum allowed by the Plan Amendments. All traffic analyses were performed as they would have been for a private developer, with methodologies approved by the County in collaboration with FDOT, TCRPC and Martin County. Assumptions were conservative, representing a worst- case scenario. SCO-related road improvements approved by the County in its five-year road program for 2005-2009 included 18 segments and three intersections at a total cost of $179.7 million. Of these, eight projects totaling $64.8 million were not new or changed in their amount of funding. The SCO-related improvements in the five-year road program were incorporated into the CIS for 2005-2010. An additional $26 million for these projects was included for 2010. Approximately 70 percent of the improvements needed for the SCO was previously identified on the 2020 Roadway System Map. In addition to these construction projects, the County also lowered the LOSS on some roads and intersections that would be impacted by the SCO over the next 30 years. In doing so, the County utilized its long-standing policy of establishing a CRALLS designation for each such road segment or intersection. The County is authorized under its charter to set LOSS's for all major roadways in unincorporated areas and municipalities except for the FIHS. The State sets the LOSS on roads in the FIHS. The County's generally applicable LOSS is LOSS “D”. Since 1989, the County has utilized the CRALLS strategy to establish an alternative LOSS on some roads due to physical or policy constraints. Examples of physical constraints include natural features, waterways, right-of-way limitations, and other roads; neighborhood opposition to a wider road would be an example of a policy constraint. CRALLS designations are not limited to the Urban/Suburban Tier; they may be adopted for land in any tier. Under TE Policy 1.2-f, CRALLS designations by the BCC must be based on data and analysis. These data and analysis must address 11 criteria in the County’s Unified Land Development Code (ULDC). CRALLS standards typically are expressed as a numeric limit on trip loadings on the road segment or intersection in question, rather than reliance upon the conventional, generalized “A”-“F” standards used by transportation engineers. Since 1993, Chapter 163 and Rule 9J-5 have granted a local government discretion to adopt LOSS for seven types of public facilities, including roads other than FIHS roads. The only State requirements are that LOSS's must be adequate, based on data and analysis, and established for each facility type. Local governments are not prohibited from adopting LOSS's for different facilities within a service type or even project-specific LOSS's that overlay the more generally applicable LOSS for a facility or facility type. Of the 37 road segments and six intersections given project-specific CRALLS designations in the Amendments, the designations on nine road segments will become ineffective when the roads are widened as planned. Another seven segments may eventually have their CRALLS designations repealed as unneeded. These segments are projected to be no more than 12 percent over generalized LOS “D”, and the County’s experience is that a detailed arterial analysis generally will show such a segment actually operating at LOS “D” when site-specific factors are considered. Seven segments and one intersection already had CRALLS designations, but the CRALLS was changed to accommodate the SCO. An additional nine segments and four intersections were expected to have a CRALLS designation even without the SCO, due to pre-existing conditions. On all but two of these, the SCO accounted for 5% or less of the trip loadings. Five segments and one intersection received a CRALLS designation solely because of the SCO. These include three segments of PGA Boulevard, two segments of SPW, and the Northlake Boulevard to Orange Boulevard intersection. In analyzing an LOSS for adequacy, a local government should consider both technical and policy issues. Technical issues for roads include the actual amount of traffic to be allowed on a road segment or intersection at the peak hour in the peak season. Policy issues involve comparing increased congestion to other planning principles, such as preventing sprawl, promoting economic development, and neighborhood opposition to wider roads. There is not a limiting list of planning principles to consider in evaluating adequacy. The County Engineer concluded that these CRALLS designations were appropriate and adequate LOSS's. He based his opinion on the amount of traffic on each segment or intersection, how the road would function, fiscal issues, his knowledge of the area, residents’ opinions, and other factors. He noted that the maximum trips in each CRALLS designation are for the peak hour in the peak season; the peak season represents a 15 percent increase over the off-peak season. The CRALLS determinations were supported by the best available data. Among other things, the data and analysis addressed the 11 criteria identified in the ULDC. As transmitted, the Amendments included a number of temporary CRALLS designations. In its Objections, Recommendations and Comments (ORC), DCA objected that temporary CRALLS designations without an accompanying long- range CIS were inconsistent with Chapter 163 and Rule 9J-5. DCA suggested the County identify improvements for those CRALLS that were indeed temporary, and assign permanent CRALLS to those segments for which no improvements were planned. Of the 43 CRALLS designations in the Amendments as adopted, all but two were permanent. The CRALLS designations on two segments of Northlake Boulevard were to be “no longer in effect” after the extension of PGA Boulevard. These CRALLS designations are supported by a fully-funded extension of PGA Boulevard from SPW to the Beeline in the CIS. Considering the road improvements in the adopted CIS and the CRALLS designations adopted in the Amendments, the County will achieve and maintain the LOSS's on roads affected by the Amendments through 2009. In addition to road improvements and adopting CRALLS, the County adopted “best planning practices” for transportation in the Amendments. These included a variety of requirements in FLUE Policy 2.8-c, 1.-3., emphasizing bicycle and pedestrian mobility, project design measures like slip roads, and mixing uses to enhance internal trip capture. Policy 2.8-c, 9., included several requirements intended to foster public transportation at the SCO. Policy 2.8-d required a balance of residential and non-residential uses in each five-year project phase. Finally, the Amendments include required mitigation measures in conjunction with the CRALLS designations, including road construction and design principles for the SCO. Petitioners’ transportation witness opined that the CRALLS designations were not adequate and, in some cases, not feasible. But for several reasons, his opinions were not beyond fair debate. First, he based his opinion on the traffic analysis of 10.5 million square feet of development in the DRI application, which was later reduced to a maximum of 8.5 million, unbeknownst to the witness. Second, his technical analysis was general and did not take into account the County’s actual experience, which is not professionally acceptable data and analysis for purposes of a plan amendment. For example, some CRALLS loadings he said were impossible to achieve are already being met or exceeded in the County on actual roads, and traffic on some roads flows at speeds equivalent to LOS “D” even though trip loadings greatly exceed the LOS "D" numbers on the generalized LOS tables. Third, his opinion did not take into account the possibility that required on-site affordable housing and CRALLS mitigation measures in the Plan Amendments might increase internal trip capture and reduce trips on the external roadway system. Fourth, he assumed that the only policies the County could consider when evaluating the adequacy of a CRALLS designation are infill, redevelopment, and promotion of “forgotten modes” of transportation like bicycles; he did not consider economic development, urban sprawl, growth pressures, and other planning principles. Data and Analysis Paragraph 75 of the Amended Petition, labeled "Data and Analysis," alleges that the Plan Amendments are: not clearly based on the relevant and appropriate and professionally-accepted data and analysis regarding: impacts to adjacent natural areas; compatibility with adjacent land uses; impacts to the Loxahatchee River and restoration thereof; the Comprehensive Everglades Restoration Plan [CERP] and components thereof; impacts to rural communities; the availability and necessity of infrastructure and the provision thereof to support the project; the necessity for and the amount of land needed to accommodate the project; the availability and suitability of alternative sites for the project; the character of the undeveloped land and the surrounding community; the economic impacts of the proposed plan amendments; [and]9 the likelihood of developing an economically significant biotech industry as [a] result of the plan amendments . . . as required by sections 163.3177(6)(a), (8) and (10)(e), Fla. Stat. and Rule 9J-5.005(2) and (5)10 and 9J-5.006(2) and 9J-5.013(1) F.A.C.11 Section 163.3177(6)(a) requires that the future land use plan be based on appropriate data and analysis. Section 163.3177(8) requires all elements of comprehensive plans to be "based upon data appropriate to the element involved." Section 163.3177(10)(e) states the Legislature's intent that goals and policies be "clearly based on appropriate data"; states that DCA "may evaluate the application of a methodology utilized in data collection or whether a particular methodology is professionally accepted"; and states that DCA "shall not evaluate whether one accepted methodology is better than another." Rule 9J-5.005(2) states in pertinent part: (a) All goals, objectives, policies, standards, findings and conclusions within the comprehensive plan and its support documents, and within plan amendments and their support documents, shall be based upon relevant and appropriate data and the analyses applicable to each element. To be based upon data means to react to it in an appropriate way and to the extent necessary indicated by the data available on that particular subject at the time of adoption of the plan or plan amendment at issue. Rule 9J-5.006(2) describes the Land Use Analysis Requirements for the FLUE. It should be noted that new FLUE Policy 2.8-f in the Plan Amendments provides: "If the Scripps Research Institute does not move forward on the Mecca site, Staff shall bring to the BCC for initiation proposed amendments to consider removing any text and maps related to the [SCO] from the Comprehensive Plan." While Petitioners characterize this Policy as an admission that the Plan Amendments are not "in compliance," the Policy actually is prudent and would allow reconsideration of planning for Mecca and vicinity with a Scripps-anchored biotechnology cluster effort located elsewhere in the County (or even without any Scripps-anchored biotechnology cluster effort in the County, if that were to occur) as part of the EAR-based and sector planning efforts of the County. Some parts of the data and analysis would not be "professionally accepted" and, standing alone, would not be adequate to support the Plan Amendments. For example, the Washington Economic Group report is not "professionally accepted" because: it does not explain its methodology; it is based on an erroneous assumption that the plan for Scripps Florida, which is planned to be smaller than Scripps California, will generate the level of biotechnical industry found in all of San Diego, which includes not only Scripps, but also the University of California at San Diego and the Salk Institute in its cluster; it overestimates the importance of Scripps' role in the San Diego cluster; and it double- counts Scripps employment in its employment estimates. But other data and analysis corrected these errors. The amount of data and analysis supporting the Plan Amendments is voluminous. Petitioners' data and analysis arguments essentially are that the same evidence they presented as to the substantive areas of concern proves alleged failures of data and analysis to be "professionally accepted" and adequate. As indicated elsewhere in this RO, Petitioners' evidence did not prove their case as to substantive areas of concern beyond fair debate; likewise, they did not prove beyond fair debate that the totality of the data and analysis supporting the Plan Amendments were not "professionally accepted" or were inadequate. Internal Consistency The Amended Petition alleges numerous internal inconsistencies. Section 163.3177(2) requires: "The several elements of the comprehensive plan shall be consistent . . . ." Rule 9J-5.005(5) repeats this admonition in subparagraph (a), and subparagraph (b) adds: "Each map depicting future conditions must reflect goals, objectives, and policies within all elements and each such map must be contained within the comprehensive plan." Petitioners allege inconsistency with the following statements in section B., the Assessment and Conclusions section of the Introduction to the FLUE, that the updated 1989 Plan implements the direction provided by the BCC to: strengthen and facilitate revitalization and redevelopment and infill development programs; protect agricultural land and equestrian based industries; balance growth through the County; * * * 8. establish a timing and phasing program to provide for orderly growth; * * * coordinate growth with the provision of infrastructure; define how growth/services will be managed in rural residential areas; define service areas and the type of services to be provided within each service area; and provide criteria for expanding the Urban/Suburban Tier. Petitioners allege inconsistency with the following GOPs of the FLUE: Goal 1, to establish the Tier System. Policy 1.1-b, establishing criteria for redesignation of a Tier. Policy 1.1-d, not to modify the Tier System if redesignation would exhibit the characteristics of urban sprawl, as defined by Rule 9J-5.006. Objective 1.4, for a Rural Tier to protect and maintain rural residential, equestrian, and agricultural areas. Policy 1.4-k, not to make future land use decisions that increase density and/or intensity requiring major new public investments in capital facilities and related services in the Rural Tier. Objective 2.1, to designate sufficient land area in each land use designation to manage and direct future development to appropriate locations to achieve balanced growth. Policy 2.1-f, not to exceed the natural or manmade constraints of an area considering assessment of soil types, wetlands, flood plains, wellfield zones, aquifer recharge areas, committed residential development, the transportation network, and available facilities and services; and not to underutilize existing or planned capacities of urban services. Policy 2.2-b, requiring: an adequate justification and a demonstrated need for proposed future land use; for residential density increases to demonstrate that the current land use is inappropriate; for a review and determination of compatibility with existing and planned development in the immediate vicinity; and an evaluation of impacts on the natural environment, availability of facilities and services, adjacent and surrounding development, future land use balance, prevention of urban sprawl as defined by Rule 9J- 5.006(5)(g), Community Plans and/or recognized Planning Area Special Studies, and municipalities in accordance with Intergovernmental Coordination Element Objective 1.1. Policy 2.2-d, to ensure consistency of the County's ULDC with the appropriate elements of the Plan. Objective 2.6, to establish a transfer of development rights (TDR) program. Policy 2.6-b, requiring the TDR program to be the method for increasing density within the County unless an applicant can justify and demonstrate need and that the current designation is inappropriate, or is using the Voluntary Density Bonus program, as outlined in the Housing Element and the ULDC. Policy 2.6-f, limiting potential TDR receiving areas to the Urban/Suburban Tier, Planned Development Districts and Traditional Development Districts requesting a density increase, and subdivisions requesting a bonus density above the standard density. Policy 2.6-h, prohibiting designation of receiving areas which would result in a significant negative impact upon adjacent Environmentally Sensitive Land. Policy 2.6-i, prohibiting designation of receiving areas which would be incompatible with surrounding existing and future land uses. Goal 3, to define graduated service areas for directing services to the County's diverse neighborhoods and communities in a timely and cost-effective manner. Objective 3.1, to establish graduated service areas to distinguish levels and types of services needed in a Tier. Policy 3.1-a, to establish the USA, LUSA, and RSA considering: the density and intensity of land uses depicted in the FLUE Atlas; the cost and feasibility of extending services; the necessity to protect natural resources; and the objective of encouraging reinvestment in the Revitalization and Redevelopment Overlay. Objective 3.4, to require a RSA which meets the needs of rural development and use without encouraging the conversion of rural areas to more intense uses. Policy 3.4-a, for the RSA to include those areas of the County where the extension of urban LOS's is neither foreseen during the long range planning horizon nor warranted by development patterns or densities and intensities allowed. Policy 3.4-c, not to provide or subsidize centralized potable water or sanitary sewer in the RSA unless: required to correct an existing problem; required to prevent a projected public health hazard; required to prevent significant environmental degradation; or required by the Public Health Department for development in the Rural Tier adjacent to water and/or sewer lines which existed prior to adoption of the Plan in 1989. Objective 3.5, to require availability of services concurrent with impacts of development, to ensure consistency of decisions regarding location, extent, and intensity of future land use (particularly urban expansion), with types of land use and development established in each Tier. Objective 4.1, to develop and implement a Community Planning and Neighborhood Planning program, consider the program's plans for more livable communities with a strong sense of place and identity for the various regions in the County. Policy 4.1-c, to consider the objectives and recommendations of all Community and Neighborhood Plans, including recognized Planning Area Special Studies, prior to extending utilities or services, approving land use amendments, or issuing development orders for rezoning, conditional use, or Development Review Committee approval. Goal 5, to provide for the continual protection, preservation, and enhancement of the County's various high quality environmental communities. Petitioners allege inconsistency with the following parts of the Conservation Element (CE): Objective 2.1, to preserve and protect native communities and ecosystems to ensure that representative communities remain intact, giving priority to significant native vegetation. Policy 2.1-g, to ensure that management plans are developed for County-owned or County-managed natural areas and that uses allowed on these lands are compatible with them and preserve their natural character. Objective 2.4, to protect and preserve endangered and threatened species, species of special concern, and their associated habitats. Petitioners allege inconsistency with the following GOPs of the CIE: Objective 1.1, to maintain minimum LOSS's for various facilities, including traffic circulation, and to issue development approvals based on ability to maintain those LOSS's. Objective 1.4, to identify and fund services and capital improvements required by the Plan. Policy 1.4-a, to fund projects and programs to (not in order of importance): correct public hazards; eliminate existing deficiencies in LOS's; provide capacity for projects in the USA approved through development orders; provide for renewal and replacement of, and improvement to, existing public infrastructure and physical assets; maintain LOS's as new growth occurs; increase existing LOS's to desired LOS's; and implement the GOPs in the Plan. Policy 1.5-c, not to provide urban LOS's in the RSA except where allowed under CIE Objective 1.1, required to correct a public health hazard, or required by the Public Health Department for development in the Rural Tier adjacent to water and/or sewer lines which existed prior to adoption of the Plan in 1989. (Other internal consistencies mentioned in Petitioners' PRO were not alleged or heard by consent and may not be considered. See Conclusion 212, infra.) The evidence did not prove beyond fair debate that the Plan Amendments cause the elements of the Plan to be internally inconsistent, or cause the depictions of future conditions in the FLUE Atlas not to reflect the GOPs within all elements of the Plan. Natural Resources Impacts on the Mecca Site As a result of its use for citrus growing and mining, Mecca itself is devoid of significant environmental value. The South Florida Water Management District (SFWMD) has found no jurisdictional wetlands on it. There are no native plant communities; in fact, there is virtually no native vegetation anywhere on the site. Mecca is used by wildlife in limited and intermittent ways. The main wildlife use is localized foraging by species such as sandhill cranes and wood storks in the impoundment and irrigation ditches. Mecca does not provide suitable habitat for nesting or denning. A listed species survey revealed no gopher tortoises or snail kites. The surface water management system for the first 535 acres of the SCO has received a construction permit, and the system for the total site was conceptually approved based on water quantity and water quality compliance. See Florida Wildlife Federation, et al., v. SFWMD, et al., SFWMD Order No. 2004-208 FOF ERP, DOAH Case Nos. 04-3064 and 04-3084, 2004 WL 2770101 (DOAH December 3, 2004; SFWMD Final Order December 8, 2004). No significant adverse impacts to natural resources on Mecca itself would result from development of the SCO on Mecca. Impacts of Development on Mecca on Natural Areas Surrounding Mecca The lands surrounding Mecca are more significant environmentally. They include Corbett WMA to the west, Hungryland Slough to the north and northeast, the Vavrus property to the east, and the North County Airport Preserve (Conservation lands to the west, south, and southeast of that Airport) east of the Vavrus property. Farther away to the east and northeast is the Loxahatchee Slough and the Northwest Fork of the Loxahatchee River, including its federally- designated Wild and Scenic and Outstanding Florida Water portion. Farther away to the southeast is the Grassy Waters Water Preserve Area, which is both a high quality natural wetlands area and an important source of drinking water for the City of West Palm Beach. New FLUE Policy 2.8-c requires the adoption of design standards for the SCO which, among other things, will at a minimum address: 4. Protection of conservation lands to the north and west of the SCO and include a passive recreational wetland system to enhance the quality of surrounding areas of environmentally sensitive lands. In accordance with this Policy, Map H designates a 247-acre, 500-1,000 foot wide flow-way along the entire north and west sides of Mecca. The flow-way will consist of braided channels through a freshwater marsh, as well as forested wetland and upland tree islands. These wetlands will enhance recreation and wildlife use. The mining lake and a new, separate lake on the south end of the site will have littoral shelves and plantings conducive to wildlife use. In addition to providing onsite environmental benefits, the flow-way will help protect adjacent environmental lands to the west and north from the effects of development on Mecca itself. Impacts of Road Construction on Natural Areas Surrounding Mecca SPW as currently depicted in the Plan runs directly along the western border of Mecca immediately adjacent to Corbett WMA. By virtue of the Amendments, the road alignment has been moved eastward onto Mecca, with the flow-way on its west as a buffer between the actual road and Corbett. This road alignment and buffer can be expected to have less of an impact on Corbett than would an alignment without a buffer. In addition to the impacts of development on Mecca itself, the Plan Amendments also affect road construction offsite that have environmental impacts. The extension of SPW from south of Mecca north to the Beeline through the Hungryland Slough was planned and included in the Plan's 2020 Roadway System Map before the Amendments were adopted, but was not in the County's five-year road program through 2009. The Amendments enlarged the planned roadway from four to six lanes and accelerated its construction to 2007. The extension of PGA Boulevard west from the Beeline to Mecca was not depicted in the Plan prior to the Amendments. The Plan Amendments identify a new 260-foot wide ROW on the new TIM; although the ROW could accommodate ten lanes of roadway, a six-lane road is depicted on the new 2020 Roadway System Map. The new road construction is expected to impact a number of wetlands on private property, but the exact extent of this impact is not known as its precise alignment has not been selected, and the general alignment depicted in Ordinance No. 2004-39 does not allow an exact assessment of potential environmental impacts. In order to examine potential impacts of the PGA Boulevard Extension, the County studied the “worst case scenario” for the extension if it were completed in a straight-line from the Beeline to Mecca. A road constructed on this alignment would directly impact over 45 acres of wetlands, and have an indirect impact upon another 56 acres of wetlands. SFWMD considered this “worst case scenario” as part of its review of secondary impacts for purposes of the conceptual permit it issued for the SCO, which assumed that impacts will be lessened during subsequent permitting as a result of SFWMD's avoidance, minimization, and mitigation requirements. See Florida Wildlife Federation, et al., v. SFWMD, et al., SFWMD Order No. 2004-208 FOF ERP, supra. Habitat Fragmentation The integrity of natural areas is very important to wildlife. For one thing, the ability of wildlife to move around and mix to enlarge the gene pool increases the structural stability of wildlife populations. Loss of enough integrated habitat can be very damaging to particular species of wildlife. As habitat becomes further and further fragmented by development, the remaining connections among areas of quality habitat become increasingly important in general and especially for particular species of wildlife. Development and roads built through natural areas result in road kill and habitat fragmentation, which compromises the quality of the natural areas. Before the Plan Amendments, through at least 2009, wildlife would have had the ability to use Mecca and especially Hungryland to move between Corbett, Vavrus, the North County Airport Preserve, without having to cross any major roads until coming to the Beeline and Northlake Boulevard, which separate those areas from the Loxahatchee Slough northeast of the Beeline and north and south of existing PGA Boulevard, and from the Grassy Waters Preserve south of Northlake Boulevard. At some point between 2009 and 2020, a four-lane extension of SPW was planned to be added. As a result of the Plan Amendments, the SPW extension will be accelerated to 2007 and constructed with two additional lanes. As a result, the Plan Amendments will tend to reduce connectivity, increase fragmentation of natural habitats, and probably increase road kill of deer, alligators, various kinds of turtles, otters, and snakes. While not part of the Plan Amendments, planned protection measures include fencing to separate Corbett from the Mecca project and wildlife crossings and bridging installed along with the widening of SPW north of Mecca and the extension of PGA Boulevard to Mecca in an attempt to retain the linkage of open wetland and upland areas to the west, north and east, consistent with CE Objective 5.1. Unfortunately, even if the fencing and wildlife crossings and bridging are 100 percent effective for larger animals (which they probably will not be), it should be recognized that many smaller animals will benefit little from them if at all. In particular, increased road kills of listed indigo snakes should be expected due to their large habitat home range (200-acre home range for males). Fire Management Virtually all plant communities in the vicinity of Mecca are fire dependent--in order to be maintained in their natural state, they must be burned approximately every three years, or they will be invaded by exotic species, and their habitat values will be reduced. The inability to maintain a regular burn schedule also poses a public safety threat due to the increased risk of wildfires. Fire management is compromised near roadways and developed areas due to health concerns, reduced visibility, and increased wildfire threat. Caution is used when burning near roadways so as not to cause (traffic accidents,) or to be blamed unfairly for causing them, which can be just as bad for the public relations that have to be maintained to successfully fire-manage natural lands. If an airport, hospital, school, or community is within two miles of a burn area, it is considered a smoke-critical area. If Mecca is developed as proposed, it will be considered a smoke-critical area for many burns in Corbett, which will not be able to be burned if the wind is blowing from the west. In Corbett, which has a lot of lighter wood, fires often smolder for weeks, further constraining fire management. For these reasons, the development allowed by the Plan Amendments will negatively impact the management of Corbett. However, there are alternative fire-management techniques that can be used, if necessary, in natural areas adjacent to Mecca. In addition, with or without the SCO, the County was planning a four-lane extension of SPW along the eastern boundary of Corbett, which would be a constraint on fire management. Light Impacts The proposed development on Mecca will add light sources that will alter the nighttime sky viewable from Corbett, Hungryland, and the Loxahatchee Slough. Depending on the extent, such an alteration would reduce recreational values of Corbett. Lights also can interrupt bird migration and be harmful to migratory birds. The area surrounding Mecca is important for migratory birds because the lack of lighting provides a dark sky and safe route for migration. Special downward-directed lighting that can reduce the adverse impacts from lighting is intended to be used on the Mecca project although a clear requirement to use them is not included in the Plan Amendments. Noise, Pollution, and Mosquito Control Noise and other roadway disturbance cause behavioral problems in wildlife, disrupt bird-nesting for considerable distances, and negatively impact prey and predator by interfering with offensive and defensive mechanisms. However, it should not be anticipated that these kinds of impacts will be significant. In most cases, they probably will disturb the human recreational users of these public lands more than the wildlife. Fertilizer and pesticide use on Mecca may be harmful to wildlife on adjacent properties. But there are ways to control their ill effects through land development regulation consistent with provision in the CE of the Plan. Mosquito control is typically required in urban developments, and is accomplished through the use of pesticides that are not only targeted towards mosquitoes, which are an important part of the food chain, but also kill a wide variety of insects, spiders, and invertebrates. This reduces the populations of these species, negatively impacts species that rely on them for food, can be expected to result in less food for birds such as tree swallows, which feed heavily on mosquitoes, as well as dragonflies, and numerous species that rely on mosquito larvae in the aquatic environment. Loxahatchee River Basin Petitioners contend that it is unacceptably poor planning to develop the SCO on Mecca at this time and eliminate it as an option for use for water storage as part of efforts to restore the Loxahatchee River. The Loxahatchee River has been negatively impacted by development in its basin. Such development has resulted in several changes, including the redirection of water discharge to other basins and an unnatural increase in stormwater drainage. These changes to the drainage patterns have resulted in several problems, including excessively high flows in the river following rainfall events, and reduced base flows during the dry season. Excessive flows during the wet season have resulted in erosion of the stream bed, sedimentation blocking the channel at times, and sometimes water quality problems and fish kills. Reduced base flows during the dry season have contributed to allowing saltwater intrusion up the river channel. (Other contributing factors include straightening and stabilization of the inlet to reduce the need for maintenance dredging and the removal of a large oyster bar from the riverbed for navigation purposes.) Saltwater intrusion has altered aquatic ecosystems and caused a change in the vegetation along the riverbanks. Specifically, freshwater cypress-dominated wetlands used to occur as far seaward as 6.2 miles from the river mouth; now mangroves have replaced the cypress swamps as far inland as river mile 9.2, and the cypress wetlands to river mile 10.2 are stressed. Restoration of the Loxahatchee River is an objective of CERP, North Palm Beach County Part One. One component of North Palm Beach County Part One was for SFWMD to acquire rock mine pits for water storage from Palm Beach Aggregates near where the L-8 canal meets the C-51 canal. SFWMD plans to channel water through canals into these pits during wet season or high rainfall events, then discharge the water from the pits back through the canals during dry season. One destination for this fresh water during the dry season would be the Loxahatchee River. Until recently, prior to the Scripps opportunity, the North Palm Beach County Part One CERP team also was considering use of Mecca for water storage as a possible management measure in the overall CERP strategy for restoration of the Loxahatchee River. Mecca was considered for two main reasons. One was its location on the west leg of the C-18 canal, which receives discharges from the C-18 basin and flows into the Loxahatchee River. Water could be fairly easily stored there during the wet season and released to the river during the dry season. The other was its disturbed condition, being an orange grove and sand mine. The only other potential water storage sites near the C-18 canal without pristine wetlands that would be unsuitable and undesirable sites for a water storage facility is approximately 1,500 acres of disturbed agricultural land on Vavrus. (The other two-thirds of the Vavrus property has high-quality wetlands habitat.) However, Mecca was not specifically mentioned in any component of CERP, North Palm Beach County Part One, and consideration also was being given to restoring the Loxahatchee River without using Mecca for water storage. No decision was made to use Mecca for water storage, and no steps were taken to purchase Mecca for this purpose. When the Scripps opportunity arose, the County purchased the property for development of a biotechnology research park and applied to SRWMD for a surface water storage and management system and environmental resource permit. One issue was whether the permit would be consistent with the objectives of SFWMD, including CERP. SFWMD did a preliminary study, which included modeling, and determined that Mecca would not be needed for water storage, finding that water storage capacity available in the Palm Beach Aggregates rock mine pits was sufficient, given the pits’ location, depth, and access to nearby canals. SFWMD already had a contract for use of 48,000 acre-feet feet of storage capacity, which is more than seven times the achievable storage at Mecca. In addition, SFWMD was negotiating to acquire the right to double that storage capacity at Palm Beach Aggregates. Based on the County's plans to develop the SCO on Mecca, and the options available for restoring the Loxahatchee without water storage on Mecca, the CERP team eliminated the Mecca option. Instead, SFWMD and the County coordinated on the role the SCO might play in the recovery effort. SFWMD concluded that Mecca could be used to advantage as part of the water conveyance system between the rock mine pits and environmental areas, including the Loxahatchee River. Establishing a flow-way from the south to north of Mecca would give SFWMD another route with which to move water, would reduce dependence on Lake Okeechobee for fresh water, and would provide greater base flows to the Loxahatchee. Based on SFWMD input, the County designed for Mecca a flow-way that will allow flow up to 1,000 cubic feet of water per second (cfs) to assist recovery efforts for the Loxahatchee. Construction at Mecca is phased to assure that the existing onsite impoundment will be in place until the flow-way is functioning. This conveyance system will benefit offsite resources and improve water quality, and is consistent with and complementary to SFWMD’s CERP implementation. Petitioners' witnesses criticized the decision to proceed with development of the SCO on Mecca at this time on the ground that CERP's implementation report (a/k/a "tentatively selected plan") has yet to be approved. However, approval requires not only agreement by the State and federal agencies involved but also a vote of the United States Congress, which may not occur until 2008. It is a fairly debatable policy question whether to postpone a decision on developing the SCO at Mecca until Congress approves an ultimate CERP implementation plan. Petitioners' witnesses also criticized the modeling relied on by SFWMD to eliminate the Mecca option. They pointed out that the modeling was not peer-reviewed and that it assumed 80,000 to 100,000 acre-feet of storage at the rock mine pits. But this point, too, is fairly debatable. First, while peer-review is required in the CERP planning process, it is not required of data and analysis under the GMA. See Finding 136, supra. Second, the purpose of the modeling was to supplement modeling already done assuming 48,000 acre-feet of storage for comparison purposes. It was not intended to answer the ultimate question of CERP planning process--whether the CERP implementation plan will meet CERP objectives, including restoration of the Loxahatchee. In addition, based on the evidence, prospects for obtaining the additional storage seem reasonably good. Third, water from the rock mine pits is only one of four sources of flow needed for restoration of the Loxahatchee. The combination of sources CERP will use has not been determined yet. Preliminarily, it is estimated that base flows from the south will be required to maintain 65 cfs minimum flows at the Lainhart Dam. Based on the evidence, the prospects for being able to maintain those flows using water from the rock mine pits are reasonably good. Other necessary flow will be sought from the Palmar/Cypress Creek and Kitchen Creek areas to the north. Fourth, as for reducing high flows during the wet season, it is fairly debatable whether the plan to use the Palm Beach Aggregates rock mine pits alone for water storage will work well enough. It could be that, despite capacity limitations on storage potential in the C-18 basin, some storage there may prove beneficial, perhaps in conjunction with aquifer storage and recovery wells (ASRs), along with the rock mine pits. Even with the Plan Amendments, there remains some potential at this time that a limited portion of Mecca and disturbed portions of Vavrus could be used for this purpose if needed. Petitioners' witnesses also complained that use of the rock mine pits along with a flow-way through Mecca will require potentially costly land acquisition and permitting and modification of existing canals and construction of new canals, as well as larger pumps, and that water will be lost in transit between the rock mine pits and Mecca through evaporation. But there was no evidence that those factors will in fact harm or jeopardize restoration of the Loxahatchee River. Meanwhile, it is significant that the flow-way on Mecca will be provided by the County and will not cost SFWMD or CERP anything. Natural Resources Summary As can be seen, development of the SCO at Mecca will not be without some adverse impacts to natural resources and the environment. However, the County's determination that the benefits of the SCO outweigh the harm of those impacts, so as not to cause the Plan Amendments to be "in compliance," is a policy decision that is at least fairly debatable. Community Character and Compatibility It is obvious that the Plan Amendments will result in a complete change in the character and use of the Mecca site. Without question, development of the SCO at Mecca will impact adjacent lands and the character of the nearest communities. The question raised, however, is whether the changes at Mecca are compatible with the character and uses of the surrounding lands. New FLUE Policy 2.8-c requires, among other things: urban uses allowed by the SCO to have a defined edge; protection of conservation lands to the north and west by a passive recreational wetland system to enhance the quality of surrounding environmentally sensitive lands; and compatibility with and minimization of impacts on land uses adjacent to the SCO. Map H of the DRI application shows wetland and other buffers on the north, west, and south sides of the SCO, and a 50-foot upland buffer along the Vavrus property to the east. There was evidence that the 50-foot buffer on the east is sufficient for the current use and the rural residential land use designation (1 du/10ac) placed on the Vavrus site at this time by the City of Palm Beach Gardens. The Mecca project has been designed so that, if there are changes in the future in the land use on the Vavrus property, those buffers would continue to provide compatibility. Corbett WMA and the Hungryland preservation lands in Unit 11 will be buffered by passive recreational wetlands 500 to 1,000 feet wide, based on Map H. Corbett WMA will be benefited by moving Seminole Pratt-Whitney (SPW) Road to the east of the SCO westerly buffer and converting the existing roadbed to an equestrian trail.12 To the south, The Acreage is an example of urban or suburban sprawl. A residential development platted in 1.25- acre lots, it has all internal roads in place and in use. There was ample evidence that development of the SCO can be compatible with The Acreage. The southerly buffer between the nearest residence in The Acreage and development in the SCO would be about 800 feet. SPW already is in the 2020 TIM and Roadway System Map as a four-lane paved road through The Acreage and north past Mecca and the Beeline to Indiantown Road. However, SPW Road already has a 120-foot-wide ROW, which can accommodate a six- lane road, and The Acreage Neighborhood Plan calls for construction of this road from Northlake to the Beeline Highway, as well as extension of SR 7 north from Okeechobee Boulevard to Northlake. There is already heavy traffic on the few major through-roads in The Acreage, and that will increase incrementally. At the same time, some work trips from The Acreage to areas of the County farther east could be offset by employment opportunities in the SCO. The North County Airport has a five-mile runway buffer zone precluding educational uses. That buffer zone was accommodated on the SCO by the arrangement of uses on Map H. The new extension of PGA Boulevard from the SCO to the Beeline Highway will be subject to FAA setback requirements, but there are options for addressing that issue when an alignment is selected. The 28-acre Accessory Site is located on the west side of SPW Road just south of the SCO. Its use for construction of SPW Road, a connector canal, and an FPL substation is compatible with the existing FPL transmission line on the property. The substation will be sufficiently buffered by canals and SPW Road from The Acreage to its east and south. Many residents in the communities in the vicinity of Mecca desire to preserve the character of their communities or, it seems, even restore it to what it was before the growth the County has seen in this area over the last several years. Several own horses and desire to continue to ride their horses along the roads in the area. However, as indicated, with or without the Plan Amendments, growth in the area was expected, the County was planning to build roads in the area, and traffic was expected to increase. Based on the foregoing, it is fairly debatable whether the Plan Amendments are compatible with community character and surrounding land uses. Regional and State Plans Section 163.3177(10) states in pertinent part: for the purpose of determining whether local comprehensive plans are consistent with the state comprehensive plan and the appropriate regional policy plan, a local plan shall be consistent with such plans if the local plan is "compatible with" and "furthers" such plans. The term "compatible with" means that the local plan is not in conflict with the state comprehensive plan or appropriate regional policy plan. The term "furthers" means to take action in the direction of realizing goals or policies of the state or regional plan. For the purposes of determining consistency of the local plan with the state comprehensive plan or the appropriate regional policy plan, the state or regional plan shall be construed as a whole and no specific goal and policy shall be construed or applied in isolation from the other goals and policies in the plans. Treasure Coast Strategic Regional Policy Plan (SRPP) In the Amended Petition, the Petitioners did not allege the Amendments are inconsistent with the SRPP, as a whole. Only allegations in the Amended Petition may be considered. See Conclusion 212, infra. Notwithstanding testimony from Petitioners’ TCRPC witness that the Plan Amendments were not consistent with some provisions of the SRPP, he did not testify that they were inconsistent with the SRPP as a whole. The Amendments further some parts of the SRPP. These include SRPP Goal 3.6 and SRPP Goal 3.7 of the Economic Development element, and their supporting strategies and policies. Petitioners' TCRPC witness testified there were five inconsistencies between the Amendments and the SRPP. However, he admitted that he did not recommend that TCRPC file formal objections to the Amendments with DCA on three grounds he cited for inconsistency at hearing --proximity to the Corbett WMA and other natural resources, the CRALLS designations, and proximity to the North County Airport. In discussing some provisions, this witness failed to give the SRPP its proper context. Many goals, strategies, and policies in the SRPP use directive verbs intended to be recommendations to a local government, not requirements. As one of his five grounds of inconsistency with the SRPP, Petitioners' TCRPC witness opined that Regional Goal 4.1 and its supporting measures require the County to prepare a regional plan before urban development may be allowed at Mecca, and to ensure such development meets the SRPP’s definition of a new town, village or city. However, this goal and its key provisions use the verb “should” and therefore are not mandates. Further, a plain reading of these provisions shows no requirement for the County to complete a regional plan as a pre-requisite for urban development. Also, the TCRPC witness opined that SRRP Policies 9.1.1.1 and 7.1.3.1 prohibit CRALLS designations outside urban areas. However, a plain reading of these policies shows no basis for such an assertion, and the witness later admitted the SRPP does not prohibit CRALLS designations in rural areas. Moreover, his testimony on this point was contradicted by his testimony that the SRPP is only “advisory.” State Comprehensive Plan The State Comprehensive Plan (SCP) is a very broad, direction-setting document. The SCP provides over-arching policy guidance, and does not impose or authorize the creation of regulatory authority. The Amended Petition alleged that the Amendments are inconsistent with the goals of the SCP regarding Land Use, Water Resources, Natural Systems and Recreational Lands, Transportation, and Urban and Downtown Revitalization, as well as numerous policies under these goals. Based on these allegations, Petitioners alleged that the Amendments are inconsistent with the SCP as a whole. To the contrary, the record evidence demonstrates that all relevant issues regarding water and other natural resources, land use, and transportation were taken into account by the County and are addressed in the Amendments. Additionally, the Amendments are consistent with and further numerous goals of the SCP not mentioned in the Amended Petition. The Amendments contain a commitment that each phase of development must contain affordable housing for very low, low, and moderate income households. This commitment furthers the SCP goal to “increase the affordability and availability of housing for low-income and moderate-income persons ” § 187.201(4), Fla. Stat. The Amendments have as their principal focus the creation of quality employment opportunities with Scripps Florida as anchor tenant. This purpose is consistent with and furthers the SCP policy to “[a]ttract new job-producing industries, corporate headquarters, distribution and service centers, regional offices, and research and development facilities to provide quality employment for the residents of Florida.” § 187.201(21)(b)(1), Fla. Stat. Summary Using the statutory definition of internal consistency, it is not beyond fair debate that the Plan Amendments are inconsistent with either the TCRPC's SRRP or the SCP.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DCA enter a final order determining that the Plan Amendments are "in compliance." DONE AND ENTERED this 28th day of April, 2005, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of April, 2005.
