The Issue The issue in this case is whether comprehensive plan future land use map amendment (FLUMA) 07-L25, adopted by Marion County Ordinance 07-31 on November 20, 2007, which changed the FLUM designation on 378 acres of Urban Reserve and on 17.83 acres of Rural Land to Medium Density Residential, is "in compliance," as defined in Section 163.3184(1)(b), Florida Statutes.1
Findings Of Fact The parcel that is the subject of the FLUMA at issue (the Property) is approximately 395.83 acres in size. The existing FLUM designation for 378 acres of the Property is Urban Reserve, and the remaining 17.3 acres are designated as Rural Land. Both designations allow a maximum of 1 dwelling unit per 10 acres. The FLUMA would change the designation of the entire parcel to Medium Density Residential (MDR). MDR generally allows up to four dwelling units per acre. However, Future Land Use Element (FLUE) Policy 12.5.k, which also was adopted as part of County Ordinance 07-31, limits the maximum density on the Property to two dwelling units per acre. FLUE Policy 12.5.k also requires: that development on the Property "be served by central potable water and central sanitary sewer services available concurrent with development" and be a Planned Unit Development "to address site design, buffering, and access issues"; and that NW 90th Avenue be reconstructed from U.S. Highway 27 north to the north-eastern corner of the Property and that all traffic facility improvements needed at the NW 90th Avenue/U.S. 27 intersection, including signalization if approved by the Florida Department of Transportation, be constructed prior to the issuance of any certificates of occupancy for the Property. Finally, with respect to the 17.3 acres formerly designated as Rural Land, FLUE Policy 12.5.k defers compliance with the County's Transfer of Development Rights (TDR) Program until application for assignment of a zoning classification for the land. Petitioners' Challenge Intervenors own the Property. Petitioners own property nearby in Marion County. Intervenors and Petitioners commented on the proposed FLUMA between transmittal to DCA and adoption by the County. Petitioners contend: The FLUMA is not consistent with the stormwater drainage, retention, and management policies contained in Policies 1.1.a. and 1.1.d. of the Natural Groundwater Aquifer Recharge Sub-Element of the Infrastructure Element of the Comprehensive Plan. MDR is not suitable or compatible with existing and planned development in the immediate vicinity, as required by FLUE Policy 12.3 of the Comprehensive Plan. The Board of County Commissioners failed to evaluate the FLUMA's impact on “the need for the change” as provided in FLUE Policy 12.3 of the Comprehensive Plan. The FLUMA fails to take into account its impact on “water quality and quantity, the availability of land, water and other natural resources to meet demands, and the potential for flooding,” as required by Section 187.201(15)(b)6., Florida Statutes. The FLUMA is not consistent with Transportation Policy 1.0 of the Comprehensive Plan, which states: "Marion County shall create and maintain transportation facilities that operate in a safe and efficient manner within an established level of service." The FLUMA is not consistent with the State's Comprehensive Plan in that it does not "ensure that new development is compatible with existing local and regional water supplies," as required by Section 187.201(7)(b)5., Florida Statutes. The FLUMA does not direct development away from areas without sediment cover that is adequate to protect the Floridan Aquifer and does not prohibit non-residential uses within 200 feet of a sinkhole, solution channel, or other karst feature, in violation of FLUE Policy 4.2 of the Comprehensive Plan. The FLUMA does not comply with Section 187.201(7), Florida Statutes, concerning the protection of surface and ground water quality in the State. Recharge Sub-Element Policy 1.1.a. and d. Policy 1.1 of the Natural Groundwater Aquifer Recharge Sub-Element of the Infrastructure Element of the Marion County Comprehensive Plan provides in part: The County’s land development regulations shall implement the following guidelines for stormwater management consistent with accepted engineering practices by October 1, 2007: Stormwater retention/detention basin depth will be consistent with the water management district's storm water requirements for Karst Sensitive Areas so that sufficient filtration of bacteria and other pollutants will occur. Avoidance of basin collapse due to excessive hydrostatic pressure in Karst Sensitive Areas shall be given special consideration. * * * d. Require the use of swales and drainage easements, particularly for single family residential development in Karst Sensitive Areas. These are requirements for land development regulations (LDRs); they do not apply to comprehensive plan amendments. In any event, the evidence did not prove that the site is unsuitable for the density allowed under the adopted FLUMA due to karst features. The admissible evidence presented by Petitioners regarding stormwater management in karst topography generally related to flooding problems on the property contiguous to the Property, and to a karst feature referred to as the “63rd Street Sinkhole,” which is located in the general vicinity of the Property. Fay Baird, an expert hydrologist called by Petitioners, testified that the 63rd Street Sinkhole allows stormwater run- off to enter the upper aquifer. Ms. Baird testified generally of the problems and concerns regarding development and stormwater management systems in karst topography. She testified that the Property should be properly inventoried, that specific karst features should be identified, and that any stormwater system designed or developed should take into account karst features to protect against groundwater contamination and flooding. She testified that she had not been on the Property, had not seen or reviewed core borings or other data to determine the depth and nature of the sub-surface, and was not in a position to provide opinions as to whether or not a particular stormwater management system would or could adequately protect against her concerns. Intervenors’ expert, Richard Busche, testified that a stormwater management plan like the one recommended by Ms. Baird was being developed. Compatibility under FLUE Policy 12.3 FLUE Policy 12.3 provides in pertinent part: Before approval of a future land use amendment, the applicant shall demonstrate that the proposed future land use is suitable, and the County will review, and make a determination that the proposed land use is compatible with existing and planned development in the immediate vicinity . . . . Petitioners argued that the proposed MDR development of the Property is incompatible with surrounding agricultural uses. Actually, the Property is surrounded by a mixture of agricultural and residential uses, including residential subdivisions, a golf course, and scattered large-lot residential and equestrian uses. The properties immediately to the south and east of the Property are developed residential properties and are designated MDR. Before the FLUMA, most of the Property was designated Urban Reserve under the County's Comprehensive Plan. Such land "provides for expansion of an Urban Area in a timely manner." FLUE Policies 1.24.B and 2.18. "For an Urban Reserve Area to be designated an Urban Area, it must be compact and contiguous to an existing Urban Area, and central water and sewer must be provided concurrent with development within the expanded area." FLUE Policy 2.18. The Property is compact and is contiguous to existing Urban Area designated MDR. This indicates that the County already has planned for timely conversion of the Urban Reserve land on the Property to urban uses, including MDR. It also means that the County already has determined that at least certain urban uses, including MDR, are compatible with adjacent agricultural uses. The Property is in the receiving area under the County's Farmland Preservation Policy and TDR Program in FLUE Objectives 13.0 and 13.01 and the policies under those objectives. This means that the County already has determined that residential density can be transferred to the Property from the Farmland Preservation sending areas to increase residential density up to one dwelling unit per acre. See FLUE Policy 13.6. This would constitute Low Density Residential, which is an urban use under the County's Comprehensive Plan. See FLUE Policy 1.24.A. By establishing the Farmland Preservation Policy and TDR Programs, the County already has determined that Low Density Residential is compatible with adjacent Rural Land. In addition, Low Density Residential clearly is compatible with MDR. Although not raised in the Petition, Petitioners argued that the Urban Reserve and Farmland Preservation eastern boundary was improperly moved west to NW 90th Avenue. However, that change was made prior to the adoption of Ordinance 07-31 and the FLUMA at issue in this case and is not a proper subject of this proceeding. Demonstration of Need under FLUE Policies 13.2 and 12.3 FLUE Policy 13.2 provides: The Transfer of Development Rights program shall be the required method for increasing density within receiving areas, unless, through the normal Comprehensive Plan Amendment cycle, an applicant can both justify and demonstrate a need for a Future Land Use Map (FLUM) amendment. FLUE Policy 12.3 provides: Before approval of a future land use amendment, . . . the County . . . shall evaluate its impact on: The need for the change; The availability of facilities and services; The future land use balance; and The prevention of urban sprawl as defined by Rule 9J-5.006(5)(g), Florida Administrative Code. The evidence proved that the County interprets FLUE Policy 12.3 to require need and future land use balance to be assessed within the planning districts it has established. There is no need for additional MDR in the County's Planning District 5, where the Property is located. To accommodate the projected population increase in Planning District 5 by 2010, which is the planning horizon for the County’s Comprehensive Plan, an additional 644 dwelling units are needed. There are 1,893 vacant acres of MDR available in Planning District 5. At four units per acre allowed in MDR, the County has an available supply of 7,572 MDR dwelling units in Planning District 5. In the absence of a need in Planning District 5, the County relied on a need demonstration prepared for the Intervenors by Fishkind and Associates.6 Besides being a County-wide analysis instead of a planning district analysis, the Fishkind analysis assumed a planning horizon of 2015, rather than the 2010 horizon established in the Comprehensive Plan. Finally, the Fishkind analysis applied an allocation factor to the total projected need for residential use, most of which already is supplied, resulting in a projection of residential far in excess of the incremental need for additional residential land by 2015, much less by 2010. The result of the Fishkind approach was to allocate enough land for residential use to meet the County-wide projected incremental need for additional residential land use for approximately 45 years, which is five times the calculated incremental need for 2015. Even assuming that a County-wide demonstration of need complied with Marion County's Comprehensive Plan, this is much too high an allocation ratio to use to meet the incremental need projected for a 2015 plan, much less for a 2010 plan. The expert for Intervenors, Stanley Geberer, defended the Fishkind analysis in part by stating that it was comparable to demonstrations of need accepted by DCA in other cases. However, there was no evidence that the facts of those other cases were comparable to the facts of this case. Mr. Geberer also asserted that holding the County to its 2010 planning horizon would make it impossible for the County to plan for the future. However, nothing prevents the County from revising its Comprehensive Plan to plan comprehensively for a longer timeframe. There was no evidence of any other circumstances that would demonstrate a need for the FLUMA at issue in this case. State Comprehensive Plan Policy 187.201(15)(b)6. Petitioners did not prove that the FLUMA fails to take into account its impact on "water quality and quantity, the availability of land, water and other natural resources to meet demands, and the potential for flooding." To the contrary, the evidence was that those items were taken into account as part of the FLUMA. (However, as to the FLUMA's impact on the availability of land to meet demands, see "Demonstration of Need under FLUE Policies 13.2 and 12.3," supra.) Transportation Element Objective 1.0 Transportation Element Objective 1.0 provides: Marion County shall create and maintain transportation facilities that operate in an efficient and safe manner within established levels of service. Petitioners presented no expert testimony or admissible evidence that the FLUMA will change established levels of service or result in transportation facilities operating in an unsafe or inefficient manner. Intervenors presented the testimony of Jonathan Thigpen, an expert traffic engineer, who prepared and submitted to the County a Traffic Impact Study and testified that the FLUMA would not change established levels of service or result in transportation facilities operating in an unsafe or inefficient manner. The ultimate need for transportation improvement, such as turn lanes and traffic lights to mitigate the impacts of development under the FLUMA, will be determined at later stages of development. Petitioners suggested that the FLUMA will result in delays caused by additional traffic, frustrate drivers waiting to turn east on U.S. 27, and induce large numbers of them to seek an alternative route to the north through agricultural areas, some of which have inadequate slag roads. However, Petitioners failed to prove that this result is likely. State Comprehensive Plan Policy 187.201(7)(b)5 Petitioners presented no evidence that the designation of MDR on the Property is incompatible with existing local and regional water supplies. The evidence was that adequate local and regional water supplies exist. Even if they did not exist, the consequence would be less development than the maximum allowed by the FLUMA. FLUE Policy 4.2 FLUE Policy 4.2 provides in pertinent part: In order to minimize the adverse impacts of development on recharge quality and quantity in high recharge Karst sensitive and springs protection areas, design standards for all development shall be required and defined in the LDRs to address, at a minimum, the following: * * * f. Directing development away from areas with sediment cover that is inadequate to protect the Floridian [sic] Aquifer. * * * h. Prohibiting nonresidential uses within 200 feet of a sinkhole, solution channel, or other Karst feature. This policy sets forth requirements for the content of LDRs, not FLUMAs. Petitioners presented no evidence that sediment cover on the Property is inadequate to protect the Floridan Aquifer or that any non-residential uses would be constructed within 200 feet of a sinkhole, solution channel, or other karst feature under the FLUMA. Marion County has adopted amendments to its Comprehensive Plan to protect springs and karst features.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department determine the FLUMA at issue in this case to be not "in compliance" and take further action as required by Section 163.3184(9)(b), Florida Statutes. DONE AND ENTERED this 4th day of February, 2009, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 2009.