The Issue The issue in these cases is whether the Collier County (County) Comprehensive Plan amendments adopted through Collier County Ordinance Number 02-32 ("the Rural Fringe Amendments" or "the Amendments") on June 19, 2002, are "in compliance," as defined in Section 163.3184(1)(b), Florida Statutes.
Findings Of Fact Background The Amendments at issue in these cases arose from a specific historical background which is relevant to help put them in context. In 1997, the County adopted Evaluation and Appraisal Report-based plan amendments ("EAR-based amendments"). DCA found the EAR-based amendments not to be "in compliance." Following an administrative hearing in which FWF and Audubon intervened, the Administration Commission entered a final order agreeing with DCA's determination. Joint Exhibit J.3. The Administration Commission’s final order, entered on June 22, 1999, directed the County to take the following steps in order to bring its comprehensive plan amendments into compliance: (1) rescind those EAR-based amendments found not in compliance; (2) adopt certain specific "remedial" amendments; (3) initiate an assessment of the area of the County designated on the Future Land Use Map ("FLUM") as Agricultural/Rural; (4) adopt interim amendments to remain in force during the course of the assessment; and (5) no later than June 22, 2002, adopt those plan amendments needed to implement the findings and results of the assessment. Summary of Rural Fringe Amendments In response to the Administration Commission's final order on the EAR-based amendments, the County elected to divide its Agricultural/Rural-designated area into two subdistricts-- Rural Fringe and Eastern Lands--for purposes of the assessment and implementing plan amendments. The Rural Fringe subdistrict was designated as "the Rural Fringe Mixed Used District" (or "the Rural Fringe"). The Rural Fringe is described in the amendments as follows: The Rural Fringe Mixed Use District is identified on the Future Land Use Map. This District consists of approximately 93,600 acres, or 7% of Collier County's total land area. Significant portions of this District are adjacent to the Urban area or to the semi-rural, rapidly developing, large-lot North Golden Gate Estates platted lands. * * * The Rural Fringe Mixed Used District provides a transition between the Urban and Estates Designated lands and between the Urban and Agricultural/Rural and Conservation designated lands farther to the east. The Rural Fringe Mixed Use District employs a balanced approach, including both regulations and incentives, to protect natural resources and private property rights, providing for large areas of open space, and allowing, in designated areas, appropriate types, density and intensity of development. The Rural Fringe Mixed Use District allows for a mixture of urban and rural levels of service, including limited extension of central water and sewer, schools, recreational facilities, commercial uses and essential services deemed necessary to serve the residents of the District. In order to preserve existing natural resources, including habitat for listed species, to retain a rural, pastoral, or park-like appearance from the major public rights-of-way within this area, and to protect private property rights, the following innovative planning and development techniques are required and/or encouraged within the District. J.4 at 50. Under the Amendments, the Rural Fringe was divided into areas designated as Sending, Receiving, or Neutral on the FLUM.18 J.5. Some Sending Areas are also designated Natural Resource Protection Areas (NRPAs). Receiving Lands "are those lands within the Rural Fringe Mixed Use District that have been identified as most appropriate for development . . . ." J.4. at 51. These lands have been chosen because they "have a lesser degree of environmental or listed species habitat value than areas designated as Sending and generally have been disturbed through development, or previous or existing agricultural operations." Id. Approximately 25,000 acres are designated Receiving Lands. Receiving Lands "are also located to allow for the provision of central water and sewer and have excellent access to the County's arterial road network." J.11. at 2. The base density within Receiving Lands is one dwelling unit per five acres. However, through the purchase of development rights from Sending Lands through the Transfer of Development Rights (TDR) program established by the Amendments (discussed in Findings 72-91, infra), Receiving Lands may increase density up to one dwelling unit per acre. Additional density may be obtained if a development preserves more than the minimum required amount of native vegetation. Limited commercial, industrial, and earth-mining uses are also allowed in Receiving Lands. Receiving Lands may also be developed as "Rural Villages." The Amendments provide for the possibility of one rural village within each of the four distinct Receiving Areas in the Rural Fringe. The purpose of rural villages is described as follows: Rural Villages may be approved within the boundaries of the Rural Fringe Mixed Use District in order to: maximize the preservation of natural areas and wildlife habitat within the Rural Fringe Mixed Use District; to reduce the need for residents of the District and surrounding lands to travel to the County's Urban area for work, recreation, shopping, and education; and, to enhance the provision of limited urban and rural levels of service through economies of scale. J.4 at 62. The rural villages permitted in the Rural Fringe must consist of compact neighborhoods with nearby neighborhood or village centers. The neighborhood or village centers are to include retail and office uses; public parks, squares, or greens; civic and government uses; and service facilities. J.4 at 63. Specific provision also is made for open space in and surrounding the rural village. J.4 at 63-64. In addition to the one-village-per-district limitation, the amendments impose the following additional locational criteria on a rural village: (1) it must be at least three miles from any other rural village; (2) it must have direct access to an arterial or collector road, or the developer must bear the cost of a new collector road directly accessing the village; and (3) it must be near already- existing or planned public infrastructure, such as water and sewer facilities. J.4 at 63. In addition, a rural village may only be approved if shown to be fiscally neutral to taxpayers outside the village. J.4 at 65. Neutral Lands "have been identified for limited semi-rural residential development" at a maximum density of one dwelling unit per five acres. J.4. at 55. Limited commercial, industrial, and earth-mining uses are also allowed in Neutral Lands. Approximately 7,000 acres have been designated as Neutral Lands. Sending Lands are those lands "that have the highest degree of environmental value" and "are the principal target for preservation and conservation." J.4. at 58. The residential use of this land is restricted to one dwelling unit per parcel which existed before June 22, 1999, or one unit per 40 acres, whichever yields the greatest density. Nonresidential uses of Sending Land, other than agriculture, are quite limited. There also are specific criteria for the protection of site-specific native vegetation, wildlife habitat, and wetlands. J.4 at 58-62; J.6 at 24, 27, and 29-30. Some of the land designated Sending is also subject to regulation as NRPA. The purpose of a NRPA designation "is to protect endangered or potentially endangered species and to identify large connected intact and relatively unfragmented habitat, which may be important for these listed species." J.4 at 79. Designation as a NRPA also limits the intensity and density of development in an area (J.4 at 58-61) and imposes specific restrictions for the preservation of native vegetation, wildlife habitat, and wetlands (J.6 at 24, 27, and 29). The principal additional effect of NRPA designation is to increase the requirement for the retention of native vegetation. In addition to the changes to the Future Land Use Element (FLUE), the Amendments also affected the Coastal and Conservation Element (CCE), Potable Water Sub-Element, and Sanitary Sewer Sub-Element. Standing of Petitioners and Intervenors The evidence was that the Husseys and Brown own property in Collier County and submitted comments regarding the Rural Fringe Amendments between the transmittal hearing and the adoption hearing. The parties stipulated to the standing of FWF, Audubon, Vision & Faith, and Section 20 Investments. There also was evidence that FWF and Audubon submitted comments regarding the Rural Fringe Amendments at both the transmittal hearing and the adoption hearing and that, at least as of June 14, 2000, they owned property or operated a business in Collier County and had members who reside in Collier County. Century is a for-profit corporation that has its principal place of business in Collier County. Century owns 12.5 acres of land in Collier County. According to the testimony of Donald Lester, President of both Century and Waterford Management, Inc., Century is a wholly-owned subsidiary of Century Holdings, a limited partnership. Waterford is Century Holdings' general partner. Waterford, Century, and approximately 300 other entities are limited partners of Century Holdings. All of these entities and the land they own are managed by Waterford. According to Lester, the various Waterford-managed entities are involved in real estate development and have spent $42 million (over $30 million in "land basis" and $7-8 million on professional fees and expenses) acquiring land for development in Collier County, including approximately $36 million for approximately 3,500 acres in North Belle Meade (NBM) in the Rural Fringe and approximately $6 million for another approximately 2,000 acres farther east in Collier County. There was no evidence that these lands have obtained any master development approval or are otherwise vested for development. Coalition is a not-for-profit corporation having its principal place of business in Collier County. Lester is its Executive Director. There was no evidence that Coalition itself owns property or conducts any type of business activity in Collier County, other than commenting on the Rural Fringe Amendments and participating in these administrative proceedings. Coalition is comprised of approximately 2,000 members. Of these members, approximately 300 are the various entities making up the Century Holdings partnership and managed by Waterford. A total of approximately 320-350 Coalition members own property approximately 3,500 acres in NBM; there was no evidence that the other approximately 1,650 members own property or conduct business in Collier County. An unspecified number of members own approximately 2,000 acres to the east of NBM in Collier County. According to Lester, some members voluntarily donate money to the Coalition; others have "been supporting the proceedings" in some unspecified manner. Lester testified at final hearing that he commented on the Rural Fringe Amendments on behalf of both Century and Coalition during the adoption hearing. He indicated that he filled out and submitted a "speaker card" in order to give his comments and that the card indicated that he was speaking on behalf of both Coalition and Century; but the card was not placed in evidence. The only other evidence on the subject consisted of the transcript of that hearing, which records Lester's introductory statement as follows: "I represent a director of 15,000 coalition. I represent landowners that own property within the TDR area." The transcript also reflects that Robert Diffenderfer commented and stated: "I represent the 15,000 coalition and literally thousands of individuals. . . . On behalf of coalition and the individuals, I have the list here. There are 4,000 plus of them." While the list was not placed in evidence, it can be inferred from Lester's testimony that it would have included Century and the other Coalition members owning land in Collier County. Petitioners' Challenges Petitioners' challenges to the Rural Fringe Amendments were narrowed during the course of this proceeding and now are essentially: (1) whether the County's delineation of Sending and Receiving Lands, especially within the NBM portion of the Rural Fringe, is based upon and reacts appropriately to the best available data19; and (2) whether the TDR Program is based upon and reacts appropriately to the best available data, in particular as to the feasibility of its operation.20 Delineation of Sending and Receiving Lands A. Data and Analysis The process of delineating Sending and Receiving Lands in the Rural Fringe was involved and complex. The County accumulated and considered a wide range of data in the process. Among the data sources used were: (1) the South Florida Water Management District's (SFWMD's) 1994/1995 Land Use/Land Cover map; (2) Natural Resources Conservation Service ("NRCS") soils survey data; (3) soils tables prepared by Florida soils scientist, Howard Yamataki; (4) the National Wetlands Inventory; (5) true-color aerial photographs provided by the County property appraiser's office; (6) the updated FWCC's "Closing the Gaps" Report; (7) FWCC's updated wildlife and wildlife habitat data, including its Florida panther and Florida black bear telemetry data and red-cockaded woodpecker colony data, as well as its updated strategic habitat data and Strategic Habitat Conservation Area (SHCA) maps; and (8) the 1999 U.S. Fish and Wildlife Service (USFWS) Multi- Species/Ecosystem Recovery Implementation Team (MERIT) data for South Florida, in particular pertaining to the Florida panther. The County also actively solicited updated data from property owners and other members of the public. These opportunities for public input included numerous publicly- noticed meetings and hearings before the Rural Fringe Advisory Committee (52 to 53 meetings), the Environmental Advisory Committee, the Planning Commission, and the Board of County Commissioners. At all of these meetings, the public was invited to submit information to the County. On two occasions, notification was mailed to each property owner in the Rural Fringe, alerting them of the County's consideration of the amendments and inviting their input. The County posted signs on the two main roads entering the Rural Fringe, notifying the public of the on-going evaluation of the Rural Fringe and providing a contact name and telephone number for those wanting further information. The County also solicited information from the public via the County web page. Members of the public did submit information, some of which resulted in adjustments to the designations ultimately adopted. For example, the County received data from both Audubon and the Collier County School Board regarding red-cockaded woodpecker (RCW) habitat in the northeast corner of NBM. Similarly, Brown submitted information regarding some of his land holdings in NBM that was used in the ultimate delineation of boundaries between Receiving and Sending. The Husseys also submitted data that was considered. While all information submitted by the public was considered, not all resulted in a change in designation. For example, the County received information regarding jurisdictional wetland determinations on four separate properties and reviewed that information in order to determine whether there was a consistent correlation between jurisdictional determinations and the wetlands land cover information obtained from SFWMD. No consistent correlation was found. In two instances, the jurisdictional wetlands were larger than the area shown as wetlands land cover; in the other two, they were smaller. Despite ample opportunity, the only information submitted to the County by the Husseys was a limerock mining exploration contract on some of their property; Coalition and Century did not make any information available to the County between the transmittal and adoption hearings.21 In its analysis of the data, the County recognized that they were collected during different time periods, ranging from the 1980s through 2001. The soils data from NRCS, for example, was developed in the early 1990's from Landsat satellite imagery from 1985-1989, while the panther telemetry data reflected field data through the end of 2001. SFWMD's data was generated based upon false color infrared aerial photography and reflected changes in land cover through 1995.22 At the time of adoption of the Amendments on June 19, 2002, SFWMD's land use/land cover data was the most recent publicly-available depiction of land uses and land cover in the Rural Fringe.23 Petitioners take the position that the NRCS Soils Survey data was the most accurate data available because it was "ground-truthed." But the NRCS data did not depict land use cover; and it was not proven that the NRCS data accurately and reliably depicted vegetative cover.24 Petitioners also criticized the County for not "ground-truthing" the SFWMD data despite having knowledge of inaccuracies in its depiction of jurisdictional wetlands. But even if it were the County's intention to delineate Sending Lands based on the presence of jurisdictional wetlands, "ground-truthing" would have required the collection of additional data, as Petitioners' own expert conceded. See Conclusion 105, infra. The Husseys also argued in their PRO that the NRCS soils survey data should have been used instead of the SFWMD land use and cover data to delineate wetlands because it was "ground-truthed." But even if it were the County's intention to delineate Sending Lands based on the presence of jurisdictional wetlands, the NRCS data does not purport to identify jurisdictional wetlands and should not be used as a proxy for the presence of jurisdictional wetlands due to drainage activities, particularly in NBM. The Husseys had a Lower Tamiami (Aquifer) Recharge/ Discharge map and a map of the County's Wellfield Protection Zones admitted in evidence and argued in their PRO that the County failed to consider these data in delineating Sending Lands and Receiving Lands. To the contrary, the only evidence was that these maps were considered by the County's environmental specialists. Moreover, there was no evidence that these data were in any way inconsistent with the delineation of Sending and Receiving Lands in the Rural Fringe. Having accepted the SFWMD land cover data as the most accurate indicator of land cover and land uses, the County "updated" Gaps Report maps of biodiversity hotspot areas (which were based upon 1980 satellite imaging) by removing areas shown on the more current SFWMD maps to have been cleared for agriculture by 1995 or 1996. Petitioners contended that "updating" the data in this manner made resulting data and analysis inaccurate and misleading by "masking" natural resource information. But those maps were intended to depict features on parts of the Rural Fringe not mapped as agricultural land use cover on SFWMD's land use cover maps. As such, these "updates" reflected the County’s reasonable determination that, while lands cleared for agricultural use can retain natural resource value, they generally have lower environmental and habitat value than uncleared wetland and forest. No evidence suggested that this judgment was unreasonable. The County's analysis resulted in sensible planning decisions that generally afforded undeveloped wetland or forested areas a higher level of protection than land that has been disturbed through agricultural clearing. Petitioners initially seemed to contend that the County failed to take into account changes in hydrology and wetland vegetative cover in NBM as a result of drainage canals and similar alterations. As the hearing progressed, however, it became clear that from the evidence that the County was aware of the changes in hydrology and vegetative cover in NBM and took those changes into account in its planning decisions. The best data and analysis available as of June 19, 2002, showed that NBM is utilized by both the Florida black bear and the Florida panther. The data and analysis indicate that both of these species make more use of areas to the east (the Florida Panther National Wildlife Refuge and largely undeveloped portions of Northern Golden Gates Estates) and south (the (South) Belle Meade NRPA and largely undeveloped portions of Southern Golden Gates Estates). However, both panther and black bear access NBM from those areas by crossing Everglades Boulevard to the east and Interstate 75 to the south. A significant population of black bear uses NBM. FWCC lists the Florida black bear as a threatened species. Areas mapped by FWCC as strategic habitat statewide would support approximately five populations of approximately 200 individual black bears. (By comparison, FWCC ideally would like to maintain enough strategic habitat to support ten populations of 200 individuals, in part to reduce adverse impacts from natural disasters and genetic problems from inbreeding.) FWCC lists the Florida panther as an endangered species. It is one of the most endangered large mammals in the United States. Only approximately 80 to perhaps 100 panthers are thought to exist in the wild, all in south Florida. The Florida panther faces extinction unless "aggressive action" is taken for its protection. Panthers require large areas of habitat to survive in the wild. Depending on habitat quality, individual males require a home range of 100-150, 200-250, or even as much as 400 square miles; females have a smaller home range of approximately 50-70 square miles. Notwithstanding its general goal of maintaining ten populations of 200 individuals, FWCC's realistic goal for the Florida panther is to maintain current panther habitat and population. The (South) Belle Meade NRPA is considered Priority 1 Panther Habitat by FWCC. Other Priority 1 and Priority 2 Panther Habitat exists farther to the southeast and east. While NBM is not as good for panther habitat, radio telemetry data show that panthers also use NBM. Telemetry data show that panther use of NBM has increased in the last ten years. This could be due in part to the introduction of a female Texas cougar as part of FWCC's breeding program. NBM is currently within the home range of at least one male Florida panther and the introduced female Texas cougar. (Other use is possible, as only about a third of the animals in the population are collared for telemetry.) The female denned and gave birth to three kittens in NBM in 1998. It is possible that panthers frequented NBM in the late 1990's in part because a ranch lessee on Brown property in Section 21 was operating a deer-feeding station there. Panther telemetry data seem to have decreased after Brown required his lessee to cease those operations. However, while panther may have returned to those feeding stations because of the deer being attracted, they first had to have been in the area to become aware of the deer being attracted. This indicates some panther use of NBM prior to establishment of the feeding station. FWCC and United States Fish and Wildlife Service data also indicated to the County that red-cockaded woodpecker (RCW) colonies existed in the old-growth forest areas that remain in the western part of NBM, nesting in cavities in these trees. There also were data that FWCC considered these lands to be RCW strategic habitat. To nest, RCWs need old-growth cavity trees in an area not overgrown with new growth. While there were data that drainage of land in NBM in the RCW strategic habitat area has resulted in invasion of melaleuca (a nuisance exotic species), RCW can continue to use the habitat and forage in and around the melaleuca unless the melaleuca blocks off the cavity tree. There were no data that RCW no longer use NBM due to melaleuca infestation. Much of the now-urbanized areas of Collier County once provided RCW habitat, but development has impaired the value of that land for RCW nesting and foraging. As with panther habitat, traditional RCW habitat has diminished under the current regulatory scheme, and additional protection is needed. The non-NRPA Sending Land in the western part of NBM is the last remaining viable RCW habitat that is not already in conservation status. In gathering and using data in the development of the Rural Fringe Amendments, the County was supported by various state agencies that informally reviewed and commented on the amendments. These agencies supported Collier's approach to the designation of Sending and Receiving Lands. It is found that the County used the best available data and reacted to it appropriately for planning purposes by applying professionally acceptable analysis in review and application of that data. Sending and Receiving Delineations in General Petitioners were most critical of the County's alleged exclusive use of the SFWMD vegetative and land use cover maps to delineate Sending Lands based on the presence of jurisdictional wetlands. But the evidence was clear that the County had no intention of designating Sending Lands solely on the basis of the presence of wetlands. See J.15 at 4 (identifying percentages of wetlands in each category, and showing that the County recognized there were wetlands in Receiving Lands and non-wetlands in Sending Lands). Petitioners' characterization of the County's effort was a gross oversimplification. It also was clear from the evidence that the County did not restrict its data and analysis to the SFWMD maps. Petitioners contended that the County ignored the actual boundary of natural features, such as wetlands, in delineating the boundaries of Sending and Receiving Lands. Instead, for planning purposes, the County attempted to delineate reasonably large, contiguous areas as Sending and Receiving Lands, rather than creating a "Swiss cheese pattern" of intermixed Sending and Receiving Lands, designating isolated pockets of Sending within a large Receiving Area, and vice versa. This made sense from a planning perspective, for a number of reasons, including: (1) it permitted concentration of infrastructure, reducing infrastructure costs; (2) it allowed greater opportunity for the protection of environmentally sensitive lands; (3) large, contiguous areas of habitat are necessary to support a viable population for some of the endangered species present in Collier County-- Florida panther, in particular; and (4) it prevented urban sprawl (in part because sufficient acreage must be available in order for higher density development feasible.) In some instances, the County chose to delineate the boundary between Sending and Receiving Lands with a straight, easily-defined line, rather than using the edge of some feature such as vegetative cover. This also made sense from a planning perspective. A straight boundary, such as a section line, is easier to administer and more easily communicated to the public than a natural feature like vegetation, which would require a survey and is often characterized by a gradual change, rather than the sharp demarcation necessary for a boundary. The County recognized that, as a result of the combined effect of its planning approach, Sending Lands would include some areas neither particularly environmentally sensitive nor--apart from the land surrounding it--valuable habitat. Conversely, some relatively environmentally- sensitive lands would fall within a Receiving Land designation; however, it also recognized that these lands would remain subject to site-specific criteria imposed both by the County's Comprehensive Plan (e.g., amended CCE Policy 6.1.2 criteria for preservation of native vegetation and amended CCE Policy 6.2.3 criteria for protection of wetlands25) and by state and federal regulatory programs. It was not shown that these planning decisions lacked merit; at the very least, their merit is fairly debatable. NBM Delineations Distilled to its essence, the testimony of the natural resource experts called by Petitioners argued that the natural resource data and analysis available at the time of adoption did not justify distinguishing Sending, Receiving, and Neutral Lands in NBM. In other words, their position was that measures for protection of practically the entire NBM would be an appropriate response to the data and analysis on wetland and forest cover and habitat value for Florida panther, Florida black bear habitat, and RCW. But it also is at least fairly debatable that the County's inclusion of Receiving and Neutral Lands in NBM was an appropriate response to the totality of the data and analysis. The Rural Fringe Amendments themselves include the County's rationale for the North Belle Meade (NBM) Receiving designations. The Receiving Areas are generally located in the northern portion of NBM [North Belle Meade] Overlay and are generally contiguous to Golden Gate Estates. Two sections are directly to the south of the APAC Earth Mining Operation. The Receiving Area exhibits areas of less environmental sensitivity than other portions of the NBM Overlay, because of their proximity to Golden Gate Estates and prior clearing and disturbance to the land. Within the Receiving Area of the NBM Overlay, are located Sections 21, 28 and the west 1/4 of Sections 22 and 27, which have been largely assembled under one property ownership. These lands are located south of the existing APAC earth mining operation and have been largely impacted by agricultural operations. The location of Sections 21 and 28 is just to the south and west of Wilson Boulevard located in the southern portion of north Golden Gate Estates. Because an earth mining operation and asphalt plant uses have existed for many years in the area, and the surrounding lands in Sections 21, 28 and the western halves of Sections 22 and 27 are reported to contain Florida Department of Transportation grade rock for road construction, these uses are encouraged to remain and expand. J.4 at 76-77. Section 20 (just west of Section 21) also was designated as Receiving. The southwestern corner of NBM, consisting of Sections 26 (Range 2626), 29, 30, 31, and 32, and the eastern half of Section 36 (Range 26) was designated as non-NRPA Sending, along with the southern halves of Sections 13 and 14 in the northeast corner. The southeastern corner (consisting of the eastern 3/4 of Sections 22 and 27, along with Sections 23, 24, 25, 26, 34, 35, and 36) was designated as NRPA Sending. The northwest corner (Section 24, Range 26) was designated Neutral, as was the northern halves of Sections 13 and 14 in the northeast corner. The 15,552 acres in NBM are surrounded on the south by the South Belle Meade (SBM) NRPA across Interstate 75; on the east by largely undeveloped portions of Northern Golden Gate Estates (NGGE); on the north by a more developed portion of NGGE; and on the west by Urban Fringe future land use, which is sandwiched between NBM and more densely developed urban land use to the west. NGGE is the fastest-growing area of the County. It is part of a proposed sprawling, essentially single-use residential development. To date most actual development in NGGE has occurred in the western part of it, closer to more urban uses, and along Golden Gate Boulevard, which is the main east-west road in NGGE. Because the western part of NBM does not extend as far north as the eastern part, it is farther away from Golden Gate Boulevard and its development than the eastern part of NBM. In NBM, the SFWMD data showed practically all wetland cover with some upland forest interspersed in the six sections making up the southeast corner of NBM, as well as the next section to the southwest (Section 34). The section of land immediately to the north of Section 34 (Section 27) showed up as wetland cover over approximately the eastern half and agricultural use over approximately the western half of the section. The section north of 27 (Section 22) showed up as mostly wetland cover with some agricultural use in the northwest corner and some forested upland in the northeast corner. To the north of Section 22 was a section (number 15) with a mix of urban use, agriculture, wetland, and forested upland cover. Proceeding to the east, Section 14 showed up as mostly forested upland, and Section 13 in the northeast corner with mostly wetland cover with some agriculture. The opposite (far western) side of NBM was shown to have approximately eight sections of land with predominately forest land use cover, interspersed with some wetland and agricultural use. Down the center of NBM are four sections shown by the SFWMD data to have, from north to south: (1) predominately, earth mines and mine pit lakes (Section 16); (2) predominately agriculture (Section 21); (3) a mix of agricultural, forested upland, and wetland cover (Section 28); and (4) approximately half forested (the southwest half) and half wetland cover (the northeast half) (Section 33). Of importance for planning purpose, Wilson Boulevard intersects Golden Gate Boulevard and extends south to the edge of NBM at a point approximately 500 feet west of the northeast corner of Section 16. There are plans to extend Wilson Boulevard south into NBM 500 feet west of the eastern boundaries of Sections 16, 21, 28, and 33. Co-location of infrastructure within the right-of-way of the Wilson Boulevard extension would make sense from a planning standpoint. Allowing development to proceed elsewhere in NBM would exacerbate urban sprawl. It also would be possible to locate rural village North Belle Meade near the proposed Wilson Boulevard extension so that public infrastructure could be provided to both the rural village and the existing residents of NGGE. While Section 20 includes both cleared and uncleared areas, it abuts NGGE on the north and west and other Receiving Land on the east. For that reason, the County considered it to be appropriate for future development. Section 28 also includes a "mixed bag" of habitat features and agriculture. However, the remaining forested areas are less valuable as habitat because they are surrounded by agriculture. In addition, prior to the date of adoption, an application had been filed to allow mining in Sections 20 and 28, as well as in Sections 21 and 27. The permit authorizing this mining was issued in December 2002. Once land is disturbed by mining, it loses its value as panther habitat. Taking all of these factors into consideration, the County judged Section 28 to be more appropriately designated as Receiving. The designation of the western quarters of Sections 22 and 27 as Receiving resulted both from the mixture of disturbed and undisturbed property in those areas and from their location in relation to the planned extension of Wilson Boulevard. This proximity to a planned, future transportation corridor was an important factor in identifying areas appropriate for development. Initially, all of the western part of NBM was to be designated as non-NRPA Sending Lands because of the RCW data. But the County School Board and Audubon furnished additional data pertaining to the extreme northwest section (Section 24, Range 26), which resulted in the ultimate designation of the land as Neutral. Even apart from any environmental or habitat distinctions, there are other valid land use planning reasons for the County's Receiving designations. The proximity of the NBM Receiving Lands to the most populous portion of NGGE makes them appropriate for future, mixed-use development. (In contrast, the part of NGGE near the NBM NRPA is not as densely developed and is not growing as fast as the part immediately north of the NBM Receiving Area.) Since NGGE is a large, single-use residential development, residents are currently required to travel great distances for commercial and other services. By encouraging more compact, mixed-use development in the part of NBM immediately adjacent to the most populous part of NGGE, the County hopes to address this dearth of ancillary, commercial, and institutional uses for the present residents of NGGE, as well as the future residents of NBM. In addition, the NBM Receiving Area is located so as to facilitate an extension of sewer and water service along Golden Gate Boulevard and, from there, into NBM. Recognizing that, with updated data, some of these delineations may need adjustment, the County made specific provision in the amendments for owners of Sending and Neutral Lands to submit additional data in support of a change in designation. J.4 at 61. In summary, it is found that the County's delineations of Sending and Receiving Lands in the Rural Fringe, and in NBM in particular, were based on data and analysis--i.e., they reacted appropriately to the extensive data available to the County on the date of adoption--and accomplish the County's objectives, including protection of environmentally sensitive land and habitat, control of urban sprawl, and successful implementation of the TDR program, which required maintenance of an adequate ratio between Sending and Receiving Lands. See Findings 72-91, infra. At the very least, the delineations are fairly debatable; and the contentions of Coalition, Century, and the Husseys to the contrary are rejected. TDR Program The County recognized that the additional restrictions on much of the property within areas designated as Sending may have an effect on property values. As a consequence, the County included a transfer of development rights ("TDR") program in the Rural Fringe Amendments. The Amendments describe the purpose of the TDR program as follows: The primary purpose of the TDR process within the Rural Fringe Mixed Use District is to establish an equitable method of protecting and conserving the most valuable environmental lands, including large connected wetlands systems and significant areas of habitat for listed species, while allowing property owners of such lands to recoup lost value and development potential through an economically viable process of transferring such rights to other more suitable lands. Within the Rural Fringe Mixed Use District and within designated areas of the Agricultural/Rural Mixed Use District, residential density may be transferred from lands designated as Sending Lands to lands designated as Receiving on the Future Land Use Map, subject to [certain expressly delineated criteria] . . . . J.4 at 50-51. The County's TDR program is an innovative land planning technique that is intended to enhance the protection of environmentally sensitive areas, provide for cost-efficient delivery of public facilities and services, and prevent urban sprawl. J.4 at 50. It is designed to give property owners an incentive to protect their property from development while receiving a return in value through the sale of development rights. In so doing, it also serves as a land management technique to direct development from areas where it is not desired, while preserving the value of that area. TDR programs balance the protection of areas incompatible with development with the preservation of private property rights. They are also recognized as a development tool for overcoming urban sprawl. Through the TDR Program, the owners of Receiving- designated property may increase the allowable residential density on their property by purchasing or otherwise obtaining development credits transferred from property designated as Sending. Forty acres of property in Sending--while assigned an allowable density of only one residential unit--is worth eight development credits (one credit for each five acres). J.4 at 58. The specifics of the TDR program, including the process for the "sale" of development rights and the tracking of these transactions, are to be established by the County in its Land Development Regulations (LDRs) within one year. The specific dollar value of a TDR credit will ultimately be decided by the marketplace. Based on a study of land sales in Collier County, the County's expert, Dr. James Nicholas, concluded that a single credit would probably be worth approximately $18,500. Dr. Henry Fishkind, the expert called by Coalition and Century, agreed that this figure is supported by sales data in the area. For example, a property owner with 40 acres in a Sending area could build one residence on that property, or he could sell eight TDR credits to someone who plans to develop a more compact development in a Receiving Area. J.4 at 58-59. If the Sending Land owner elects the latter, he retains ownership of his property and may still utilize it for certain specifically identified purposes, including agriculture, passive parks, passive recreational uses, certain essential services, and oil extraction. J.4 at 60-61. A property owner with 40 acres in a Receiving area could build eight residences on that property without purchasing any development credits, or he could purchase 32 TDR credits and build 40 residences. Once he has obtained enough TDR credits to achieve this one-to-one density, he could further increase his residential density slightly by preserving more than the minimum required native vegetation on site. J.4 at 51. Dr. Nicholas warned that an excess supply of TDR credits, relative to the amount of Receiving Land available to receive those credits, would undermine the success of the TDR program. The ratio of Receiving Land to Sending Land is critical. Dr. Nicholas prefers a ratio of at least two acres of Receiving Land to each acre of Sending. This ratio is not achieved within the Rural Fringe. Rather, the ratio is approximately 1:1 (25,729 acres of Receiving to 23,720 acres of Sending). See J.15 at 4 (which lists the acreages within each category). Taking into consideration Sending Lands that are already developed, Dr. Nicholas testified that approximately 4,100 TDR credits would be generated from the Sending Lands. Approximately 6,100 credits could be absorbed in the Receiving areas, where densities of up to one unit per acre--an increase of four additional units--can be achieved through a purchase of TDR credits. J.4 at 51. In order to bolster the demand for TDR credits, the Rural Fringe Amendments include a number of other additional markets for credits. First, the amendments provide for a limited transfer of TDR credits outside of the Rural Fringe for two purposes: (1) in-fill in the Urban Area on parcels of 20 acres or less; and (2) transfer from areas within one mile of the Urban boundary into lands designated Urban Residential Fringe. J.4 at 34-35. These two options will create a market for approximately 1,000 additional TDR credits (250 as urban in-fill and 750 in the urban fringe.) In addition, the Amendments provide a market for TDR credits for the development of rural villages. See Findings 11-13, supra, for description of rural villages. Rural villages must be at least 300 acres in size, up to a maximum of 1,500 acres, with the exception that a rural village located south of the (South) Belle Meade NRPA, which is south of Interstate 75, may be as large as 2,500 acres. The minimum and maximum gross densities for a rural village outside NBM are two units per acre and three units per acre, respectively. J.4 at 63. Thus, a rural village outside NBM must include at least 600 residential units, but could have as many as 4,500 or 7,500, depending upon its location. For each TDR credit purchased for the development of a rural village, the purchaser receives one bonus, up to the minimum required density, and the minimum density can only be achieved through the combination of base density, TDR credits, and TDR bonuses. J.4 at 64. Additional density--up to the maximum of three units per acre--can be achieved through the purchase of more TDR credits, through the preservation of more native vegetation on site than the minimum required, and/or through the inclusion of affordable housing. J.4 at 64. Consequently, for a rural village of 1,500 acres outside NBM, the developer would need to build at least 3,000 dwellings (2 units per acre). Assuming that the rural village is surrounded by a 800-acre greenbelt,27 it would start with a base density of 460 units28 and would need to purchase 1,270 TDR credits in order to achieve his minimum density of two units per acre. The provisions applicable to the one rural village permitted in NBM differ slightly. There, the minimum gross density is 1.5 units per acre, of which at least 0.5 units per acre must be obtained through the purchase of TDRs. J.4 at Assuming the same 1,500-acre development with an 800-acre greenbelt as described above, the developer would need to acquire 1,790 units more than would be available through the combined base densities of the village itself and the greenbelt in order to achieve minimum density.29 Of these additional units, 750 would have to be obtained through the purchase of TDR credits. Recognizing that there will probably be no more than two or three rural villages developed, Dr. Nicholas estimated that rural villages will absorb between 4,000 and 7,500 TDR credits, with the greater probability that the absorption rate will be closer to the lower number. Thus, in combination with the other markets for TDR credits created by the amendments, Dr. Nicholas estimated that there will be a demand for approximately 11,100 credits, resulting in a more acceptable ratio of just under three units of demand to one unit of supply. In their PRO, the Husseys attempted to raise the specter that the Amendments create too large a market for TDR credits so as to trigger Dr. Nicholas' concerns that, in that situation, potential transfers would be frustrated because TDR prices would rise to levels making their use infeasible for potential users, including developers of rural villages. But the Husseys based their concerns on maximum potential absorption of TDR credits, raising the supposed ratio of TDR buyers to sellers to 7-to-1 (or even 8-to-1 by disregarding the Urban Fringe one-mile limitation described in Finding 82, supra). The greater weight of the evidence was that the realistic market for TDR credits will be much smaller than the maximum potential absorption rates. Taking the realistic market into account, the probable actual absorption ratio is not much more than 2-to-1, which is ideal according to Dr. Nicholas. It also should be noted that the Husseys' arguments run counter to the testimony of their own expert on the subject. Dr. Fishkind agreed with Dr. Nicholas that there will be a functioning market for TDR credits generated from the Sending Areas, that the County’s TDR program is economically feasible, and that the County has the capacity to administer it. In addition, the Amendments include specific provisions requiring the County to establish a process for evaluating the TDR program. J.4 at 62. The purpose of such monitoring will be to assess whether revisions, such as the addition of either more Sending or Receiving Land or a change in the value of TDR credits, are necessary to ensure the success of the program. In concept, the success of the TDR program in achieving the objectives of directing development away from some areas and toward others, while preserving value in the former, is at least fairly debatable. The program's actual success in achieving these objectives initially hinges upon whether the County has appropriately designated Receiving and Sending Lands. If necessary, changes can be made to improve the program and increase its chances of success.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order finding the Collier County's Rural Fringe Amendments to be "in compliance." DONE AND ENTERED this 29th day of April, 2003, in Tallahassee, Leon County, Florida. ___________________________________ J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 2003.
The Issue The issues in this case are: (1) whether City of Miami Ordinance 12911, which amends the Future Land Use Map (FLUM) of the City of Miami Comprehensive Neighborhood Plan (MCNP), is a small-scale development amendment, as defined by Section 163.3187(1)(c), Florida Statutes; and (2) whether Ordinance 12911 is "in compliance," as defined by Section 163.3184(1)(b), Florida Statutes. (Statutes refer to the 2007 codification.)
Findings Of Fact Based on all of the evidence, the following facts are determined: The Property Subject to the FLUM Amendment TRG-MH Venture, LTD. (TRG-MH), is a Florida limited partnership formed for the purpose of purchasing and developing a parcel of property in the southeast corner of a larger, 40- acre parcel owned by Mercy Hospital, Inc. (Mercy). TRG-MH and Mercy have executed a purchase and sale agreement for this corner parcel, which is located at approximately 3663 South Bayshore Drive in the Coconut Grove area of Miami, Florida (the Site). TRG-MH hired an architectural firm, Arquitectonica, to design on the Site a proposed residential development named 300 Grove Bay Residences (the Project). The Site, which currently serves as a paved parking lot for Mercy Hospital employees, measures 6.72 acres. The Site is abutted on the north, northwest, and northeast by the rest of the 40-acre parcel owned by Mercy and used for its hospital, professional offices, and patient and visitor parking. The tallest of these buildings is 146 feet. To the north of Mercy's property and medical complex is another 30-plus acre parcel owned by the Catholic Diocese of Miami and used for La Salle High School and a religious facility, Ermita de la Caridad. Abutting the northern boundary of the La Salle High School property is Vizcaya Museum and Gardens. To the west of the Site are a small convent, an administration building, and a modest-sized assisted living facility. To the west of these buildings is South Bayshore Drive, which is a four-lane road. Single-family residential neighborhoods are west of South Bayshore Drive. The Site is abutted on the southwest, south, southeast and east by Biscayne Bay. Grove Isle, a three-building, 18- story condominium/hotel/marina complex, is located on a small, man-made island (Fair Isle) in the Bay to the south of the Site. It is located approximately 1,300 feet from the Site and is separated from the Site by Bay water. Grove Isle has a future land use designation of Medium Density Multifamily Residential (M/D Residential) and is zoned Medium-Density Residential (R-3). However, Grove Isle is a legal nonconformity because it exceeds the densities allowed in M/D Residential and R-3. To the southwest of the Site, but separated from the Site by Bay water, are single-family and medium-density dwellings, including several multifamily structures. Petitioners Bloch and Steen reside in this neighborhood. No property zoned single-family residential (R-1) abuts the Site. Currently a paved parking lot, the Site has no archeological, environmental, or historical significance. Miami-Dade County had designated all of the City as an "Urban Infill Area." This designation is made in the County's Comprehensive Plan and is implemented in Policy LU-1.1.11 of the Future Lane Use Element (FLUE) of the City's Comprehensive Neighborhood Plan. The Parties The Vizcayans, Inc. (The Vizcayans), is a not-for- profit Florida corporation of volunteer members and a paid staff consisting of: an executive director, a membership director, and a controller. The purpose of the organization is to support the Vizcaya Museum and Gardens (Vizcaya), a publicly-owned and operated museum, through contributions and fundraising events. The Vizcayans' office at 3251 South Miami Avenue is located on the grounds of Vizcaya. The Vizcayans submitted comments in opposition to the proposed FLUM Amendment and appeared in person and through lawyers at the City Commission hearings. The Respondent and Intervenors stipulated that The Vizcayans have standing as affected persons under Sections 163.3187(3)(a) and 163.3184(1)(b), Florida Statutes, to challenge the small-scale development amendment in this proceeding based on allegations that The Vizcayans operate a business in the City. Miami-Dade County owns Vizcaya. By contract, The Vizcayans provides funds annually to Miami-Dade County for use in maintaining Vizcaya's properties and conducting educational programs. Any funds in excess of those owed to the County under the contract are used to pay staff and host fundraisers or are invested for future use. Vizcaya is governed by the County through the Vizcaya Museum and Gardens Trust, which is an agency of Miami-Dade County. Jason Bloch and Constance Steen reside in the City and own properties to the southwest of the Site. Glencoe is a not- for-profit corporation of homeowners in the Glencoe neighborhood to the southwest of the Site. Mr. Bloch formed the corporation during the pendency of the application proceedings for the primary purpose of opposing the proposed development of the Site. Bloch, Steen, and Glencoe submitted comments in opposition to the proposed FLUM amendment. Grove Isle is a not-for-profit Florida corporation of condominium owners. Grove Isle submitted comments in opposition to the proposed FLUM amendment. The City and Intervenors stipulated to Grove Isle's standing in these proceedings. The City is a political subdivision of the State of Florida. The City adopted its Comprehensive Neighborhood Plan, including its FLUM, in 1989. The Comprehensive Plan and the FLUM have been amended from time to time as allowed by law. TRG-MH is a joint venture limited partnership. Its direct and indirect participants include Ocean Land Equities, Ltd., and The Related Group. TRG-MH contracted to purchase the Site from Mercy and applied to the City for the FLUM Amendment at issue in this proceeding. TRG-MH also submitted applications for a change of zoning and MUSP on the Site. The zoning and MUSP applications, and the resulting City ordinance and resolution arising from their approval, are not at issue in this proceeding. Mercy is a not-for-profit Florida corporation that owns and operates Mercy Hospital. Mercy has contracted to sell the Site to TRG-MH. The FLUM Amendment In June 2007, TRG-MH applied to the City for a small- scale development amendment to change the Site's land use designation on the City's Future Land Use Map (FLUM) from Major Institutional, Public Facilities, Transportation and Utilities (M/I) to High Density Multifamily Residential (H/D). TRG-MH submitted its application concurrently with its applications for a zoning change from G/I to R-4 and for a MUSP. According to the FLUM Amendment application, TRG-MH was seeking a map amendment for a 6.723-acre parcel of real property. With its FLUM Amendment application, TRG-MH submitted a survey prepared and certified by surveyors Fortin, Leavy & Skiles. The survey depicted: the Site, as a parcel with a "net lot area" of 6.723 acres; a Proposed Road, measuring 1.39 acres, that wrapped around the Site on its west and north sides (the Perimeter Road); and a Private Road, also known as Tract "C" or Halissee Street, measuring .95 acres, which accesses the Site and Perimeter Road from South Bayshore Drive. Accompanying the survey was a legal description for the Site, which included a description for the proposed new Perimeter Road abutting the Site. The legal description covered an area comprising 8.11 acres. Also accompanying the application was a traffic analysis showing the impact to existing road networks of traffic resulting from the proposed MUSP application, which sought to build 300 residential units on property currently having no existing residential units. TRG-MH's applications were reviewed by the City's Planning Department and its Planning Advisory Board (PAB). The City's Planning Department recommended approval of the land use designation change. The PAB's 3-3 tie vote operated as to deny the request for a change of the land use designation recommendation. On April 26, 2007, the City Commission voted to approve the FLUM amendment application and, with modifications, the accompanying zoning and MUSP applications. (The City Commission approved the zoning change and MUSP subject to the condition that the size and scale of the Project be reduced by 25 percent across the board. Thus, for example, the height of the tallest of the three condominium buildings was reduced from approximately 411 feet to 310 feet.) The FLUM change was adopted by Ordinance 12911, which the Mayor signed on May 7, 2007. Ordinance 12911 amended the FLUM by changing the land use designation "for the property located at approximately 3663 South Miami Avenue, Miami, Florida, more particularly described in Exhibit A attached and incorporated." Exhibit A to the ordinance was the legal description included on the Fortin, Leavy, Skiles survey. The section of the MCNP entitled "Interpretation of the Future Land Use Plan Map" describes the various future land use categories in the Plan. It describes the Major Institutional future land use category as follows: Major Institutional Public Facilities, Transportation and Utilities: Areas designated as "Major Institutional, Public Facilities, Transportation and Utilities" allow facilities for federal, state and local government activities, major public or private health, recreational, cultural, religious or educational activities, and major transportation facilities and public utilities. Residential facilities ancillary to these uses are allowed to a maximum density equivalent to "High Density Multifamily Residential" subject to the same limiting conditions. Miami Comprehensive Neighborhood Plan (MCNP) at 21 (June 2006). The same section describes the H/D Residential, in pertinent part, as follows: Areas designated as "High Density Multifamily Residential" allow residential structures to a maximum density of 150 dwelling units per acre, subject to the detailed provisions of the applicable land development regulations and the maintenance of required levels of service for facilities and services included in the City's adopted concurrency management requirements. MCNP at 20 (June 2006). (By way of comparison, M/D Residential is described similarly except that the maximum density is 65 dwelling units per acre.) According to the MCNP, the FLUM land use designations "are arranged following the 'pyramid concept' of cumulative inclusion, whereby subsequent categories are inclusive of those listed previously, except as otherwise noted." Ordinance 12911 was not reviewed by the Department of Community Affairs (DCA), as required for text changes and large- scale FLUM changes to a comprehensive plan. On June 4 and 6, 2007, Petitioners filed their petitions challenging the FLUM Amendment. Generally, the Petitioners alleged that the FLUM Amendment did not qualify for treatment as a "small-scale" development amendment; was internally inconsistent with other provisions of the City's Comprehensive Neighborhood Plan; was not supported by adequate data and analysis; and was not "in compliance" with Florida's Growth Management Act and its implementing regulations. Scale of the FLUM Amendment A small-scale development amendment may be adopted if the "proposed amendment involves a use of 10 acres or fewer." § 163.3187(1)(c)(1), Fla. Stat. According to the survey and architectural plans on file with the City, the "net lot area" of the Site measures 6.72 acres. The City Zoning Code defines "net lot area" as "[t]he total area within the lot lines excluding any street rights-of- way or other required dedications." § 2502, City Zoning Code. In determining how large (in square feet of floor area) the planned Project could be, the architects were permitted, under the City's zoning regulations, to multiply the "floor area ratio" (FAR) for the High Density Multifamily Residential zoning classification by an area larger than the "net lot area." See § 401, City Zoning Code. The Zoning Code allows the maximum square footage to be calculated using the Site's "gross lot area." Id. The City Zoning Code defines "gross lot area," in pertinent part, as "[t]he net area of the lot, as defined herein, plus half of adjoining street rights-of-way and seventy (70) feet of any other public open space such as parks, lakes, rivers, bays, public transit right-of-way and the like." § 2502, City Zoning Code. If the "gross lot area" to be used to calculate the maximum square footage involves properties under different ownership, either the owners must apply jointly for a MUSP, or they must enter a covenant-in-lieu of unity of title. Properties joined by a covenant-in-lieu of unity of title need not have the same land use designation or zoning classification. If a covenant-in-lieu of unity of title is required, it need not be submitted to the City until building permits are sought. At present, no covenant-in-lieu of unity of title has been prepared or executed for the Site. The "gross lot area" used to calculate the Project's maximum square footage of floor area measured 11.44 acres. Thus, the Petitioners argued that the FLUM Amendment "involved a use" of more than 10 acres. But the application requested a land use designation change on only 6.72 acres of land. Because High-Density Multifamily Residential use will not be made of the proposed Perimeter Road, the access road known as Halissee Street, or the proposed Bay Walk, a land use designation change was not required for that acreage. Indeed, according to the amended FLUM, there is no land use designation applied to Halissee or to the northern part of the Perimeter Road. Moreover, use of Halissee Street, the Perimeter Road, and the Bay Walk is not exclusive to the 6.72 acres but will remain shared with Mercy Hospital, its patients and employees, as well as with the public. The Petitioners attempted to prove that a marina was planned to serve the development, which would involve a total use of more than ten acres for residential purposes. Even if a marina was initially contemplated, the application on file with the City does not include one, and there are no approved plans for a marina to be incorporated into the proposed residential development. No marina is required to be developed in connection with the 300 Grove Bay project. Moreover, there was unrebutted evidence that it is highly unlikely that a marina would ever be permitted under the statutes now regulating Biscayne Bay. There is no evidentiary support for including any part of Biscayne Bay in the acreage subject to the small-scale FLUM Amendment because of a possible marina so as to support the Petitioners' claim that Ordinance 12911 should not have been processed as a small-scale amendment. Suitability and Compatibility of FLUM Amendment The Site is a parking lot. It is not environmentally sensitive and has no significant natural or archeological resources that would make it unsuitable for High Density Multifamily Residential future land use. Major Institutional accommodates the Vizcaya Museum and Gardens and the Mercy Hospital complex, which are compatible with and actually part of Coconut Grove. However, as pointed out by the City and the Intervenors, Major Institutional also allows future land uses that could be less compatible with the surrounding land uses, including the Vizcaya Museum and Gardens and the residential neighborhoods of Coconut Grove. While a lower density residential future land use would be appropriate and compatible with the surrounding uses, the issue in this case is the density allowed by H/D Residential--up to 150 residential units per acre, which Petitioners contend is incompatible with the surrounding land uses and inconsistent with previous efforts to protect Vizcaya and Coconut Grove from the intrusion of high- density residential development. The Petitioners also contend that the FLUM Amendment is not suitable on the bayfront. Suitability on the Bayfront The Petitioners contend that H/D Residential is not suitable on the bayfront for reasons related mostly to aesthetics and views. While it certainly would be possible and reasonable for a community to decide not to allow dense and intense development on significant water bodies, it was not proven by a preponderance of the evidence that the City has done so, or that H/D Residential is unsuitable on the Site for that reason. 2005 Evaluation and Appraisal Report The City's 2005 Evaluation and Appraisal Report ("2005 EAR") focused on two citywide issues relevant here: (1) the preservation and enhancement of historic and similar resources; and (2) neighborhood integrity and the need to protect existing neighborhoods from incompatible development. Vizcaya Museum Gardens Industrialist James Deering built Vizcaya in 1916 as a winter home. The land Deering purchased in the early 1900s was developed into a 180-acre estate that included his Mediterranean-style home, Italianate gardens, farms, orchards, and lagoons. The mansion and gardens were designed by three well-known architects and designers and constructed using local materials. When Deering died nine years later in 1925, Vizcaya was left to his heirs, who eventually sold the south gardens and western agricultural fields to the Catholic Diocese. The southern acreage (which included the Site) was later developed into a church (Ermita de la Caridad), a school (La Salle), and medical and hospital facilities (Mercy). The Diocese sold the western acreage, which was eventually developed into single- family-home subdivisions. In the 1950s, the Deering heirs sold the remaining property, consisting of the mansion, gardens, and farm buildings, to Dade County. In 1952, Dade County opened Vizcaya to the public. Since then, the County has operated Vizcaya as a museum, which has welcomed thousands of visitors annually and is a popular site for tourists, social functions, and photo shoots. The Vizcaya mansion and gardens have historical, architectural, and botanical significance. The mansion is an "architectural masterpiece" and an "outstanding example of Italian Renaissance Revival architecture." Vizcaya has been on the National Register of Historical Places since 1977; it was designated as a City Heritage Conservation District in 1984; and, in 1994, it was designated a National Historical Landmark-- one of only three in Miami-Dade County. The southernmost part of Vizcaya's gardens is approximately 1,600 feet from the FLUM Amendment Site, and the mansion is approximately 2,300 feet from the Site. For the specific purpose of objecting to the 300 Grove Bay project, The Vizcayans commissioned the Vizcaya Viewshed Impact Assessment, which is referred to as the "balloon" study, and the Vizcaya View Corridor Study. According to the balloon study, the 300 Grove Bay condominiums would be visible from the balcony on the south side of the mansion. Although the balloon study was based on the original Project building heights and not re-done using the reduced heights in the zoning and MUSP approvals, the Petitioners' witnesses said that the Project would still be visible through the existing landscape, even at the reduced height. The Petitioners' witnesses opined that the development of 300 Grove Bay would "overpower and overshadow" the gardens on the south side of the mansion. No federal, state, or local statutes, rules or ordinances, including those relevant to this proceeding, protect the view corridors of Vizcaya's gardens. Coconut Grove The area known as Coconut Grove was settled in the late 1800s and was considered "off the beaten path" from the City which was incorporated in 1896. Coconut Grove was incorporated as a separate municipality in 1919, but in 1925 it was annexed to the City, as were five other municipalities. Petitioners' witnesses observed that Coconut Grove is the only one of these towns that has continued to retain a unique and recognizable character. Vizcaya and Mercy Hospital, including the parking lot site, are located in the northern area of Coconut Grove. Coconut Grove is primarily, but not entirely, a residential community. Coconut Grove has an active "downtown" business, commercial, and hotel district. The Petitioners maintained that the northern area of Coconut Grove is primarily single-family residential. However, it also includes a non- conforming high-density development (Grove Isle), medium-density residential, Mercy Hospital and its professional buildings, an assisted living facility, a school, a church, and governmental office buildings, as well as two museums (Vizcaya and the Museum of Science). A Coconut Grove Planning Study was commissioned and printed in 1974, but the City never adopted it; therefore, it has no official status. The Coconut Grove Neighborhood Conservation District In 2005, the City adopted by ordinance the Coconut Grove Neighborhood Conservation District (NCD-3). See § 803.3, City Zoning Code. According to the Code, a Neighborhood Conservation District is an "umbrella land use designation overlay," which allows for the tailoring of a master plan or of design guidelines for any area that meets certain criteria. See § 800, City Zoning Code. The intent of the Coconut Grove Neighborhood Conservation District is to "[p]reserve the historic, heavily landscaped character of Coconut Grove's residential areas and enhance and protect Coconut Grove's natural features such as tree canopy and green space." § 803.1, City Zoning Code. NCD-3 does not specify the High-Density, Multifamily Residential (R-4) zoning classification. But that does not mean that NCD-3 does not allow R-4. NCD-3 is enabling legislation that imposes greater restrictions within a geographic "overlay" for the zoning classifications addressed in Section 803.3. So far, NCD-3 has not addressed G/I and R-4 but only Single-Family Residential (R-1) and Commercial Districts. See § 803.3, City Zoning Code. For that reason, the ordinance does not apply to the Site. The "Grovenor Ordinance" The so-called Grovenor Ordinance was the City's response in July 2004 to the construction of a high-density residential project on property in Coconut Grove zoned "G/I Government and Institutional." The Grovenor Ordinance amended subsection of Section 401 of the City's Zoning Code to provide in pertinent part: G/I Government and Institutional Intent and Scale: The government/institutional category allows the development of facilities for federal, state and local government activities, major public or private health, recreational, cultural, religious, or educational activities, major transportation facilities, public utilities, and public and private cemeteries. Uses ancillary to these uses are allowed to a maximum density and intensity equivalent to the least intense abutting zoning district, subject to the same limiting conditions. Intensity: For residential uses: As for the least intense abutting zoning district. . . . * * * Permitted Principal Uses: Governmental and institutional uses as described in the City of Miami Comprehensive Development Plan designation of "Major Institutional, Public Facilities, Transportation and Utilities", however for accessory non-governmental or institutional uses-only such uses as may be permitted as principal uses in the least intense abutting zoning district . . . . § 401, City Zoning Code. The Grovenor Ordinance applies to property that is zoned G/I. The City's and Intervenors' witnesses testified that it applies only if G/I-zoned property ceases to be used for governmental or institutional purposes and is used instead for residential purposes. However, from the language of the ordinance itself, it is beyond fair debate that it also applies to G/I-zoned property that is used both for government or institutional uses and for ancillary residential uses. Clearly, without a FLUM change to a higher-density residential zoning category, in Coconut Grove the residential use on the Site would be restricted to the zoning classification of the "least intense abutting zoning district." Since it pertains to zoning, the Grovenor Ordinance does not directly apply to the issue of whether a FLUM amendment is "in compliance." However, it has some bearing on the proper interpretation and application of the "pyramid concept" of the MCNP's future land use designations, which is important to the issues for determination in this case. The Pyramid Concept The City and the Intervenors rely heavily on their interpretation of the MCNP's pyramid concept of cumulative future land use designations to support the FLUM Amendment in this case. According to them, the FLUM Amendment is compatible with surrounding land uses because high-density multi-family residential use already is a permitted use as a matter of right for land designated "Major Institutional." Similarly, they maintain that, under the "pyramid" concept, high-density multi- family residential use is permitted as a matter of right in all of the commercially designated land in Coconut Grove. But it is beyond fair debate that their interpretation of the "pyramid concept" is incorrect. As indicated, the "'pyramid concept' of cumulative inclusion" applies "except as otherwise noted." In the Major Institutional future land use category, it is noted that residential facilities with densities equivalent to "High Density Multifamily Residential" (i.e., up to 150 units per acre) are permitted only if "ancillary" to the listed major institutional uses. Similarly, in the General Commercial future land use category, it is noted that high-density residential uses "are allowed by Special Exception only, upon finding that the proposed site's proximity to other residentially zoned property makes it a logical extension or continuation of existing residential development and that adequate services and amenities exist in the adjacent area to accommodate the needs of potential residents." If the "pyramid concept" authorized high- density multi-family residential use as a matter of right on land designated either Major Institutional or General Commercial, there would be no reason to limit those uses by notation. Under the correct interpretation of the "pyramid concept" in the MCNP, free-standing high-density multi-family residential use of up to 150 units per acre is not already permitted as of right in either the Major Institutional or the General Commercial land use categories. Compatibility Notwithstanding the correct interpretation of the "pyramid concept" in the MCNP, the Petitioners failed to prove by a preponderance of the evidence that High Density Multi Family Residential future land use on the Site is incompatible with the surrounding uses or is inappropriate. The lower density residential and other less intense future land uses in the MCNP are buffered from the Site by Biscayne Bay and by Medium Density Multifamily Residential future land use. Vizcaya is buffered from the Site by Mercy Hospital and related medical facilities and by La Salle High School. The compatibility of a specific density of residential development on the Site with less dense residential use in Coconut Grove and with Vizcaya, including issues regarding building height and intrusion into Vizcaya's view corridors, can be addressed through zoning and MUSP proceedings. Data and Analysis Data and analysis is another matter. Because of their incorrect interpretation of the "pyramid concept" in the MCNP, the City and the Intervenors took the position that the FLUM Amendment constitutes "down-planning" and that the City was not required to perform the same level of analysis as it would have if the amendment sought a designation that permitted uses of greater impact, density, and/or intensity. The experts disagreed on whether "down-planning" is a concept in land use planning that can eliminate or minimize the requirement for data and analysis. In any event, the FLUM Amendment in this case could not be characterized as "down- planning." See Findings 57-59, supra. The MCNP's pyramid concept does not dispense with the need for data and analysis, and the data and analysis in this case was minimal and inadequate. The primary data and analysis in this case was the "Analysis for Land Use Change Request" (Analysis) that resulted from the City staff's review. After identifying the proposed land use designation and the uses permitted on it the Analysis recommended "Approval" of the FLUM Amendment and made four findings in support of "the position that the existing land use pattern in this neighborhood should be changed. These findings are as follows: It is found that the subject property is part of the Mercy Hospital and do [sic] not front South Miami Avenue. It is found that the "Major Institutional, Public Facilities, Transportation & Utilities" category allows 150 residential units per acre and the requested "High Density Multifamily Residential" designation will allow a maximum density of 150 residential units per acre. It is found that the requested change to "High-Density Multifamily Residential" designation will allow greater flexibility in developing the property at the above described location and therefore should be changed as part of the MUSP. It is found that MCNP Goal LU-1 maintains a land use pattern that (1) protects and enhances the quality of life in the city's residential neighborhoods, and (5) promotes the efficient use of land and minimizes land use conflicts. Id. (Emphasis in original.) As to the City’s third finding, a particular developer's flexibility is irrelevant to the determination of whether the land use change is consistent with the MCNP. To the extent that flexibility in general could be relevant to the inquiry, the finding was incorrect. While allowing a free- standing high-density residential project that would not otherwise be possible, the FLUM Amendment eliminates all of the non-residential uses permitted within the "Major Institutional" category. The second finding was based on the City's incorrect interpretation of the "pyramid concept" of the MCNP, which led the City to wrongly equate a primary use with an ancillary use and to simply assume no population increase would result from the FLUM Amendment, and that the FLUM Amendment would result in "down-planning." Attached to the City's Analysis was a separate "Concurrency Management Analysis," which addressed in summary form the data and analysis generated by the applicant and by the City's staff to address the "impact of [the] proposed amendment to land use map within a transportation corridor." The "Concurrency Management Analysis" also was predicated on the assumption that the FLUM change to HD Residential would not increase population. Essentially, it assumed without any data or analysis that infrastructure was available for 1,008 people living on the Site, even though the Site is being used as a parking lot at this time. This data and analysis was inadequate to support the FLUM Amendment. As to transportation, there was additional evidence of a traffic analysis performed by the City in support of the Project’s MUSP. This MUSP traffic analysis utilized a proper starting point of zero population on the Site at this time. It then projected the impact of the addition of 300 units. This was more than the 225 units ultimately approved in the MUSP but did not analyze the much larger potential increases in traffic that would be allowed under the FLUM Amendment, which is not limited to 300 units. There also was no data or analysis to show that limiting the analysis to 300 units was reasonable. It also only looked two years into the future. The MUSP traffic analysis also did not address the 2005 EAR finding that Bayshore Drive will be at level of service F by year 2025, without even any development on the Site. In short, the MUSP traffic analysis was inadequate to support the FLUM Amendment. The City and Intervenor took the position that the designation of the entire City as an urban infill area meant that every parcel is appropriate for high-density multi-family residential development. This is not correct. It is still necessary to look at comprehensive plan to determine which areas are appropriate for that kind of future land use and to have data and analysis to support it. See Payne et al. v. City of Miami et al., 32 Fla. L. Weekly D1885, *10-13 (Fla. 3d DCA Aug. 8, 2007) (on motion for rehearing). For these reasons, the Petitioners proved by a preponderance of the evidence that the data and analysis supporting the FLUM Amendment were inadequate. Inconsistency with City's Comprehensive Plan The Petitioners failed to prove beyond fair debate that the FLUM Amendment is inconsistent with any MCNP goals, objectives, or policies. State Comprehensive Plan Petitioners did not prove that the FLUM Amendment at issue is inconsistent with the State Comprehensive Plan.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order that the FLUM Amendment adopted by City of Miami Ordinance 12911 is not "in compliance," as defined by Section 163.3184(1)(b), Florida Statutes. DONE AND ENTERED this 10th day of July, 2008, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of July, 2008. COPIES FURNISHED: Barbara Leighty, Clerk Transportation and Economic Development Policy Unit The Capitol, Room 1801 Tallahassee, Florida 32399-0001 Jason Gonzalez, General Counsel Office of the Governor The Capitol, Suite 209 Tallahassee, Florida 32399-0001 Jorge L. Fernandez, City Attorney City of Miami Miami Riverside Center, Suite 945 444 Southwest 2nd Avenue Miami, Florida 33130-1910 Patrick J. Goggins, Esquire Patrick J. Goggins, P.A. Sun Trust Building, Suite 850 777 Brickell Avenue Miami, Florida 33131-2811 John Charles Lukacs, Esquire John C. Lukacs, P.A. 201 Sevilla Avenue, Suite 305 Coral Gables, Florida 33134-6616 H. Ray Allen, II, Esquire Carlton Fields, P.A. Post Office Box 3239 Tampa, Florida 33601-3239 Stephen J. Darmody, Esquire Shook, Hardy & Bacon, LLP Miami Center - Suite 2400 201 South Biscayne Boulevard Miami, Florida 33131-4339 Lewis W. Fishman, Esquire Lewis W. Fishman, P.A. Two Datran Center, Suite 1121 9130 South Dadeland Boulevard Miami, Florida 33156-7848 John K. Shubin, Esquire Shubin & Bass, P.A. 46 Southwest First Street, Third Floor Miami, Florida 33130-1610