The Issue The issue in this case is whether Sumter County comprehensive plan amendment 94D1 adopted on September 20, 1994, by Ordinance No. 94-6 is in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact have been determined: Background The parties Respondent, Sumter County (County), is a local government subject to the comprehensive land use planning requirements of Chapter 163, Florida Statutes. That chapter is administered and enforced by respondent, Department of Community Affairs (DCA). The DCA is charged with the responsibility of reviewing comprehensive land use plans and amendments made thereto. Petitioners, T. D. Farnsworth and James E. Boyd, own property and reside within the northern part of unincorporated Sumter County. Petitioner, Sumter Citizens Against Irresponsible Development (SCAID), is an organization founded by a small group of citizens for the purposes of preserving the "rural lifestyle" of the County, preventing urban sprawl, and ensuring "that development will not be a burden to the taxpayers" of the County. Farnsworth is president of the group while Boyd serves as its treasurer. By stipulation of the parties, petitioners are affected persons within the meaning of the law and have standing to bring this action. Intervenor, Villages of Lake Sumter, Inc. (Villages), is a Florida corporation and the owner and developer of the Tri-County Villages development of regional impact, which is the subject property of this proceeding. Villages submitted oral and written comments during the plan amendment review and adoption proceeding and thus has standing as an affected person to participate in this proceeding. Tri-County Villages To place this dispute in proper perspective, it is necessary to trace the history of the development which has occurred in and around the subject property. As noted earlier, intervenor is the owner and developer of the Tri- County Villages development located in unincorporated Sumter County. Development which predated the existing Tri-County Villages development commenced in approximately 1968 with Orange Blossom Garden North (OBGN). OBGN was an approximately 1,000-acre project owned and operated by Orange Blossom Hills, Inc. as a mobile home retirement community located mostly in the Town of Lady Lake, Florida. That community lies in the northwestern corner of Lake County, which adjoins the northeastern corner of Sumter County. Because the development of OBGN commenced prior to July of 1973, it is vested for purposes of development of regional impact (DRI) review pursuant to Section 380.06(20), Florida Statutes. In 1987, Orange Blossom Hills, Inc. submitted an Application for Development Approval (ADA) with the Town of Lady Lake which requested authorization to develop Orange Blossom Gardens South (OBGS). The OBGS development was an approximately 595-acre extension of the vested OBGN retirement community and was determined by the DCA and Town of Lady Lake to be a DRI. On January 18, 1988, the Town of Lady Lake approved the proposed OBGS development. In 1989, Orange Blossom Hills, Inc. submitted to the Town of Lady Lake and the County an ADA requesting a substantial deviation from the OBGS DRI. The substantial deviation request sought authorization to develop Orange Blossom Gardens West (OBGW). OBGW was planned as an approximately 1,700-acre extension to the OBGS DRI. The Town of Lady Lake approved the substantial deviation request through the issuance of an Amended Development Order on May 7, 1990. The County approved the development within its jurisdiction on May 29, 1990. In September 1993, intervenor, as successor to Orange Blossom Hills, Inc., submitted an ADA to the County which requested a substantial deviation from the OBGS and OBGW DRI's. By submitting this latest development, intervenor sought to add approximately 1,960 acres to the existing OBGS and OBGW DRI's and modify the development already approved by adding a total of 6,250 residential units and 910,000 square feet of commercial square footage. The overall development was renamed Tri-County Villages. The development order approving the substantial deviation for Tri-County Villages was adopted by the County on September 20, 1994. The Challenged Amendment On September 20, 1994, or prior to approval of the Tri-County Villages development substantial deviation, but in conjunction with it, the County adopted plan amendment 94D1 by Ordinance No. 94-6. On November 10, 1994, the DCA determined the amendment to be in compliance. That amendment amended the plan's Future Land Use Map (FLUM) to revise the land use designations on approximately 1,960 acres of land. Specifically, the plan amendment designated as Planned Unit Development (PUD) all areas of the approved OBGW DRI and the additional 1,960 acres referred to in Exhibit 1 of 94D1 as parcels 5 and 8. Prior to the amendment, parcels 5 and 8 had been designated predominantly as agricultural, with small pockets of rural residential. The plan amendment also revised the FLUM by extending the urban expansion area to include all of parcels 5 and 8. Prior to the amendment, only a small section of parcel 8 was included in the urban expansion area. The plan amendment further included several textual revisions to the Future Land Use Element (FLUE), including a revision to FLUE Policy 1.5.7 concerning the ratio of commercial square footage to residential units and the addition of FLUE Objective 1.14 and Policies 1.14.1 - 1.14.6, which essentially incorporated the concept of sector planning into the plan. Finally, the plan amendment revised Policy 2.1.5 of the Sanitary Sewer Element which, subject to submission of appropriate data and analysis, and Department of Environmental Protection approval, reduced the established level of service for sanitary sewer throughout the Tri-County Villages development. The Tri-County Villages DRI and ADA and plan amendment are related in that Section 380.06(6), Florida Statutes, requires that the local government's review of the DRI and corresponding comprehensive plan amendment be initiated and concluded at the same time. In the instant case, the Tri-County Villages ADA served as much of the background data and analysis for the plan amendment. The Tri-County Villages DRI also served as the sector plan for the area covered by the amendment. In addition to the voluminous data and analysis included in the Tri- County Villages ADA, the plan amendment also included detailed data and analysis. The data and analysis accompanying the amendment included a compatibility and land use suitability analysis, a soils analysis, an evaluation of urban sprawl related issues, an analysis of environmental considerations, a population and housing analysis, a concurrency analysis, and an analysis to ensure that the amendment was consistent with the adopted comprehensive plan. The data and analysis collectively demonstrated that the urban development proposed by the amendment was appropriate for the designated area. C. Is the Plan Amendment in Compliance? In their proposed recommended order, petitioners summarize their objections to the plan amendment as follows: (a) the amendment fails to protect agricultural lands, (b) the amendment encourages urban sprawl, (c) the future land use map is internally inconsistent, (d) there is no demonstrated need for 1,960 acres of PUD land use, (e) PUD is not a valid land use category, (f) the amendment does not ensure adequate fire and emergency medical services, (g) the County failed to coordinate with the local school board, (h) there is no reasonable protection from flooding, (i) the amendment does not provide adequate parks and recreational facilities, (j) affordable housing needs are not met, and there is no requirement that the developer install water and sewer facilities at its own expense. These contentions will be discussed separately below. Protection of agricultural lands Under the amendment, 1,960 acres of agricultural land will be converted to urban type uses. Petitioners contend that the amendment fails to protect agricultural land as required by FLUE objective 7.1.2 and Rule 9J- 5.006(5)(g)5., Florida Administrative Code. The cited objective "establishes agriculture as the primary use outside of the urban expansion area" and "insures retention of agricultural activities." If the plan amendment fails to "adequately protect adjacent agricultural areas," the cited rule considers this failure to be a prime indicator that the amendment does not discourage the proliferation of urban sprawl. The rule and objective do not prohibit the conversion of agricultural lands to urban uses. Indeed, FLUE objective 1.2 and the corresponding policies allow for the conversion of suitable agricultural lands as the need for additional urban land is demonstrated. The policies also require that the conversion be done in a well planned, orderly and logical fashion based on need and suitability. The agricultural lands being converted as a result of the plan amendment are appropriate for conversion. The plans, FLUE data and analysis demonstrate that one of the best areas for urban development in the County is the northeast portion of the County which covers the agricultural lands in the plan amendment. This determination was based on an extensive analysis of various factors including soil suitability, environmental constraints, and other planning criteria such as proximity to existing urbanized areas. The evidence establishes that the conversion of agricultural land contemplated by the plan amendment was justifiable because of the extent of urban development already existing in the area and the urban infrastructure currently in place. In addition, future populations will be directed away from the remaining agricultural lands throughout the County and to the development proposed by the plan amendment. The open space required by the PUD and Tri- County Villages amended development order sector plan will also serve to buffer and ensure compatibility of land covered by the plan amendment and the adjacent agricultural and rural lands. In view of the above, it is found that petitioners have not shown to the exclusion of fair debate that the plan amendment fails to protect agricultural land. Urban sprawl In the same vein, petitioners contend that the amendment fails to discourage urban sprawl because of the conversion of 1,960 acres of agricultural land to urban uses. In support of this contention, they cite a number of provisions within Chapter 9J-5, Florida Administrative Code, all dealing with urban sprawl, and which have allegedly been violated. They also point to the fact that large portions of the existing development have not been sold or built out, only 2 percent of the 1,960 acres will be devoted to commercial land use, the multiplier for the plan amendment is in excess of 1.25, which is an indicator of urban sprawl, and no future public facilities and services are planned for the lands covered by the amendment prior to its adoption. The plan amendment includes an evaluation of urban sprawl. That evaluation references FLUE policy 1.2.5.(a), which was adopted by the County specifically as a mechanism for discouraging urban sprawl. A review of that policy indicates that, for a PUD to be allowed in an agricultural area, it must score approximately 50 points based on factors including, but not limited to, proximity to the urban expansion area, proximity to urban services, including water, sewer, and roads, and proximity to other services such as fire protection and emergency medical services. If a proposed amendment or PUD failed to score 50 points, it was deemed to encourage urban sprawl and would not be approved by the County. The plan amendment scored 130 points, well in excess of the 50 point threshold. In addition to satisfying FLUE policy 1.2.5.(a), the plan amendment is consistent with FLUM maps VII-18A and VII-18C, which are the future land use constrained area overlay and urban sprawl evaluation overlay, respectively. As the FLUE data and analysis indicate, these maps were prepared for the purpose of directing urban development into areas most suitable for such development. Map VII-18A demonstrates that the land included in the plan amendment has only slight limitations for urban development. Similarly, Map VII-18C indicates that the land has only slight limitations in regard to urban sprawl. In fact, portions of land covered by the plan amendment are already within an established urban expansion area which is the OBGW DRI. Finally, the PUD mixed land use category and sector plan concept adopted by the plan amendment are planning methods specifically recognized and encouraged by prior DCA policy as reflected in the DCA's Technical Memo Special Edition 4-4 and the urban sprawl provisions incorporated into Rule 9J- 5.006(5)(l), Florida Administrative Code, effective May 18, 1994, as methods of discouraging urban sprawl. Indeed, the rule provides in part that mixed use development and sector planning . . . 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. Given the above, it is found that petitioners have not shown to the exclusion of fair debate that the plan amendment encourages urban sprawl. The consistency of the future land Petitioners next argue in general terms that the FLUM does not "reflect policies which call for maintaining agricultural lands, discouraging urban sprawl, promoting land use compatibility, protection from flooding, providing for adequate public recreation facilities, and other objectives," and thus it is internally inconsistent. The FLUM series in the plan as well as the FLUM series as amended by the plan amendment is a pictorial representation of the goals, objectives, and policies of the comprehensive plan. In the absence of any credible evidence to the contrary, it is found that petitioners have failed to show to the exclusion of fair debate that the FLUM is internally inconsistent as alleged in their petition. Demonstrated need Petitioners next allege that the plan amendment "is premature in time and fails to provide demonstrated need" as required by various provisions within Chapter 9J-5, Florida Administrative Code. They further allege that the FLUM "is not based upon adequate surveys, studies, or data regarding the amount of land needed to accommodate anticipated growth." Initially, it is noted that the data and analysis in the plan are not subject to the compliance review process. Chapter 163, Florida Statutes, authorizes the DCA in a compliance review to determine only if the plan or plan amendment is based on appropriate data and analysis and whether the data was collected in a professionally acceptable manner. Planning methodologies used in analysis of the data, such as the calculation of a multiplier, must also be prepared in a professionally acceptable manner. In addition, the DCA may not choose one methodology over another. At hearing, petitioners raised issues concerning the methodology used in calculating the County's residential land use allocation multiplier and contended that other factors such as mortality rates and resale figures should have been used in calculating the multiplier. The preparation of the multiplier in issue came as a result of the DCA's Objections, Recommendations and Comments report. That report recommended that the County provide an analysis which demonstrated that the land use change requested in the plan amendment was based on the amount of additional land needed to accommodate the projected population during the planning time frame (the year 2014) established by the Tri-County Villages Amended Development Order sector plan. Based on historic data, the County calculated a multiplier which depicted the allocation of residential land countywide. The multiplier was 1.87, which means that the County allocated residential land uses approximately 87 percent above its demonstrated need for the planning period. The evidence shows that, in order to allow some degree of development flexibility, a local government will routinely allocate more land than is actually needed. Indeed, a multiplier of 1.87 is low when compared to the other multipliers found in compliance in adjacent local governments as well as in other local governments statewide. In actuality, a 1.87 multiplier is not really the most accurate depiction of the allocation of residential land county-wide because the population for OBGW and the other PUD in the County was not included in the calculation. In an effort to provide a more accurate multiplier, the County added to the equation the projected population for OBGW and the PUD. The resulting revised multiplier equalled 1.46. Petitioners developed a multiplier of their own of 1.88. However, they failed to show that the County's multiplier was not developed in a professionally acceptable manner. Moreover, petitioners' methodology was unacceptable because it did not project its population over the correct planning horizon. Petitioners failed to consider the 2014 planning horizon established by the Tri-County Villages Amended Development Order sector plan which controls the development of land covered by the plan amendment. Instead, petitioners multiplier incorrectly used the 2001 planning horizon established by the plan. In addressing the need for additional residential allocation, the amount of residential land allocated must be a reflection of the population expected through the end of the Tri-County Villages sector plan 2014 planning horizon. The type of development contemplated by the plan amendment and the additional population has not previously occurred in the County. Since development of OBGW commenced in 1992, the building permits issued in the County have increased by 94 percent. Much of this increase can be attributed to OBGW. The number of yearly certificates of occupancy for OBGW has stayed relatively constant and is expected to remain constant throughout the planning horizon. Intervenor's marketing scheme for OBGW seeks to attract retirees predominately from the northeastern part of the United States. The residents are not generally County residents prior to moving to Tri-County Villages. This same marketing scheme will be used for the future development of the Tri-County Villages. Thus, the future Tri-County Villages residents are not expected to be from the County. Tri-County Villages is a new type of development for the County. This new population was not taken into account in the original comprehensive plan which also had a low multiplier. Therefore, the need for residential allocation for this new population was not addressed. Because this new population is a reality which was not comtemplated by the plan, and the plan does not have an excess of allocated residential land, the need for the increased residential densities has been demonstrated. Petitioners have not shown to the exclusion of fair debate that the plan amendment was premature or not based on a demonstrated need. PUD as a land use category Because a planned unit development (PUD) is not "recognized" as a land use category in Rule 9J-5.006(1), Florida Administrative Code, petitioners contend that the use of that category in the plan amendment renders it not in compliance. For purposes of its compliance review, the DCA used the version of chapter 9J-5 which was in effect at the time of the submittal of the plan amendment. Then existing Rule 9J-5.006(1)(a), Florida Administrative Code, which was effective on March 23, 1994, established the generalized land uses which must be shown on the Existing Land Use Map (ELUM). Rule 9J-5.006(4)(a), Florida Administrative Code, requires that these same generalized land uses must be depicted on the FLUM as well. While it is true that PUD is not one of the generalized land uses listed in chapter 9J-5, the two rules cited above both allow a local government to depict other land use categories on the ELUM and FLUM. Because the plan references PUD as a mixed land use category, the County has properly depicted that category on both the ELUM and FLUM. Petitioners have failed to show that PUD as a mixed land use category is not recognized under the rules in existence when the plan amendment was reviewed. Compatibility with adjacent agricultural lands Petitioners have also alleged that the County has "not demonstrated compatibility with adjacent agricultural and rural residential land uses." They point to the fact that the area adjacent to and near the development is a "friendly rural community," and they allege that the development will harm this wholesome atmosphere. The plan allows for the well planned conversion of agricultural lands in the County. One of the requirements of the plan's PUD provisions is that PUD development be buffered from adjacent lands and contain open space. The purpose of this provision is to ensure compatibility. A review of the PUD application and DRI Master Development Plan, both incorporated into the plan amendment, shows that the Tri-County Villages development will provide approximately 1,100 acres of open space. Much of this open space will act as a buffer between the development and the adjacent agricultural and rural land uses. The project will also cluster its development which serves to separate the more urban development from the adjacent agricultural and rural uses. Another mechanism which ensures compatibility is the phased method of development proposed for the project. Under the phasing approach, only contiguous portions of the property will be developed at any given time during the planning period. In addition, existing agricultural uses on the property will continue until such time as the proposed development reaches that property. Given these considerations, it is found that petitioners have not shown to the exclusion of fair debate that the plan amendment is incompatible with adjacent land uses. Levels of service In their amended petition, petitioners assert that the plan amendment is in violation of FLUE objective 7.1.6 and FLUE policy 7.1.6.1, objective 1.1 and policy 1.1.1 of the Capital Improvements Element, Rules 9J-5.005(3), 9J- 5.011(2)2., 9J-5.015(3)(b)1., and 9J-5.016(3)(a) and (b)4., Florida Administrative Code, and Section 187.201(16)(b)6., Florida Statutes, all pertaining specifically or generally to levels of service for recreational facilities, schools, fire protection, emergency medical services and flooding. Policy 1.1.1 of the Capital Improvements Element adopts a recreational facility level of service for such facilities as softball fields, baseball fields, basketball courts, boat ramps and the like. The amount of facilities required is based on population. Under the plan, the County must take the necessary steps to insure that the availability of these facilities is addressed during the concurrency review process and not at the compliance review stage. In other words, when a proposed development reaches the stage of requesting a building permit, the County may require as a condition of the issuance of that building permit that a developer provide a certain facility. In this regard, it is noted that Chapter 163, Florida Statutes, requires that any development comply with concurrency requirements while the Tri-County DRI Amended Development Order requires that the developer provide for adequate public facilities. Both the plan amendment and the development authorized therein generally address the recreational level of service. However, if no additional facilities are constructed in the future, the plan amendment does not provide adequate baseball fields, softball fields, boat ramps or handball courts consistent with policy 1.1.1. In addressing these potential deficiencies, intervenor represented to the County that as a retirement community, the development would not generate a demand for these types of facilities. That is to say, the retiree population inhabiting the development would be less likely to participate in activities such as baseball or softball. The population would, however, generate a need for other recreational facilities such as golf courses, swimming pools, shuffleboard courts and bocci ball facilities, all of which the development has a surplus. In response to this concern, the County concluded that it was not appropriate to require the construction of certain facilities when the project would not generate a need for them. The County indicated that, during the plan evaluation and appraisal stage required in 1998, an amendment to the plan would be transmitted which would revise the plan to take into account such situations. If such an amendment is not adopted, intervenor will need to provide additional facilities necessary to meet concurrency requirements. There is no established level of service in the plan for fire protection or emergency medical services. Intervenor has, however, addressed these services in the Amended Development Order for the development. As reflected in that order, intervenor donated a five-acre parcel and constructed a fire station adjacent to the development. The station may also be used to house emergency medical services, if needed, although an existing emergency medical service provider is located in close proximity. Intervenor also donated to the County $80,000 for the purchase of fire fighting equipment, and each household pays the County a $30 annual fee for fire protection. Therefore, fire protection and emergency medical services have been addressed. The plan establishes no level of service standard for schools. Because the development is a retirement community, children under age 19 are prohibited. As a consequence, it was determined that impacts to school facilities would be minimal. Intervenor contacted and advised the school board of its retirement community development plans and projected student impacts. In response, the school board concluded that minimal impact was expected as a result of the development. To the extent that the development in the future allows school age children to reside therein, the Amended Development Order specifically calls for a substantial deviation determination pursuant to Section 380.06(19), Florida Statutes, to evaluate the potential impacts to school facilities. As a result of further review, intervenor may be required to provide additional school facilities. The plan establishes a level of service for stormwater drainage in terms of quantity and quality. Based on flooding which has occurred in the existing OBGW development, petitioners suggest that flooding will occur in the development proposed in conjunction with the plan amendment. While such flooding has occurred in the OBGW development, there is no evidence that the flooding was caused by a reduction or violation of the stormwater drainage level of service. Indeed, the evidence shows that the flooding was caused by an unusually heavy period of rainfall in combination with debris clogging the inlets of the stormwater system. The actual stormwater system for OBGW, which was reviewed and approved in the OBGW DRI review process, was designed for and required to meet the plan's drainage level of service. As a concurrency matter, any system designed for the future development contemplated in the plan amendment will also be required to meet the stormwater drainage level of service. Accordingly, it is found that petitioners have not shown to the exclusion of fair debate that the plan amendment violates the plan's level of services standard for stormwater drainage. Affordable housing Petitioners further allege that the plan amendment "fails to provide for affordable housing as required by Objective 3.5 of the Housing Element of the (plan)" in violation of various rules and the state comprehensive plan. The rule alleged to have been violated requires a local government to analyze the affordable housing stock within the local government. The local government must then adopt comprehensive plan goals, objectives, and policies which establish programs to ensure an adequate supply of affordable housing for the present and future residents. Housing Element objective 3.5 and the implementing policies which follow provide one of the mechanisms, coordination with the private sector, which the County uses to address the provision of affordable housing countywide. The provisions of objective 3.5 and the implementing policies place no specific requirements on the private sector. These plan provisions only require that, in addressing the provision of affordable housing, the County work with the private sector. Contrary to petitioners' assertion, neither the plan provisions nor chapter 9J-5 require the plan amendment to address the affordable housing deficiencies countywide. As a DRI requirement, however, the plan amendment does address the provision of affordable housing. A detailed housing analysis was provided in the Tri-County Villages ADA. The analysis included a review of the affordable housing stock pursuant to the East Central Florida Regional Planning Council's housing demand, supply and need methodology. The analysis further concluded that after phase 3, additional affordable housing may be necessary. To address this deficiency, the ADA for the development requires intervenor to reanalyze the available affordable housing consistent with objective 3.5 of the Housing Element. Thus, it is found that petitioners have not shown to the exclusion of fair debate that the plan amendment fails to provide affordable housing. i. Infrastructure funding Finally, petitioners allege that the plan amendment is inconsistent with FLUE policy 1.5.4. That policy provides as follows: All PUDS shall provide for central potable water and sanitary sewer facilities at the developer's expense and provide for fire hydrants and fire flow within the development in accordance with the National Fire Protection Association Standards. Intervenor has created community development districts as a mechanism to fund the development infrastructure. Intervenor is able to raise funds by the sale of bonds through these districts. The residents of the development will ultimately repay the bonds. Even so, petitioners allege that this funding mechanism is inconsistent with the cited policy because the infrastructure is not funded "at the developer's expense." The purpose and intent of the policy was to insure that the County not be obligated to fund infrastructure related to the PUD development. The developer, and ultimately the residents, of the project will fund the infrastructure through the community development districts. The County will not be obligated. This funding mechanism is consistent with policy 1.5.4. in that the County is not responsible for the funding of the PUD-related infrastructure. Accordingly, petitioners have not shown to the exclusion of fair debate that the plan amendment is inconsistent with the cited policy.
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 Sumter County's comprehensive plan amendment 94D1 is in compliance. DONE AND ENTERED this 11th day of July, 1995, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11 day of July, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-6974GM Petitioners: 1. Partially accepted in finding of fact 1. 2. Partially accepted in finding of fact 2. 3. Partially accepted in finding of fact 3. 4-5. Rejected as being unnecessary. 6. Partially accepted in finding of fact 40. 7. Partially accepted in finding of fact 34. 8-9. Rejected as being unnecessary. 10. Partially accepted in findings of fact 7-9. 11-14. Rejected as being unnecessary. Partially accepted in finding of fact 8. Partially accepted in finding of fact 7. Rejected as being unnecessary. Partially accepted in finding of fact 8. 19-21. Partially accepted in finding of fact 2. 22-23. Covered in procedural statement. 24-29. Partially accepted in findings of fact 16-20. 30-41. Partially accepted in findings of fact 21-25. 42. Rejected as being unnecessary. 43-77. Partially accepted in findings of fact 28-36. 78-85. Partially accepted in findings of fact 37-39. 86-95. Partially accepted in findings of fact 40-42. 96-148. Partially accepted in findings of fact 43-49. 149-162. Partially accepted in findings of fact 50-53. 163-166. Partially accepted in findings of fact 54-56. Respondents/Intervenor: With certain changes, the substance of proposed findings 1-53 has been generally incorporated into this recommended order. Note: Where a proposed finding has been partially accepted, the remainder has been rejected as being unnecessary for a resolution of the issues, irrelevant, not supported by the more credible, persuasive evidence, subordinate, or a conclusion of law. COPIES FURNISHED: Linda Loomis Shelley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Dan R. Stengle, Esquire General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Mr. T. D. Farnsworth 12364 County Road 223 Oxford, Florida 34484 Felix M. Adams, Esquire 236 North Main Street Bushnell, Florida 33513-5928 David L. Jordan, Esquire Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Nancy G. Linnan, Esquire Post Office Drawer 190 Tallahassee, Florida 32302-0190 R. Dewey Burnsed, Esquire Post Office Box 491357 Leesburg, Florida 34749-1357
The Issue The issues to be determined in this case are whether the amendments to the City of Edgewater’s Comprehensive Plan, adopted by Ordinance No. 2008-O-10, and revised in part by the remedial amendments in Ordinance Number 2010-O-01 (“Plan Amendments”), are “in compliance,” as that term is defined in Section 163.3184(1)(b), Florida Statutes (2009).1/
Findings Of Fact The Parties The Department is the state land planning agency and is statutorily charged with the duty to review comprehensive plan amendments and to determine whether amendments are “in compliance,” as that term is defined in Section 163.3184(1)(b), Florida Statutes. The City is a municipality in Volusia County and has adopted a comprehensive plan that it amends from time to time pursuant to Chapter 163, Part II, Florida Statutes. Hammock Creek is a Delaware limited liability company registered with the State of Florida. It owns the property that is the subject of the Plan Amendments. Through its representatives, Hammock Creek submitted comments to the Edgewater City Council at the transmittal and adoption hearings for the Plan Amendments. Petitioner Richard Burgess resides in the City, owns real property in the City, and operates a business in the City. At the public hearings on the original amendment package adopted by Ordinance No. 2008-O-10, Petitioner made comments on behalf of Edgewater Citizens Alliance for Responsible Development, Inc. (ECARD), as its vice-president. ECARD was an intervenor in this proceeding, but voluntarily dismissed its petition before the final hearing. Petitioner submitted written comments on his own behalf at the adoption hearing for the remedial amendments adopted by Ordinance No. 2010-O-01. The Plan Amendments The Plan Amendments create a new land use category, the Restoration Sustainable Community Development District (“Restoration SCD”), which is described in a new Restoration SCD Sub-Element of the FLUE: The Restoration SCD is the result of a conscious planning approach based on the most current New Urbanist research and advanced practices. The compact development pattern is designed to and shall provide for a diverse community with distinct place types and multiple experiences that are appealing to residents, employees, and visitors. It shall provide for walkability, a broad range of inclusive household demographics, the ability to connect the community directly to a natural experience, transit ready design, and a high level of environmental stewardship and planning. * * * In order to facilitate this vision, the City shall recognize that density is important to the restoration SCD outcome, but no more important than the mixing of uses, the development of a diverse population through the provision of housing choice and employment centers, the connection of streets and the design of structures and spaces on a human scale. The Restoration SCD land use category applies to 5,187 acres of land on the west side of Interstate 95 that are owned by Hammock Creek. The Restoration SCD site is not currently being used, but in the past was used for silviculture. The Restoration SCD site was annexed into the City in 2005, but is being assigned a future land use designation for the first time. The Volusia County land use categories for the property are Environmental Systems Corridor, which allows a maximum residential density of one unit per 25 acres, and Forestry Resource, which allows a maximum residential density of one unit per 20 acres, or up to one unit per five acres with clustering. The Restoration SCD Sub-Element includes the Restoration SCD Conservation/Development Areas Map, which divides the site into three areas: Conservation, SCD Conservation/Restoration, and SCD Community Development. The SCD Community Development area is also referred to as the “Build Envelope” because it is the only area where development can occur. The Build Envelope is approximately 25 percent of the total land area. At least 50 percent of the Restoration SCD site is required to be permanently protected open space. The SCD District is integrally related to a Development of Regional Impact (DRI) proposed for the lands that are the subject of the Plan Amendments. The Resolution SCD includes several of the development controls listed in Florida Administrative Code Rule 9J- 5.006(5)(j) which discourage urban sprawl, including: open space requirements; clustering; the establishment of minimum development density and intensity; phasing of urban land use types, densities, and intensities; traditional neighborhood development form; buffering; planned unit development requirements; restriction of the expansion of the urban area; and jobs-to-housing balance requirements. Edgewater is a relatively old Florida City that was developed with strip commercial along the highway and other development forms that were typical before the enactment of Chapter 163 and the requirement for comprehensive planning. The Restoration SCD introduces modern development principles and forms. Within each element of the City’s Comprehensive Plan, there are data and analysis summaries. There is also a separate section entitled “Population Projections.” The Plan Amendments revise or add information to some of these data and analysis summaries. The Plan Amendments also include some “housekeeping” changes that delete obsolete portions of the Comprehensive Plan and extend several planning horizons in the plan from 2010 to 2020. Mixed Uses Petitioner contends that the Restoration SCD lacks adequate policies to implement the types of land uses allowed, the percentage distribution among the mixed uses, or other objective measurement, and the density or intensity of each use as required by Rule 9J-5.006(4)(c). Restoration SCD is the future land use designation for the entire site. Policy 3.1.1 describes seven subcategories of uses within Restoration SCD: Residential, Mixed-Use Town Center, Work Place, Transit-Ready Corridor, Utility Infrastructure Site, Schools, and Open Space. Various policies of the Restoration SCD Sub-Element establish minimum and maximum percentages for the subcategories of uses. Table I-4 in the Plan Amendments