The Issue Whether the FLP is "in compliance" as that term is defined in section 163.3184(1)(b), Florida Statutes (2011).1/
Findings Of Fact Background Miami Corporation, the applicant for the Volusia County Farmton Local Plan, owns two contiguous and sizable tracts of land in Brevard County and Volusia County. Together they comprise the company's Farmton property (the "Farmton Site"). The portion of the Farmton Site in Brevard County is approximately 11,000 acres. The portion in Volusia County is approximately 47,000 acres. Miami Corporation has owned the property since the 1920's. It began silviculture operations onsite in 1952. The Farmton Site continues today to be used mainly for silviculture. In 2003, Miami Corporation began exploring long-term options for alternative uses. One option was bulk sales of large lot tracts, such as 100-acre tracts, to developers to build homes on the lots. Another option was a comprehensive plan amendment applying "smart growth" principles. The company opted for the latter approach. The smart growth comprehensive plan amendment eventually pursued included the creation of a regional wildlife corridor that extends from the headwaters of the St. Johns River to the Ocala National Forest. Before filing the application for the Original Amendment, Miami Corporation organized meetings of private and public stakeholders to gain input. Representatives from Brevard and Volusia Counties, affected municipalities, the Florida Fish and Wildlife Conservation Commission ("FFWCC"), St. Johns River Water Management District ("SJRWMD"), East Central Florida Regional Planning Council ("ECFRPC"), and conservation organizations participated. After the application of Miami Corporation was filed, the County convened a Peer Review Panel. Chaired by two former Department Secretaries, the panel included nine experts in planning and natural resources fields. The panel made various recommendations that were incorporated into the Farmton Local Plan. Specific recommendations included the creation of a Community Stewardship Organization to protect the most sensitive natural resources. Florida Audubon made additional recommendations to strengthen the conservation measures consistent with mechanisms that experience in other areas of the state had taught Audubon were necessary to achieve conservation measures protective of the area's natural resources that would be perpetual. Due to the scale of the proposed amendment, the County hired an outside transportation engineering firm to review the Farmton Local Plan. In addition, the local plan's natural resource mapping and policies were subjected to two other peer reviews convened by the ECFRPC and University of Florida GeoPlan Center. These reviews included the participation of resource agencies, conservation organizations, and scientists. The County worked closely with Miami Corporation in revising the substantive content of the Farmton Local Plan through over 30 iterations to incorporate recommendations from the peer review process, the Volusia County Growth Management Commission, various County divisions, local governments, state agencies, and conservation organizations. The Brevard County Portion of the Farmton Site The Brevard County portion of the Farmton Site is immediately adjacent to the Volusia County portion of the site. Brevard County adopted an amendment to its comprehensive plan regarding the portion of the Farmton Site in Brevard County. The amendment allows urban development. The amendment was challenged followed by a settlement of the case through the adoption of a remedial amendment. Subsequent to the filing of Case No. 10-2419, the amendment and the remedial amendment to the Brevard County Comprehensive Plan led to a determination that the Brevard Farmton amendments were in compliance. The amendment as remediated became effective with no further challenges. The effectiveness of the amendment to the Brevard County Comprehensive Plan which allows urban-type development was one of several significant events that took place between the 2010 Hearing and the 2011 Hearing. Significant Events Following the filing of proposed recommended orders in Case No. 10-2419, the Department, the County, VGMC, and Miami Corporation moved that the case be placed in abeyance so that settlement discussion could take place. The motion was granted over the objections of the Petitioners in Case No. 10-2419. The settlement discussions led to the Remedial Amendments adopted by the County in April 2011. The Original Amendments and the Remedial Amendments (the "FLP") were determined by the Department to be in compliance. The "in compliance" determination was challenged in a petition filed at the Department on May 16, 2011, by the Petitioners in Case No. 11-2527. The petition was forwarded to DOAH and the case was consolidated with Case No. 10-2419. In the meantime, the Florida Legislature passed chapter 2011-39, Laws of Florida (the "New Law"). The New Law substantially amends chapter 163, including the definition of "in compliance" in section 163.3184(1)(b). It took effect on May 17, 2011, when it was approved by the Governor and filed with the Secretary of State's office. The New Law was determined to be fully applicable to the consolidated cases. Prior to the Brevard County amendments taking effect, the Department regarded the Volusia portion of the Farmton Site as isolated and removed from other urban areas. Once the Brevard County Comprehensive amendments allowing urban development were determined to be in compliance and became effective, the Volusia portion of the Farmton Site became adjacent to "an urban area that is its match to the south." Petitioners' Ex. 6, Deposition of Michael McDaniel, at 14. The effectiveness of the Brevard County plan amendments that place an urban area adjacent to the Volusia Farmton Site was significant to the Department in its determination in 2011 that the FLP is in compliance. The Volusia Farmton Site The FLP applies to 46,597 acres in southern Volusia County. The Volusia Farmton Site is rural and much of it is classified as wetlands. No services or public facilities currently exist on the site. It contains abundant habitat for both upland and wetland dependent species. Within the site there are several outparcels owned by other persons or entities on which low density residential development is allowed by the Volusia County Comprehensive Plan. More significant to the issues in this proceeding, the Comprehensive Plan allows low density residential development on the remainder of the site as well. The site includes approximately 260 miles of dirt roads that are maintained by Miami Corporation. In good condition, the roads are acceptable for ordinary passenger cars. The Current Plan Prior to the adoption of the FLP by the Original Amendment, the Volusia County Comprehensive Plan adopted in 1990 had been updated twice through the Evaluation and Appraisal Process. The first update occurred in 1998 and the second in 2007. (The updated plan was referred to in hearing as the "Current Plan" and was admitted into evidence as Joint Ex. 1.) The intent of the updates "is to take into account changes to state law and to reflect changing conditions within the community." Joint Ex. 1, Introduction, page 3 of 5. Chapters 1 through 18 of the Current Plan contain elements and sub-elements "which are the basic building blocks of the Plan." Id. There are eleven required elements, the first of which is the Future Land Use Element (the "FLUE"). FLUE Overview Section A. of Chapter 1 of the Current Plan entitled, "Overview," states the following: The Future Land Use Element . . . ensures that physical expansion of the urban areas are managed (1) at a rate to support projected population and economic growth; (2) in a contiguous pattern centered around existing urban areas; and (3) in locations which optimize efficiency in public service delivery and conservation of valuable natural resources. * * * [W]hile it reflects existing urban services capacities and constraints, it also establishes locations where future service improvements will follow. It also reflects and promotes . . . activity in the private land market. * * * New urban growth, predicated on appropriate population projections, environmental suitability, and fiscal feasibility will be encouraged adjacent to the major cities that have a full range of urban services or inside County service areas. County service areas may include undeveloped land inside or near existing unincorporated urban areas where the developer agrees to provide necessary urban services through private means. * * * Regarding public systems, the major assumption is that the area adjacent to existing public infrastructure will be the primary areas for future infrastructure extension. Expansion of existing facilities in a fiscally and environmentally appropriate manner will be the primary option. The intent of this concept is to maximize efficiency of urban services through compact development otherwise consistent with the Volusia County Comprehensive Plan. Planned developments include large scale, mixed-use, integrated, compact and distinct urban developments under Chapter 380, Florida Statutes. * * * [A]reas that are outside the proposed development areas or contain environmentally sensitive features will receive special attention to ensure proper management of the County's natural resources. In order to further protect the County's natural resources and promote sustainability, the following will be included in the County mission statement: To balance development and the environment through innovative practices that lessen the impact of the development while preserving natural resources and improving the quality of life for present and future generations. Joint Ex. 1, Chapter 1, pages 2-3 of 109 (emphasis added). Future Land Use Overlays and Designations Future land use overlays and designations are part of the adopted Future Land Use Policies. Id. at page 4 of 109. The entire Volusia Farmton Site is located within the Comprehensive Plan's overlay area of Natural Resources Management Area ("NRMA"). Approximately 11,000 acres of the site lie within the Environmental Core Overlay ("ECO"). There are three land uses on the Volusia Farmton Site under the Current Plan: Forestry Resources ("FR"), 22,294 acres (approximately); Environmental Systems Corridor ("ESC"), 22,344 acres (approximately); and Agricultural Resources ("AR"), 2,309 acres (approximately). Residential densities on the Farmton Site are different for the three land uses allowed on site but all are "low-density" and all have the same floor area ratio ("FAR"): 0.10. The AR land use allows a maximum residential density of one unit per ten acres. The FR land use allows a maximum residential density of one unit per twenty acres or one unit per five acres with clustering. The ESC land use allows a maximum residential density of one unit per 25 acres. The Current Plan would allow 4,692 residential units: 228 in AR; 706 in ESC; and 3,758 in FR. The land designated AR would allow 100,580 square feet of nonresidential development and the land designated FR would allow 719,637 square feet, for a total of 820,217 square feet of non-residential development. Types of Amendments The Current Plan allows four types of amendments: "Mandated," "Administrative," "Development," and "Small Scale." See Joint Ex. 1, 2010 Hearing, Tab 21, p. 5 of 7. The Farmton Local Plan is categorized as a "Development Amendment." A "Development Amendment" is defined by Chapter 21, Section (C)1.c. of the Volusia County Comprehensive Plan (the "Plan" or the "Comprehensive Plan") as: An Amendment which is initiated by the property owner(s) to change the Plan so that a particular development type or land use not otherwise consistent with the Plan, would become consistent following adoption of the amendment. Applicants may be private individuals or a public agency sponsoring an amendment subject to the Comprehensive Plan. Id. Local Plans The FLP is included in the Local Plan section of the Plan's Future Land Use Element. Local Plans in the Comprehensive Plan apply to specific geographic areas and provide a greater level of detail than the Plan in general. The Current Plan includes 13 other Local Plans. Once enacted, "the most detailed portion of the Volusia Comprehensive Plan," tr. 458, will be the FLP. The FLP The Original Amendment The Original Amendment includes one goal, eight related objectives and numerous policies under each of the eight objectives. The Amendment depicts on the Future Land Use Map two new future land use designations: "GreenKey" and "Sustainable Development Area" ("SDA"). The entire site is designated as either GreenKey or SDA. Objective FG 2 in the Amendment states: GreenKey and designated Resource Open Based Space shall be managed for natural resource protection and preservation of interconnected regional wildlife corridors, and conserved in perpetuity. "Resource Based Open Space" ("RBOS") is governed by Policy FG 2.4 of the Original Amendment: Resource Based Open Space. Resource Based Open Space shall be designed within Sustainable Development Area districts to protect and enhance environmental systems. Resource Based Open Space shall not include parcels identified for development (including, but not limited to individual yards), active open space, or civic open space. Resource Based Open Space lands may include areas set aside for ecological preservation, enhancement and restoration, nature trails, conservation education programs, observation decks and similar facilities including lakes used for detention and retention of surface water. Resources [sic] Based Open Space may include, flood plains, wetlands, mitigation areas, vegetative buffers, specialized habitat for flora or fauna, passive recreation areas, water resource development areas, and shall be designed during the development review process. All such lands shall be subject to a conservation management plan, as set forth in FG 2.10 and FG 2.11, and protected in perpetuity by conservation easements. At least 25% of each SDA district shall be Resource Based Open Space. Joint Ex. 7, 2010 Hearing, Tab D-2, pgs. 9 and 10 of 49. The SDAs are primarily altered pine plantation lands. They total approximately 15,000 acres. Within the 15,000 acres of SDA land "are four land use districts which define the uses, densities, and intensities planned for each district." Id. at p. 4 of 49. The four are the Gateway District, Work Place District, Town Center District, and the Villages District. Within GreenKey, the Farmton Local Plan allows the continuation of agricultural uses employing practices regarded as "Best Management Practices" and prohibits residential and nonresidential development. There are two areas in GreenKey with additional natural resource protection standards. They are the Deep Creek Conservation Area which will be conveyed to a Community Stewardship Organization and managed in a primarily natural state and the Southwest Wildlife Corridor which will be managed to maintain habitat for wildlife, particularly for the Florida Black Bear. The FLP includes two long-range planning horizons. The "initial planning horizon" is 2025; "[t]he second planning horizon . . . shall be from 2026 to 2060." Policy FG 1.1, 2010 Hearing Joint Ex. 7, Tab D-2, p. 7 of 49. Through 2025, residential and nonresidential development may only occur within the Gateway District, "a distinct geographic area of approximately 821 acres at the northern end of the Farmton Local Plan near SR 442 and I-95." 2010 Hearing Joint Ex. 7, Tab D-2, 4 of 49. The development in the Gateway District is limited to a maximum under any circumstances of 4,692 residential units and 820,217 square feet of nonresidential development. See Policies FG 1.1, 1.4. "However, in order to plan for school capacity, there shall be no more than 2,287 dwelling units [in the Gateway District] unless there is a finding of school adequacy issued by the school district." Policy FG 3.4. Through 2060, the Amendment allows a total of 23,100 residential units and 4.7 million square feet of nonresidential development, excluding educational facilities and other institutional uses, within the various SDAs. With the exception of the Gateway District, which is in phase one of development, Policy FG 3.10 requires the development and implementation of a program designed to ensure an adequate number of jobs per residential dwelling unit exists in the SDAs. In phase two and subsequent phases, the development order shall require milestones for achieving the jobs-to-housing ratio target. In the event that the jobs-to-housing ratio drops below 0.65, residential development approvals shall be suspended until a remedial plan can be developed and approved as set forth in an accompanying development order. Policy FG 3.10. Prior to the FLP, the site had been subdivided into approximately 1,700 vested lots pursuant to existing exempt subdivision policies in the Volusia Land Development Code. The Original Amendment extinguished the vested exempt subdivisions as of the effective date of Ordinance 2009-34. The Original Amendment requires all lands designated GreenKey to be placed either in a conservation easement or a conservation covenant. A conservation covenant "is similar to an easement" 2010 Hearing, tr. 1077, "except that its term shall run with the land for an initial term of ten years, which shall automatically be renewed every ten years thereafter so long as the maximum densities and intensities established in the Farmton Local Plan Objective 3 shall remain in effect . . . ." Policy FG 2.15. For example, "Density and Intensity" for the WorkPlace District is described in Policy FG 3.5: "The WorkPlace district shall have a minimum density of eight units per acre and a target density of 18 units per acre. The minimum floor area ratio (FAR) for the nonresidential uses shall be 0.3 FAR." Joint Ex. 7, p. 22 of 49. A covenant under the FLP is converted to a perpetual conservation easement as prescribed in Policy FG 2.15: "At such time as the Master Development of Regional Impact equivalent Master Plan as provided in Objective 8 is approved consistent with the densities and intensities as set forth in Objective 3 in effect [when the FLP is adopted] . . ., a perpetual easement shall be recorded within 60 days." Joint Ex. 7, p. 15 of 49. The FLP requires a minimum amount of land to be set aside for conservation purposes as RBOS. Policy FG 2.4, quoted above, requires that a minimum of 25 percent of SDA land be set aside as RBOS. The RBOS lands will be placed in conservation covenants or easements. Policy FG 2.5 b. requires that a Black Bear Management Plan be developed in consultation with the Florida Fish and Wildlife Conservation Commission consistent with the Commission's Black Bear Habitat Management Guidelines and best available science. The Black Bear Management Plan applies to the Southwest Wildlife Corridor, part of which is on the site in Volusia County and part of which is in Brevard County. GreenKey and RBOS are subject to a mandatory conservation management plan ("CMP") to be funded by the landowner or its successors in interest. The CMP is to be developed by the owner through a task force appointed by the county within one year of the recording of the conservation easement. The CMP is to be "incorporated into the conservation covenants and easement and made enforceable." Policy FG 2.11, 2010 Hearing Joint Ex. 7, p. 12 of 49. Under the FLP, protected wetlands within the SDA will be afforded a wider buffer than was required under Plan prior to the FLP. Through the RBOS designation, additional lands will be preserved and protected by what is in essence a secondary buffer. Under Policy FG 3.2, the footprint of SDAs is "designed to shrink." Tr. 1078. The policy provides: "For the purposes of calculating residential density and . . . FAR within the SDA districts, the density and FAR provision provided in the policies of Objective 3 of this Local Plan shall be calculated based on net SDA Buildable Area. Net SDA Buildable Area shall equal the total SDA district reduced by the minimum 25 percent [RBOS] area and by the minimum 40 percent mandatory Civic Space. Civic Space includes streets, stormwater systems, parks, buffers, water, access easements and other public infrastructure. . . ." Joint Ex. 7, p. 19 of 49. Policy FG 1.6c requires the SDAs to contain RBOS "such that when combined with GreenKey lands more than 36,000 acres or 75 percent of the area with the Farmton Local Plan shall be preserved." Joint Ex. 7, p. 8 of 49. Based on the acreage in GreenKey, RBOS, and buffers required by FG Policy 2.19 for SDA boundaries, wetlands, trails and roads, Sharon Collins, a private biological consultant for Miami Corporation and the primary field biologist onsite, estimated that the minimum amount to be protected under the FLP is 39,265 acres, which equals 80 percent of the total acreage subject to the FLP. b. The Remedial Amendments The County Council of Volusia County's Ordinance 2011- 10 (the "2011 Ordinance") which adopts the Remedial Amendments describes their substance in three sections. See 2011 Joint Ex. 10, page 2 of 3. Section I of the 2011 Ordinance consists of text amendments to: "Chapter 1 Future Land Use Element, Farmton Local Plan, Policies FG 2.4, FG 2.56, FG 2.18, FG 4.14, FG 4.15, FG 4.18, FG 4.20, FG 4.21, FG 5.7, FG 5.8, FG 5.16, and FG 8.1 . . . ." Id. The language of the text amendments referred to in Section I is contained in Exhibit A to the 2011 Ordinance. Sections II and III of the 2011 Ordinance refer to amendments to maps and figures. In Section II, the "Farmton Local Plan-Future Land Use Map" is amended "to include new land use of Mandatory Resource Based Open Space and by expanding the Southwest Wildlife Corridor to include additional lands." Id. Section III adds the "Farmton Local Plan Spine Transportation Network" to the Comprehensive Plan "as a new Figure 2-10 to the transportation map series." Id. The lands under the new land use of Mandatory Resource Based Open Space ("MRBOS") count toward the calculation of the requirement that at least 25 percent of the SDAs taken as a whole be RBOS. The location of all of the RBOS lands have not been determined. They are not shown, therefore, on the Future Land Use Map ("FLUM") series. The revised FLUM, however, delineates where the MRBOS lands are located. The MRBOS will be subject to a Black Bear Management Plan. Policy FG 2.5b sets forth that it is to be developed in consultation with the FFWCC consistent with its Black Bear Habitat Management Guidelines and best available science. The Parties Petitioners Petitioner Barbara Herrin is a resident and owner of real property in Volusia County. She submitted comments regarding the Original Amendment during the time period between the transmittal hearing and the adoption hearing. She submitted comments about the Remedial Amendment at the adoption hearing. ECARD, one of two Petitioners in Case No. 10-2419 (with Ms. Herrin), is a Florida not-for-profit corporation with a membership of approximately 60 members, of which at least 50 are residents of Volusia County. ECARD submitted comments about the Original Amendment during the period of time between the transmittal and final adoption hearings for Ordinance 2009-34. It provided oral comments through counsel at the adoption hearing for Ordinance 2011-10. Sierra Club, one of the two Petitioners in Case No. 11-2527, is a California not-for-profit corporation registered in Florida with approximately 90,000-100,000 members. It has unincorporated state and local chapters. The Florida Chapter has approximately 29,000-30,000 members and the local Volusia County Chapter has approximately 820 members. Three letters containing comments about the Remedial Amendment were submitted to the Volusia County Council by the "Volusia/Flagler Group of Sierra Club and the Northeast Florida Group of Sierra Club," tr. 27, and by the Sierra Club Florida at the public hearing on the Remedial Amendment held in April 2011. All three letters were presented on behalf of Sierra Club. In addition, "[t]he Sierra Club Florida presented comments [at] the same public hearing." Tr. 28. Sierra Club does not own land in Volusia County. It does not own or operate a business in Volusia County. "The Volusia/Flagler Group has [its] own bank account." Tr. 39. Sierra Club has general meetings "in the area" id., to which the public is invited. The Club conducts outings to parks and natural areas "in the area" id., and members appear in public hearings where they speak. Members engage in letter-writing and "various other civic activities." Id. b. Respondents Volusia County (the "County"), a political subdivision of the State, adopted the FLP. Miami Corporation is a Delaware corporation registered in the State of Florida. It is the owner of the property that is the subject of the FLP and was the applicant for the text and map amendments that make up the FLP. Through its representatives, Miami Corporation submitted comments to the County about the Original Amendment during the period of time beginning with its application and through the transmittal hearing and the adoption hearing. It submitted comments to the County about the Remedial Amendment at the adoption hearing. Volusia Growth Management Commission ("VGMC") is a dependent special district of the County created pursuant to Volusia County Charter Section 202.3. Its duties include the review of amendments to local comprehensive plans. VGMC submitted comments to the County about the Original Amendment during the period of time between the transmittal hearing and the adoption hearing. It submitted comments to the County about the Remedial Amendment at the adoption hearing. Suitability The Community Planning Act defines "suitability" as "the degree to which the existing characteristics and limitations of land and water are compatible with a proposed use or development." § 163.3164(45), Fla. Stat. "Compatibility" is defined as "a condition in which land uses or conditions can coexist in relative proximity to each other in a stable fashion over time such that no use or condition is unduly negatively impacted directly or indirectly by another use or condition." § 163.3164(9), Fla. Stat. Future land use map amendments are required to be based upon several analyses. One of them is "[a]n analysis of the suitability of the plan amendment for its proposed use considering the character of the undeveloped land, soils, topography, natural resources, and historic resources on site." § 163.3177(6)(a)8.b., Fla. Stat. The future land use plan element is required to include criteria to be used to ensure the protection of natural and historic resources and to provide for the compatibility of adjacent land uses. See § 163.3177(6)(a)3.f. and g., Fla. Stat. Suitability: Petitioners' Evidence Mr. Pelham, Secretary of the Department at the time the Original Amendment was found by the Department to be not in compliance, testified at the 2011 Hearing that the site of the FLP is not suitable for development of the magnitude and nature allowed by the FLP. Consistent with the definition of suitability, the testimony of Mr. Pelham addressed both land and water. Commencing with water, he described the property as "extremely wet [and] dominated by an extensive system of sloughs, marshes, creeks, [and] swamps . . . ." 2011 Hearing, tr. 249. The property is an important state and regional resource that contains a variety of important wildlife habitats. Much of the property and substantial parts of the SDAs are in the 100-year flood plain. The property is extremely significant to the area's watershed as an area of recharge and a "high aquifer vulnerability area." 2011 Hearing, tr. 249. Mr. Pelham drew support for his opinion on suitability from the Comprehensive Plan. The County finds in the Plan that the lands subject to the FLP consist of "large, relatively uninterrupted expanses of rich natural resource areas." Tr. 250. The County gave the lands the NRMA designation precisely because they should "be protected and maintained because they serve a variety of functions, water-related, habitat area, a source of water, the open space and rural character, . . . [all] very important to Volusia County " Id. Mr. McDaniel testified as to the official position of the Department in 2010: that the property is not suitable for the FLP. Mr. Pelham's testimony in the 2011 hearing echoes and amplifies Mr. McDaniel's testimony. Dr. Smith testified in both the 2010 Hearing and the 2011 Hearing that development at the scale and intensity of the FLP is not suitable for the site for the same reasons given by Mr. Pelham and Mr. McDaniel. Other Analysis of the Character of the Land The FLP is based on an ecological evaluation that uses GIS-based decision support models and is supported by field work of biologist Sharon Collins. The ecological evaluation was reviewed by scientists from state agencies, universities, and conservation organizations. Ms. Collins provided 15 years' worth of data collection and field work on the site. Her first field assessment of the entire site took place between 1995 and 1998, and included wetlands delineation, evaluations of vegetative communities, habitats, historic natural conditions, hydrology, and listed species. Ms. Collins began remapping and reevaluating toward an ecological evaluation in 2005. The efforts led to the issuance of a report prepared for Miami Corporation and submitted in November 2008. The report was revised in July 2009. It is entitled, "GreenKey Project, Ecological Evaluation Assessment Methods" (the "EEAM Report"). See 2011 Hearing, Joint Ex. 5, Tab 10. Section 1.3 of the EEAM Report, entitled "Resource Identification," describes Ms. Collins' collection of data she used to identify habitat on the site. Among the data sources are the "'Guide to the Natural Communities of Florida' (FNAI, 1990)," id. at 3, and the "Florida Land Use, Cover and Forms Classification System (FLUCFCS) produced by the Florida Department of Transportation." Id. Other data used in support of the EEAM Report include soils surveys, historic aerial photographs, the U.S. Fish and Wildlife ("USFWS") and Florida Fish and Wildlife listed species databases, a SJRWMD GIS FLUCCS map and an "exhaustive list" which Ms. Collins detailed at hearing. See 2011 Hearing tr. 1314. After evaluation of the data, Ms. Collins conducted "ground-truthing" or work in the field. Armed with the FLUCCS Map and the infrared aerials, she "went out in the field and did a comprehensive field analysis . . . and ground-truthed what [she] saw in the field with the [data] . . . ." 2010 Hearing tr. 1309. In order to evaluate and rank the various habitats on site, Ms. Collins designed a methodology using seven metrics that target the protection of regionally significant landscapes. She then assigned "ecological value ratings" and groupings of the habitats based on value as described in Section 1.5 of the EEAM Report: The habitat values ranged from a score of 7 to 1, as shown below from highest to lowest value: Crane Swamp and Spruce Creek Swamp (A & B) Buck Lake and Buck Lake Marsh (C) Cow and Deep Creek (D) Large Sloughs--forested and herbaceous E & F) Scrub Uplands (H) Smaller Wetlands--forested and herbaceous (J & K) Salt March (G) Oak and Hardwood Hammocks (I) Natural Pine Flatwoods (L) Harvested Wetlands (O) Hydric Pine Plantation (M) Pine Plantation (N) To provide a simple yet comprehensively applicable natural resource rating that applies and transfers value to the Farmton landscape, the habitats were further reduced to four groups of comparable ecological value and function. Therefore, Habitats A-D were grouped as one, Habitats E&F another, Habitats G-L as one, and the silvicultural habitats--Habitats M-O--as the fourth group. * * * The habitat types with natural resource rating scores around 7.0 (6.93 to 7.0) include Crane/Spruce Creek Swamps, Buck Lake and Marshes, and Cow and Deep Creeks. They are classified as "Regionally Significant Conservation Habitat Areas." They are regionally situated, extending beyond the boundaries of Farmton. The habitat types with natural resource rating values of around 6.0 include the larger sloughs and swamps. They are classified a s "Significant Conservation Habitat Areas." They are generally greater than 100 acres in size, make up a significant portion of the Farmton landscape, provide an interconnected network of wetlands across the property, but remain mostly onsite. The habitat types with natural resource rating values that are midrange around 3 (2.7-3.7) include the scrub uplands, oak and hardwood forests, salt marshes, natural pine flatwoods, and the smaller swamps and sloughs that have been generally embedded within pine plantations onsite. They are classified as "Conservation Habitat Areas." The fourth habitat types are with natural resource rating values of less than 3, with a range from 21.4 to 1.0, include the silvicultural habitats of the hydric and upland plantations as well as the harvested wetlands. They are classified as "Silvicultural Habitat Areas." These habitats are located onsite and are managed for timber, with varying degrees of tree ages, tree densities and site preparation stages, and/or harvesting disturbances. Joint Ex. 5, Tab 10 at 7-8. The EEAM's rankings were used as a basis for the Farmton Plan's design. The most significant natural resources and environmentally sensitive lands according to the EEAM rankings were designated GreenKey to be subject to permanent conservation. Areas which were disturbed or the least environmentally sensitive lands were deemed more suitable for future development and designated as SDA. The FFWCC used its own data to review the Farmton Local Plan. It was the first comprehensive plan amendment (or project) reviewed under the Critical Lands and Waters Identification Project ("CLIP"). In the opinion of Dr. Walsh, a biological administrator with the FFWCC who supervises FFWCC land use consultations with external entities such as local governments and private land owners, the Farmton Local Plan is based on the best available science. In Dr. Walsh's opinion, the FLP provides for the conservation of wildlife and wildlife habitat and conserves and appropriately plans for protection of endangered and threatened wildlife. Land Use Protections The environmental evaluations are reflected in the FLP policies that require at least 67 percent of the site be designated as GreenKey and 75 percent or at least 36,000 acres of the site be preserved as GreenKey and RBOS. See Policies FG 1.3 and 1.6c, 2010 Hearing, Joint Ex. 7 at pages 7 and 8. Furthermore, Policy FG 2.6 states: As Sustainable Development Area districts are planned for future development, they shall employ Greenprinting decision support models to identify wetlands, flood plains, mitigation areas, vegetative buffers, specialized habitat for flora and fauna, and under-represented natural communities, water resources development areas and trails. Joint Ex. 7, page 11 of 49. The FLP provides additional conservation measures for the most environmentally significant areas. Policy FG 2.5 establishes the Southwest Wildlife Corridor. Policy FG 2.5a establishes the Deep Creek Conservation Area with special levels of protection. The Remedial Amendment creates MRBOS lands and designates them on the Future Land Use Map. The result is that 33,665 acres of the site will be placed into conservation. With RBOS, wetland protections, and associated buffers, 80 percent of the site or 39,265 acres ultimately will be conserved. All lands placed in GreenKey, MRBOS, and RBOS are subject to the CMP approved by the Volusia County Council and ultimately subject to a conservation easement that perpetually protects the lands. See Policy FG 2.10, Joint Ex. 7. Policy FG 8.1 provides: No building permit shall be issued for new development within the SDA districts within five (5) years of the effective date of the Farmton Local Plan. No development order for new construction shall be issued prior to the approval by the county council of the Conservation Management Plan (CMP) described in policies FG 2.10 and 2.11 and the recording of a perpetual conservation easement over all Green Key lands as set forth in policy FG 2.15 with the specific exception of essential public utilities or communication structures. Joint Ex. 10, page 7 of 7. The Council has appointed a CMP Task Force to develop the plan. Natural Resource Management Area The NRMA overlay covers the entire site. It does not prohibit development but subjects it to scrutiny by the County. The NRMA overlay has not successfully prevented habitat fragmentation. Prevention of habitat fragmentation is a basis for the "layered additional protections," 2010 Hearing tr. 1167, of the FLP, including the Environmental Core Overlay Areas ("ECO"). Areas that must be protected are covered by the ECO, which receive the greatest protection in the Current Plan. The ECO covers approximately 11,000 acres of the site. The FLP adds 20,900 acres to the ECO. Without the FLP, and in spite of the NRMA and ECO overlays, existing Current Plan policies allow the Farmton property to be subdivided into approximately 1,700 lots. Significant habitat fragmentation is a potential result. The FR portion of the site, moreover, may develop in a clustered pattern at a density of one unit per 5 acres, as opposed to one unit per 20 acres under Future Land Use Policy 1.2.3.2. There are ranchette subdivisions in the site's vicinity and ranchettes are a feasible development option for the site. The FLP provides stronger natural resource protection than existing policies for the resources it protects. Its more restrictive standards eliminate the potential for development of the most sensitive areas and eliminate vesting of previously vested lots. Policy FG2.1 provides that the FLP is supplemental to NRMA and ECO. If the FLP conflicts with NRMA, the more specific or restrictive policies apply. The FLP is consistent with the current Plan provisions for the NRMA, Environmental Systems Corridor, and ECO. The Florida Black Bear and Regional Wildlife Corridor The Florida Black Bear is a State-designated Threatened Species. See chapter 68A-27. The purpose of the FFWCC in promulgating rules relating to endangered or threatened species is stated at the outset of chapter 68A-27: The purpose . . . is to conserve or improve the status of endangered and threatened species in Florida to effectively reduce the risk of extinction through the use of a science-informed process that is objective and quantifiable, that accurately identifies endangered and threatened species that are in need of special actions to prevent further imperilment, that identifies a framework for developing management strategies and interventions to reduce threats causing imperilment, and that will prevent species from being threatened to such an extent that they become regulated and managed under the federal Endangered Species Act of 1973, as amended, 16 U.S.C. §1531 et seq. Fla. Admin. Code R. 68A-27.001(1). In June 2010, the FFWCC accepted recommendations of bear experts that it find there is "not a high risk of extinction," 2011 Hearing tr. 626, for the Florida Black Bear. Acceptance of the recommendation was accompanied by the commencement of the adoption of a management plan for the Black Bear. Upon the adoption of such a plan, the FFWCC is expected to de-list the Florida Black Bear from the threatened and endangered species lists. See id. Policy FG 2.5b requires the CMP within the Southwest Wildlife Corridor to address habitat requirements for the Florida Black Bear in consultation with FFWCC. The FLP provides for the protection of regional wildlife corridors. Objective FG 2 of the FLP reads: "GreenKey and other Resource Based Open Space shall be managed for natural resource protection and preservation of interconnected regional wildlife corridors, and conserved in perpetuity." Joint Ex. 5, Tab 3 at 8. Nearly the entire Farmton Site constitutes Bear Potential Habitat. See DCA Ex. 4F. The entire site has been identified as Secondary Bear Range, see DCA Ex. 4G, and is roughly within 10 miles of an area of Primary Bear Range to its north and 20 miles of the same area of Primary Bear Range to its west. The area of Secondary Bear Range that includes the Farmton Site also includes urban areas such as the cities of Deland, Orange City, Deltona, and Sanford. Several hundred thousand people live in the secondary range that includes the Farmton site. The area of Secondary Bear Range in which the Farmton Site is located is habitat for the Ocala and St. Johns subpopulations of the Black Bear. While Dr. Hoctor considers the Ocala and St. Johns subpopulations to be separate, David Telesco, the Black Bear Management Program Coordinator for the FFWCC, described them as one subpopulation of bears that range over the Farmton Site, the Secondary Bear Range in which it is located, and nearby Primary Bear Range: This is our largest population of bears, estimated as potentially 1,200 animals. It's also the most densely populated, which means it's the highest quality habitat we have in the state. And our habitat models that we have are showing it as a stable subpopulation. 