shows the various land uses, their densities and intensities, and their acreages. The Restoration SCD land use designation has an overall residential density cap of 8,500 residential units and a non-residential intensity cap of 3,300,000 square feet. Policy 7.1.1 ensures a continuing balance of residential and non-residential development by tying the number of residential building permits that can be issued to the square footage of non-residential development that has been constructed. For example, residential units cannot exceed 1,500 until 180,000 square feet of non-residential uses have been constructed. Format Petitioner contends that the Plan Amendments are not consistent with the format requirements of Rule 9J-5.005(1) because the sources, dates, and other information associated with tables, figures, and other materials included in the Plan Amendments are not identified. Exhibit A to the new Restoration SCD Sub-Element does not show a source, preparation date or name of the preparer. FLUE Table I-3 shows a source and name of the preparer, but not a preparation date. FLUE Table I-4 shows a source, a preparation date, and name of the preparer. Within the Population Projections section of the Comprehensive Plan, Table P-1 shows a source, but not a preparation date or name of the preparer. Table P-2, Figures P-1 and P-2, and Tables P-3 through P-5 do not show sources, preparation dates, or names of the preparers. Tables P-6 and P-7 show sources and names of the preparers, but no preparation dates. Table P-9 does not show a source, preparation date, or name of the preparer. Within the Housing Element, Tables III-13 through III- 15 and Tables III-17 through III-20 show sources and names of the preparers, but no preparation dates. The tables and figures that Petitioner objects to are included in the Comprehensive Plan as supporting data and analysis. They are not parts of goals, objectives, or policies. Rule 9J-5.005(2)(e) requires that maps include major natural and man-made geographic features and city and county boundaries. The Resolution SCD Conservation/Development Areas Map does not show geographic features or government boundaries. There are other maps in the FLUE that show natural and man-made geographic features and city and county boundaries. Policies 1.1.1 and 3.1.1 refer to Map “H”, which is part of the DRI Development Order. Petitioner objects to the omission of Map “H” from the Comprehensive Plan. The Director of the Department’s Division of Community Planning stated that it is not the practice of the Department to treat a format error or omission as requiring a determination that a plan amendment is not in compliance. Adoption by Reference Petitioner contends that the Plan Amendments adopt regulations and other materials by reference, but not in accordance with Rule 9J-5.005(2)(g), which requires that the reference “identify the title and author of the document and indicate clearly what provisions and edition of the document is being adopted.” Petitioner asserts that the following provisions include inadequate adoptions by reference: Policy 1.1.1, Policy 3.1.1, Objective 4.1, Policy 4.1.3, Policy 4.1.7, Policy 4.1.11, Goal 5, Policy 6.1.1, Policy 8.1.4, Policy 9.1.1, Policy 10.1.1, Policy 11.1.1, Policy 11.1.4, and Policy 12.1.6. Policies 1.1.1 and 3.1.1, Objective 4.1, and Policies 4.1, 4.1.3, 4.1.7, and 4.1.11 refer to state, regional, and federal laws or regulatory programs, but they do not purport to adopt these laws and programs by reference. The purpose of these provisions is not for the City to apply or have any role in the regulatory process or decision-making associated with the referenced laws and programs. The wording of these provisions is consistent with the City’s assertion that its intent is merely to provide notice of related permitting programs with which the developer will have to comply. Goal 5 refers to New Urbanism and other land use design principles as described in the literature of the Congress of New Urbanism, the Urban Land Institute and similar organizations, but the goal does not purport to adopt this literature by reference. The goal states that design policies will be adopted by the City in the future. No specific design principles are adopted, by reference or otherwise, in Goal 5. Policy 6.1.1 refers to affordable housing and defines the term as a percentage of Volusia County’s Average Median Income. The policy does not purport to adopt any materials by reference. Policies 8.1.4 and 11.1.1 refer to design principles which are to be adopted in the future. The policy does not purport to adopt this literature by reference. No specific design principles are adopted, by reference or otherwise, in Policies 8.1.4 or 11.1.1. Policy 9.1.1 addresses school concurrency and refers to a Capacity Enhancement Agreement (“CEA”) entered into by the City, the developer, and the Volusia County School Board to ensure that schools are timely planned and constructed to serve the student population. The policy does not purport to adopt the CEA by reference. Petitioner did not show that the CEA is not self-executing. Policy 10.1.1 refers to “green” development practices that meet the certification programs of the United States Green Building Coalition or the Florida Green Building Code, which will be incorporated into the DRI Development Order. The policy does not purport to adopt these certification programs by reference. No specific green design practices are adopted, by reference or otherwise, in Policy 10.1.1. Policy 11.1.4 refers to vehicle trips as calculated by the Institute of Transportation Engineers Trip Generation Manual. This is the standard manual used by all traffic engineers. The policy does not purport to adopt the manual by reference. Planning Timeframes Petitioner contends that the Plan Amendments cause the Comprehensive Plan to be internally inconsistent because there are different planning horizons in the Plan. The Plan Amendments extend several planning horizons to 2020, but the planning horizon in the Recreation and Open Space Element remains 2010, the water supply work plan has a planning horizon of 2018, and the Public School Facilities Element has a planning horizon of 2025. Petitioner did not identify an adverse effect created by the different planning horizons. The City is currently preparing its Evaluation and Appraisal Report (EAR)-based amendments. The EAR process is statutorily mandated, periodic review and update of the entire Comprehensive Plan. It is the logical process for reviewing and revising planning horizons in the plan. Conservation Element and Housing Element Data Petitioner contends that the support documentation that is included as part of the Conservation Element is not the best available data. However, Petitioner did not produce better data, except for the Florida Fish and Wildlife Conservation Commission’s more recent listed species rules, or show how better data do not support the Plan Amendments. Similarly, Petitioner contends that some of the support documentation that is included as part of the Housing Element is not the best available data. Petitioner did not produce better data or show how better data do not support the Plan Amendments. Need Petitioner contends that the best available data do not show a need for the residential and nonresidential land uses allowed by the Plan Amendments. The Population Projections section in the Comprehensive shows a projected City population of 34,481 by 2020. The Department determined that the 2020 population forecast was reasonable. It is not the practice of the Department to require local governments to update their population projections every time an amendment is adopted. The 2020 population projection is derived from forecasts of the University of Florida’s Bureau of Business and Economic Research BEBR. BEBR forecasts county populations, from which city population projections must be extrapolated. BEBR frequently under-forecasts population growth for cities. BEBR forecasts do not account for localized factors that can change the attractiveness of a particular area to prospective new residents and, therefore, stimulate population growth. Applying an “allocation factor,” the Department determined that the number of residential units allowed by the Plan Amendments was reasonably in line with the 2020 forecast. An allocation factor is a multiplier applied to account for factors that prevent the full or efficient use of densities allowed by a FLUM. In addition, population projections are not the sole consideration in determining the need for a plan amendment. In the case of the Restoration SCD, higher densities and intensities are necessary as a part of the intended development form. Higher densities and intensities are also necessary to achieve the objectives of Section 163.3177, Florida Statutes, including the encouragement of transit-oriented and energy-efficient communities. A need analysis for non-residential land uses in the Resolution SCD was not conducted by the City because the non- residential uses are intended to serve and be integrated with the residential uses, and are required to be developed in pace with the residential development. The Department found this approach acceptable.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a Final Order finding that the amendments to the City of Edgewater’s Comprehensive Plan, adopted by Ordinance No. 2008-O- 10 and revised by Ordinance Number 2010-O-01, are “in compliance.” DONE AND ENTERED this 27th day of July, 2010, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of July, 2010.
Findings Of Fact Petitioner, William Burke, is the developer of the Countryside Retirement Resort, a proposed development of regional impact, (DRI), located in DeSoto County, Florida. Sunrise Farms, a Florida general partnership, is the owner in fee simple of the site, but is not a party in this matter. Respondent, DeSoto County Board of County Commissioners, is a local government with jurisdiction over the proposed project site. It is responsible for the administration of the DeSoto County Comprehensive Plan, land development regulations, and zoning code. On August, 15, 1990, after a duly-noticed public hearing, the Board of Commissioners of DeSoto County denied Burke's Application for Development Approval and Request for Rezoning. On April 23, 1991, the Board of Commissioners of DeSoto County, pursuant to Chapter 163, Florida Statutes (1989), and the rules promulgated thereunder, adopted its current comprehensive plan. Intervenor, Department of Community Affairs, is the state land planning agency with the power and duty to enforce and administer Chapter 380, Florida Statutes, and the rules and regulations promulgated thereunder. The Department is also authorized to appeal DRI development orders issued by local governments pursuant to Section 380.07, Florida Statutes, and has demonstrated a substantial interest in the outcome of this proceeding. Intervenors, M. Lewis Hall, Jr., M. Lewis Hall, III, Don T. Hall, Frank D. Hall and Steven V. Hall, are landowners near the subject site, and are substantially effected persons. The proposed site of the project is located on Highway 31, approximately ten miles from the City of Arcadia, at the SW 1/4 and W 1/2 of the SE 1/4 of Section 1, Township 39 South, Range 25 East, DeSoto County Florida The project has been named Countryside Retirement Resort (Countryside), and is a proposed PUD intended as an Adult Residential Community which is designed to contain, at build-out, a maximum of 1440 park model residential homesites and 60 transient RV spaces on approximately 239.71 acres. The 1440 permanent park model resort homes are to be offered as a "turn-key" package to insure architectural control and adherence to project design. Park model homes are prefab, factory-built units, which are not susceptible to being moved again. The units in each phase will have a single bedroom, and the estimated price for all phases is $55,000, including the lot and lot preparation. Gross density for the project is 6.0 and 6.25 units per acre, based upon 1440 (park model homes) and 1500 (including 60 RV spaces) units, respectively. The development is privately funded and includes all streets, utility systems, public safety services, community buildings, recreational facilities, and general community amenities. The project area is currently zoned A-5 or improved pasture agricultural, with one dwelling unit per five acres permitted. To the north, the property is zoned A-10, citrus grove agricultural. To the south, the property is zoned improved pasture-agricultural, A-5. The Petitioner proposes to dedicate the 40 feet along the South side of the property to DeSoto County for street purposes. Adjacent to the public dedication will be a 40 foot project buffer for fencing, landscaping, and stormwater containment. The main entrance is to be located at State Road 31, approximately 1,000 feet North of Pine Island Street. Turn lanes are to be provided to minimize any potential detriment to the flow of traffic on the state roadway. As requested by County staff, forty feet of additional right-of-way has been set aside for the future widening of Pine Island Street. In addition to the 40 foot right-of-way for Pine Island Street (approximately 3.66 acres), access and improvements at all intersecting streets will be made. The additional traffic, sewer and potable water impacts will be provided for by the developer. A secondary access from Pine Island Street runs east from SR 31 approximately two miles, and dead ends at the Hall Ranch. The adjoining 40 foot buffer strip features, in addition to security fencing, a perimeter drainage swale and earthen mounds with landscaping that will screen the community from the public roadway. The buffer strip is not intended for future road purposes. The 40 foot buffer will be placed around the perimeter of the site. The buffer will consist of earthen berms and landscaping to protect the community from the outside, and the outside from the community, to make it as self-supporting and self-contained as possible. A 6.5 acre tract in the southwestern corner of the site has been reserved to provide for the commercial institutional needs of the residential community. Anticipated commercial uses include a general store (providing food, hardware, and dry goods), personal service shops, professional office space, and a motel (58 units) with a restaurant. Institutional uses include an arts and crafts building, a volunteer fire station equipped with a "quick response" vehicle, and office space for use by the sheriff's office, a second floor residence apartment for the community manager, the project's water treatment plant, and a helipad for emergency medical services. A general utility area, including maintenance building, the wastewater treatment plant, and a dry storage area for boats and RV's will be located in the Southeast corner of the property, buffered from adjoining properties and from the internal community. The project will also feature an 18 hole executive golf course with a pro shop and aquatic driving range, a multi-use clubhouse, four lighted tennis courts, six neighborhood swimming pools, and a series of mini-parks. The Petitioner's intent is to design the resort to function as a relatively self-contained and readily identifiable neighborhood of the County. The project calls for an on-site sewage treatment plant with tertiary filtration attached to the plant. At build-out, the plans call for the plant to treat approximately 315,000 gallons of sewage per day. A total of 8.99 acres of both man-made and natural wetlands were identified on the site. The project complies with applicable regulations with respect to preservation of wetlands. Approximately 27.75 acres of wetlands are to be created, and approximately 22.95 acres of proposed lakes will exist at completion. The project conforms with applicable regulations with respect to water use. The project's drinking and irrigation water will be served from on-site wells. An on-site water treatment plant will also be built. Adequate provisions are made for hurricane shelters and evacuations measures. The project conforms with applicable regulations with respect to air emissions. The project conforms with applicable regulations with respect to vegetation and wildlife. The entire site is cleared of natural vegetation and managed as improved pasture. The project site as well as adjoining land is not unique agricultural land. The project will not significantly deplete the agricultural community adjacent to the project or in the general neighborhood. Estimates from 1982 indicate that 236,722 total acres of pasture exist in DeSoto County. Removal of the project site from cattle production represents a total of .097% of the total pasture acreage in the County. Approximately 96% (230 acres) of the existing site is improved pasture land for cattle grazing while 6.9 acres or less than 3% of the project's site covers wet prairie. No natural wildlife corridors exist between the subject parcel and any surrounding natural lands. There are no significant historical or archeological sites or corridors considered likely to be present within the project area. Approval of the project would add to the tax revenue base of DeSoto County. The DeSoto County landfill is designed to meet the needs of the County until the year 2000 based on its projected increase of population. The proposed project at buildout, prior to the year 2000, falls below the projected increases of population. The projected increase in population by the year 2000 ranges from 4300 to 5800 with the proposed project generating a theoretical maximum increase in population of 3,000 persons if all units were occupied on a year round basis. The landfill will have adequate capacity to meet the demand from the project. No unusual or industrial or hazardous wastes will originate on-site. A 1.75 acre site has been reserved for the sewage treatment plant in the Southeast corner of the subject property. Sludge is scheduled to be disposed of by a licensed hauler. A tertiary wastewater treatment plant is to be provided in all phases of development. The wastewater is to be filtered and highly disinfected to provide treatment effluent for irrigation purposes. The plant will be situated on approximately 3/4 of an acre including surrounding open space and buffer areas. The utility site is of sufficient size to provide treatment of waste water for the entire development. All on-site facilities (collection treatment) are to be operated and maintained by the homeowner's association in accordance with the Florida Department of Environmental Regulation operating permits. On-site treatment and disposal facilities are being proposed that will be capable of serving the entire development. The proposed drainage system for the project is consistent with applicable regulations. The water supply system proposed for the development complies with applicable regulations. Florida Power and Light Company has sufficient capacity to provide electrical service to the project. While the project will contribute property taxes to the educational system, the development will not have a negative impact on the DeSoto County District School System, since this project will be an adult community, and no school-age children are contemplated. 