2011 Hearing, Tr. 625. Bear ranges do not coincide perfectly with bear habitat. Bears may range in areas that are not habitat. Just as in the case of ranges, bear habitats are classified as primary and secondary. Primary and Secondary Bear Habitats are both present on the Farmton Site. In Dr. Hoctor's opinion, to view Secondary Bear Habitat composed of pine plantation (as is the secondary habitat on the Farmton Site), to be more suitable for development would not be accurate or scientifically defensible. "[P]ine plantations are important habitat in and of themselves, plus they're important for . . . connecting all of [the] forested wetlands on [the Farmton] site . . . ." Tr. 475. An array of expert testimony was presented at the 2010 Hearing by Petitioners, the County, and Miami Corporation as to whether the FLP provided adequate wildlife corridors and protection of bear habitat. Dr. Hoctor testified that the Farmton Site is "particularly significant for potentially supporting . . . functional connectivity between the Ocala and Saint Johns [Black Bear] [sub]populations to those that are further south, the Highlands/Glades [sub]populations and Big Cypress [sub]population." Tr. 463. In the past, Florida's Black Bear population was integrated. There was "one [Black Bear] population . . . that occurred throughout the State of Florida." Tr. 465. The several Black Bear populations identified in the state now, however, are genetically distinct due to isolation caused by habitat loss, hunting and poaching. Re-integration will promote genetically healthy populations. Genetically healthy populations are more likely to adapt to future environmental changes and maintenance of connectivity between the subpopulations will promote a genetically healthy population of the Black Bear. A primary method of promoting a genetically healthy population is maintenance or restoration of functional corridors that connect sub-populations of the Black Bear in the state. Functional corridors are necessary to restore a single Black Bear population in the state or a "metapopulation . . . a set of subpopulations that are interacting through disbursal [sic] of individuals between . . . [the] various populations." Tr. 468. Dr. Hoctor opined, "If we're going to have a functional corridor between the populations to the south [south of northern Brevard and southern Volusia Counties] and to the Saint Johns and Ocala populations [to the north], it's more than likely going to have to occur through the Farmton Property." Tr. 467. It is Dr. Hoctor's opinion that functional corridors through the Farmton Property are particularly important to maintenance of the St. Johns subpopulation which consists of only 96 to 170 bears when a viable sub-population of bears is at least 200. Dr. Hoctor regards the wildlife corridors provided by the FLP, both for the Black Bear and other species, to be insufficient to offer adequate protection. They are not wide enough nor do they encompass enough acreage, in his opinion, to provide an adequate home range for a female Black Bear. The FLP allows too many significant road crossings. With regard to the Black Bear and other species, moreover, the FLP, in his opinion, does not sufficiently counter negative edge effects, that is, "negative impacts on natural areas or protected lands . . . from adjacent intensive land uses." Tr. 483. Consistent with action taken in June 2010, the Commission is in the process of adopting a Black Bear Management Plan for Florida. On May 19, 2010, the FFWCC issued a "Draft Black Bear Management Plan for Florida" (the "Draft Plan") which has been up-dated but remains in draft form. The Draft Plan opens with an executive summary, the first paragraph of which follows: The long-term future of Black Bears in Florida currently is uncertain because of their large spatial requirements, the fragmented nature of remaining populations, and increasing human development and activity leading to conflicts. A statewide management plan is needed to conserve this valued wildlife species. * * * This management plan is not intended to set all policies and operations for bears, rather it is intended to form a platform from which policies can be updated and operations can be based. While this plan will set clear guidance and structure for bear conservation in Florida, it will not be a panacea or silver bullet for current issues. In fact, this plan may create more work as key challenges are addressed in implementation. VC/MC Ex. 49. The Draft Plan does not contain any reference to Dr. Hoctor's opinion that the Farmton Site is a critical linkage between the Ocala and St. John's subpopulations and the subpopulations of Black Bear to the south. Randy Kautz, a supervisor of the nongame habitat protection planning section at the FFWCC and its predecessor agency for 20 years, testified that he knew of no agency recommendation to establish a corridor for Black Bears between the Ocala/St. Johns subpopulations and subpopulations of Black Bear to the south. Furthermore, he thought it very unlikely that the subpopulations would become connected if an adequate Black Bear corridor existed on the Farmton Site. He gave several reasons that included man-made disruptions between the subpopulations (such as pasture lands) and natural barriers posed by the St. Johns River, Lake Harney and marshes to the southwest of the Farmton Site over which Black Bears are not likely to traverse. Under the Original Amendment, the Southwest Wildlife Corridor ensures a wildlife corridor approximately one mile in width in the areas closest to the St. Johns River because the science indicated that was the primary regional wildlife corridor for the region. Within the Southwest Wildlife Corridor is the Deep Creek Conservation Area. It is the site's most significant area for regional movement of wildlife and will contribute to a corridor spanning as wide as three miles near the St. Johns River. The Remedial Amendment increases the Southwest Wildlife Corridor to establish a minimum of a one-mile buffer outside the areas planned for development. There are no hard and fast rules for what constitutes a functional wildlife corridor. The Cow Creek Corridor, Southwest Wildlife Corridor, and the corridor along the Volusia-Brevard border exceed a 10:1 ratio of length to width, a favorable ratio for wildlife, and each is a minimum of 900 meters in width. The Southwest Wildlife Corridor, which is 11.81 miles in length, was expanded by the Remedial Amendments to a minimum width of one mile, an average width of 2.26 miles, and a maximum width of 5.3 miles, and has a reduced length-to-width ratio of 5.2:1. The Cow Creek Corridor, which is not a regional wildlife corridor, was increased to 3.86 miles in length, a maximum width of 1.07 miles, a minimum width of 0.63 of a mile, and has a length-to- width ratio of 4.73:1. Respondents provided expert opinions that the FLP's provision of wildlife corridors is consistent with regional long range conservation planning and fits into an ecosystem pattern with wildlife corridors, linkages, and a variety of habitats. Respondents also presented expert opinion that FLP's proposed conservation areas are consistent with Florida wildlife conservation strategy. Other Listed Species and Wildlife Habitat Petitioners allege that the amendment fails to protect native vegetative communities, wildlife, wildlife habitat, and threatened and endangered species. The SOI lists several federally listed species within USFWS consultation areas for the Crested Caracara, the Florida Scrub Jay, and the Everglades Snail Kite. A consultation area includes the bird's dispersal range. Ms. Collins has never seen one of these three bird species on the property during her 15 years onsite, which she attributes to the site's inappropriate habitat for the species. Dr. Smith and Dr. Walsh also testified that it was highly unlikely to find these species on site. If a project is located within a listed species consultation area, the developer is required to meet with the USFWS to address the issue further during the permit process. Other listed species are found or are likely to be found on the site. However, there will be adequate habitat and conservation areas to support them. Gopher tortoises, for example, found within an SDA will be protected by existing County policies. The FLP provides a higher level of protection for listed species and other wildlife than if the site were developed under the current land uses. No development may take place, moreover, until the CMP is approved and incorporated in the development order. Policy FG 2.11 lists numerous minimum criteria for the CMP, including the identification of USFWS consultation areas and known onsite threatened and endangered plants and animals, the protection of habitats of species that are listed, imperiled, and otherwise in need of special protection, and coordination with management plans of adjacent conservation areas. Farmton contains native vegetative communities including mesic flatwoods, scrub flatwoods, and pine flatwoods. These native vegetative communities are predominantly present in the GreenKey conservation areas and will be protected. FAVA and Site-specific Data A Florida Aquifer Vulnerability Assessment Map (the FAVA Floridan Map) for the Floridan Aquifer of the Farmton Site depicts three levels of vulnerability: "More Vulnerable," "Vulnerable," and "Less Vulnerable." See DCA Ex. 4D. Most of the Farmton Site is in the area depicted by the FAVA Floridan Map as "More Vulnerable." All of the SDAs allowed by the FLP to be developed as Gateway, Town Center and Work Place subareas, for example, are depicted as "More Vulnerable." Most of the SDAs allowed by the FLP to be developed as Village subareas are depicted as "More Vulnerable" and the remainder is depicted as "Vulnerable." The FAVA Floridan Map depicts none of the SDAs as "Less Vulnerable." See DCA Ex. 4-D. The FAVA maps supported the Department's determination that the Original Amendment was not in compliance. FAVA maps are used as data by the Department because they depict areas where the aquifer is susceptible to contamination from surface contaminants. In that they "cover broad swaths of the State of Florida, [however] . . . they are not meant to supersede site-specific data." Tr. 1942. Dr. Seereeram, on behalf of Miami Corporation, gathered data specific to the Farmton site. The data included "detailed soil profiles every six inches vertically . . . [to] depths . . . over 100 feet . . . ." Tr. 1941. His site- specific data showed that there are confining layers between the surficial aquifer and the Floridan aquifer that prevent "rapid movement of groundwater from [the surficial] aquifer into the underlying Florida[n] aquifer." Tr. 1941. The site-specific data led Dr. Seereeram to conclude that the Department's concern for contamination potential to the Floridan Aquifer based on the FAVA is misplaced. In light of his site-specific data, Dr. Seereeram's opinion is that the development of the Farmton property will not "pose a threat to the aquifer." Tr. 1942. Dr. Seereeram's opinion, based on the question from counsel, is expressed in terms of "the aquifer." See id. Based on the FAVA maps and the entirely to his testimony with regard to site-specific data, the opinion does not apply to the Surficial Aquifer but only the Floridan Aquifer. The development of the Farmton Site in Volusia County does not pose a threat to contaminate the Floridan Aquifer. Floodplains, Wetlands, and Soil The Farmton Site in Volusia County is predominantly floodplains and wetlands. Petitioners allege that the land uses proposed by the FLP are incompatible with wetland protection and conservation. The Comprehensive Plan's map series depicts a large portion of the County as being located within the 100-year floodplain. A significant part of the SDAs are within the 100- year floodplain. There is no state or federal prohibition of development in a floodplain. The Comprehensive Plan and the FLP describe the floodplain. The Comprehensive Plan does not prohibit development in the 100-year floodplain. The FLP, however, "advises development away from the floodplain, specifically as it relates to schools in the Farmton Local Plan." Tr. 1095-6. Development in floodplains has been allowed by the County subject to elevation of construction to be flood-free upon completion and mitigation via on-site flood storage. The Plan's floodplain policies would apply to development under the FLP and the FLP has policies which relate to floodplains. Policy FG 2.21 in the FLP, for example, requires the following: Floodplains. Impact to the 100-year floodplain shall be minimized. Any impacts must be fully mitigated by providing compensatory storage on-site. Joint Ex. 7, Tab D-3 at 17 of 46. As a result of changes made by the Remedial Amendment, the majority of developable lands within the SDAs are uplands not wetlands. Based on a review of aerial photography, soil surveys, and other data, combined with field work, Ms. Collins concluded that approximately 29 percent of the total SDA acreage can be identified generally as wetlands. The dominant soils in the SDAs are Smyrna fine sand, Immokalee fine sand, Eau Gallie fine sand, and Myakka fine sand. Myakka soil, the soil of the flatwoods, is the most common soil in the state and has been designated as the "state soil." Tr. 1358. There are similar soils on adjacent properties. They are soils "that have had development occur on them." Tr. 1097. All of the soils in the SDAs are suitable for development. Wetlands delineation is not required at the comprehensive plan stage. It will be required prior to approval of development plans or issuance of a development order. The buildable areas within the SDAs will be determined with input from environmental regulation agencies prior to development order approvals. Without the FLP, preserved wetlands would be protected by a fifty-foot buffer. In contrast, Policy FG 2.19d requires all preserved wetland areas within an SDA to be protected by a buffer that averages 75 feet in width and is no less than 50 feet in width. See Joint Ex. 7, Tab D-2, page 17 of 49. On GreenKey land, the policy provides enhanced wetland buffer widths of an average of 100 feet with a minimum buffer of 75 feet. See id. "If different buffer widths are required by a permitting agency, the wider buffer shall apply." Id. Policy FG 2.20 states that activities within the FLP "shall be planned to avoid adverse impacts to wetlands and the required buffers as described in FG 2.19(d)." Id. No less than 25 percent of each SDA as a whole must be set aside as RBOS, which may include wetlands. See Policies FG2.4 in Joint Ex. 10, Exhibit A, page 1 of 7; and 3.2 in Joint Ex. 7, Tab D-2. Per Policy FG 2.8, those open space areas will be determined in consultation with regulatory agencies, Volusia Forever and entities that are parties to the conservation easements required by Policy FG 2.12. See Joint Ex. 7, Tab D-2. Policy FG 2.6 requires that, when establishing RBOS, priority "be given to lands on the perimeter of the SDA, which are contiguous to GreenKey lands." Id. at page 11 of 49. In accordance with Policies FG 2.10 and 2.11, those RBOS areas will be added to the conservation easement and be incorporated in the CMP. Policy FG 2.11h requires the CMP to contain "[p]rovisions for significant water resources (such as streams, creeks, natural drainage ways, floodplains, and wetlands) protection, enhancement, and restoration and planned hydrological restoration." Joint Ex. 7, Tab 2-D, page 13 of 49. Wetlands Mitigation Bank In 2000, after a two-year permitting process, approximately 16,337 acres of the Volusia Farmton site was approved for use as a mitigation bank. Of that approved acreage, only 7,030 acres have been placed under a conservation easement and are required to be maintained in perpetuity for conservation purposes. Those 7,030 acres will continue to be preserved under the FLP. The portions of the mitigation bank that have not been placed under conservation easement may not remain within the mitigation bank and may be withdrawn. At the time of the final hearing, an application filed by Miami Corporation was pending before the SJRWMD to modify the mitigation bank permit to withdraw approximately 1,100 acres from areas within the mitigation bank that have not been placed in conservation easement. The lands proposed for removal from the permit are located within the SDA areas. The remaining portions of the mitigation bank would be protected from SDA uses through the 200 foot SDA perimeter buffer and wetland buffer requirements in Policy FG 2.19. Conservation Management Plans Within one year of the effective date of the FLP, the Deep Creek Conservation Area and the permitted Mitigation Bank lands will be placed into permanent conservation easement. Within two years, a CMP will be developed and enforced through the conservation easements. Remaining lands will be protected through a conservation covenant as well as the CMP. The covenant will have a ten-year term and automatically renew until the initial development plan is approved. Upon approval of a development plan consistent with the densities and intensities of the comprehensive plan, those lands will also be converted to a permanent conservation easement. The Remedial Amendment requires that no development can take place until the CMP plan is established and perpetual easements are recorded. Urban Sprawl The Thirteen Statutory Indicators Section 163.3177(6)(a)9 mandates that an amendment to the future land use element discourage urban sprawl. Section 163.3177(6)(a)9.a provides 13 "primary indicators that a plan or plan amendment does not discourage the proliferation of urban sprawl . . . ." Evaluation of the indicators "consists of analysis of the plan or plan amendment within the context of features and characteristics unique to each locality " See section 163.3177(6)(a)9.a. The 13 indicators are listed in the statute under roman numerals "I" through "XIII." I. The first indicator is promoting, allowing or designating "for development substantial areas of the jurisdiction to develop as low-intensity, low-density, or single-use development or uses." The current Plan (without the FLP) allows the site to develop as single residential uses at low densities. The pre- FLP densities allowed on the Farmton Site are one unit per 10 acres, one unit per 20 acres, or one unit per 25 acres depending on the three designations on the site: Agricultural Resource, Forestry Resource or Environmental Systems Corridor. Mixed use is not required, nor is clustering required. The result is a "ranchette pattern of land use." 2010 Hearing, Tr. 1817. Mr. Ivey at the 2010 Hearing described ranchette- style development and the use to which a ranchette would typically be put. He depicted a development pattern dominated by owners of property who want to be in the country to enjoy a country lifestyle. After purchase of the property, the owner typically builds a house, frequently clears the land, constructs a number of outbuildings and grows grass to support cows or goats. In Mr. Ivey's opinion, "if your goal is to protect the environment, [the ranchette pattern of development] does not do it." Tr. 1720. Mr. Pelham opined that, despite the current Plan's allowance of a ranchette style of development on the Farmton Site, the indicator is triggered because the FLP disperses so much low density development over the landscape and in development nodes. Such a pattern, in his opinion, "does result in a significant amount of low density sprawl, compounded by the fact that it's fragmented and distributed out rather than being in a very compact fashion." Tr. 280. In comparison to the ranchette style of development, however, the FLP calls for a mixed-use development much more concentrated than a ranchette type of development and, on balance, more protective of natural resources. The current land uses allow nonresidential development at a floor area ratio of 0.10 but non-residential uses are not required to be included so as to ensure a mix of uses. The current land use could result in an inefficient land use pattern of more than 4,600 residential units, each of which would be entitled to use a septic tank and potable water well. Conservation Element Policy 12.2.2.5 requires either clustering or open space for developments that contain environmentally sensitive lands or critical habitats but includes no minimum standards. The FLP removes residential entitlements from the GreenKey area and clusters residential development into the SDA areas. Since development is not allowed in GreenKey, it is reasonable to evaluate the FLP's density in terms of "net density" rather than "gross density." It is also appropriate to evaluate density based on the various SDAs. Each Village has a minimum density of 3 units per acre and a target density of 10 units per acre. The Town Center has a minimum density of 8 units per acre, a target density of 15 units per acre, and a center town square required density of 24 units per acre. Work Place has a minimum density of 8 units per and a target density of 18 units per acre. Finally, Gateway has a minimum density of 4 units per acre and a target density of 12 units per acre. The weighted average of the minimum densities throughout the SDAs is 3.3 units per acre and their weighted target density is 6.8 units per acre. This density is relatively high compared with developed portions of cities in Volusia County. The City of DeBary has a weighted average density of less than 2 units per acre. The City of Deltona has a weighted average density of 2.68 units per acre, and the City of Edgewater has a weighted average density of 4.89 units per acre. The weighted average maximum density for the residential land use categories in the unincorporated County is only 2.36 units per acre. The FLP also includes requirements for a mix of uses in the Gateway, Town Center, and Village districts. The jobs- to-housing ratio in Policy FG 3.10 also will ensure that development will contain a mix of uses. II. The second indicator is promoting, allowing or designating "significant amounts of urban development to occur in rural areas at substantial distances from existing urban areas while not using undeveloped lands that are available and suitable for development." Mr. Pelham found the indicator to be triggered because it designates over 12,000 acres of urban development in a rural area at a significant distance from existing urban development and leapfrogs over undeveloped urban-designated lands. Mr. Pelham holds the opinion despite the match of the FLP by the development that will be allowed under the Brevard County Comprehensive Plan on the Brevard County Farmton Property immediately adjacent to the Farmton Site in Volusia County. In addition to abutting the Brevard County Farmton Property, the Farmton Site abuts the City of Edgewater, and the approved Restoration DRI and Reflections PUD. There are undeveloped publicly managed lands and conservation easements in the vicinity of the Site. In contrast to Mr. Pelham, Mr. Metcalf does not think the indicator is triggered. He sees the FLP with its requirement of a greenbelt designated as GreenKey and RBOS and MRBOS to contain the essential components of an innovative development type known as "urban village." An urban village has the following characteristics: an area with urban density, a mix of uses including all major land use types in a self-contained, clustered, compact form that is transit-supportive and has a grid or modified grid street network and a walkable, unified design, with a defined edge separating urban rural uses. The FLP contains all the components required it to be considered to contain an "urban village" development pattern. III. Mr. Pelham concluded that the third indicator is triggered by the FLP's "fragmented development pattern . . . [with] ribbon strips of nodes, five or six of them, . . . in an isolated area." Tr. 281. In contrast, Mr. Metcalf opined that the FLP's "node" development pattern does not trigger the indicator. The nodes of development are not in a radial, strip or ribbon pattern. They do not, moreover, emanate from urban development. IV. Mr. Pelham's view that the FLP triggers the Indicator IV focuses on the 12,000 acres of NRMA land, a substantial portion of which will be converted to urban-type development. In contrast, witnesses for Miami Corporation cast the FLP as providing for the conversion of rural lands in a way that protects and conserves a range of natural resources, including wetlands and upland habitats. The indicator, moreover, does not require protection or conservation through preservation. Therefore, it is not triggered in all cases in which there is some use of the resource. GreenKey and MRBOS keep development out of the most environmentally sensitive wetlands and confines development to the SDAs so that wetland encroachment occurs only in wetlands of lower value than others in the area. Designation of areas as RBOS will also conserve natural resources. V. Indicator V refers to failure to adequately protect "adjacent agricultural areas and activities." Petitioners criticize FLP for failure to protect agricultural and forestry areas and activities within the SDAs. The Department of Community Affairs, however, has never applied the indicator to lands internal to an amendment. Policy FG 2.2 allows agricultural activities to continue in the GreenKey using Best Management Practices. Existing agricultural areas adjacent to the Farmton Site are mainly to the west. The FLP includes provision to adequately protect activities within those areas. Policy FG 2.19, for example, requires a minimum buffer of 200 feet around each SDA. Protection of adjacent areas and activities in the areas means Indicator V is not triggered by the FLP. VI. Mr. Pelham offered the opinion that the FLP fails to maximize use of existing public facilities and services by allowing a large urban development in a rural area that has no public facilities and services and no plan to provide them. Mr. Metcalf testified that the services to be considered would be law enforcement, fire, emergency medical treatment and solid waste. In assessing Indicator VI, Mr. Metcalf began with the assumption that development under the FLP will increase the population in the service district. He opined that the indicator is not triggered because "[t]he higher [the] population in that service district, the higher the maximum usage of that service." Tr. 808. VII. Mr. Pelham believed the FLP fails to maximize use of future public facilities and services because, whether the developer makes significant payment for them or not, the remote location and type of the development will keep it from benefiting from the efficiencies and advantages of scale it would enjoy if it were more proximate to urban development and more compact. Policy FG 3.6d requires the Town Center to house a majority of civic uses, including public safety facilities. The Spine Transportation Network and its related policies provide a network of roads that disperses traffic designed to avoid overloading with local trips. Water service in Gateway will be provided by extension of infrastructure from the Restoration site. "The extension of those lines would be closer than would be many neighborhoods within existing urban areas." Tr. 809. School capacity for the initial 2,287 units will be concentrated in Gateway. The critical mass that can be achieved through the urban village form of development will support onsite facilities needed by schools, law enforcement and fire departments. The location of the facilities will serve development on the Farmton Site and also nearby ranchettes and all of South Volusia County. Mr. Metcalf's opinion is that that the indicator is not triggered by the FLP. VIII. Mr. Pelham's opinion is that Indicator VIII is triggered. "Many studies have shown that allowing urban development far distances from existing urban development drive up the cost of providing infrastructure." 2011 Hearing, tr. 285. Policies FG 7.1 and 5.13 require development within SDAs to provide infrastructure, including onsite roads, and government services that are fiscally neutral. They also require the developer to pay for its share of off-site transportation impacts on a pro rata basis. Construction of the Spine Transportation Network is required by Policy FG 5.7 to be funded solely by the owner/developer. These policies together with the urban village development pattern led Mr. Metcalf to the opinion that the FLP will not disproportionately increase the cost in time, money and energy of providing and maintaining facilities and services. IX. By establishing SDA areas and buffer requirements in Policy FG 2.19 for perimeter boundaries and wetlands, the FLP establishes clear separations between rural and urban areas. X. The FLP would discourage and inhibit the redevelopment of existing neighborhoods and communities, in Mr. Pelham's opinion, because it will compete with all other urban areas for residential and nonresidential growth. Joel Ivey, who has worked on many amendments to the Volusia County Comprehensive Plan, testified that he was not aware of any areas in the County in need of re-development or any infill areas with which the FLP would interfere. The Petitioners did not identify any areas in which the FLP will discourage development opportunities covered by the indicator. XI. Indicator XI is not triggered. The FLP encourages a functional and attractive mix of uses. It requires a mix of residential and nonresidential uses in the SDA districts, a jobs-to-housing ratio, placing lands in conservation easements, walk-ability, compact development, and a hierarchy of street systems to foster connectivity and pedestrian mobility. XII. Indicator XII is not triggered. The FLP promotes accessibility among linked and related land uses with interlinked multimodal roadways and paths, including the Spine Transportation System, walkways and bike paths. XIII. The FLP preserves significant areas of functional open space. It provides for passive recreation open space in RBOS areas. It provides expanses of functional open space areas for wildlife habitat. The Farmton Site, currently private property used primarily for silviculture that can be developed with more than 4,600 homes, under the FLP will place at least 36,000 acres in functional open space in perpetuity. It will conserve the site's most environmentally-sensitive lands and establish a network of wildlife corridors. Development Patterns and Urban Forms Section 163.3177(6)(a)9.b declares that a future land use element or plan amendment "shall be determined" to discourage the proliferation of urban sprawl if it incorporates a development pattern or urban form that incorporates four or more factors listed in the statute. The development patterns or urban forms are listed by roman numerals, I through VIII. I. The FLP promotes conservation and avoids adverse impacts to the most significant natural resources on site. It does so by placing the most significant natural resources in GreenKey and MRBOS, locating development in the SDAs so as to keep it out of the most ecologically significant areas on the Farmton Site, providing protections to the Southwest Wildlife Corridor, and deeding the Deep Creek Conservation area for permanent preservation. Any development within an SDA will be subject to development controls that first require impacts to wetlands to be avoided. If impacts cannot be avoided, only wetlands of lower ecological significance may be impacted, and the impacts must be mitigated to achieve no net loss in function and value. Policy FG 2.19 includes several buffer requirements. Other natural resource protection mechanisms include Policy FG 2.7 which promotes habitat connectivity and requires RBOS to minimize habitat fragmentation. Policies FG 2.10 and 2.11 require a conservation management plan. Policy FG 2.5 and 2.5b. require a forestry management plan and a bear management plan. II. The FLP promotes the efficient and cost-effective provision or extension of public infrastructure and services based upon findings above. III. The third development pattern is present. The FLP includes several provisions that promote walk-ability and connected communities, including Policies FG 3.1; 3.4g; 3.6e; 3.7a-d, h, and j; 5.1;, 5.3; 5.5; 5.6; and 5.7; and, the Spine Network Map. The SDA district policies provide for compact development and a mix of uses at densities and intensities that support a range of housing options and transit options. The FLP requires park-and-ride lots for bus stops, which supports a form of mass transit, and requires multimodal options, such as sidewalks, bike paths and multi-use paths that accommodate different transportation options such as golf carts and bicycles. Policies FG 3.1e (applicable to all SDA districts), 3.4 (Gateway) and 3.7k (Villages) require housing diversity and choice through a mixture of housing types and price points. IV. The fourth development pattern is present as the FLP promotes water and energy conservation. Policy FG 4.2c requires various conservation measures and water neutrality. The multimodal components and employment centers required by the FLP will reduce vehicles miles and promote energy conservation. V. The fifth development pattern is present if the word "preserve" is interpreted to allow agricultural and silviculture activities to continue, rather than mandate that they continue. Policy FG 2.2 allows agriculture activities to continue, but does not require or guarantee that they will continue in perpetuity. Id. Policies 2.2, 2.5a, 2.11g, 2.12f, 2.23, and 3.13 ensure that agriculture may continue. The timberland soils in GreenKey and MRBOS will be preserved. VI. The sixth development pattern is present. Policies 1.3, 1.7, 2.10, 2.11, 2.15, 2.4, 2.6, 2.8, 2.8, 2.5, and 2.16 preserve open space and natural lands. The conservation easements for GreenKey will preserve open space in natural lands. MRBOS and RBOS will provide open space areas in natural lands. Parks in RBOS will provide public open space and passive recreational areas. The SDA parks also will provide active recreational areas. VII. The seventh development pattern is present. The residential and non-residential allocations are balanced and are comparable to those in other master-planned communities. The jobs-to-housing ratio requirement in Policy FG 3.10 ensures a 1:1 balance at build-out and provides a mechanism to ensure that the balance does not drop below 0.65 during development. Gateway Policy FG 3.4d appropriately targets interstate commerce given its proximity to the I-95 and State Road 442 Interchange. VIII. The eighth development pattern is present. The FLP remediates the ranchette pattern allowed under the current Plan over the site. It also provides an innovative urban village development pattern, as well as transit oriented development. Internal Inconsistency Future Land Use Element Future Land Use Objective 1.1.3 in the Current Plan states: "Volusia County shall limit urban sprawl by directing urban growth to those areas where public facilities and services are available inside designated service areas and within urban areas." Joint Ex. 1, page 29 of 109. Future Land Use Policy 1.1.3.5 in the current Plan provides that: New urban development shall be located inside an urban designated area where a full range of urban services exist or are planned and with direct access to arterials and mass transit routes sufficient to handle existing and future development. Joint Ex. 1, page 30 of 109. Policy 1.1.3.6 provides: Id. Requests for land use map amendments will be reviewed using the urban sprawl indicators contained in Rule 9J-5.006(5)(g). Requests that exhibit a presence of a majority of the indicators shall be concluded as to encourage urban sprawl. Mr. Pelham concluded the FLP was inconsistent with these two policies because the Farmton Site is in a remote, rural area outside of urban areas and away from existing or planned urban services. The basis of the opinion is contradicted by the Farmton amendments to the Brevard County Comprehensive Plan now in effect. While rule 9J-5.006(5)(g) no longer exists, Mr. Pelham testified as to why the FLP constitutes urban sprawl. When evaluating whether a plan amendment is consistent with a provision in the plan, including a policy, the plan should be considered "as a whole." Tr. 222. As Mr. Pelham testified, "a common mistake in interpreting comprehensive plans is that policies are lifted out of context, considered in a vacuum without regard to the plan as a whole . . . ." Id. Mr. Pelham's approach is sanctioned by the Current Plan's provision that governs "Plan Interpretation" found in Chapter 21 of the Current Plan entitled "Administration and Interpretation." In particular, it is consistent with a statement that appears in the Introduction of the Current Plan as one of three guidelines or "statements which represent the underlying assumptions which support the Plan preparation." Joint Ex. 1, Introduction, page 3 of 5. That statement is "Guideline Three: The Comprehensive Plan will be construed as a complete document and no specific goal, objective, policy or recommendation shall be used independently." Joint Ex. 1, Introduction, page 4 of 5. Guideline Three is emphasized by its restatement in a quote from the Current Plan's Introduction in the provision governing "Plan Interpretation." See Joint Ex. 1, Chapter 21, page 2 of 7. The Current Plan does not prohibit urban development activities within NRMA. To the contrary, the Current Plan allows "Low Impact Urban," as defined in Policy 12.2.2.1c on lands within NRMA. See Joint Ex. 1, Chapter 12, page 8 of 16. The FLP directs development to certain areas within NRMA and away from the most environmentally sensitive lands in NRMA. There is a fair argument advanced by Miami Corporation, the County and VGMC that the FLP is coordinated with NRMA, is consistent with its objectives as to the bulk of the site and does not conflict with the Current Plan's Objective 12.2.1: "To provide for the protection of areas determined to be environmentally sensitive, and to direct growth away from such areas." Policy 12.2.1.2 requires the County to promote land use activities compatible with NRMA. The policy discusses the land use categories of ESC, FR and Low Impact Urban, among others. The County's planning and development services director for the County construes the uses under ESC, FR, and Low Urban Impact as not the only land uses allowed within NRMA. The critical determination is whether a land use is NRMA-compatible. Consistent with the Current Plan, Policy FG 2.1 states that the whole site is located within NRMA and the NRMA policies apply if they are more protective or stringent than the FLP's policies. The FLP provides more protection for the most environmentally sensitive areas on the Farmton Site than is provided under NRMA. Examples are the FLP requirement for a wider buffer and a minimum of 75 percent open space. Policy 1.3.1.28 forbids amendment of the FLUM not adopted in conjunction with the required Evaluation and Appraisal Report ("EAR") except under five conditions expressed in the policy. The FLUM amendment by the FLP was not in conjunction with an EAR. The five conditions, all of which must be met, therefore, are: Population projections have been revised, and accepted by the County and FDCA; Justification is provided for the expansion of the urban boundary; Compatibility with the character of the area; Availability of the full range of all urban services, including adequate potable water supply and facilities, to accommodate inclusion in an urban area; and, Documentation is provided that urban expansion will not be in conflict with the intent of the Natural Resource Management Area and Environmental Core Overlay. Joint Ex. 1, Chapter 1, page 41 of 109. Testimony at the 2010 Hearing established that the County's population projections were rejected by DCA because they were not based on a professional methodology. The projections were not accepted by the Department in the interim between the 2010 and 2011 Hearing. Mr. Pelham testified that "[t]he Department has never accepted them." 2011 Hearing, tr. 242. The Department's planning function, including review of comprehensive plan amendments and compliance determinations, was transferred by the 2011 Legislature to the Department of Economic Opportunity. The Current Plan does not establish an urban service boundary. Mr. Ivey opined that the FLP is compatible with the character of the area because of the 200-foot wide buffers that exist between the SDA and GreenKey areas. The FLP provides for the City of Edgewater and Farmton Water Resources to provide central water and sewer, and there is adequate water supply. The FLP is consistent with NRMA and ECO because it achieves permanent protection of the key ecological resources on-site. The 11,000 acres of land on the Farmton Site under the ECO are entirely preserved. Conservation Element Policies Petitioners allege that the FLP is inconsistent with Conservation Element Policies 12.2.1.1, 12.2.1.2, 12.2.2.5, 12.2.2.7 and 12.2.3.2. The "Overview" section of the Conservation Element opens with the following paragraph: The Conservation Element provides the framework for the preservation, protection, and enhancement, of the County's natural resources. As such, the goals, objectives and policies outlined in this Element are strongly intertwined with other elements in the Comprehensive Plan relating to land use, utilities, recreation and open space, transportation and coastal management. It is the intent of this Element to provide a basis for responsible decision making for the appropriate use of natural resources when confronted by growth and corresponding development, as well as the identification and preservation of ecologically irreplaceable resources. Joint Ex. 1, Chapter 12, at page 2 of 16. Objective 12.2.1 is: "To provide for the protection of areas determined to be environmentally sensitive, and direct growth away from such areas." Id. at page 7 of 16. Policy 12.2.1.1, in pertinent part, provides that "existing, relatively uninterrupted expanses of natural resources contained within the County shall be managed as an individual unit, providing natural resources the highest degree of protection in land development decisions and planning. These lands shall comprise the NRMA established in the Future Land Use Element. Mr. Pelham views the FLP as not managing the natural resources on the Farmton Site as a unit because it allows development to occur in eight different nodes of development spread out across the property. The development that is allowed, therefore, is fragmented. Mr. Pelham, moreover, sees the FLP as far less protective than the Current Plan because it does not retain protection of the NRMA. By eliminating low-density land use classifications in the SDAs, and replacing it with a large city, the effect on the more protective NRMA designation in his view, is that the FLP "retains the shell and takes out the meat." Tr. 271. In contrast, experts for the County and Miami Corporation see just the opposite. By confining development in the SDAs, which have additional internal protections provided by RBOS and MRBOS designations, and preserving in perpetuity up to 80 percent of the Farmton Site with special protections for wildlife corridors, the FLP provides permanent protection for the most environmentally-sensitive land on site. Policy 12.2.1.2 establishes the three low-density categories that currently apply in the NRMA area: ESC, FR and Low Impact Urban. Replacing the low density use classifications with the FLP has the benefit of protecting the Farmton Site from ranchette-type development with the urban village development pattern that provides the conservation benefit of permanent protection of the most environmentally sensitive lands on site. Objective 12.2.2 is "[t]o minimize, and eliminate where reasonably achievable, impacts to ecological communities which degrade their natural physical and biological functions as a result of land development activities." Id. at page 8 of 16. Policy 12.2.2.5 provides, "The County shall require clustering of dwelling units and/or open space for land development projects which contain environmentally sensitive lands and critical habitats within its project boundaries, in order to preserve these resources." Id. The policy is the most detailed rural clustering plan in Florida. The FLP is viewed by Mr. Pelham as inconsistent with the policy because of the allocation of multiple development nodes spread out over the Farmton Site. Ms. McGee sees a distinction in the language of the policy when compared to the FLP. "The important distinction is that this policy specifically refers to land development projects versus land planning projects." (emphasis added). Tr. 445. Petitioners contend there is no inconsistency because the aim of the policy is achieved since the most environmentally sensitive land is preserved in perpetuity by the FLP, functional and natural open space is set aside, and wetland buffers are provided in the FLP. Policy 12.2.2.7 requires the County to coordinate with appropriate governmental entities to protect environmentally sensitive lands that extend into adjacent counties and municipalities. Michael McDaniel testified at the 2010 hearing that the FLP allows the Gateway development to be adjacent to a 3,500 acre conservation area designated by the City of Edgewater as part of the Restoration DRI. Development allowed by the FLP in the Gateway SDA was determined by DCA initially to be not compatible with the resources in the conservation area and the designation of the area by the City of Edgewater. The Original Amendment, therefore, failed to reflect the intergovernmental coordination required by the policy in his view. At his deposition conducted prior to the 2011 Hearing, Mr. McDaniel testified that after the Remedial Amendments the Gateway Project would still be just south of the conservation land designated by the City and that nothing specific had been done in the Remedial Amendments to address the inconsistency with the policy. Policy FG 3.4 in the FLP includes several provisions relating to coordination with adjacent jurisdictions, two of which specifically refer to the Restoration DRI. Policy FG 2.11q requires the Farmton conservation management plan to be coordinated with the natural resource protection measures within the RBOS and Conservation Areas of Restoration. This requirement will ensure maximum open space connectivity between the Restoration development and any development in the northern portions of the Farmton site. On the southern end of the Restoration site (just to the north of the Farmton Site) is an area designated to be used for utilities. That area directly adjoins one of the three Gateway SDAs. The Restoration site includes a significant amount of degraded areas in need of restoration. East and west of the Gateway SDAs, there will be broad corridors that connect with the Restoration site. The Restoration DRI is subject to a conservation management plan requirement that can be coordinated with the FLP's CMP. During the Original Amendment process, the County coordinated with the City of Edgewater. As a result of discussions between the County and the City, the FLP incorporates policies to address common water supply issues and future coordination. The City has no objection to the FLP. The Amendment is internally consistent with Conservation Policy 12.2.2.7. Objective 12.2.3 is "[t]o eliminate any net loss of wetlands and prevent the functional values of such wetlands to be degraded as a result of land development decisions." Policy 12.2.3.2, in pertinent part, provides that "[p]roposed activities within the NRMA . . . shall avoid adverse impacts to wetlands and their associated natural, physical and biological functions, except in cases where it can be demonstrated to be in the overriding public interest." The policy also calls for mitigation in cases of overriding public interest. Wetland features are present in abundance and interspersed throughout the Farmton Site. Respondents contend that a reasonable interpretation of the policy is that it applies to projects at the time of decisions on applications for development orders rather than planning decisions such as adoption of the FLP. Since the policy, under the interpretation, does not apply to the FLP, the policy cannot be inconsistent with it. Public School Facilities Public School Facilities Element Policy 3.1.4.3 requires a finding by the School Board that adequate school capacity will either be timely planned or constructed if there is inadequate capacity at the time of a land use change. Petitioners contend that FLP Policies FG 6.1 and 6.2 are inconsistent with Public School Facilities Element 3.1.4.3. The FLP was coordinated with the Volusia County School District ("School Board"). The School Board reviewed the proposed FLP and revised its school provisions. At the time of the Original Amendment, the School Board, based on its independent data and analysis, determined that there is adequate school capacity for a maximum of 2,287 residential units through 2025. Based on school capacity, Policy FG 1.4 limits residential development through 2025 to 2,287 units in the Gateway district. The policy further restricts residential density in the Gateway district to a maximum of 4,692 units. "[A]ny increase in the density of the Gateway district above the 2,287 units [for which there is adequate school capacity now] and up to 4,692 units [the number of units allowed] shall not be effective until such time as the school district has issued a finding of school adequacy." Joint Ex. 7, Tab D-2, at page 7 of 49. Policies FG 6.1 and 6.2 reiterate the 2,287 unit cap and do not allow additional residential units until the School Board finds adequate capacity to provide for additional units. Other FLP Policies "Fiscal neutrality means the costs of additional school district and local government services and infrastructure that are built or provided for the SDA districts shall be funded by properties within the approved SDA districts." Joint Ex. 7, Policy FG 7.1, page 42 of 49. Policy FG 7.1 requires each development within an SDA to provide adequate infrastructure that meets or improves level of service standards or will result in a fiscal benefit to the County and its municipalities. Policy FG 5.13 authorizes mitigation for offsite transportation impacts through proportionate fair-share or proportionate share payments. The policy requires proportionate fair-share or proportionate share payments to mitigate the offsite transportation impacts. State law authorizes proportionate-share contributions or construction to satisfy transportation concurrency requirements of a local comprehensive plan under certain circumstances. See § 163.3180(5)(h)3. There is no definition in chapter 163 of "fiscal neutrality." Nor is there a requirement that a developer pay for more than its pro rata share of impacts. Capital Improvements Element/Public Facilities With regard to "capital improvements and public facilities," Petitioners make three allegations that the FLP is not in compliance. First, Petitioners allege the FLP fails to demonstrate the availability of public facilities and services, as required by sections 163.3177(3)(a), 163.3177(6)(a)2.d., and 163.3177(6)(a)8.a. Second, pointing to sections 163.3177(6)(a)2.d. and 163.3177(6)(a)3.e., they allege that the FLP improperly defers data and analysis on which to base the adequacy of public facilities and services. Third, they allege the revised water supply data and analysis used to support the Remedial Amendments do not demonstrate the availability of sufficient water supplies. The term "public facilities" is defined in section 163.3164(38). It "means major capital improvements, including transportation, sanitary sewer, solid waste, drainage, potable water, educational, parks and recreational facilities." Section 163.3177(1)(f), requires all mandatory and optional elements of the comprehensive plan and plan amendments to be based on relevant and appropriate data and analysis. Section 163.3177(6)(a)2.d. requires the future land use element and plan amendments to be based on surveys, studies and data regarding the area as applicable including the availability of water supplies, public facilities and services. FLUM amendments are required by section 163.317(6)(a)8.a. to be based on an analysis of the availability of facilities and services. The FLP is supported by adequate public facility data and analysis. The data and analysis supporting the Original Amendment includes transportation network maps that generally depict and project external roadways and transportation improvements that will need to be built to serve development under the Amendment through 2025 and through 2060. It also includes an evaluation of current and future roadway level of service standards. The Original Amendment includes data and analysis that evaluate potable water and sanitary sewer demand. The water and sewer analysis includes separate charts for build-out in 2025 and in 2060 which assume maximum residential potential and expected nonresidential development types. The data and analysis evaluate impacts of development under the FLP in the short term and in the long term. A transportation analysis was submitted as part of the proposed Amendment package that evaluates impacts on the level of service standards of roadways through 2014 (5 years from the submission of the original Amendment) and 2025. Tables 12 and 13 of the analysis identify roadway improvements needed to maintain level of service standards in 2014 and 2025, respectively, assuming maximum development under the existing land uses and under the Amendment. The transportation analysis assumes full maximum development potential under the Amendment, not realistic growth projections. The analysis therefore evaluates 4,692 residential units and 820,217 square feet of nonresidential development, the maximum development potential under the current land uses. The original water demand analysis applies the Amendment's water conservation policies, as encouraged by the SJRWMD. That analysis estimates a water demand of 1.36 million GPD in 2025 and 6.714 million GPD in 2060. Another water demand analysis compares onsite development scenarios for ranchettes, a commercial nursery, and development under the FLP. The analysis demonstrates development under the FLP would use substantially less water than would development of ranchettes and a commercial nursery. The Remedial Amendments include revised water supply data and analysis that was requested by, and coordinated with, the SJRWD to more closely reflect the water conservation policies in the FLP. The Original Amendment's water supply analysis assumes usage of 250 GPD per residential unit, whereas the Remedial Amendments' revised water supply data and analysis assume a reduced usage of 175 GPD per residential unit. The SJRWMD accepted the revised data and analysis. Petitioners dispute the data and analysis' use of 175 GPD as underestimating demand, but they do not dispute the data and analysis' nonresidential usage rates. The use of 175 GPD is professionally accepted and the data and analysis demonstrate the availability of adequate potable water supplies. The estimated usage of 175 GPD is achievable under the FLP's conservation measures and is a conservative rate based on the FLP's provision for many multi- family units which have a lower GPD than single family units. Applying either 250 GPD or 175 GPD, the site's groundwater source of potable water, estimated to be 9.6 million GPD, will be adequate to provide potable water for maximum residential and nonresidential development under the Amendment while meeting the contractual obligation to provide 2.75 million GPD to the city of Titusville. Petitioners also dispute the reclaimed water analysis assumption in the revised water supply data and analysis that 20 percent of the SDAs will be covered with stormwater facilities. "Twenty percent of the developed landscaped is a lot of land devoted to stormwater treatment." Tr. 142. Mr. Diamond, Petitioners' expert, suggested an assumption of seven to eight percent of the SDAs devoted to stormwater treatment is more appropriate. Civil engineer Mark Dowst, however, demonstrated the 20 percent assumption is based on his experience designing hundreds of stormwater systems and is professionally acceptable. The general range, in his opinion, is 12 to 15 percent. In areas with flood plains or a high water table, such as the Farmton Site, the amount of land devoted to stormwater treatment must be more than the general range. The School District determined there was adequate school capacity through 2025 for a maximum of 2,287 residential units authorized under the current land uses. The School District also found the Amendment addresses and protects the School District's interests. Based on the School District's finding, Policy FG 1.4 limits residential development through 2025 to 2,287 units within the Gateway district until the School District issues a finding there is additional capacity. Policy FG 6.2 recognizes the School Board has not determined there is capacity for more than 2,287 units and therefore "no finding of school adequacy can be issued until and unless the Interlocal Agreement is amended to allow school capacity to be provided within the concurrency service area in which the Farmton Local Plan is located." Joint Ex. 7, Tab D-2, page 40 of 49. The Amendment reacts appropriately to relevant school capacity data and analysis. Petitioners did not demonstrate how the FLP is inconsistent with applicable public facility requirements. They did not demonstrate that the FLP triggers a need under the New Act to amend the Capital Improvements Element. In order to encourage the efficient use of public facilities, section 163.3177(3)(a) mandates that the comprehensive plan contain a capital improvements element designed to consider the location of public facilities that covers at least a 5-year period and that sets forth: "A schedule of capital improvements [the "CIS"] which includes any publicly funded projects of federal, state or local government, and which may include privately funded projects for which the local government has no fiscal responsibility. Projects necessary to ensure that any adopted level-of-service standards are achieved and maintained for the 5-year period must be identified as either funded or unfunded and given a level of priority for funding." § 163.3177(3)(a)4. Policy FG 8.1 prohibits the issuance of any building permit within five years of the Amendment's effective date. This provision clarifies that the Capital Improvement Schedule ("CIS") need not be amended yet. There is no requirement the CIS include public facilities that are privately owned or operated, or are owned or operated by a different local government. None of the infrastructure to be provided by Farmton Water Resources LLC or the City of Edgewater under the numerous policies under Objective 4 need be included in the CIS. The evidence shows it is not realistic to expect development impacts to occur within five years from the adoption of the Remedial Amendments on February 18, 2011. Section 163.3177(3)(b) requires that the capital improvements element be reviewed annually. The CIS will be amended in the future as needed based on projected public facility impacts of future development proposals. Section 163.3177(3)(a) requires less detail for long-range public facility planning than for the five year CIS. The Amendment includes an adequate amount of detail for long range planning for public facilities. Policy FG 4.14 authorizes Farmton Water Resources, LLC, and the City of Edgewater to provide water to the site. Policy FG 4.19 identifies the City of Edgewater as the provider of potable water and wastewater for Gateway. The data and analysis include a utility service area map showing the service area. Policy FG 4.18 requires Farmton Water Resources, LLC, to provide off-site and on-site potable water, nonpotable water, and wastewater. That policy and Policy FG 4.21j list various infrastructure improvements that will be needed to provide those services. At this time, it is not possible to identify where public facilities will be located or their costs. Policy FG 8.3 requires all SDA development to undergo master development-of-regional impact review process, which will ensure infrastructure, including transportation, schools, stormwater, and water supply, to be a condition of the master DRI development order. Policy FG 8.7 includes a requirement that each increment of development address the adequacy of public facilities and services such that they are available to accommodate development and maintain or improve level of service standards. The master DRI requirement is a reasonable strategy to ensure infrastructure will keep pace with development. Water Supply Petitioners contend that the increased development allowed under the FLP was not anticipated by the water supply plan of the SJRWMD, or of any local government, and that a concurrent water supply plan amendment is required. They further argue this omission demonstrates the FLP is not based on the availability of water supplies. Petitioners also allege the Amendment is inconsistent with the Plan’s Potable Water Sub- Element Policies 7.1.3.1 and 7.1.3.3. Those issues were raised by the Department and SJRWMD, but were resolved to their satisfaction in the Remedial Amendments. SJRWMD proposed Remedial Policies FG 4.14, 4.15, 4.18, and 4.21. The Remedial Amendments also included additional data and analysis, which was accepted by SJRWMD. The Original Amendment is supported by data and analysis demonstrating there is a new source of potable water located on the site. The new water source is groundwater contained within the Upper Floridan aquifer and is of potable water quality. The potable water supply analysis demonstrates the new source of potable water is adequate to supply more than enough potable water to supply development under the FLP. The supply is conservatively estimated to be able to produce a sustainable 9.6 million GPD, while the projected demand for development under the FLP is estimated to be 6.76 million GPD. Future land use plan amendments must be based on data regarding the area including "[t]he availability of water supplies . . . ." see § 163.3177(6)(a)2.d. Adequate potable water supply must be shown to be available but need not yet be a permitted source. Regardless of whether the new groundwater source is identified in a regional or local water supply plan, the FLP is supported by a demonstration of an adequate water supply, as required by section 163.3177(6)(a)2.d. Non-inclusion in a water supply plan does not negate the fact that a new source of potable water has been discovered and demonstrated to be available. Section 163.3177(6)(c) requires each water management district to adopt a regional water supply plan every five years and for each local government to incorporate relevant facilities contained in the regional plan into its comprehensive plan by adopting a local water supply plan within eighteen months after the regional water supply is adopted. The FLP was adopted between updates of the SJRWMD regional water supply plan and local water supply plan updates. The SJRWMD plan was required to be adopted in 2005, but was not adopted until February 2006. The mandatory five-year update for the SJRWMD was due in the fall of 2010, but has been delayed. The County’s required water supply facilities work plan was adopted on June 8, 2009. There is no requirement for the county to amend its Water Supply Facilities Work Plan before the SJRWMD amends its regional water supply plan. Potable Water Sub-Element Policy 7.1.3.3 requires the County to review its Water Supply Facilities Work Plan annually and update it as necessary. The FLP recognizes the County’s obligation to later amend its Water Supply Facilities Work Plan and is consistent with it. Policy FG 4.15 requires Farmton Water Resources, LLC, to coordinate with the County, municipalities and the SJRWMD to propose additions to their applicable water supply work plans. The unchanged portion of revised Policy FG 4.18 expressly requires projects to be included in the annual updates as those projects are identified and approved. There is no statutory requirement that such availability be included in a water supply project list until the county and regional water supply plans are updated. Nonetheless, the report prepared by Dr. Seereeram demonstrated through data and analysis that sufficient on-site water will be available. Potable Water Sub-Element Policy 7.1.3.1 requires the County to maintain a Water Supply Facilities Work Plan that is coordinated with the SJRWMD water supply plan. The FLP is consistent with this policy because Policy 7.1.3.1 does not address the situation posed in this case by the delay of the update to the SJRWMD water supply plan. Policy FG 4.18, moreover, requires coordination after that update is made. Section 163.3177(6)(c) is silent as to the need to identify potable water projects between water supply amendment cycles, and as to the format a local government must use to identify water supply projects. Petitioners did not demonstrate the FLP is required to include amendments to the water supply plan, as opposed to a later update of the water supply plan, as required by Policy FG 4.18. They also did not demonstrate what legal requirement necessitates additional information, beyond the identity of the water source and its demonstrated adequacy, in order for the Amendment to be based on relevant and appropriate data and analysis to demonstrate the availability of a water supply. Public Schools The County is required by section 163.3177(6)(a)7 to identify the land use categories in which public schools are an allowable use. The School District is responsible for identifying sites for future schools. In keeping with its responsibility, the School District has mapped future school sites needed through 2025. It has not planned, however, for new school sites needed through 2060. Objective 3.2.2 governs and requires establishment of "School Concurrency Service Areas," Joint Ex. 1, ch. 3, page 6 of 12. They are areas "within which an evaluation is made of whether adequate school capacity is available based on the adopted level of service standard." Id. Policy 3.2.2.8 requires "[r]equests to develop properties within the central school concurrency service areas at residential densities and intensities greater than the current land use or zoning designations . . . . [to] be done via a comprehensive plan amendment consistent with the Volusia County Charter provision 206 regarding school planning." Id. at page 7 of 12. Section 206 required the county council not later than September 30, 2007, to adopt an ordinance to the effect that any plan amendment allowing increased residential density "may be effective only if adequate public schools can be timely planned and constructed to serve the projected increase in school population." DCA Ex. 10. The policy further requires the amendment to demonstrate how school capacity will be met consistent with the terms of the First Amendment to the Interlocal Agreement for Public School Facility Planning, effective July 2007, and Section 206 of the Volusia County Charter. The FLP is consistent with Public Schools Policy 3.2.2.8 because it limits residential development to 2,287 units until there is a School District finding of additional capacity. Policy FG 8.3g. requires each increment of development in the master development order to include provision for schools, thus further ensuring adequate public schools will be timely built and available to serve all future development. The use of a plan amendment to include limitations on development based upon the availability of public facilities has been accepted by the Department. Policy FG 6.2 requires an amendment to the Interlocal Agreement before the School District can find there is additional capacity. This policy is coordinated and consistent with Policy FG 3.2.2.8's requirement that plan amendments be consistent with the Interlocal Agreement. A plan amendment creates an internal inconsistency when it has the effect of conflicting with an existing provision of the comprehensive plan, but if an amendment expressly creates an exception or waiver to a general rule set forth in the plan, it does not create an internal inconsistency. Related school concurrency Public Schools Objective 3.2.1 requires the County to "ensure that the capacity of schools is sufficient to support residential subdivisions and site plans at the adopted level of service standard within the period covered by the five-year schedule of capital improvements." Joint Ex. 1, ch. 3, page 5 of 12. Since school concurrency is a five-year planning concern and no development should occur within the next five years, there is no inconsistency between the FLP and Policy FG 3.2.2.8. Policy FG 3.1.4.1 requires the County to "take into consideration" School District comments and findings on the availability of adequate school capacity in its evaluation of plan amendments. The FLP is consistent with this policy. The County not only took the School District's comments and findings into consideration, but the FLP limits development to current and future findings of adequate school capacity made by the School District through Policy FG 1.4. Objective FG 6 in the FLP governs "School Planning and Concurrency." It states: "The Sustainable Development Area districts shall be designed and planned to ensure that the educational facilities are integral components within the community and that adequate school capacity can be timely planned and constructed to serve the anticipated population." Joint Ex. 7, Tab D-2, page 39 of 49. The school policies that implement Objective FG 6, Policies FG 6.1 through 6.8, were drafted by the School District and are based on the best available data and analysis about future school sites, which currently is available from the School District only through 2025. Meaningful and Predictable Standards Petitioners contend that Policies FG 2.16 and FG 3.10 (untouched after the Original Amendment), and Policies FG 2.4, 2.5, and 2.18 (as revised by the Remedial Amendments) fail to establish the meaningful and predictable standards required by section 163.3177 (1). The statute, in pertinent part, provides: The plan shall establish meaningful and predictable standards for the use and development of land and provide meaningful guidelines for the content of more detailed land development and use regulations. Policy FG 2.16 requires a Community Stewardship Organization ("CSO") to be established and governed by seven directors. The policy provides the CSO's governance board of directors is to be composed of seven members, four of whom must be representative of statewide or national non-profit environmental/conservation organizations in existence at the time of the adoption of the FLP such as the Nature Conservancy, Florida Audubon Society, Trust for Public Lands, and the Florida Wildlife Federation. The owner shall be represented on the board, and the other two members may include representatives of public agencies, stakeholders and public citizens who participated in the development of the FLP. The policy also lists various functions the CSO may or must perform, including taking title to the GreenKey and RBOS areas or co-holding a conservation easement. The CSO is mandated to participate in development of the CMP. The policy also requires all current and future deeds of the Deep Creek Conservation Area, which is within the West Mitigation Bank, to be conveyed to the CSO. Policy FG 2.16 identifies specific activities for the CSO to undertake, and contains meaningful and predictable standards to guide the CSO's composition and actions. Policy FG 3.10 requires a jobs-to-housing ratio of one job per one residential unit. The policy also states Gateway development shall be Phase One and is exempt from the ratio requirement. Development orders for subsequent phases must include milestones for achieving the ratio. The ratio must be monitored at least annually. If the ratio falls below 0.65 (0.65 job for each housing unit), the policy requires development approvals to cease until a remedial plan is developed and approved. Policies FG 8.3j and Policy FG 8.4j require any development orders to include provisions to implement the jobs to housing ratio. Policy FG 3.10 does not allow the remedial plan to achieve any other ratio. A plain reading of Policy FG 3.10 as a whole, including the requirement to monitor compliance with the ratio, reveals it to be a remedial plan that must achieve the 1:1 ratio referred to in the policy. Policy FG 3.10 identifies specific strategies to achieve a balance of housing and employment opportunities, and contains meaningful and predictable standards to guide its implementation. There is no requirement for a CSO and there are no compliance criteria to guide the composition and roles of entities such as the CSO, nor does the law require or provide criteria for jobs to housing ratio. Policy FG 2.4 was revised by the Remedial Amendment to create MRBOS areas and depict them on Map Figure 1-12N so as to provide certainty as to where certain portions of RBOS lands will be located. MRBOS lands have the effect of expanding the GreenKey designated areas for the Cow Creek Corridor and the Southwest Wildlife Corridor. The Policy states MRBOS lands will not be subject to the RBOS public access plan, but will be subject to the Black Bear management plan. The Remedial Amendment's details for the new MRBOS areas are predictable and meaningful. The changes to Policy FG 2.5 clarify that the Southwest Wildlife Corridor must be "consistent with a forestry management plan designed to provide prescribed fire, promote dense understory vegetation such as palmetto and [be] consistent with the Black Bear Management Plan" as required in original Policy 2.5b. Petitioners did not present any competent substantial evidence that this guidance for the forestry management plan does not provide adequate meaningful and predictable standards. Policy FG 2.18, "Transportations Policies and Natural Resource Protection," addresses the arterial roads that traverse the GreenKey lands and provides design guidance to avoid and minimize conflicts between motor vehicles and the movement of wildlife. Section "a" of the policy, which was unchanged by the Remedial Amendment, includes the following non-exhaustive list of tools to minimize this conflict: landscaping techniques, fencing, speed limits, wildlife overpasses or underpasses, bridges, and elevating roadways. This section applies to the three arterial roads shown on the Spine Network Map; Williamson Boulevard, Maytown Road, and Arterial A. The proposed general alignment of Williamson Boulevard does not intrude into the boundaries of the Deep Creek Conservation Area, the Cow Creek Corridor, the Power Line corridor, or the Southwest Wildlife Corridor. Williamson Boulevard runs through, and connects, the largest Gateway SDA and the Work Place, Town Center, and the easternmost village. The Remedial Amendment revises Policy FG 2.18 by creating Sections "b" and "c." Section "b" provides mandatory guidelines that apply only to Maytown Road and Arterial A and requires their design to be based on "best available science" as determined by the FFWCC. Section "c" encourages additional guidelines for Maytown Road and Arterial A subject to the discretion of the roadway designers. As a whole, Policy FG 2.18 provides meaningful and predictable guidance for the designers of the roadways. There are no minimum standards in the New Law for the design of roadways to minimize conflicts with wildlife. With proper implementation, the guidelines in Policy FG 2.18 are reasonably expected to produce the defined outcome of a roadway network that will minimize conflict with wildlife. Audubon’s Charles Lee testified the policies were based on the model policies in the Wekiva Parkway Plan. Mr. Telesco of the FFWCC testified the policies were in line with FDOT policies. Further, the phrase "to the extent practicable" is a known conservation standard taken from the Endangered Species Act. Policies FG 2.4, 2.5, 2.16, 2.18, and 3.10 provide an adequate amount detail for a comprehensive plan amendment, as required by section 163.3177(1).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity enter a Final Order that determines the Farmton Local Plan incorporated into the Volusia County Comprehensive Plan through amendments adopted by Volusia County Council Ordinance Nos. 2009-34 and 2011-10 is "in compliance." DONE AND ENTERED this 24th day of January, 2012, in Tallahassee, Leon County, Florida. S DAVID M. MALONEY 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 24th day of January, 2012.