94.18 acres, or almost 40% of the development site, are to be devoted to recreation uses and open space. A helipad will be constructed to enhance MedVac emergency services to the project and the surrounding area. DeSoto Memorial Hospital is licensed for 82 beds, and provides emergency services. DeSoto Memorial Hospital is a community not-for-profit facility, serving the DeSoto County area and located in Arcadia, Florida. Health Care and medical services are available at the Hospital and the Arcadia area to meet the needs of the Countryside residents. The county operated ambulance (EMS and ALS certified) offers 15 to 20 minute response time from its headquarters station on State Road 70, a distance of 7 miles, via SR 31. Fire protection services for the project are to be provided by the public safety department of DeSoto County. The nearest fire station is located at State Road 70 and Airport Road about seven miles north of the property. Under normal traffic conditions, response time is estimated to be approximately 10 to 12 minutes. The county's fire protection services are to be enhanced by the construction of an auxiliary fire station on-site. The Petitioner proposes to develop a volunteer fire department from among the residents of the project with emphasis on fire, emergency medical, quick response fire truck and a building for sheltering in the event of a disaster or potential emergency (portable electric, water, restrooms, kitchen and proper square footage to accommodate the residents of the development) would serve as a benefit to the County on SR 31. On April 23, 1991, the Board of County Commissioners for DeSoto County adopted Ordinance 91-03, a new comprehensive plan for the County. Included are goals, objectives and policies in the Future Land Use Element of the Plan. The Future Land Use Element, Goal L. Objective L2 of the DeSoto County Comprehensive Plan, provides that: Development orders and/or permits for future development and redevelopment activities shall be issued only if public facilities necessary to meet level of service standards, adopted as part of the Capital Improvements Element of this Plan, are available concurrent with the impacts of development. The Future Land Use Element, Policy L2.5 of the DeSoto County Comprehensive Plan, provides that: No local development order or permit will be issued unless the County determines that the appropriate level of service standards can be met for: drainage; potable water; recreation and open space; solid waste disposal; traffic circulation; and waste water treatment. Traffic Circulation Element, Goal T of the DeSoto Comprehensive Plan, provides that the goal of the traffic element of the Plan will be to "provide for a safe, efficient and economical traffic circulation system." To implement Goal T, Objective T1 provides that, "DeSoto County shall provide a safe and efficient transportation system, and shall establish minimum criteria and standards to ensure the effective functioning of all public roadways within its jurisdiction." The proposed development site accesses State Road 31, a north/south, two-lane minor arterial roadway connecting the City of Arcadia with the City of Fort Myers. SR 31 is currently at a Level of Service (LOS) of B, or better. The DeSoto County Comprehensive Plan, Policy T1.1, has established a peak season/peak hour level of service standard of D or better for SR 31. The Five- Year Schedule of Capital Improvements in the DeSoto County Comprehensive Plan does not provide for the improvement of SR 31. The average daily traffic maximum volumes established by the Department of Transportation for a LOS D on a minor arterial, such as State Road 31, is 15,000 trips per day. Four separate traffic studies were performed regarding the potential impacts of the proposed development on State Road 31. The first two studies were performed by Mr. Gordon Meyers of Ink Engineering, Inc., the third by Mr. Richard Doyle of Tampa Bay Engineering, Inc., and the fourth by Ms. Nanette Hall of Florida Transportation Engineering, Inc. The study area included segments of SR 31 and the intersection of SR 31 and SR 70, as well as, SR 31 and SR 760-A. SR 70 runs east-west and expands from a two lane roadway to a four lane major arterial at the intersection of SR 70 and SR 31. CR 760-A is a two-lane rural major collector extending westerly from SR 31, just north of the G. Pierce Wood Memorial Hospital, to US 17, which provides access to the Punta Gorda area and Interstate 75. The Department of Transportation has three traffic counting stations on State Road 31 from which reliable traffic data has been collected since 1984. The location of these traffic counting stations are as follows: Station #26, is located just south of the intersection between State Road 31 and State Road 70; Station #4, is located approximately halfway between the site of the proposed development and State Road 70, north of the intersection between State Road 31 and County Road 760A; Station #31, is located south of the intersection between State Road 31 and County Road 760A, and north of the proposed site of the proposed development. All four studies made projections as to the anticipated increase in traffic volume at these stations should the proposed development be approved. The four traffic studies obtained the following projections for the anticipated traffic volumes and corresponding LOS's that would exist at the traffic counting stations upon build out of the proposed development summarized in the table below: LOCATION FIRST STUDY SECOND STUDY THIRD STUDY FOURTH STUDY (MEYER) (MEYER) (DOYLE) (HALL) Station #31 12,474/LOS D 7,610/LOS C 12,474/LOS D 13,466/LOS D Station #4 13,557/LOS D 9,250/LOS C 10,080/LOS D 15,384/LOS E Station #26 15,172/LOS E 9,380/LOS C 10,341/LOS D 17,111/LOS E Of the four traffic studies performed, the projections of the fourth (Hall) study were the most reliable. It was the only study to use historic data available on State Road 31 in the Calculation of a growth rate for background traffic volume, and did not suffer from the methodological flaws that existed in the other studies. The fourth (Hall) traffic study indicated that the proposed development at build out would cause large sections of State Road 31 to exceed its level of service established by the DeSoto County Comprehensive Plan, and reduce the level of service below D. The fourth (Hall) study also projected the traffic impacts of the proposed development if developed in two phases, the results (expressed in average daily traffic and peak hour/peak season impacts) of which are summarized in the table below: LOCATION PEAK HOUR/PEAK SEASON AVERAGE DAILY TRAFFIC PHASE I PHASE II PHASE I PHASE II Station #31 892/LOS C 1,394/LOS D 9,062/LOS C 13,466/LOS D Station #4 1,033/LOS D 1,544/LOS E 10,732/LOS D 15,384/LOS E Station #26 1,183/LOS D 10,341/LOS D 12,397/LOS D 17,111/LOS E Countryside has never requested phased approval for the project. The fourth (Hall) traffic study indicated that even if approval were given for "Phase I" alone, a major portion of the LOS D capacity of the roadway (approximately 80% to 85% of the capacity) would be used up, reducing the possibilities for further development of those sections of State Road 31 between the proposed development and State Road 70. The proposed development will not meet the appropriate level of service for traffic circulation. Land Use Element Policy L6.8 of the DeSoto County Comprehensive Plan provides that: Residential development in a Rural/Agricultural area shall not exceed a maximum density of one dwelling unit per ten gross acres. In a Rural/Agricultural area, the lowest order of commercial goods and services which serve the daily needs of nearby residents may be permitted only on arterial or collector roadways. Commercial areas in a Rural/ Agricultural area shall be appropriately buffered, shall not exceed 3 acres in size, shall not exceed impervious surface lot coverage of 70 per cent, and shall be no less than 2 miles from other commercial development in a Rural/Agricultural area or in other future land use categories. Industrial uses within a Rural/Agricultural area may be permitted only when such activity is related to the extraction or processing of minerals; or when related to agriculture; or is of a scale and nature that would not be acceptable in Town Center. Other industrial uses, such a power plants or manufactured or processing facilities may be permitted, and shall have access to a collector or arterial roadway, shall meet all local regulations, and shall be appropriately buffered from surrounding land uses, including agricultural uses. Within a Rural/Agricultural area, the approval of residential development shall acknowledge that the protection of agricultural lands is a primary function of a Rural/Agricultural area, and that land management activities associated with agricultural uses may be incompatible with residential development. However, such management activities are considered to be an essential element of the protection of successful operations on agricultural lands and the continuation of such activities shall take precedence. Future Land Use Element, Goal L. - Objective L3 of the DeSoto County Comprehensive Plan, provides that "DeSoto County shall promote compatible future land use patterns." The current DeSoto County Comprehensive Plant, Future Land and Use Element, Objective L6, provides: Objective L6: As a part of this plan, DeSoto County's Future Land Use Map series shall be applied only in conjunction with the policies of this element and other elements of the DeSoto County Comprehensive Plan, and shall generally illustrate and coordinate the appropriate distribution of residential, commercial, industrial, agricultural, preservation, public and utility facility land uses to effectively manage the projected population growth of the County. The Future Land Use Map (FLUM) and the Plan's policies are used to effectively manage the projected population growth of the County. The Countryside project is not depicted, in terms of an appropriate land use category, on the FLUM. The Future Land Use Map indicates that the project site is located in an R/A (Rural/Agricultural) land use designation with a maximum allowable density of one residential unit per ten acres. The density of the proposed project is in excess of six dwelling units per acre. The 1991 DeSoto Comprehensive Plan, data and analysis section, indicates that there are 2,765 approved, unconstructed recreational vehicle (RV) sites in nine undeveloped, but approved RV parks, covering 448 acres. The Plan indicates that these approved RV sites will meet the anticipate need through the year 2000. The 1991 Plan estimates that 427 seasonal residents (usually retirees), will be added to the seasonal population of the County between 1990- 2000. Based on two persons per dwelling unit and six dwelling units per acre, only 214 units of new RV residential development will be needed between 1990 and 2000. The existing approved, but unconstructed RV sites, exceed the projected need almost thirteen times. The proposed DRI would add an additional 1500 units, resulting in 4,051 more units than the projected need. Policy L3.3 of the DeSoto County Comprehensive Plan provides that: Land uses which are potentially incompatible either due to type of use or intensity of use, shall be buffered from one another through the provision of open space, landscaping, berms, alternative site design or other suitable means. Land development regulations shall establish criteria for appropriate buffering between adjacent land uses. Policy L3.4 of the DeSoto County Comprehensive Plan provides that, "where the application of such measures as identified in Policy L3.3 cannot mitigate the incompatibility between proposed and existing land uses, the proposed land use shall be disapproved." The proposed development is not functionally related to the surrounding agricultural activities and numerous incompatibilities between the land uses shall arise as adjacent landowners conduct agricultural activities such as application of pesticides and fertilizers and other activities which produce smells, sprays, dust, noises and other externalities incompatible with residential use. The incompatibility of this project with existing land uses cannot be eliminated under the proposed buffers of berms, landscaping, and fencing proposed in the ADA. To implement Goal L. Objective L4 of the DeSoto County Comprehensive Plan, Policy L4.1 provides that: The DeSoto County Comprehensive Plan and implementing land development regulations, to be adopted by August 1, 1991, shall include provisions that permit or require a variety of land development techniques that discourage sprawl while protecting natural resources including: Establishment of mixed use future land use categories in the DeSoto County Comprehensive Plan to provide residential, commercial and employment opportunities in close proximity; Clustering of development to protect natural resources, open space and agricultural uses, provide for access management to arterial or collector roadways, provide for appropriate buffering, and make efficient use of public facilities and services; Establishment of guidelines or incentives to encourage infill development in the Town Center, Mixed Use Corridor and Suburban Residential areas, which may include . . . There is a clear intent in the DeSoto County Comprehensive Plan to discourage urban sprawl. "Urban sprawl" is defined in the plan as "scattered, untimely, poorly planned urban development that occurs in urban fringe and rural areas and frequently invades lands important for environmental, agricultural and natural resource protection. Urban sprawl typically manifests itself in one or more of the following ways: 1) leapfrog development; 2) ribbon or strip development; and 3) large expanses of low-density, single-dimensional development." The proposed development is an example of the leapfrog development type of urban sprawl. It provides for residential development far beyond the projected needs of the surrounding area. It is located far from the nearest urban centers and is surrounded by rural land uses. The proposed development would create an urban level of density and intensity of use within a rural area. It is not a well balanced mixed use development. It is not compatible with, nor functionally related to, the surrounding uses, and is designed to be cutoff and separated from those uses. The proposed development cannot be considered a "rural village." It does not support surrounding agricultural activities, but is, in fact, incompatible with surrounding land uses. Because of its location and lack of multiple uses, this development will encourage lengthy commuting, contrary to the policies of the state comprehensive plan to continue to reduce per capita energy consumption, Section 187.201(12), Florida Statutes. The proposed project is not an efficient development because of its location away from existing facilities and services, shopping and employment, contrary to the policies of the state comprehensive plan to encourage efficient development and direct development toward areas which will have the capacity to service new population and commerce, Section 187.201(21), Florida Statutes. The State Comprehensive Plan, Section 18, "Public Facilities," provides that Florida shall protect the substantial investments in existing public facilities. This project conflicts with this policy, as investments in existing public facilities are best protected by directing growth to nearby locations to efficiently use those facilities, Section 187.201(18), Florida Statutes. The proposed project also conflicts with the state comprehensive plan policy related to governmental efficiency, which encourages the replacement of small scale economically inefficient local public facilities with more economical regional facilities. The project proposes to establish small facilities, rather than efficiently utilize larger facilities, Section 187.201(21), Florida Statutes. Section 380.08(3), Florida Statutes provides: (3) If any governmental agency denies a development permit under this chapter, it shall specify its reasons in writing and indicate in writing any changes in the development proposal that would make it eligible to receive the permit. The Board of Commissioners, in issuing its denial of the Countryside Retirement Resort specified its reasons for denial and identified changes which would make it eligible for approval as follows: The proposed development known as "Countryside Retirement Resort" is not consistent with the DeSoto County Comprehensive Plan, nor the DeSoto County Land Use Regulations. The proposed development does not make adequate provision for public facilities needed to accommodate the impact of the proposed development. There are no known changes that would make the proposed development eligible to receive approval due to the inappropriateness of the requested zoning. The DeSoto County Zoning Ordinance, Section 14.5(a), provides that among factors to be considered in a rezoning is "whether the proposed change would be contrary, and would have an adverse effect on the Comprehensive Plan." The DeSoto County Zoning Ordinance, Section 14.5(b), provides that among the factors to be considered in a rezoning is "the existing land use pattern." The existing land use pattern in the area is agricultural. The proposed development would create a medium density residential enclave within the existing land use pattern of agricultural use. The DeSoto County Zoning Ordinance, Section 14.5(c), provides that among the factors to be considered in a rezoning is "the possible creation of an isolated district unrelated to adjacent and nearby districts." The proposed development would be an isolated district of high intensity residential land use surrounded by agricultural and low intensity residential land uses. The DeSoto County Zoning Ordinance, Section 14.5(d), provides that among the factors to be considered in a rezoning is "the population such as schools, utilities, street, etc." The existing allowable density in this area of DeSoto County is 1 unit per 10 acres. The proposed development would increase this to 6 units per acre. Response time for police, fire, and rescue services would be poor if provided by existing facilities and personnel. Persons needing essential services that could only be provided in the City of Arcadia would have at least a twenty minute round trip. The County would experience a greater burden in providing services to the proposed development than it would if the development were located closer to the City of Arcadia. The DeSoto County Zoning Ordinance, Section 14.5(f), provides that among the factors to be considered in a rezoning is "whether changed or changing conditions make the passage of the proposed amendment necessary." There are no changed or changing conditions in the area which would make it necessary to amend the zoning or the Comprehensive Plant. The DeSoto County Zoning Ordinance, Section 14.5(g), provides that among the factors to be considered in a rezoning is "whether the proposed change will adversely influence living conditions of the neighborhood." The proposed development would create a high density residential development, urban type land use in an area of DeSoto County which heretofore enjoyed a rural character. The DeSoto County Zoning Ordinance, Section 14.5(h), provides that among the factors to be considered in a rezoning is "whether the proposed change will create or excessively increase traffic congestion or otherwise affect public safety." The proposed development would create traffic congestion, and would adversely affect public safety. The DeSoto County Zoning Ordinance, Section 14.5(l), provides that among the factors to be considered in a rezoning is "whether the proposed change will be a deterrent to the improvement or development of adjacent property in accordance with existing regulations." The proposed development would have an adverse impact on adjacent properties as property owners attempt to develop their properties. This development would drastically reduce the reserve capacity of State Road 31, and adjacent property owners would find it increasingly difficult and expensive to meet the Levels of Service required by the Comprehensive Plan. The DeSoto County Zoning Ordinance, Section 14.5(m), provides that among the factors to be considered in a rezoning is "whether the proposed change will constitute a grant of a special privilege to an individual owner as contrasting with the public welfare." The proposed development would not constitute the grant of a special privilege if approved, since the developer is seeking approval of a PUD. The DeSoto County Zoning Ordinance, Section 14.5(n), provides that among the factors to be considered in a rezoning is "whether there are substantial reasons why the property cannot be used in accordance with existing zoning." There is no reason why the property on which the proposed development is to be located could not be used for what it zones, agricultural usage. The DeSoto County Zoning Ordinance, Section 14.5(o), provides that among the factors to be considered in a rezoning is "whether the change suggested is out of scale with the needs of the neighborhood or the County." The proposed development is out of the scale with the needs of the County and the immediate neighborhood. The neighborhood is designated at a maximum density of 1 unit per 10 acres. This development would be at a density of 6 units per acre. The DeSoto County Zoning Ordinance, Section 14.5(p), provides that among the factors to be considered in a rezoning is "whether it is impossible to find other adequate sites in the County for the proposed uses in districts already permitting such use." There was no showing that other sites in DeSoto County could not be developed at this time. The DeSoto County Zoning Ordinance, Section 9.3, Planned Unit Development Districts (PUD), provides in part that it is the intent of the PUD Ordinance "to provide an optional alternative zoning procedure so that planned developments may be instituted at appropriate locations in the County in accord with the planning and development objectives of the County." The proposed development is not in an appropriate location, nor is it in accord with the planning and development objectives of the County.