The Issue The issue is whether plan amendments CPA 10-4 and CPA 10-5 adopted by Martin County (County) by Ordinance Nos. 881 and 882 on August 10, 2010, are in compliance.
Findings Of Fact The Parties The County is a political subdivision of the State and has the responsibility of administering its Comprehensive Plan (Plan). It adopted the two amendments being challenged. The Department is the state land planning agency charged with the responsibility for reviewing plan amendments of local governments, such as the County. The parties have stipulated that Petitioners all reside or operate a business in the County, and they submitted oral or written comments to the County during the adoption process. Intervenors are limited liability corporations owned by King Ranch Florida Operations, LLC, an agricultural operation with offices in Florida and Texas. Intervenors own the subject property, which is more commonly known as Sunrise Groves. The parties have stipulated to the facts necessary to establish that Intervenors are affected persons. The Plan Amendments The amendments concern a 1,717-acre parcel of land located immediately west of, and adjacent to, Interstate 95 (I-95) in the northern part of the County. Southwest Martin Highway (also known as County Highway 714), which runs in an east-west direction, is situated on the south side of the parcel, while the site is separated by a canal on its northern boundary from the City of Port St. Lucie in St. Lucie County. Aerial photographs reflect that undeveloped land lies to the west of the property. See Intervenors' Exhibit 18. At least four large and very urban Developments of Regional Impact (DRIs) have been approved in Port St. Lucie, immediately north of the parcel, including a planned regional mall on the immediate northern boundary of the parcel. From the mid-1960's until the mid-2000's, the parcel was an active orange grove. Due to damage from citrus canker and "greening," which is an incurable, aggressive, and deadly virus affecting citrus plants, the parcel has become a literal wasteland of dead orange trees. The property is now desolate and unprofitable and cannot be converted to any other profitable or feasible agriculture use. Around the same time that the citrus grove was being destroyed, the County commissioned Urbanomics, Inc., and Leak- Goforth Company, LLC, to perform an economic study to determine how the County could better compete in the Florida market. In November 2006, the results of that study were released. See Intervenors' Ex. 11. The study indicated that the County should be pursuing various types of industrial development, with a focus on recruiting firms and institutions with 50 to 100 or more employees, or those that have capabilities and are on pace to reach this minimum employment threshold in three to five years. The study also concluded that in order to accommodate the types of industries that the County would need to pursue, it would need more space designated for industrial use. Based upon the study, the County has adopted policies in the Economic Element of the Plan regarding future economic development in the County. See Joint Ex. 1, Ch. 15. On September 30, 2009, Intervenors applied to the County for a new land use designation to be added to the Plan, allowing industrial uses to be combined with commercial and agricultural uses on their parcel of land. See Intervenors' Ex. 2. Intervenors also applied for a change in the land use category on their property from Agricultural to the new land use category. The re-designated parcel would become a "freestanding urban service district," which requires that the property be served by water and sewer services from a regional supplier rather than individual wells, septic tanks, or on-site package treatment plants. It would be one of two freestanding urban service districts (USDs) in the County.1 When Intervenors initially applied to the County for the amendments, the proposed future land use category was titled "I-95 Agricultural Technology & Employment Center." As the amendment evolved in subsequent months, however, a decision was made to shorten the name to something less cumbersome, which ultimately became "AgTEC," an acronym for Agriculture and Targeted Employment Center. As proposed, the AgTEC designation was significantly different from other land use designations in the Plan in a number of ways. AgTEC is a "site-specific" land use designation, tailored for a specific parcel of property, the 1,717 acres owned by Intervenors. It allows for agricultural uses to continue indefinitely on 817 acres of the parcel, if a viable agricultural use can be found in the future. It also permits new uses on a maximum of 900 acres of the parcel, but limited to certain "Primary Targeted Employment" uses and others which are ancillary to them. Residential is not an allowable use. Finally, it imposes a strict requirement that all future development of the parcel must be subject to a Planned Unit Development (PUD) approval process. On April 14, 2010, the Board of County Commissioners (Board) approved the application and voted to transmit Amendments 10-4 and 10-5 to the Department. On June 25, 2010, the Department issued its Objections, Recommendations, and Comments (ORC) report recommending that the two amendments not be adopted unless additional data were supplied and certain revisions made. See Petitioners' Ex. 4B, pp. 26-47. The Department's objections related to urban sprawl, a failure to demonstrate need, transportation deficiencies, lack of access to public facilities, and a failure to preserve agricultural lands. On July 17, 2010, Intervenors submitted a response to the ORC report, which included an update to the original application addressing the Department's concerns. They also provided additional data and analysis concerning the structure of the County's economy; location quotient data (ratios by type of economic activity in the region), which were consistent with a report submitted by Dr. Nicholson, an economist employed by Intervenors; and environmental information. On August 10, 2010, by a 3-2 vote, the Board adopted the FLUM amendment as Ordinance No. 881 and a revised version of the text amendment as Ordinance No. 882. See Joint Ex. 4 and 5. On October 6, 2010, the Department issued its notice of intent to find the amendments in compliance. See Joint Ex. 6. On October 7, 2010, the Department published notice of its intent to find the amendments in compliance in The Stuart News. Petitioners then timely filed their Petition, as later amended. Ordinance No. 881 refers in its title to a parcel of land known as "Sunrise Groves," which is described in the main body of the ordinance as 1,717 acres of land located west of I-95 and north of Southwest Martin Highway. The site is also defined by legal description attached as Exhibit A to that ordinance. See Joint Ex. 4, pp. 4 and 5. The title indicates that the land designation on the FLUM is being changed from Agricultural to AgTEC. Ordinance No. 882 also refers in its title to a parcel of land as "Sunrise Groves," and that a new site-specific land use category, AgTEC, is being created for that parcel. The text amendments, which are attached as Exhibit A, provide further site-specific indicators of where the new land use designation applies. See Joint Ex. 5, pp. 5-17. They describe an area that is 1,717 acres in size, state that AgTEC uses may be no closer than 300 feet from any existing residential use, and require provision of the right-of-way for a multi-lane arterial north-south roadway "connecting Martin Highway [in Martin County] to Becker Road [in adjoining St. Lucie County], providing the opportunity for a regional parallel reliever road to I-95 . . . ." Id. at pp. 6 and 7. This roadway (an extension of Village Parkway) is specifically depicted on a conceptual map showing the general location where it is to be built. See Joint Ex. 5, AgTEC Long Range Transp. Map. Petitioners contend that the text amendment does not clearly identify the location of the property or Intervenors' parcel as the subject of the amendments, partly because the ordinance title and conceptual map will not become a part of the Plan. However, Ordinance Nos. 881 and 882 clearly refer to the same specific parcel of land intended for designation as "AgTEC" and subject to the requirements of the AgTEC future land use category. When reading the two ordinances, a reasonable person would not be confused as to which property designated for the new land use category applies. The more persuasive evidence supports a finding that no other parcel of land within the County could be similarly designated as "AgTEC," absent an amendment to the AgTEC future land use category in the Plan. Petitioners' Objections As narrowed by their stipulation and the withdrawal of certain issues at hearing, Petitioners contend that the amendments are internally inconsistent with other provisions within the Plan; that the amendments encourage urban sprawl; that the amendments impermissibly convert land designated for agricultural purposes to other uses; that the text amendment is based upon the Plan that was in effect prior to the Evaluation and Appraisal Report (EAR) amendments that became effective in January 2011, thereby creating internal inconsistencies; that there is no demonstrated need for the amendments; that the amendments are not supported by adequate data and analysis; and that the amendments fail to provide meaningful and predictable standards for implementation. A contention that the text amendment includes unauthorized self-amending language is not addressed in Petitioners' proposed recommended order and is presumed to be abandoned. Internal Inconsistency Petitioners contend that the amendments are internally inconsistent with other FLUE provisions in numerous respects. Some of these consistency arguments are based on the fact that the text amendments in Ordinance No. 882 use the numbering system for the goals, objectives, and policies of the FLUE that was in effect when Ordinance No. 882 was adopted on August 10, 2010, rather than the new numbering system that became effective on January 3, 2011.2 As described in Endnote 2, infra, the new numbering system was adopted by the County during the months- long process of amending the Plan during the EAR process. The new text added to the Plan during that time-frame will simply be re-numbered by the Municipal Code Corporation, which publishes the codified version of the Plan, to conform to the new numbering system. This is consistent with the publisher's authority under Part 6 of Ordinance No. 882, which states in relevant part: "CODIFICATION. The word 'ordinance' may be changed to 'article[,]' 'section[,]' or other word and the sections of this ordinance may be renumbered or re-lettered." Joint Ex. 5, p. 3. This codification provision is found in every ordinance adopting a text amendment. By way of example, the content in section 4.4.g.1.n(3) in Ordinance No. 882 (on page 17 of Joint Exhibit 5) will be recodified in new policy 4.7A.14, which replaces the old section. Except for the new number, the content of both provisions is the same. See Joint Ex. 1, Ch. 4, p. 50. There was no evidence that the new EAR- based amendments create an inconsistency with these amendments. Petitioners also contend that an internal inconsistency in the Plan arises due to two references to "I-95 AgTEC" in Ordinance No. 882 (on pages 7 and 11), and a single reference to "AgTech" in Ordinance No. 881 (on page 2). They also argue that the "I-95 AgTEC" category lacks "meaningful and predictable standards for implementation" as a land use designation if it is distinct from the "AgTEC" category. However, they failed to present any evidence that Intervenors or the County intended to create two different future land use categories. The evidence supports a finding that both references to "I-95 AgTEC" in Ordinance 882 were merely "vestigial" references (i.e., references made during an early stage of the amendment process) to the initial title proposed for the land use category when Intervenors first applied to the County. The evidence shows that the County staff simply missed the two references when it conducted an electronic "find and replace" search intended to convert all references in the ordinance to "AgTEC" before presenting the final draft to the Board for adoption. Except for these two references to "I-95 AgTEC," the ordinance consistently uses the "AgTEC" title for the land use designations. Both references are merely scrivener's errors. The single reference to "AgTech" in Ordinance No. 881 is simply a misspelling of the proper title of the new future land use category to be applied to the property. The simultaneous adoption of the two ordinances, the application for both ordinances by the same applicant, and the obvious similarity between the correct spelling and the misspelling support a finding that the use of "AgTech" in Ordinance No. 881 is also a scrivener's error. Historically, after securing Board approval, the staff has been authorized to correct errors in the FLUM without a formal amendment; however, the County Growth Management Director could not recall a situation where a scrivener's error in a text amendment had occurred and was unsure as to how that type of error would be corrected. More than likely, these scrivener's errors will be corrected by another plan amendment. In any event, these non-substantive, minor scrivener's errors do not render the amendments not in compliance. Petitioners further contend that the amendments are inconsistent with the County's stated policy of preserving agricultural lands. See Joint Ex. 1, FLUE policy 4.12A.1. However, the amendments preserve almost one-half of the land (817 acres) for agricultural purposes even though the entire parcel is now unproductive. Petitioners also argue that the amendments are internally inconsistent with FLUE Objectives 4.13A.1.(2)(a) and (b), which provide that the conversion of agricultural land to another land use may be done only when it does not affect the hydrology or productive capacity of adjacent farmlands, and only when it is a "logical and timely extension of a more intense land use in a nearby area." As noted above, there are four approved DRIs immediately north of the parcel in the southwestern quadrant of Port St. Lucie, including a large regional mall on the parcel's northern boundary. The new land use is a logical extension of a more intense land use in a nearby area. Also, there is no evidence that the new land use will affect the hydrology or productive capacity of adjacent farmlands. To the contrary, the evidence shows that any adjacent agricultural areas to the west are protected by a requirement that 75 percent of the common open space be along the western border. It is fairly debatable that the amendments are consistent with the cited policies. Petitioners contend that the amendments are internally inconsistent with a series of FLUE policies that, in general terms: (a) require the availability of services and facilities before expanded urban development may be approved (FLUE policies 4.1B.2., 4.1B.3., and 4.13A.1.(b)); (b) prohibit any regional utility from serving customers outside the Primary Urban Service District (PUSD) and Secondary Urban Service District (SUSD) (FLUE policies 4.7A.2.-4., 4.7A.10., 4.7B.8.(6)-(7), and 4.7B.9.); and (c) prohibit urban development outside the PUSD (FLUE policy 4.13A.9.). Although couched differently, the essence of the argument is that the amendments allow development in an area that is not presently within any PUSD or SUSD, thereby creating an issue of internal inconsistency with other provisions of the Plan. The existing Plan establishes two main types of "urban service districts" in the County: a PUSD and a SUSD. See Joint Ex. 1, Ch. 4. There is an "eastern" PUSD that includes most of the unincorporated coastal area of the County, surrounding the Cities of Stuart, Sewall's Point, Jupiter Island, and Ocean Breeze Park. Adjacent to the eastern PUSD is a much smaller eastern SUSD. See Joint Ex. 3. Several miles west of the boundaries of the eastern PUSD and SUSD there is a smaller "Indiantown" PUSD that consists of the unincorporated inland area of the County known by that name, and an adjacent Indiantown SUSD. Id. The County's purpose for having USDs is 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 the Plan." Joint Ex. 1, FLUE Goal 4.7. The provision of "urban public facilities and services" is generally limited by the Plan to the land inside the County's USDs. The term "public urban facilities and services" is defined as "[r]egional 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." Joint Ex. 1, Ch. 2, § 2.2(127). The Plan also contains numerous provisions that establish a broad prohibition against all industrial uses and most commercial uses on land outside the County's USDs. The Plan expressly provides for the creation of so- called "Freestanding Urban Service Districts" within the County. See Joint Ex. 1. Ordinance No. 882 includes an amendment to FLUE section 4.4.M.1.h.(5) to establish that land designated as AgTEC shall be a freestanding USD. See Joint Ex. 5, p. 8. It also amends FLUE section 4.4.g.1.n.(3) to include land designated AgTEC as one of several enumerated "exceptions to the general prohibitions on development outside of the [PUSD]." Id. at p. 17. This means that the amendment creates its own exception from restrictions in the Plan that might otherwise apply to development outside the PUSD. Therefore, the prohibitions against a regional utility serving a customer outside the PUSD and SUSD, or expanding urban development outside a PUSD, do not apply. As noted above, these amended section numbers will be renumbered in the codification process to conform to the numbering in the new EAR-based amendments. However, the content remains the same. See Finding of Fact 18, supra. Petitioners presented no evidence that the freestanding USD for the AgTEC-designated land would lack the urban public facilities and services that would be necessary under the Plan. Utility services do not have to be physically available at the property boundary before a change in land use can be approved; they must only be planned or programmed. To be programmed, the services may be identified in the capital improvement element of the Plan or appear in a DRI approval. According to Mr. Dulin, County Senior Planner, the utility services for the parcel appear in "one or a number of the [DRIs] approved in the southwestern quadrant of Port St. Lucie." This type of arrangement for services is not unusual, as the County now provides services to some areas in St. Lucie County, while Port St. Lucie and St. Lucie County provide services to certain areas in the County. The evidence shows that Port St. Lucie has the capacity to meet the requirements of the development, and that those services will be paid for by the developer, and not the County. At the amendment stage, the lack of a formal written agreement between the developer and Port St. Lucie is of no concern, as one is not required until the Intervenors seek a development order from the County. It is fairly debatable that the amendments are consistent with the FLUE. Urban Sprawl Florida Administrative Code Rule 9J-5.006(5)(g) identifies 13 "primary indicators" of urban sprawl to be considered in the review of plan amendments to determine whether the presence of multiple indicators "collectively reflect a failure to discourage urban sprawl." Fla. Admin. Code R. 9J- 5.005(5)(d). Petitioners' expert, Charles G. Pattison, contends that, with the exception of four indicators (1, 4, 11, and 13), all other indicators are triggered by the changes effectuated through the amendments being challenged. However, indicator 3 was not raised in the Amended Petition or stipulation. Therefore, only the remaining eight indicators will be addressed. See Heartland Envtl. Council, Inc. v. Dep't of Community Affairs, Case No. 94-2095GM (Fla. DOAH Oct. 15, 1996), modified in part, Case No. DCA-96-FOI-GM (Fla. DCA Nov. 25, 1996), 1996 Fla. ENV LEXIS 163 at *63. Indicator 2 requires a determination as to whether the amendments promote, allow, or designate "significant amounts of urban development to occur in rural areas at substantial distances from existing urban areas while leaping over undeveloped lands which are available and suitable for development." Fla. Admin. Code R. 9J-5.006(5)(g)2. As noted above, large and very urban DRIs have been approved in neighboring Port St. Lucie just north of Intervenors' property, including a planned regional mall on the immediate northern boundary of the property. Also, some of the infrastructure for these developments has been constructed immediately north of Intervenors' parcel, to which the infrastructure on Intervenors' parcel is required to connect. It is unreasonable to ignore this development simply because it lies within an adjacent local government, rather than viewing the existing and approved development in the area as a whole. A more reasonable approach is to consider the existing urban areas immediately to the north of the parcel. Indicator 5 requires an analysis to determine whether the amendments fail to "adequately protect adjacent agricultural areas and activities, including silviculture, and including active agricultural and silvicultural activities as well as passive agricultural activities and dormant, unique and prime farmlands and soils." Fla. Admin. Code R. 9J-5.006(5)(g)5. Because the parcel is bordered on the east by I-95 and on the north by DRIs in Port St. Lucie, the only areas of concern affected by this indicator would be to the south or west of the parcel. Petitioners failed to prove, however, that the AgTEC requirements for buffers on the east and south boundaries and required open space on the western border of the site constitute inadequate protection for any adjacent agricultural areas or activities within the meaning of the rule. Indicators 6, 7, and 8 are related to the orderly and efficient provision of public services and facilities. See Fla. Admin. Code R. 9J-5.006(5)(g)6.-8. Urban sprawl is generally indicated when new public facilities must be created to serve a proposed use. As noted above, the provider of water and sewer services to Intervenors' parcel (Port St. Lucie) has ample capacity to meet its projected needs and the capability of doing so from adequately sized lines located within a quarter of a mile from the parcel. Also, there is no credible evidence that there will be a lack of transportation infrastructure to meet the demand expected to be placed on the parcel. Indicator 9 requires an analysis to determine if the amendments fail "to provide a clear separation between rural and urban uses." Fla. Admin. Code R. 9J-5.006(5)(g)9. Through the use of setbacks, buffers, and other site design criteria, it is at least fairly debatable that the amendments create a sufficiently clear separation between the industrial/commercial uses that would be allowed and any rural uses to the south and west of the site. Petitioners did not identify any adjacent rural uses that would require such separation. Indicator 10 requires that the amendments do not discourage or inhibit infill development or the redevelopment of existing neighborhoods and communities. While Petitioners pointed out that there are other parcels in the County currently designated for industrial use, those parcels are either too small or too scattered to attract the types of industrial development desired by the County, which are described in the Economic Element of the Plan. Further, there was no evidence that the other smaller and scattered parcels would be adversely affected by the large-scale development envisioned on the AgTEC land. Finally, indicator 12 requires an analysis to determine if the amendments result "in poor accessibility among linked or related land uses." Fla. Admin. Code R. 9J- 5.006(5)(g)12. The evidence shows that the AgTEC requirements for new transportation infrastructure, coupled with the existing access from two adjacent interchanges on I-95, provide ample accessibility for the parcel and other related land uses. In summary, it is at least fairly debatable that none of the primary indicators of urban sprawl at issue are triggered by the amendments. Other Issues Petitioners assert that Intervenors failed to demonstrate a need for commercial or industrial land outside the USDs. They also contend that the economic study performed by Dr. Nicholson failed to consider other vacant parcels of land designated for industrial use, including large amounts of acreage in Palm City and Indiantown. However, Dr. Nicholson established that of the 2,590 acres of available industrial land in the County, the vast majority of these sites are small, less than five acres in size, and are inadequate. He also established that the County lacks any well-planned, amenity- oriented industrial, office, or business parks, which would be the type of development contemplated on Intervenors' parcel. It is fairly debatable that the needs analysis submitted by Intervenors is adequate to support the amendments. Although raised as an issue, there was no evidence that the amendments are internally inconsistent with any provisions within the Economic Element of the Plan. All other contentions not specifically addressed herein have been considered and rejected. Improper Purpose Because they did not substantially change the outcome of the Department's determination that the amendments are in compliance, Petitioners are non-prevailing adverse parties. See § 120.595(1)(e)3., Fla. Stat. Therefore, it is necessary to make a determination as to whether Petitioners participated in this proceeding for an "improper purpose," as that term is defined in section 120.595(1)(e)1. Petitioners generally alleged that the amendments were internally inconsistent with other Plan provisions in numerous respects, that they encouraged urban sprawl, that they contain substantive errors that cannot be corrected in this proceeding, and that there is no needs analysis to support the amendments. Each of these contentions was ultimately found to be without merit, and contrary evidence on these issues submitted by the County and Intervenors was credited. However, when taken as a whole, the record does not support a finding that Petitioners participated in this proceeding "primarily" to harass the applicants, increase the cost of litigation, or cause them unnecessary delay. The Amended Petition was not frivolous.
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 amendments adopted by Ordinance Nos. 881 and 882 are in compliance. DONE AND ENTERED this 5th day of May, 2011, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of May, 2011.
The Issue Whether the Florida Department of Transportation (FDOT) properly denied application(s) for an advertising sign permit.
Findings Of Fact On September 27, 2005, Petitioner Lamar submitted two permit applications (Nos. 55595 and 55596) to FDOT for two signs to be attached to one monopole, one sign to be facing north and one sign to be facing south. The applications stated that the proposed location of the monopole is the west side of State Road 85 (SR 85), 200 feet (or .042 miles) south of Barnes Road in Okaloosa County, Florida. SR 85 is a Federal-aid primary highway. (See Stipulated Facts 1 and 4.) The proposed sign structures met the size, height, and spacing requirements of Section 479.07, Florida Statutes. (See Stipulated Fact 3.) The proposed sign location is in an unincorporated area of Okaloosa County, Florida. (See Stipulated Fact 5.) Okaloosa County is the only local entity involved herein. The 42.5 acre parcel of land for the proposed billboard has significant frontage on SR 85, north of Crestview, Okaloosa County. A residence is located on a portion of the parcel. The permit application form used by Petitioner was composed and authorized by FDOT. Petitioner's submitted application was complete, and the appropriate fee was paid to FDOT. (See Stipulated Fact 2.) Upon request, FDOT provides a published "Instruction" pamphlet to assist applicants for outdoor advertising sign permits. Pages 12-13 thereof provide, in pertinent part, as follows: Land Use/Zoning: Outdoor advertising signs must be located in areas where the land use category allows properties which lie within 660 feet of the controlled road and which are within the contiguous land use designation area to be developed with primarily commercial or industrial uses. This information is found in the Land Development Regulations and on the Future Land Use Map of the City or County’s Comprehensive Growth Management Plan. The City or County or other local government must certify that the current zoning (Land Development Regulations) and the Future Land Use Map designation allow for commercial/industrial uses and that outdoor advertising signs are allowed for that designation. When the Land Development Regulations [zoning] or the Future Land Use Map do not specifically designate the parcel as commercial or industrial, but allow for multiple uses on the parcel, including commercial or industrial, a “use test” will be employed to determine whether an outdoor advertising permit may be issued. The use test requires that there be a minimum of three (3) conforming businesses within 1600 feet of each other, and that the sign be on the same side of the highway and within 800 feet of one of the businesses. The Department will not approve an outdoor advertising sign permit when local regulations prohibit outdoor advertising at the proposed location. (Emphasis supplied.) In preparation of Petitioner’s application(s), Chad Pickens, Petitioner’s Lease Manager, read FDOT’s Instruction pamphlet as guaranteeing Petitioner a “use test” if either the County land use map or the zoning for this parcel provided for mixed or multiple uses. He conducted extensive site location and ownership searches; made contacts with the potential lessor; submitted photographs of three businesses within 1600 feet of the proposed outdoor advertising sign location; filled out the permit application; proceeded to the appropriate Okaloosa County government officials for County approval; surveyed and staked out the proposed outdoor advertising sign location; and took photographs of the proposed site. He then submitted this information on FDOT-approved forms, along with a letter of authorization and the application fee. Petitioner Lamar leased the property site from the owner, with no lease payments due from Petitioner to the landowner unless FDOT approved its sign permits. At the time of the application, the three commercial businesses closest to the proposed sign location were: Dogwood Veterinary Clinic - approximately 118 feet south of the proposed sign site. This business specializes in treating house pets. The clinic makes no farm calls, but horses may be treated if brought into the clinic. This business also contains a retail outlet; Billy's Trade Store, approximately 463 feet south of the proposed sign site, is a convenience store; and Plantation Farms Pet Grooming, approximately 780 feet northeast of the proposed sign site. This business, in addition to retail sales of pet items and food, incorporates a section for the grooming and boarding of household pets. This business does not handle livestock. (See Stipulated Fact 9.) These three business establishments, submitted by Petitioner for FDOT’s application of a "use test," were businesses one could actually walk into and purchase goods or services. In addition to information regarding the proposed sign site, the proposed construction on the site, and where the proposed construction was to occur, the permit application required the applicant to secure Okaloosa County’s local certification of the proposed site’s future land use designation and its current zoning, which Petitioner did. Although FDOT requires that local government entities sign off on advertising sign applications to FDOT, the State Agency does not rubber stamp those approvals. Ultimately, FDOT administers State statutes and regulations in conjunction with its Federal agreement. The State is not bound by the County’s permitting of signs. In January, 1972, the State of Florida entered into an agreement with the Federal Highway Administration, in which the State agreed to implement and carry out the provisions of Section 131 of Title 23, United States Code (1965), commonly referred to as "The Highway Beautification Act." Through this agreement, Florida agreed to limit the permitting of outdoor advertising signs adjacent (within six hundred sixty feet of the nearest edge of right-of-way) to Interstate or Federal-aid primary highway systems, to areas which are zoned industrial or commercial or are located in unzoned commercial or industrial areas. Failure of FDOT to comply with the terms of this agreement could result in a loss of 10 percent of federal-aid highway funds. Lynn Holschuh, FDOT Outdoor Advertising Administrator, testified that since the January 1972, agreement with the Federal Department of Transportation, Florida local governments have been required to “zone” all property. Therefore, the 1972 Agreement’s use of the term, “unzoned commercial or industrial areas,” is an anachronism, because all Florida property should now be zoned. Still, the term remains in the Florida Statutes, and FDOT uses this term to grapple with areas where specific land use is not very well defined. Zoning designations arise from county land development regulations, i.e. zoning ordinances. Future land use designations come from a Land Use Plan, adopted by the local entity or entities, pursuant to Chapter 163, Florida Statutes, and placed on a future land use map. The proposed sign location is on a parcel with a land use designation of “Agricultural 1” (AA1). (See Stipulated Fact 6.) In other words, the parcel is zoned for agriculture. Okaloosa County Code 8.02.02 provides that permanent off-site outdoor advertising signs are a permitted use within agricultural areas. (See Stipulated Fact 7.) Counties may allow off-site advertising along county roads, but interstate and federal primary-aid highways, such as SR 85, are within FDOT’s jurisdiction. The applicable Future Land Use Map designates the proposed site for “rural mixed land use” (RMU). (See Stipulated Fact 8.) This multiple use future land use map designation includes residential and non-residential uses. Non-residential uses may include commercial or business uses, although the parcel being designated “rural” suggests otherwise. There is no evidence herein that the terms used in the current zoning or on the future land use map do not comport with the same or similar terms used in Chapter 163, Florida Statutes, or in 23 C.F.R. Section 750.703(a) or 750.708. At all times material, Billy Wayne Strickland, Florida Department of Transportation Outdoor Advertising Senior Agent, processed all outdoor advertising applications, statewide, on behalf of FDOT. He testified that if the current land development regulations (current zoning) and the future land use designation (future land use map) differ, FDOT considers both. If the current zoning and future land use map are both a "mixed use" designation, FDOT performs its own use test, sometimes delegated to an outside consultant. Ms. Holschuh testified that “agriculture” is a “rather specific” zoning term/designation. However, if a zoning category authorizes more than one use, FDOT looks at the current primary uses of the parcel. FDOT’s intent is not to go by the label that has been applied to the zoning category, but “to go beyond the label to determine whether or not the area really has the characteristics of a commercial or an industrial area,” and that with regard to the characteristics of commercial zoning, the use test would be employed to determine if there were bona fide commercial or industrial activities within the specified footage of a proposed sign location. In processing the application(s) in this case, Mr. Strickland accepted the future land use designation “AA1”, for “agricultural,” as certified by Planner Tim Durbin on behalf of Okaloosa County. He also researched Okaloosa County’s land development regulations, which described the permitted uses for property designated "agricultural." The Okaloosa County Land Development Code specifically designated three zoning categories as “Commercial.” They are “Business Retail,” Business General,” and “Business Tourism”. In the Code, commercially zoned areas, under the categories of "Business Retail" and "Business General," states: "[t]his is a Commercial (C) and Mixed Use Development (MU) Future Land Use Map Category." Under the category of "Business Tourism," the Code states: "[t]his is a High Density Residential (HDR), a Commercial (C), and a Mixed Use Development (MU) Future Land Use Map Category." Each of these business categories allows for traditional commercial uses such as retail stores, filling stations, banks, restaurants and mini- warehouses. The Okaloosa County Land Development Code specifically designated two zoning categories as “Industrial.” They are “Protected Industrial Districts” and “Airport Industrial Park Districts.” The Okaloosa County Land Development Code, under “Industrial” uses, has zoning categories of "Protected Industrial Districts" and "Airport Industrial Park Districts." The Code provides: "[t]his is an Industrial (I) Future Land Use Map Category." No similar reference to either “commercial” or “industrial” zoning is made under the zoning for “agricultural” areas. The agricultural zoning does not mention “filling stations.” The Okaloosa County Land Development Code lists the following (with some restrictions not material to these proceedings) in areas zoned “agricultural”: Permitted Principal Uses and Structures: -Dwellings -Commercial and non commercial agricultural [structures] -Sawmills -Places of worship, schools, publicly owned and operated community structures and land, nursing homes, charitable or philanthropic institutions; public or private golf courses; public lands; public or private cemeteries, private lodges and fraternal orders. -Privately operated day nurseries, pre- schools, and kindergartens. -Private airstrips -Private Airports -Public or private fishing clubs, and other similar enterprises. -Recreational areas for public use, campgrounds, travel trailer parks, including golf driving ranges, swimming pools, fishing lakes, and similar recreation uses. -Public or private stables -Commercial kennels and the raising of other small animals for sale -Community residential homes -Radio, television and commercial towers and antennas. -Terminals for petroleum products -Public Utility Structures -Municipal solid waste transfer stations and recycling facilities. Permitted Accessory Uses and Structures: Uses and structures which are customarily accessory and clearly incidental and subordinate to permitted or permissible uses and structures. Home Occupations. Special Exception Uses and Structures: Activities that are agricultural or support agricultural activities and are in keeping with the rural character of the area Public or privately operated gun clubs Borrow Pits Construction and Demolition Debris landfills Prohibited Uses and Structures: Any use or structure not of a character indicated under permitted accessory uses and structures, or permitted as a special exception. Class I, II and III landfills are prohibited, along with other types of solid waste disposal facilities except as identified in Permitted Uses and Special Exceptions. [Boldface in original; underlining supplied] Mr. Strickland opined that a terminal for storing petroleum products, transported to that location in tanker trucks, for use by machinery on a farm, which use is allowed by the County’s zoning code to be located on land zoned agricultural (see Finding of Fact 29), would not be the same as a gas/filling station for cars, permitted under the County’s commercial or industrial classification. Mr. Strickland’s interpretation is reasonable, and it was not credibly refuted by Mr. Durbin, the County’s planner, whose testimony that the County would allow a filling station on the parcel in question did not comport with the clear designations under the County’s zoning. (See Findings of Fact 24-29 and 35-36.) In processing the applications in this case, Mr. Strickland reasonably interpreted the current zoning to permit only commercial uses "tied to agriculture" on this parcel. Mr. Strickland also used the Okaloosa County Tax Appraiser’s records. The County Appraiser listed the parcel whereon the signs were intended to be erected as improved agricultural land containing a single family dwelling for which a homestead exemption was taken/granted. A residential use clearly is not a commercial use. Mr. Strickland took this to mean that the “rural mixed use” for that parcel implied a “residential” use, as opposed to a “non-residential” and potentially commercial use, under the RMU designation on the future land use map. FDOT never permits billboards on residential property unless the parcel is currently zoned commercial and the parcel merely contains a private residence that has been grandfathered- in. On October 18, 2005, FDOT, through Mr. Strickland, issued a Notice of Denied Application stating: Location is not permittable under land use designations of the site [s. 479.111(2), FS] Location does not qualify as unzoned commercial/industrial area [s. 479.01(23), FS] At the same time, FDOT returned Petitioner’s application fee checks. (See Stipulated Fact 10.) At hearing, County Planner, Tim Durbin, testified that based upon Okaloosa County’s current zoning and future land use, the proposed sign site met Okaloosa County standards and would support an outdoor advertising sign. He further testified that the County no longer considers "AA1”, which once referred to parcel size, "to have any significance,” and that the County plans, in the future, “to remove that designation from its Land Development Code.” According to Mr. Durbin, the County now considers all agricultural land to be "AA." However, as of the date of hearing, more than a year after the sign permit application review by FDOT, the County still has not changed its AA1 category. According to Mr. Durbin, Okaloosa County currently would permit the following non-residential uses of the parcel at issue: "small scale agricultural, civil uses of churches and houses of worship, public or private primary or secondary schools, small scale neighborhood commercial or business uses, general commercial uses. Small scale neighborhood commercial and business includes neighborhood-serving offices, neighborhood-serving retail activities.” He opined that any classification that contains “residential” and “non-residential” uses, as do both the AA1 zoning category and the land use map ”RMU-rural mixed uses” designation, may contain commercial projects within the “non-residential” areas. He equated “filling stations” with “terminals for petroleum products." Herein, because the zoning and land-use map designations were not identical, Mr. Strickland did not consider, in making his decision to deny the sign permit, the three businesses listed near the parcel. He did try to discover how the actual parcel in question was currently regarded locally. In doing so, he used reasonable methods. He denied the sign application(s) on the basis of the future land use designation (rural mixed use-residential) and the agricultural zoning current when these applications were submitted and considered between September 27, 2005, and October 18, 2005, (AA1-agricultural). Petitioner has not demonstrated that any change in the zoning or land use designation has occurred since that time. However, when asked at hearing how he would consider those three nearby businesses (a veterinary, a convenience store, and a pet groomer), which had been submitted for a use test, Mr. Strickland testified that he would consider the veterinary and the store to be commercial uses and would consider Plantation Farm Pet Grooming to be not commercial because it contained a family residence with a homestead exemption. Petitioner did not refute that the pet groomer’s building primarily constitutes a residential use.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that a final order be entered ratifying the October 18, 2005, denial of sign application. DONE AND ENTERED this 4th day of April, 2007, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of April, 2007.
The Issue The issue in this case is whether Ordinance 679-L of the City of St. Petersburg ("City"), which amended the Future Land Use Map (“FLUM”) of the City's Comprehensive Plan on certain property generally located at the northeast corner of 9th Avenue North and 66th Street North within the boundaries of the City (the "Subject Property") from Institutional to Residential Office Retail (R/O/R) land use on 2.98 acres, Residential Office General (R/OG) on 2.98 acres, and Residential Urban (RU) on 12.02 acres (the “Plan Amendment”), is "in compliance" as defined by Section 163.3184(1)(b), Florida Statutes,i notwithstanding Petitioners' contentions that the Plan Amendment is internally inconsistent and not based on data and analysis.
Findings Of Fact Parties Each Petitioner submitted oral and/or written comments, recommendations and/or objections to the City regarding the disputed land use amendments that are the subject of this case between the day of the transmittal hearing (July 18, 2006) and the day of the adoption hearing (February 15, 2007). Each individual Petitioner owns and/or resides on property within the boundaries of the City. The Eagle Crest Civic Association, Inc., f/k/a Eagle Crest Neighborhood Association, Inc., is a Florida not-for- profit corporation conducting business within the boundaries of the City. The Eagle Crest Civic Association, Inc., collects dues from membership, conducts monthly business and informational meetings at the St. Petersburg College Gibbs Campus Library in the City, and advocates interests on behalf of its membership before the St. Petersburg Council of Neighborhood Associations and various City and County governmental boards, commissions and councils. The Department is the state land planning agency that is statutorily charged with the duty of reviewing comprehensive plans and their amendments, and determining whether a plan or amendment is “in compliance,” as that term is defined in Section 163.3184(1)(b), Florida Statutes. The City is a municipality and political subdivision of the State of Florida and has adopted a comprehensive plan that it amends from time to time pursuant to Section 163.3167(1)(b), Florida Statutes. Sembler is a Florida corporation headquartered and conducting business in the City; by virtue of a contract for the purchase of the property that is the subject of this dispute, Sembler is an equitable owner of the property that is affected by the challenged FLUM Amendment in this case. Background The Subject Property has been owned by the Catholic Diocese of St. Petersburg since 1952. Notre Dame High School, a Catholic girls-only high school, was constructed on the Subject Property in the early 1960’s. In 1977, Notre Dame High School merged with Bishop Barry High School (a Catholic boys-only high school to the east of the Subject Property) and the improvements on the Subject Property were used for various Catholic diocesan offices and other administrative purposes. Notre Dame High School was eventually demolished, and the only improvements remaining on the Subject Property are a former field house used for storage purposes and a former convent used for a multi-purpose building. The Subject Property is otherwise currently completely vacant. Since 1977 the Subject Property has had a FLUM designation of Institutional. In January of 2006, Sembler applied to the City for a change in the FLUM designation on the Subject Property from Institutional to Commercial General for an approximately 13.25 acre portion of the Subject Property fronting predominately along the west side 66th Street North between 9th Avenue North and 13th Avenue North. On March 7, 2006, Sembler requested a deferral of its pending application to consider a modification of the development plan to less intensive commercial uses. The deferral was granted by the City Planning Commission. On March 29, 2006, Sembler submitted a new application, abandoning the prior request to change the FLUM designation for the approximately 13.25-acre portion from Institutional to Commercial General. The new application (March 29, 2006) by Sembler requested a change to the Future Land Use designation for an approximate 6.19-acre portion of the Subject Property from its existing Institutional designation to Residential Office Retail ("R/O/R"). This new application was assigned City File Number PC-700 (“PC-700”). The intention of the PC-700 application was to develop multifamily residential units on approximately 11.8 acres of the Subject Property and to develop neighborhood commercial uses on the approximate 6.19-acre portion of the Subject Property. The PC-700 application included a Development Agreement proposed by Sembler which, among other things, limited the actual commercial development of the 6.19 acre portion to 26,000 square feet of space, and required that a quarter, or 25 percent, of that space be developed under the zoning regulations for Residential Office General ("R/OG"), instead of R/O/R. On May 2, 2006, the City’s Planning Commission (the “LPA”) conducted a public hearing to consider the PC-700 Application, and voted 6-2 to recommend approval of the PC-700 application to the St. Petersburg City Council (the “City Council”). On July 18, 2006, the City Council conducted a public hearing for the First Reading of the PC-700 application, and unanimously adopted a resolution approving the transmittal of a proposed ordinance adopting PC-700 to the Department, among others, for review and comment pursuant to Chapter 163, Florida Statutes and Chapter 9J-5, Florida Administrative Code. On September 29, 2006, the Department published its Objections, Recommendations and Comments (“ORC”) Report on the Plan Amendment contained in PC-700. The Department raised no objections to the proposed Plan Amendment. Sometime between September 29, 2006, and December 14, 2006, Sembler modified its application PC-700. The modified application was intended to address some of the concerns raised by neighborhood associations representing citizens who owned property and resided in areas adjacent to the Subject Property. The modified PC-700 application requested a FLUM amendment for 2.98 acres of the Subject Property to be changed from Institutional to R/O/R, for 2.98 acres of the Subject Property to be changed from Institutional to R/OG, and for 12.02 acres of the Subject Property to be changed from Institutional to RU (“PC-700 Modified”). The PC- 700 Modified application also included a proposed Development Agreement which, among other things, limited the actual development of the R/O/R acreage to a maximum of 13,000 square feet, and limited the total combined development of the R/O/R and ROG acreage to 26,000 square feet. On December 14, 2006, the City Council conducted its First Reading of the PC-700 Modified application, approving the application and setting the Second Hearing for the application for February 15, 2006. On February 6, 2006, the Pinellas County Commission, meeting as the County Planning Authority (the “CPA”), held a public hearing to consider the PC-700 Modified application. The CPA approved the PC-700 Modified application. On February 15, 2007, the City Council conducted its Second Reading public hearing of the PC-700 Modified application and voted to adopt Ordinance 679-L, amending the FLUM designation of the Subject Property from Institutional to R/O/R on 2.98 acres, R/OG on 2.98 acres, and RU on 12.02 acres (the “Plan Amendment”). Petitioners do not challenge the FLUM amendment for the RU portion of the Subject Property. On February 23, 2007, the City transmitted the adopted Ordinance 679-L, together with staff reports from the December 14, 2006, and February 15, 2007, public hearings and certain other pertinent information, to the Department for its review pursuant to Chapter 163, Florida Statutes, and Chapter 9J-5, Florida Administrative Code. On April 16, 2007, the Department published in the St. Petersburg Times newspaper its NOI to find the City’s Plan Amendment “in compliance.” Petitioners' Challenge The Petitioners assert that the FLUM amendment adopted by the City in Ordinance 679-L is not “in compliance” pursuant to Section 163.3184(1)(b), Florida Statutes, because: (1) the FLUM amendment is not based on adequate data and analysis as required by Section 163.3177(8), Florida Statutes, and Florida Administrative Code Rule 9J-5.005(2)(a) iii; and (2) the FLUM amendment is not internally consistent with specific objectives and policies of the City’s Plan as required by Section 163.3177(2), Florida Statutes, and Rule 9J-5.005(5)(a) and (b). The Petitioners’ challenge is centered on three specific objectives and policies contained in the Future Land Use Element ("FLUE") of the City’s Plan: Policy LU3.17, Objective LU4(2), and Objective LU18.iv The Petitioners assert that the challenged Plan Amendment is inconsistent with those objectives and policies and is not based on data and analysis. The Department and the Intervenors assert that those objectives and policies are not applicable, that the Plan Amendment is not inconsistent with those objectives and policies, and that the Plan Amendment is based on data and analysis. The Intervenors also assert that, even if the Plan Amendment were inconsistent with those objectives and policies, consistency with other goals, objectives, and policies in the plan should be "balanced" against the inconsistency and that the consistencies outweigh the inconsistencies, so that the Plan Amendment still would be "in compliance." The Petitioners and the Department do not subscribe to such a balancing of consistencies and inconsistencies, citing Dept. of Community Affairs v. Lee County and Leeward Yacht Club, LLC, AC-06-006, DOAH Case No. 06-0049GM, 2006 Fla. ENV LEXIS 158 (Admin. Comm'n Nov. 15, 2006). Pertinent City Comprehensive Plan Provisions The City's FLUE Policy LU3.17 states: The City has an adequate supply of commercial land use to meet existing and future needs. Future expansion of commercial uses shall be restricted to infilling into existing commercial areas and activity centers, except where a need can be clearly identified. The City's FLUE Objective LU4 states in pertinent part: The Future Land Use Plan and Map shall provide for the future land use needs identified in this Element: * * * Commercial – additional commercial acreage is not required to serve the future needs of St. Petersburg. An oversupply exists based upon the standard of 1 acre of commercial land for every 150 persons in the community. * * * 4. Mixed Use – developments are encouraged in appropriate locations to foster a land use pattern that results in fewer and shorter automobile trips and vibrant walkable communities. The City's FLUE Objective LU18 states: Commercial development along the City’s major corridors shall be limited to infilling and redevelopment of existing commercially designated frontages. Section 1.2.2 of the General Introduction to the City’s Plan describes the format of the elements of the Plan and includes the following pertinent sub-headings and language: 1.2.2.3 Goals, Objectives, and Policies The Goals, Objectives, and Policies have been developed in response to and in accordance with the needs and directions of growth and determined levels of service requirements as identified within the Inventory and Analysis which can be found in the accompanying 1989 Technical Support Documents [TSDs] and the 1996 Evaluation and Appraisal Report [EAR]. All objectives are designed to identify the measurable achievements necessary to support the related goal. In those cases, where the Objective is not specific and/or measurable, but rather, the actual specificity and measurability is found in the supporting policy(ies), the policy(ies) shall be used for the purposes of monitoring and evaluation. The policies are intended to act as implementation mechanisms identifying programs and procedures to be used to accomplish the related objective. This Comprehensive Plan is intended to be utilized as a document in its entirety. It shall hereby be established that no single goal, objective or policy or minor group of goals, objectives or policies, be interpreted in isolation of the entire plan. 1.2.2.5 Status and Use of the TSD and the EAR . . . . The 1989 TSD and the 1996 EAR are hereby referenced and established as the supporting data and analysis for this Comprehensive Plan. The TSD and the EAR may be used to assist in the interpretation of this comprehensive plan and to aid in the review of proposed changes to this plan. It should be updated as necessary to maintain the usability of the data and analysis as an interpretive and advisory aid. * * * 1.3.1.2 Competing Policies Where two or more policies are competing when applied to a particular set of factual circumstances, such conflict shall be resolved first by administrative interpretation of the Comprehensive plan policies. The objective of any such interpretation shall be to obtain a result which maximizes the degree of consistency between the proposed development or public sector activity and this Comprehensive Plan considered as a whole. The City’s Plan also includes the following pertinent definitions in Section 1.7: Commercial Uses - Activities within land areas which are predominately connected with the sale, rental, and distribution of products, or performance of services. * * * Mixed Use - A site that has a combination of different land uses, such as residential, office and retail. In addition, Policy LU3.1(B) of the City’s FLUE defines "Commercial and Mixed Use Categories" to include: Residential/Office General (R/OG) - allowing mixed use office, office park and medium density residential up to a floor area ratio of 0.5 and a net residential density of 15 dwelling units per acre. . . . Commercial General (CG) - allowing the full range of commercial uses including retail, office, and service uses up to a floor area ratio of 0.55. . . . Retail/Office/Residential (R/O/R) - allowing mixed use retail, office, service, and medium density residential uses generally up to a floor are ratio of 0.4 and a net residential density of 15 dwelling units per acre. . . . Finally, FLUE Policy LU3.1(D) defines "Public/Semi- Public Categories" to include: 2. Institutional (I) - Limited to designation of federal, state and local public buildings and grounds, cemeteries, hospitals, churches, and religious institutions and educational uses. Residential uses having a density not to exceed 12.5 dwelling units per acre, are also allowed. Residential equivalency uses are not to exceed 3 beds per dwelling unit. Non-residential uses permitted in the land development regulations are not to exceed a floor area ratio of 0.55. Consistency with Commercial Use Restrictions The Petitioners proved beyond fair debate that the Plan Amendment at issue increases "the supply of commercial land use to meet existing and future needs." FLUE Policy LU3.17. This is clear not only from the potential for commercial use in the mixed use R/O/R and R/OG future land use categories, but also from the City's inclusion of nine-tenths of the former's and one-tenth of the latter's acreage in the inventory of commercial land use for purposes of determining the "supply of commercial land use to meet existing and future needs" in FLUE Policy LU3.17 and the ratio described in FLUE Objective LU4.2. The question is whether the restrictions on commercial future land uses reflected in those Plan provisions apply to the mixed use categories of R/O/R and R/OG. Prior to adoption, the City's staff reports stated that the commercial restrictions do apply, and that the Plan Amendment at issue was inconsistent with those restrictions, but that the Plan Amendment was consistent with several other Plan provisions and "on balance, consistent with the goals, objectives and policies of the Comprehensive Plan." However, in this de novo proceeding, the staff reports are not controlling on the applicability of the commercial restrictions and the consistency of the FLUM amendments at issue with those restrictions. In the first place, in light of the contrary testimony of staff during the final hearing, the intent of staff in using the language in the reports is fairly debatable. Second, after the staff reports were prepared, significant testimony on need and demand for commercial land use at the particular location of the FLUM amendments at issue was presented during the final public hearing on the PC-700 Modified application on February 15, 2007, which could have changed staff's mind on at least some of the issues. Finally, the extent to which the City Council may have relied on the staff reports in determining that the Plan Amendment was "in compliance" is not clear from the evidence and is fairly debatable. The City now takes the position, along with the Department, that the restrictions on commercial future land use in FLUE Policy LU3.17 and Objective LU4.2 do not apply to R/O/R and R/OG because they are mixed use future land use categories, not commercial future land use categories. In support of this position, they point out that Objective LU4 treats "Mixed Use" and "Commercial" "future land use needs" differently and applies the restriction only to "Commercial" "future land use needs," while encouraging mixed use developments in appropriate locations. Several of the specific Plan provisions cited in the staff reports as being consistent with the Plan Amendment addressed the appropriateness of a mixed use development at the proposed location, including: FLUE Policy LU3.18, which states that "retail and office activities shall be located, designed and regulated so as to benefit from the access afforded by major streets without impairing the efficiency of operation of these streets or lowering the LOS [level of service] below adopted standards, and with proper facilities for pedestrian convenience and safety"; FLUE Policy LU3.4, which states that "[t]he Land Use Plan shall provide for compatible land use transition through an orderly land use arrangement, proper buffering, and the use of physical and natural separators"; FLUE Policy LU3.6, which states that "[l]and use planning decisions shall weigh heavily the established character of predominately developed areas where changes of use or intensity of development are contemplated"; FLUE Policy LU3.8, which seeks to "protect existing and future residential uses from incompatible uses, noise, traffic and other intrusions that detract from the long term desirability of an area through appropriate land development regulations"; and FLUE Policy LU3.5, which states that "[t]he tax base will be maintained and improved by encouraging the appropriate use of properties based on their locational characteristics and the goals, objectives and policies within this Comprehensive Plan." There also was considerable testimony at the hearing concerning the appropriateness of a mixed use development at the proposed location.v Petitioners also contend that the Plan Amendment is inconsistent with FLUE Objective LU18 concerning commercial development along major corridors. In favor of Petitioners' position, 66th Street North, where the Subject Property is located, is a major north-south corridor in the City. However, the Department and the Intervenors argue that the objective does not apply because the policies under it only specify 4th Street and Central Avenue and do not mention 66th Street. Taking all of the evidence and the City's Plan into consideration, including Sections 1.2.2.3, 1.2.2.5, and 1.3.1.2 of the General Introduction, it is found that Petitioners did not prove beyond fair debate that FLUE Policy LU3.17, Objective LU4.2, or Objective LU18 apply to the FLUM amendments at issue; even if those Plan provisions applied, Petitioners did not prove beyond fair debate that the FLUM amendments at issue do not constitute "infilling into existing commercial areas" or "infilling . . . of existing commercially designated frontages," or that "a need can[not] be clearly identified."vi All but one witness testified that, if those Plan provisions applied, the FLUM amendments would constitute commercial infill under the pertinent Plan provisions; the lone dissenter was using what he called a "narrow definition" of infill and agreed that the FLUM amendments would constitute commercial infill using the broader definition held by the majority view. There also was ample evidence that there was a clearly identified need for the FLUM amendments at issue, especially when considered along with the unchallenged RU FLUM amendment. Based on the foregoing findings on internal consistency, which is the context of Petitioners' data and analysis argument, Petitioners also did not prove beyond fair debate that the Plan Amendment was not based on data and analysis.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining that the City's Ordinance 679- L is "in compliance." DONE AND ENTERED this 5th day of October, 2007, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of October, 2007.
The Issue The issue is whether that portion of Plan Amendment 98-1ER known as LU-97-02 is in compliance.
Findings Of Fact Based upon all of the evidence, including the stipulation of counsel, the following findings of fact have been determined: Background In this land use dispute, Petitioners, Janet Bollum (Bollum) and Glenn and Mary Brewer (the Brewers), who are property owners within or near the City of Deland, contend that a portion of Plan Amendment 98-1ER adopted by Respondent, City of Deland (City), is not in compliance. The portion of the amendment under challenge, known as Plan Amendment LU-97-02, changes the land use on 39.56 acres of land owned by Intervenor, Marcia Berman, Trustee (Berman), to Highway Commercial. The property is currently under contract to be sold to Intervenor, Wal-Mart Stores East, Inc. (Wal-Mart), who intends to construct a Wal-Mart super store on a part of the site. Respondent, Department of Community Affairs (Department), is the state agency charged with the responsibility of reviewing comprehensive land use plans and amendments. Until 1997, the Berman property was located in the unincorporated area of Volusia County (County). Prior to 1994, it carried an Urban Medium Intensity land use designation. That year, the County redesignated the property as Industrial. In 1997, the City annexed the Berman property and revised its Future Land Use Map the following year to change the land use to Highway Commercial. This change was accomplished through the plan amendment under challenge. On May 1, 1998, the Department issued its Statement of Intent to Find Portions of Plan Amendment Not in Compliance. More specifically, it found that the new land use designation would "generate traffic which causes the projected operating conditions of roadways to fall below adopted level of service standards and exacerbates projected roadway deficiencies." The Department also found that the amendment was "not supported by or based on, and does not react in an appropriate way to, the best available data and analyses." In making these findings, the Department relied in part upon a traffic study prepared by "TEI" in 1998 which reflected that the City's traffic system did not have sufficient capacity to accommodate the new land use. The Department determination triggered this action. On May 27, 1998, Petitioners, and 82 other property owners, filed a paper styled "Petition for Administrative Hearing and Petition to Intervene" challenging the change of land use on the Berman property in numerous respects. The paper was treated as a petition to intervene and was later granted. After the case was temporarily abated in August 1998 pending efforts to settle the matter, in January 1999, a new traffic study was prepared for the City by Ghyabi, Lassiter & Associates (GLA study), which determined that the existing and planned City transportation network could accommodate the impacts from the development allowed under the amendment. All parties except Petitioners then executed a Stipulated Settlement Agreement in February and March 2000, which resolved all issues originally raised by the Department. Thereafter, the Department issued an Amended Notice of Intent to find the plan amendment in compliance. As required by Section 163.3184(16)(f), Florida Statutes (1999), the parties were realigned consistent with their respective positions. Through an Amended Petition filed by Petitioners on July 19, 2000, all original Petitioners except Bollum and the Brewers have been dismissed, and the factual issues in this case narrowed to two: (a) whether the recent traffic studies "demonstrate a transportation concurrency failure, and a failure to fall within a lawful transportation concurrency exception under F.S. 163.3180(5)(c) and (d)"; and (b) whether the "plan amendment data and analyses continue a failure to show demand for additional 'highway commercial' land, as originally asserted by the Department's Notice of Intent." Standing of the Parties Bollum owns property, resides within, and owns and operates a business within the City. She also submitted written and oral comments to the City while the amendment was being adopted. The parties have stipulated that she is an affected person and thus has standing to participate. The Brewers own property and reside in an unincorporated area of the County in the immediate vicinity of the proposed plan amendment. They also reside within what is known as the "Greater Deland Area," as defined by Chapter 73-441, Laws of Florida. However, they do not own property, reside within, or own and operate a business within the corporate limits of the City, and thus they lack standing to participate. The parties have stipulated that Intervenors Berman and Wal-Mart have standing to participate in this proceeding. The Amendment The Berman property lies on the eastern side of U.S. Highway 17 just north of the intersection of U.S. Highways 17 and 92, approximately three miles north of the City's central business district. The land is currently undeveloped. Prior to being annexed by the City, the property was located within the unicorporated area of the County, just north of the City limits. The earliest County land use designation was Urban Medium Intensity, a primarily residential land use classification which also allowed some commercial development, including small neighborhood shopping centers. In 1993, the County began a comprehensive examination of land use and zoning restrictions in the vicinity of the Berman property. In May 1994, it redesignated the Berman property from Urban Medium Intensity to Industrial. This use allowed not only industrial development, but also some commercial development. Before the Berman property was annexed by the City, it was depicted on the City's Urban Reserve Area Map (map). That map established advisory designations for unincorporated County land abutting the City, and was meant to be a guide for City land use decisions when property was annexed. The property was designated on the map as approximately one-half Commercial and one-half Industrial. In 1997, the Berman property was annexed by the City. Because the City was then required to place a land use designation on the property, on May 16, 1998, it adopted Amendment 98-1ER, which redesignated the property from Volusia County Industrial to City Highway Commercial. The new mixed-use designation allows "a wide range of retail and service and office uses," as well as up to twenty percent residential land uses, including multi-family manufactured housing developments. Thus, the Highway Commercial land use designation is meant to accommodate major shopping centers like the one proposed by Wal-Mart. Transportation issue In their Amended Petition, Petitioners allege that accepting as fact the "most recent traffic studies," those studies still "demonstrate a transportation concurrency failure, and a failure to fall within a lawful transportation concurrency exception under F.S. 163.3180(5)(c) and (d)." The "most recent traffic studies" are the GLA study, and it shows that the existing and planned City transportation network can accommodate the traffic impacts arising from development allowed under the plan amendment. Some of the transportation impacts from the expected development on the Berman property will affect roadways within an area of the City that was formally designated in May 1992 as a Special Transportation Area (STA) or road segments with specialized level of service (LOS) standards. The STA includes the central business district and certain outlying areas essentially bounded by Minnesota Avenue, Amelia Avenue, the rear property lines of properties along the north side of New York Avenue (State Road 44), South Hill Avenue, Beresford Avenue, Boundary Avenue, and Clara Avenue, which extend to approximately one mile from the Berman property. None of the roadways within the STA are on the Florida Intrastate Highway System. Rule 9J-5.0055(2), Florida Administrative Code, requires that the City adopt LOS standards on roadways within its planning jurisdiction (which are not on the Florida Intrastate Highway System), including the disputed portion of U.S. Highways 17 and 92. The applicable LOS standards and STA provisions are found in Policies 3.1.7 and 3.1.10, respectively, of the Transportation Circulation Element of the plan. They read as follows: 3.1.7 For those roadways listed in Policy 3.1.6 [which include U.S. Highways 17 and 92], the City of Deland may permit development to occur until the peak hour traffic volumes exceed a 20% increase over the peak traffic counts published in the FDOT's 1989 Traffic Data Report. 3.1.10 As a result of FDOT's approval of the STA designation for US 17/92 (Woodland Boulevard), from Beresford Avenue to Michigan Avenue, and SR 44 (New York Avenue), from SR 15A to Hill Avenue, the following maximum LOS and/or traffic volumes shall be permitted. ROADWAY SEGMENT US 17/92, from Beresford to Michigan = 22,028 SR 44, from SR 15A to US 17/92 = LOS E SR 44, from US 17/92 to Hill = LOS E *The proposed maximum traffic volume is compatible with the maximum LOS for this section of roadway, as stated in Policy 3.1.7. These two policies have been found to be in compliance and are not subject to challenge in this proceeding. Although the STA is identified as a specific area, the City's Comprehensive Plan anticipates that development from outside of this area will impact the STA. As noted above, however, the undisputed GLA study demonstrates that the plan amendment will not allow development which would cause these adopted LOS standards to be exceeded. The STA was approved in May 1992, or prior to the enactment of Section 163.3180, Florida Statutes (1993), which allows certain exceptions from the otherwise blanket requirement to adopt and enforce a transportation LOS standard for roadways. Two planning tools made available to local governments by Section 163.3180(5), Florida Statutes (1993), are a Transportation Concurrency Exception Area (TCEA) and a Transportation Concurrency Management Area, both of which allow exceptions to transportation concurrency requirements. The practical effect of a TCEA is to allow development to proceed without having to comply with transportation concurrency. Petitioners essentially contend that the STA created by the City for the central business district and certain outlying areas is "the substantial equivalent of a TCEA," and thus it should be treated as one for purposes of this proceeding. They go on to argue that while the City may grant an exception to concurrency requirements for transportation facilities for projects located within a TCEA, those benefits cannot be extended to any other area, including the Berman property. Based on this premise, Petitioners conclude that without the benefit of the TCEA exception, the anticipated traffic from the new development on the Berman property will cause a "continuation of a [LOS] failure on the constrained segments of US 17/92 and on the unconstrained segment from SR44 to Wisconsin Avenue," in violation of the law. Petitioners' contention is based on an erroneous assumption. The evidence shows that the City has never adopted a TCEA. Neither has the STA "transformed" into a TCEA, as Petitioners suggest. Moreover, as noted above, the undisputed GLA study shows rather clearly that the plan amendment will not allow development which would cause the adopted LOS standards to be exceeded. Petitioners further contend that the plan amendment is somehow inconsistent with the transportation exception requirements in Section 163.3180(5)(b) and (c), Florida Statutes (2000). However, these provisions apply to developments "which pose only special part-time demands on the transportation system[,]" that is, "one that does not have more than 200 scheduled events during the calendar year and does not affect the 100 highest traffic volumes." The evidence shows that the Highway Commercial land use category is not designed for such developments and, in fact, encourages far more intense uses. Is There a Need for Additional Commercial Land? Petitioners next contend that "the plan amendment data and analyses continue a failure to show demand for additional 'highway commercial' land, as originally asserted by the Department's Notice of Intent and not resolved by the Compliance Agreement." In the immediate vicinity of the Berman property, near the intersection of U.S. Highways 17 and 92 north of the City, "there is an emerging trend of 'regional-type' commercial developments." This area is already partially developed with commercial uses, and it has additional areas depicted for future commercial and industrial use. There are no other parcels in the City, especially in this area, of a sufficient size to accommodate this type of regional commercial development. There are numerous ways to project the raw, numerical need for commercial land in the City. The City's Comprehensive Plan, its Evaluation and Appraisal Report, and the GLA study all contain statements regarding projected population and employment, each portraying a slightly different result. In fact, Petitioners' own expert criticized the numbers used in these documents as being unreliable and suspect. The need calculus basically involves projecting population over a ten-year planning period and then allocating commercial, residential, and other land uses in an amount to match that projection. For the reasons set forth below, this process is imprecise, and it must be tempered by other factors. First, the planner must project population over the ten-year planning timeframe. Any mistake in this projection will skew the numbers. Second, employment ratios used in the calculus can change from year to year, especially in a smaller community. Also, other planning objectives are inherently subject to change year by year. Given this imprecision and changing market demands, it is appropriate for professional planners to overallocate land uses. An excess allocation of twenty-five percent (or an allocation factor of one hundred and twenty-five percent) is recognized by professional planners as being appropriate. The evidence supports a finding that this amount is reasonable under the circumstances present here. There are numerous professionally acceptable ways in which to allocate land uses. The City has not adopted a particular methodology in its Comprehensive Plan. The specifics of the plan amendment and the City's Comprehensive Plan make application of a strict numerical calculus even more difficult. The prior designation of the property was Industrial, which is not a pure industrial category, but actually allowed up to thirty percent of commercial uses. The amendment here simply changes the land use from Industrial, with some commercial uses allowed, to a mixed-use Highway Commercial designation. As noted earlier, the City's Comprehensive Plan anticipates regional commercial uses in the area of the Berman property. Finally, the parcel is relatively small (less than 40 acres) and is embedded within an urban area. Given the uncertainty of a numerical calculation of commercial need in the City, the size and location of the property, the property's inclusion in an urban area, and the surrounding commercial land uses, the evidence supports a finding that either Industrial or Commercial would be an appropriate land use for the property. The evidence further supports a finding that the need question is not a compliance issue here and does not support a finding that the plan amendment is not in compliance.
Recommendation Based on the Foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining Plan Amendment 98-1ER adopted by the City of Deland by Ordinance Number 98-07 on March 16, 1998, to be in compliance. DONE AND ENTERED this 20th day of November, 2000, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of November, 2000. COPIES FURNISHED: Steven M. Siebert, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 100 Tallahassee, Florida 32399-2100 C. Allen Watts, Esquire Cobb, Cole & Bell Post Office Box 2491 Daytona Beach, Florida 32115 Shaw P. Stiller, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 315 Tallahassee, Florida 32399-2100 F. Alex Ford, Jr., Esquire Landis, Graham, French, Husfeld, Sherman & Ford, P.A. Post Office Box 48 Deland, Florida 32721-0048 Mark A. Zimmerman, Esquire James, Zimmerman, Paul & Huddleston Post Office Drawer 2087 Deland, Florida 32721-2087 David L. Powell, Esquire Hopping, Green, Sams & Smith, P.A. Post Office Box 6526 Tallahassee, Florida 32314 Margaret E. Bowles, Esquire Margaret E. Bowles, P.A. 205 South Hoover Street Suite 402 Tampa, Florida 33609 Cari L. Roth, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325 Tallahassee, Florida 32399-2100