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is therefore, RECOMMENDED that a Final Order be entered by the Florida Land and Water Adjudicatory Commission denying of the application for development approval of Petitioner, and upholding the decision of the DeSoto County Board of County Commissioners to deny the request for rezoning for the Countryside Retirement Resort. DONE AND ENTERED this 27th day of January, 1992, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of January, 1992. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's proposed findings of fact. Accepted in substance: paragraphs - 1(in part),2,3,6(in part),7(in part),16,17,18,19,20(in part),21,22(in part),23,24,26,27(in part),28,29(in part),30, 31,32,33,36(in part),37,38,39,40,41,42,43,44,46(in part),49 (in part),50,51,52,53,54,55,56,57,58,59,60,61 (in part),62,63,64,65,66,67,68,69 (in part),71,72 (in part),73,74,75(in part),76,81,92,95(in part),96(in part),98,99,100,101,105,106(in part),108,109(in part),112(in part) Rejected as against the greater weight of evidence: paragraphs - 4,5,6(in part),(in part),8,15,47,48,72(in part),77,78,79,80,82,83,84,88,89,102,104,106(in part),107,109(in part),110,111,112(in part),113,114 Rejected as irrelevant, immaterial, or subsumed: paragraphs - 9,10,11,12,13,14,20(inpart),22(in part),25,27(in part),29(in part),34,35,36(in part),45,46(in part),49(in part),61(in part),69(in part),70,73,75(in part),85,86,87,90,91,97,103 Rejected as argument or conclusions of law: paragraphs - 93,94,95(in part),96(in part) Respondent's proposed findings of fact. Accepted in substance: paragraphs - 1,2,3,4,5,6,7,8,9,10,11,12,13,14,15,16,17,18 (in part),19(in part),26,27,28,29,30,32(in part),36,37,38,39,40, 41,42,43,44,45,46,47,48,49,50,51,52,53,54,58,59,60,61,62,63,64,65,66,67,68,69,70 ,71,72,74,75,76(in part),77(in part),78,79,80,81, 82,84,85,86,87 Rejected as against the greater weight of evidence: paragraph - 83 Rejected as irrelevant, immaterial, or subsumed: paragraphs - 18(in part),19(in part),20,21,22,23,24,25,37 (in part),55(in part),56(in part),57(in part),73 Rejected as argument or conclusions of law: paragraphs - 14,31,32(in part),33,34,35,55(in part),56(in part),57(in part),76(in part),77(in part) Intervenor Department of Community Affairs' proposed findings of fact Accepted in substance: paragraphs - 1,2,3,4,5,6,7(in part),8,9,10,11,12,13,15,16,17,18,19,20,21(in part),22(in part),23(in part),24,25,26,27,28,29 Rejected as against the greater weight of evidence: paragraphs - 7(in part) Rejected as argument or conclusion of law: paragraphs - 14,21(in part),22(in part),23(in part) Intervenors Halls' proposed findings of fact. Intervenors Halls did not submit separate proposed findings, but adopted the proposals submitted by the Respondent. COPIES FURNISHED: Charlie Stampelos, Esquire William Wiley, Esquire MCFARLAIN, STERNSTEIN, WILEY & CASSEDY, P.A. 600 First Florida Bank Building Tallahassee, Florida 32301 Gary Vorbeck, Esquire Fred Bechtold, Esquire VORBEC, & VORBECK 207 East Magnolia Avenue Arcadia, Florida 33821 Kathryn Funchess Asst. General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399 Lewis Hall, Jr., Esquire HALL & HEDRICK Republic National Bank Building 150 Southeast Second Avenue Suite 1400 Miami, Florida 33131 William E. Sadowski Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399 G. Steven Pfeiffer, Esquire General Counsel, Dept. of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399 Douglas M. Cook, Director Planning & Budgeting Exec. Office of the Governor The Capitol, PL-05 Tallahassee, Florida 32399-0001
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 The issue to be determined in this proceeding is whether a small scale development amendment to the future land use map of the City of Jacksonville's 2030 Comprehensive Plan, adopted by Ordinance No. 2019-750-E on February 25, 2020 (the Ordinance), is "in compliance," as that term is defined in section 163.3184(1)(b), Florida Statutes.
Findings Of Fact The following Findings of Fact are based on the stipulations of the parties and the evidence adduced at the final hearing. The Parties and Standing Petitioner Livingston is a Florida resident, who lives at 1507 Alexandria Place North, Jacksonville, Florida 32207. Livingston appeared at the adoption hearings for the Ordinance and submitted comments and objections on the record. Livingston is an affected person under section 163.3184(1)(a). Petitioner Gopal is a Florida resident, who lives at 1535 Alexandria Place North, Jacksonville, Florida 32207. Gopal appeared at the adoption hearings for the Ordinance, and submitted comments and objections on the record. Gopal is an affected person under section 163.3184(1)(a). Right Size is a Florida not-for-profit corporation that conducts business in the City, and its corporate address is 1507 Alexandria Place North, Jacksonville, Florida 32207. The specific purpose of Right Size, as stated in its Articles of Incorporation filed February 11, 2020, is to support, protect and preserve the historic character and beauty of San Marco, a historic residential neighborhood south of downtown Jacksonville and the St. Johns River. Officers of Right Size appeared at the adoption hearings for the Ordinance and submitted comments and objections on the record. Right Size is an affected person under section 163.3184(1)(a). Respondent City is a municipal corporation of the state of Florida and is responsible for enacting and amending its comprehensive plan in accordance with Florida law. The City provided timely notice to the parties and the process followed the provisions of the City's Ordinance Code and part II of chapter 163. The Ordinance relates to 2.87 acres of property located at 2137 Hendricks Avenue and 2139 Thacker Avenue (Property). The Property is located within the City's jurisdiction. Intervenor Harbert is an Alabama limited liability company, registered to do business in Florida. Harbert is an applicant of record for the small scale development amendment and currently has the Property under a purchase contract pending the effective adoption of the Ordinance. Harbert is an affected person and intervenor under section 163.3187(5)(a). Intervenor South Jax is a Florida not-for-profit corporation and is the owner of record of the Property that is the subject of the Ordinance. South Jax is also an applicant of record for the small scale development amendment. South Jax is an affected person under section 163.3184(1)(a). The Property and Surrounding Parcels The Property occupies the majority of one block in the San Marco neighborhood of the City. It is bounded on the north by Alford Place, on the east by Mango Place, on the south by Mitchell Avenue, and on the west by Hendricks Avenue (State Road 13). Hendricks Avenue is classified as an arterial road. The Property is currently home to The South Jacksonville Presbyterian Church. The southern portion of the Property, comprising 1.89 acres, is currently designated Residential Professional Institutional (RPI) on the City's Future Land Use Map series (FLUM) of the Future Land Use Element (FLUE) in the 2030 Comprehensive Plan (Comp Plan). The northern portion of the Property, comprising 0.98 acres, is currently designated Community/General Commercial (CGC) on the FLUM. The southern portion of the Property is currently zoned Commercial Residential Office (CRO) on the City's zoning map. The northern portion of the Property is zoned Commercial Community/General-1 (CCG-1) on the City's zoning map. The FLUM shows that the Property is currently in the City's Urban Development Area (UDA), and abuts the boundary line of the City's Urban Priority Development Area (UPDA) to the north. The parcel to the north of the Property was the subject of a small scale FLUM amendment in 2014 (Ordinance 2014-130-E). It is known as East San Marco, currently has a Comp Plan FLUM designation of CGC, and is in the UPDA that permits development of up to 60 residential units per acre (ru/acre). Ordinance 2014-130-E for East San Marco included a FLUE text change, i.e., a site specific policy/text change under section 163.3187(1)(b). FLUE Policy 3.1.26 exempts East San Marco from specified UPDA characteristics. The East San Marco property was recently rezoned from Planned Unit Development (PUD) to PUD (Ordinance 2019-799-E) for a mixed-use project known as the East San Marco development. The PUD provides that the maximum height for commercial buildings is 50 feet not including non- habitable space, and 48 feet for multifamily units. Located south of the Property across Mitchell Avenue are parcels developed for single family residential use and currently designated as Low Density Residential (LDR) on the FLUM. These properties are zoned Residential Low Density-60 (RLD-60) on the City's zoning map. Located east of the Property across Mango Place are parcels developed with a mix of single family residential and office uses and designated as a mix of CGC and RPI on the FLUM. These properties have a mix of zoning including CCG-1, Residential Medium Density-A (RMD-A), and Commercial Office (CO). Located west of the Property at Hendricks Avenue/San Marco Boulevard are parcels developed with multifamily, restaurant and retail commercial uses and designated as a mix of Medium Density Residential (MDR) and CGC on the FLUM. These properties are zoned RMD-D and CCG-1. Intervenors intend to develop the Property with a mixed-use project that will include 133 multifamily residential units and a parking garage. The existing church sanctuary will remain in use at the northeast corner of Hendricks Avenue and Mitchell Avenue. The Ordinance On August 27, 2019, Intervenors applied for a small scale development amendment proposing to change the Property from RPI and CGC to CGC, and to extend the UPDA to include the Property. On the same date, Intervenors also filed a companion rezoning application seeking to change the zoning on the Property from CRO and CCG-1 to PUD. The rezoning application was processed concurrent with the small scale development amendment application. The City's professional planning staff collected and reviewed data and information related to the small scale development amendment application, the Property, and the surrounding areas. The staff also conducted a site visit. The staff further sought review by, and received input from, a number of different City and state agencies and organizations regarding the proposed Ordinance. On October 28, 2019, the City held a citizens' information meeting to discuss the proposed Ordinance. The meeting was attended by approximately nine residents. After reviewing and analyzing the data and information gathered, City professional planning staff determined that the Ordinance was consistent with the Comp Plan and furthers the goals, policies, and objectives of the Comp Plan. The determination was memorialized in a staff report recommending approval of the Ordinance. The staff report was prepared for consideration by the City's Planning Commission prior to its regular meeting on January 23, 2020. At its January 23, 2020, meeting, the Planning Commission held an approximately two and one-half hour hearing on both the Ordinance and the PUD. At the conclusion of the hearing, the Planning Commission recommended approval of the Ordinance by a unanimous vote. The staff report and the Planning Commission's recommendation were forwarded to the City Council's Land Use and Zoning (LUZ) Committee. The LUZ Committee held public hearings addressing the Ordinance on December 3, 2019; January 22, 2020; February 4, 2020; and February 19, 2020. Certain concerns were raised by citizens at public hearings both before and during the February 19, 2020, LUZ Committee meeting. In response, the LUZ Committee requested that Mr. Killingsworth draft a site specific policy/text amendment to adopt limitations on the number of residential units, the non-residential floor area permitted on the Property, and the maximum height of structures on the Property, with measurable criteria for determining the height of structures within the proposed use on the Property. During the February 19, 2020, public hearing, the LUZ Committee recommended addition of FLUE Policy 4.4.16, a site specific policy/text amendment, which states: Multi-family residential uses shall be limited to 133 units. Non-residential floor area shall be limited to 96,000 square feet (garage, all floors) and 25,000 +/- square feet (existing church, all floors). To ensure compatibility with adjacent uses and to protect neighborhood scale and character through transition zones, bulk, massing, and height restrictions, new building height shall be limited to the calculated weighted average, not to exceed 35 feet, across the length of the development from Alford Place to Mitchell Avenue as follows: A sum of the height to the predominant roof line (ridge or parapet wall) of that portion of a building multiplied by the length of that portion of a building divided by the overall length of that portion of a building divided by the overall length of permissible building within the minimum setback. After approximately six hours of testimony and discussion, the LUZ Committee unanimously recommended approval of the Ordinance with the site specific policy/text amendment. The City Council held public hearings to address the Ordinance on November 26, 2019; December 10, 2019; January 28, 2020; February 11, 2020; and February 25, 2020. After approximately five and a half hours of testimony and discussion, the City Council adopted the Ordinance on February 25, 2020, by a vote of 17 to one. There was significant citizen input regarding the Ordinance throughout the hearing process. This included emails and letters to City staff, to Planning Commissioners and City Council members, and submittal of verbal and written comments at the hearings. Petitioners' and Right Size's Objections Following their filing of the Petition and other stipulations mentioned above, Petitioners and Right Size jointly presented their case during the final hearing. They argued that the Ordinance was not "in compliance" because: (i) it created internal inconsistencies based upon Comp Plan Policies 1.1.20A, 1.1.20B, 1.1.21 and 1.1.22; (ii) it was not based on relevant and appropriate data and an analysis by the City; (iii) it did not react to data in an appropriate way and to the extent necessary indicated by the data available at the time of the adoption of the Ordinance; and (iv) subsection (c) of FLUE Policy 4.4.16 related to height failed to 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 land use regulations. Each argument is generally addressed below. However, the primary underlying premise of Petitioners' and Right Size's challenge was that the Ordinance would allow a density in excess of 40 ru/acre and permit a height in excess of 35 feet. Internal Consistency In the Amended Joint Pre-hearing Stipulation, as modified by the Notice of Narrowing Issues for Hearing, Petitioners and Right Size identified specific policies in the Comp Plan, which they assert rendered the Ordinance inconsistent with the Comp Plan. FLUE Policy 1.1.20A states that "[e]xtensions of the Development Areas will be noted in each land use amendment where an extension is needed or requested concurrent with a Future Land Use Map Amendment. In addition, plan amendments shall meet the requirements as set forth in Policy 1.1.21 and 1.1.22." The definitional section of the FLUE explains that the City is divided into five tiers of Development Areas which include the UPDA and the UDA. These areas are depicted on the City's FLUM series and control "the density, development characteristics, and other variables within plan categories." The first sentence of Policy 1.1.20A affords applicants the ability to request an extension of a development area concurrent with a land use amendment application. Consistent with the policy, the small scale development amendment application included a request for an extension of the UPDA. The request was submitted concurrent with the request to designate the Property as CGC on the FLUM. The adopted Ordinance makes note of the extension of the UPDA as required by Policy 1.1.20A. The second sentence of Policy 1.1.20A requires that when an amendment application includes a request to extend a development area, the City must ensure consistency with Policies 1.1.21 and 1.1.22. The City's analysis is reflected in the staff report, which finds that the amendment application meets Policies 1.1.20, 1.1.20A, and 1.1.20B. Petitioners and Right Size did not offer any testimony regarding consistency with Policy 1.1.20A. Their expert, Mr. Atkins, testified that he was familiar with Policy 1.1.20A, but did not explain how or why the Ordinance was internally inconsistent with Policy 1.1.20A. Instead, Mr. Atkins testified about data and analysis regarding Policy 1.1.21. Petitioners and Right Size did not prove beyond fair debate that the Ordinance was inconsistent with Policy 1.1.20A. FLUE Policy 1.1.20B states: Expansion of the Development Areas shall result in development that would be compatible with its surroundings. When considering land areas to add to the Development Areas, after demonstrating that a need exists in accordance with Policy 1.1.21, inclusion of the following areas is discouraged; Preservation Project Lands Conservation Lands Agricultural Lands, except when development proposals include Master Planned Communities or developments within the Multi-Use Future Land Use Category, as defined in this element. The following areas are deemed generally appropriate for inclusion in Development Areas subject to conformance with Policy 1.1.21: Land contiguous with the Development Area and which would be a logical extension of an existing urban scale and/or has a functional relationship to development within the Development Area. Locations within one mile of a planned node with urban development characteristics. Locations within one-half mile of the existing or planned JTA RTS. Locations having projected surplus service capacity where necessary facilities and services can be readily extended. Public water and sewer service exists within one-half mile of the site. Large Scale Multi-Use developments and Master Planned Communities which are designed to provide for the internal capture of daily trips for work, shopping and recreational activities. Low density residential development at locations up to three miles from the inward boundary of the preservation project lands. Inward is measured from that part of the preservation project lands closest to the existing Suburban Area such that the preservation lands serves to separate suburban from rural. The development shall be a logical extension of residential growth, which furthers the intent of the Preservation Project to provide passive recreation and low intensity land use buffers around protected areas. Such sites should be located within one- half mile of existing water and sewer, or within JEA plans for expansion. After the City makes a determination that there is a need for the expansion of a Development Area pursuant to Policy 1.1.21, the City next looks to see if the property is discouraged under Policy 1.1.20B. The subject Property does not fall into one of the discouraged lands. The City's expert, Ms. Reed, explained that if the questions of need and discouraged lands are satisfactorily answered, the Policy then describes lands that are generally deemed appropriate for inclusion in a particular Development Area. The first question is whether the Property is contiguous to the UPDA and whether the extension is logical. The staff report notes that the Property is immediately adjacent to the UPDA to the north and that an extension of the boundary is logical because it permits an infill project. Ms. Reed and Ms. Haga testified that the proposed extension of the UPDA to include the Property is also logical because there is a functional relationship to the proposed mixed-use development to the north. The next question is whether the Property is within one mile of a planned node with urban development characteristics. Petitioners and Right Size stipulated that the Property is within a node which was confirmed by Mr. Atkins. The next criterion under Policy 1.1.20B is whether there are mass transit services available near the Property. The staff report notes that mass transit Routes 8 and 25 are available at the Property and this fact was confirmed by Ms. Reed. The fourth and fifth criteria under Policy 1.1.20B address whether there is sufficient water, sewer and other services available to serve the Property. The City requested information from various agencies and utilized the responses to analyze the impact of the Ordinance. The City sought confirmation from the Jacksonville Electric Authority, Transportation Planning, the Duval County School Board, Florida Department of Transportation, and the Concurrency and Mobility Management System Office to determine whether the systems serving the Property, i.e. water, sewer, schools, and roads, had available capacity to serve the site if the UPDA was expanded to include the Property. All the agencies consulted responded that there was sufficient capacity available. In addition, Ms. Reed testified that the Ordinance met Policy 1.1.20B because there is capacity for water and sewer, there is transit available, the area is very walkable, and there is access to a lot of neighborhood services nearby. Ms. Reed and Ms. Haga persuasively testified that the Ordinance met the criteria for land deemed appropriate for inclusion in the UPDA as set forth in Policy 1.1.20B. Petitioners and Right Size did not offer any evidence regarding the consistency of the Ordinance with Policy 1.1.20B and their expert did not offer any opinions or otherwise discuss consistency of the Ordinance with Policy 1.1.20B. Petitioners and Right Size did not prove beyond fair debate that the Ordinance was not consistent with FLUE Policy 1.1.20B. FLUE Policy 1.1.21 requires the City to analyze need for all land use map amendments. The Policy states: Future amendments to the Future Land Use Map series (FLUMs) shall include consideration of their potential to further the goal of meeting or exceeding the amount of land required to accommodate anticipated growth and the projected population of the area and to allow for the operation of real estate markets to provide adequate choices for permanent and seasonal residents and business consistent with FLUE Policy 1.1.5. The projected growth needs and population projections must be based on relevant and appropriate data which is collected pursuant to a professionally acceptable methodology. In considering the growth needs and the allocation of land, the City shall also evaluate land use need based on the characteristics and land development pattern of localized areas. Land use need identifiers include but may not be limited to, proximity to compatible uses, development scale, site limitations, and the likelihood of furthering growth management and mobility goals. Petitioners and Right Size stipulated that they did not object to a density on the Property of 40 ru/acre or 114 total units, but object to the additional 19 units permitted by the Ordinance. Petitioners' and Right Size's expert, Mr. Atkins, testified that need to expand the UPDA to encompass the Property was not demonstrated, and that need for the "additional number of units" was not demonstrated. The City's experts, Ms. Reed and Mr. Killingsworth explained that Table L-20 of the FLUE identifies land use categories and their projected need at the end of the 2030 planning horizon. Mr. Killingsworth testified that Table L-20 demonstrates that at the end of the planning horizon the RPI land use will be at 119 percent of need, while the CGC land use will be at 84 percent of need. This indicates a need for additional CGC designated lands by 2030, as well as an over-abundance of RPI-designated lands. Since the Ordinance includes a request to change existing RPI-designated lands to CGC, it addresses both the need to increase CGC-designated lands and to decrease RPI-designated lands. Mr. Killingsworth testified that Table L-20 was prepared by the City to comply with section 163.3177(6), which requires all local governments to project need and to assure that there is market availability to respond to such need. The Table, along with the underlying data and analysis used to support it, was reviewed by the Florida Department of Community Affairs (n/k/a the Department of Economic Opportunity) and found to comply with state law. Mr. Killingsworth also testified that the City considered testimony by the San Marco Merchants Association, local residents, and the applicant presented during the hearings. The testimony demonstrates that the Ordinance would address current economic and housing needs in the area. Mr. Killingsworth opined that the testimony and Table L-20 demonstrate a need for the Ordinance to accommodate anticipated growth and the projected population of the area. With regard to the land use need identifiers of proximity, compatibility, and scale, Mr. Killingsworth testified that "compatibility" as defined in the FLUE "doesn't mean you have to have the same uses adjacent to each other, it doesn’t mean that you have to have the same density adjacent to each other." Instead it means that "those uses have to operate in conjunction with each other and there has to be [ ] some sense to the scale, the mass, and bulk of the structure." See Tr. at pg. 203, lines 11-17. Mr. Killingsworth also testified that although the City's analysis was that the Ordinance met the land use need identifiers, the limitations included in the site specific policy/text amendment were an additional way to ensure compatibility with adjacent uses with regard to use, scale, and height. The CGC portion of the Property is currently permitted to be developed up to 40 ru/acre. The site specific policy/text amendment limits the Property to a total of 133 residential units (or approximately 46 ru/acre), which the City Council determined is compatible, particularly given the fact that the East San Marco property directly north of the Property can be developed with up to 60 ru/acre. The Comp Plan FLUE does not establish height limitations for any of the land use categories, including CGC and RPI. Mr. Killingsworth testified that the s ite specific policy/text amendment provides for standards related to height that are otherwise not in the FLUE. The East San Marco project to the north has a height limit of 50 feet, and the low density residential neighborhood to the south has a height limit of 35 feet. Mr. Killingsworth opined that the limitation in the site specific policy/text amendment, restricting the height on the Property to an average of 35 feet, allows for an appropriate transition between the uses to the north and the uses to the south, thus ensuring compatibility. Petitioners and Right Size did not prove beyond fair debate that the Ordinance was not consistent with FLUE Policy 1.1.21. FLUE Policy 1.1.22 states: "Future development orders, development permits and plan amendments shall maintain compact and compatible land use patterns, maintain an increasingly efficient urban service delivery system and discourage urban sprawl as described in the Development Areas and the Plan Category Descriptions of the Operative Provisions." Petitioners' and Right Size's expert Mr. Atkins testified that he did not review Policy 1.1.22. However, in an abundance of caution, the City and Intervenors presented evidence to establish that the Ordinance was consistent with Policy 1.1.22. Mr. Killingsworth pointed to the definition of compact development from the FLUE, which includes the efficient use of land primarily by increasing intensity, density, and reducing surface parking. He testified that the Ordinance accomplished these criteria. Mr. Killingsworth testified that the height averaging in the site specific policy/text amendment assisted with ensuring compatibility, and that the proposed development's mix of commercial, residential, and institutional uses on a small site met the definition of compact development. Ms. Reed testified that the Property is in an area with full urban services, has access to transit, and fronts on an arterial roadway. Furthermore, it promotes a compact and compatible land use pattern through redevelopment and infill. Petitioners and Right Size did not prove beyond fair debate that the Ordinance was not consistent with FLUE Policy 1.1.22. Data and Analysis The parties agreed in the Amended Joint Pre-Hearing Stipulation that the facts remaining for adjudication with regard to "data and analysis" were exclusively related to subsection (c) of Policy 4.4.16, the site specific policy/text amendment that addressed only building height. However, Petitioners' and Right Size's expert Mr. Atkins did not discuss data and analysis specifically related to subsection (c) of Policy 4.4.16. Mr. Atkins testified about data and analysis related to the Ordinance generally. The City addressed the data and analysis supporting the Ordinance, and the City's response to that data and analysis. The City considered data from professionally accepted sources and applied an analysis based on established procedures set forth in the Comp Plan. The process of data collection began with the submittal of the application, which included a survey, a legal description and an owner's affidavit. Mr. Killingsworth testified that chapter 640 of the City's Ordinance Code sets out the process by which FLUM amendment applications are processed and reviewed by the planning staff. Section 650.404(b) requires that the City hold a Citizens Information Meeting that allows receipt of additional data from the affected community. Ms. Reed explained that all amendments are evaluated based upon standards and methodologies established in the FLUE for the assessment of data and analysis, which includes public facilities, school impacts, population, and development impacts. The City planning staff collected background data for the initial analysis of the Ordinance. The background section of the staff report goes through an analysis of the characteristics of the site, including the location, acreage, and surrounding uses; describes the site in general; identifies the Council district; identifies the Planning District; and notes if there are any applicable vision plans. The City planning staff also did research on applications and amendments that have occurred in proximity to the Property. The background information is part of the data and analysis that the City used to determine whether the Ordinance Amendment was consistent with the City's policies. In addition, FLUE Policy 1.2.16 requires the City to assume maximum development potential when analyzing the impacts of amendments to the FLUM unless there is a site-specific policy limiting density or intensity. In this instance, the staff report was completed prior to the addition of the site specific policy/text amendment to the Ordinance, which specifically limits the density and intensity permitted on the Property. The City's staff followed the guidelines of Policy 1.2.16 and utilized the maximum development potential for the Property in reviewing the application, i.e., 2.87 acres of CGC designated property in the UPDA. Ms. Reed testified that the site specific policy/text amendment "added parameters and limitations that were not there before, so it really lessened the impact based on what we analyzed versus what was ultimately approved." See Tr. at pg. 291, lines 8-17. Under Policy 1.2.16, the City developed a table entitled "Development Standards for Impact Assessment," which is used to collect and analyze specific impact data. The data gathered by the City for the table included the analyses provided by various advising agencies and entities. The data and analyses provided by the other agencies and entities are summarized in the table in the staff report. The table also includes a section where the City staff identifies and reviews other appropriate plans and studies. These plans and studies have not been adopted into the City's Comp Plan, but they are utilized as data and analysis when the planning staff reviews a FLUM amendment. The staff report identifies three plans applicable to the site, the Southeast Jacksonville Vision Plan, the North San Marco Action Plan, and the Strategic Regional Policy Plan. Ms. Reed explained that the Ordinance was consistent with the Southeast Jacksonville Vision Plan which provides for new development along Hendricks Avenue compatible with existing neighborhoods. The staff report notes that design details can be addressed in the companion PUD rezoning application. Likewise, the staff report concludes that the Ordinance is generally consistent with the features of the North San Marco Action Plan and that design details would be handled through the PUD review and implementation. Finally, Ms. Reed explained that the City found that the Ordinance would achieve the Strategic Regional Policy Plan's goals of improving quality-of-life with appropriate infill and redevelopment and by providing diverse housing options. Additional evidence and testimony offered by the applicant and the citizens during the Planning Commission, LUZ Committee, and City Council hearings was collected and analyzed by the City prior to final action on the amendment application. The additional data and information gathered during the many different hearings on the Ordinance resulted in the recommendation of the LUZ Committee to add the site specific policy/text amendment to the Ordinance. The site specific policy/text amendment limits the development potential on the Property. Mr. Killingsworth testified that the site specific policy/text amendment was a direct result of the City's analysis of input from the public related to intensity, density, and compatibility. Ms. Reed testified that "all of these things were considered together as a whole in order to come up with a recommendation, both in the staff report and final approval by Council as amended." Petitioners and Right Size did not prove beyond fair debate that the Ordinance was not supported by data and analysis, and that the City's response to that data and analysis was not appropriate. Meaningful and Predictable Standards Section 163.3177(1) requires that a Comp Plan "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." Petitioners' and Right Size's expert, Mr. Atkins, opined that subsection (c) of the site specific policy/text amendment is "vague in its application and certainty in its outcome," in that "[t]here is no defined limit of what the height might be in violation of the requirements of section 163.3177(1)." Mr. Atkins acknowledged that the Comp Plan FLUE does not otherwise address height and that "[i]t all seems to be handled at the PUD or LDR level." This fact was confirmed by the City's expert, Mr. Killingsworth. Mr. Killingsworth explained that the objective of the site specific policy/text amendment, as a whole, is to establish a maximum development potential or otherwise restrict development on the Property consistent with Objective 4.4 of the FLUE. The density limitations, combined with the height limitation, restrict the development potential on the Property. Mr. Killingsworth testified that subsection (c) represents a policy statement by the City Council that height should be no more than an average of 35 feet, and it provides guidance as to how the height is to be calculated, which will ultimately be implemented in the LDRs and the PUD. Subsection (c) provides more specificity regarding height than would otherwise be achieved through a Comp Plan land use category without a site specific policy/text amendment. Mr. Killingsworth also testified that although the height limitation in subsection (c) may not dictate that the higher heights should be on the northern portion of the Property and transition to the lower heights on the southern portion of the Property, the PUD and the development of the Property will need to comply with other parts of the Comp Plan that require a transition between uses. Petitioners and Right Size did not prove beyond fair debate that the Ordinance does not guide future development decisions in a consistent manner, and does not establish meaningful and predictable standards for the use and development of land. Ultimate Findings Petitioners and Right Size did not prove beyond fair debate that the Ordinance is not in compliance. All other contentions not specifically discussed have been considered and rejected. The City's determination that the Ordinance is in compliance is fairly debatable.
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 finding Ordinance No. 2019-750-E "in compliance," as defined by section 163.3184(1)(b). DONE AND ENTERED this 10th day of August, 2020, in Tallahassee, Leon County, Florida. S FRANCINE M. FFOLKES 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 10th day of August, 2020. COPIES FURNISHED: Sidney F. Ansbacher, Esquire Upchurch, Bailey and Upchurch, P.A. Post Office Drawer 3007 St. Augustine, Florida 32085-3007 (eServed) Frank D. Upchurch, Esquire Upchurch, Bailey and Upchurch, P.A. Post Office Drawer 3007 St. Augustine, Florida 32085-9066 (eServed) Emily Gardinier Pierce, Esquire Rogers Towers, P.A. 1301 Riverplace Boulevard, Suite 1500 Jacksonville, Florida 32207 (eServed) Courtney P. Gaver, Esquire Rogers Towers, P.A. 100 Whetstone Place, Suite 200 St. Augustine, Florida 32086 (eServed) T.R. Hainline Jr., Esquire Rogers Towers, P.A. 1301 Riverplace Boulevard, Suite 1500 Jacksonville, Florida 32207 (eServed) Jason R. Teal, Esquire Office of General Counsel City of Jacksonville 117 West Duval Street, Suite 480 Jacksonville, Florida 32202 (eServed) Paul M. Harden, Esquire The Law Firm of Paul M. Harden, Esquire 501 Riverside Avenue, Suite 901 Jacksonville, Florida 32202 (eServed) Gary K. Hunter, Jr., Esquire Hopping, Green & Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314 (eServed) Mohammad O. Jazil, Esquire Hopping Green & Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314 (eServed) Craig D. Feiser, Esquire City of Jacksonville Office of General Counsel 117 West Duval Street, Suite 480 Jacksonville, Florida 32202 (eServed) Trisha Bowles, Esquire City of Jacksonville Office of the General Counsel 117 West Duval Street, Suite 480 Jacksonville, Florida 32202-5721 (eServed) Ken Lawson, Executive Director Department of Economic Opportunity Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed) Mark Buckles, Interim General Counsel Department of Economic Opportunity Caldwell Building, MSC 110 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed) Janay Lovett, Agency Clerk Department of Economic Opportunity Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed)
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 the Comprehensive Plan adopted by Jefferson County is not "in compliance" as such is defined at Section 163.3184(1)(b), Florida Statutes, as alleged in the Petition for Administrative Hearing to Review the Comprehensive Plan Adopted by Jefferson County, filed by the Petitioners in this case.
Findings Of Fact Robert B. Rackleff and Jo Ellyn Rackleff own property in Jefferson County. The Rackleff's represent the "Friends of Lloyd, Inc.", an organization opposed to a proposed siting of petroleum product terminal facilities near Lloyd, a town within Jefferson County. The Department of Community Affairs (DCA) is the state land planning agency and administers the requirements of the "Local Government Comprehensive Planning and Land Development Regulation Act", Chapter 163, Part II, Florida Statutes. On or about July 19, 1991, The Board of County Commissioners of Jefferson County adopted a comprehensive plan (plan). The plan was reviewed by the DCA and determined to be "in compliance". 2/ Jefferson County, population 12,243, is located in the northern part of Florida, bordered by the Aucilla River and Madison and Taylor Counties to the east, the Gulf of Mexico to the south, Leon and Wakulla Counties to the west, and the State of Georgia to the north. Jefferson County contains a land area of approximately 392,192 acres. The bulk of the county's residents live in or near Monticello (the county seat), Lloyd, Wacissa, Lamont, Drifton, Capps, Aucilla, Waukeenah, Dills, Thomas City, and Nash. Major transportation routes through Jefferson County include Interstate 10 running east-west through the county just south of Monticello, U.S. Highway 90 lying north of and parallel to I-10 and running through the center of Monticello, U.S. Highway 27 lying south of I-10 and running east-west through the county, and U.S. Highway 98 lying south of U.S. 27 and also running east- west. U.S. Highway 19 enters north Jefferson County at the Georgia border and runs south until it merges with U.S. 27. State Roads 257 and 59 also run north- south. Both State Roads 257 and 59 intersect with I-10, as does U.S. Highway 90. The plan designates land parcels surrounding the I-10/U.S. 90 and I- 10/S.R. 59 interchanges and land parcels on the north side of the I-10/S.R. 257 interchange as "Mixed Use Interchange Business". Future Land Use Element Objective 1, Policy 1-3, of the plan defines the "Mixed Use Interchange Business" designation as follows: A mixed use category located at an interchange with I-10, with a variety of primarily commercial businesses. Because there are but three such interchanges in Jefferson County, the amount of land is necessarily limited; uses in the category are, therefore, limited to those activities requiring locations with high vehicular traffic and easy access to I-10. Appropriate uses include (1) tourist oriented facilities, such as restaurants, automotive service stations, truck stops, motels, campgrounds, and the like; (2) region serving retail complexes or office centers; (3) commerce parks; (4) facilities for the storage and distribution of foods and products including wholesale activity; (5) light manufacture of goods for distribution to other locations; and (6) truck stops. Intensity of use, as measured by impervious land coverage shall not exceed 80%. More intense truck transport and highway oriented activities, and regional distribution centers may also be allowable, subject to special exception approval by the Board of County Commissioners in order to ensure the closest possible scrutiny of such uses. Activities subject to such special exception approval include: uses exceeding 50,000 square feet impervious land coverage; uses with a total land area of five or more acres; uses which have storage capacity for more than 500,000 gallons of petroleum product; or uses on environmentally sensitive lands as defined in the Conservation Element. Performance standards shall be included in the land development regulations for special exceptions to insure that on-site and off-site impacts are adequately planned for and monitored. Impacts include trip generation, transportation access, drainage, water quality, visual appearance, avoidance of environmentally sensitive lands and mitigation of impacts, noise, signage, and air quality. Information to support the application shall be provided by the applicant at the applicant's expense. Activities subject to special exception in this district shall only be required to obtain special exception approval for plan land use changes, and shall not be required at the time of application or receipt of a building permit. (emphasis supplied) Local governments are required to adopt and enforce, within one year following submission of the comprehensive plan for review by the state land planning agency, land development regulations (LDR's) which are consistent with and implement the adopted comprehensive plan. Section 163.3202(1), Florida Statutes. According to the data in the plan, the interchange at I-10/S.R. 59 exists over a potential area of high groundwater recharge. The county's groundwater system includes the upper and lower Floridan Aquifer. Support documents to the Jefferson County plan note that aquifer recharge occurs through sinkholes near Lake Miccosukee, along the Aucilla River, and through the northeast area of the county. Water contamination can occur through drainage from septic tanks, leaking underground storage tanks, hazardous waste, and contaminated stormwater runoff. The Petitioners generally assert that the plan is not in compliance because the possible siting of a petroleum product facility over the potential area of high groundwater recharge fails to adequately protect water quality and the Floridan Aquifer. Under the "mixed use interchange business" designation, land uses permitted through a special exception process receive specific scrutiny by the Jefferson County Board of County Commissioners. Uses including storage capacity for more than 500,000 gallons of petroleum product or which lie on environmentally sensitive lands as defined in the Conservation Element are required to undergo the "special exception" process. Special exception uses are governed by the performance standards which will be included in the county's land development regulations. Such regulations must insure that on-site and off-site impacts, including water quality, avoidance of environmentally sensitive lands and mitigation of impacts, trip generation, transportation access, drainage, visual appearance, noise, signage, and air quality are adequately planned for and monitored. Section 163.3177, Florida Statutes, identifies the elements of a local government comprehensive plan. Some elements identified in this section may be included in the plan at the local government's option; others are required. 3/ FUTURE LAND USE ELEMENT Section 163.3177(6)(a), Florida Statutes, requires the inclusion of a Future Land Use Element, which "may designate areas for future planned development use involving combinations of types of uses for which special regulations may be necessary to ensure development in accord with the principles and standards of the comprehensive plan and this act". Rule 9J-5.006(3)(c)(6), Florida Administrative Code, states that a Future Land Use Element must contain one or more policies addressing the implementation of protection of potable water wellfields and environmentally sensitive land. The Jefferson County Comprehensive Plan Future Land Use Element includes the information required by the statute and rules. Jefferson County's Future Land Use Element Policy 1-5 states: Existing, revised, and/or new land development regulations shall ensure protection of environmentally sensitive lands. Such lands include areas designed 4/ as Conservation on the Future Land Use Map, and may include other isolated areas identified on a site-by-site basis shall be included in the land development regulations. All development is subject to site plan review which is the primary means of ensuring protection. Also refer to specific objectives and policies of the Conservation Element. Future Land Use Element Policy 1-6 provides: The LDR's 5/ shall require protection of all future potable water well fields developed in the County with a design capacity of 100,000 gallons per day or greater through development of locational criteria including a minimum 200 ft. prohibited development zone around the well's perimeter and consideration of distance from hazardous waste storage or generation (including petroleum storage tanks). (This is the same as the G-1 rule from DER.) Future Land Use Element Objective 3 provides: Throughout the planning period, the County shall require that the natural and historic resources of the County be protected from the negative impacts of development activities, and shall require that future land uses are coordinated with the appropriate topography and soil conditions. This objective shall be accomplished using Policies 3-1 through 3-3 Future Land Use Element Policy 3-1 provides: Encourage development and allow growth only in areas without steep slopes. Future Land Use Element Policy 3-2 provides: Drainage improvement plans will be submitted as part of the site plan and/or subdivision review process. Standards will be included in the land development regulations for drainage improvements during development. Future Land Use Element Policy 3-3 provides: Existing regulations in the Jefferson County Development Code shall be continued; the regulations are designed to ensure protection from flood damage, protection of the aquifer, protection of lands adjacent to lakes, streams, and within wetlands. Regulations will be revised for consistency with the objectives and policies of the Jefferson County Comprehensive Plan. CONSERVATION ELEMENT Section 163.3177(6)(d), Florida Statutes, requires the plan to include a Conservation Element for the conservation, use, and protection of natural resources in the area, including water, water recharge areas, and waterwells. Rule 9J-5.013(2)(c)(1), Florida Administrative Code, states that a Conservation Element shall contain policies addressing the implementation activities for the protection of water quality by restriction of activities known to adversely affect the quality and quantity of identified water sources including existing cones of influence, water recharge areas, and waterwells. Rule 9J- 5.013(2)(c)(6), Florida Administrative Code, states that a Conservation Element shall contain policies addressing the implementation activities for the protection and conservation of the natural functions of existing soils, fisheries, wildlife habitats, rivers, bays, lakes, floodplains, harbors, wetlands including estuarine marshes, freshwater beaches and shores, and marine habitats. Rule 9J-5.013(2)(c)(9), Florida Administrative Code, states that a Conservation Element shall contain policies addressing the implementation activities for the designation of environmentally sensitive lands for protection based upon locally determined criteria which further the goals and objectives of the Conservation Element. Rule 9J-5.013(2)(c)(10), Florida Administrative Code, states that a Conservation Element shall contain policies addressing the implementation activities for the management of hazardous wastes to protect natural resources. The Jefferson County Comprehensive Plan Conservation Element includes the information required by the statute and rules. Conservation Element Objective 2 provides: In order to protect water quality, the County shall protect all its surface waters and ground waters from the intrusion of pollutants throughout the planning period This shall be accomplished through: continued implementation and enforcement of the Jefferson County Land Development Code, which requires a site plan review process for all development; correction of drainage deficiencies by 1992, and by the creation of a stormwater drainage plan for Lake Miccosukee and the Aucilla River (north of US27/19) as soon as funding is available. Upon completion of the drainage plan, the County will amend the comprehensive plan for consistency with the recommendations of the drainage plan. Conservation Element Policy 2-1 provides: Throughout the planning period, the County shall require that all new development provide stormwater management systems designed so that post development rates of runoff do not exceed pre-development rates, and to provide treatment of stormwater prior to surface water discharge, consistent with Chapter 17-25, F.A.C. This shall be accomplished using the site plan review process, mandatory for all development, adopted as part of the land development regulations by the statutory deadline. Conservation Element Policy 2-2 provides: The County shall coordinate with the Department of Environmental Regulation, Bureau of Waste Management to ensure that the existing underground leaking tanks are remediated by the owner expediently, and in a manner which does not further threaten ground water quality. Conservation Element Policy 2-3 provides: The County shall adopt a wellfield protection ordinance (for protection of cones of influence and waterwells) by the statutory deadline, a hazardous waste management ordinance by 1991, and a shoreline/waterfront protection ordinance by 1992 to ensure protection of ground and surface water. Conservation Element Policy 2-4 requires the county to consult with the DER and the water management districts to ensure that water withdrawal within two named sites will not increase groundwater contamination from said sites. Conservation Element Policy 2-7 provides: The County shall coordinate with the Suwanee river and Northwest Florida Water Management Districts in the protection of prime recharge areas, once such areas have been designated by the Districts. Conservation Element Policy 2-8 provides: The land development regulations shall limit impervious surfaces, and require onsite retention of stormwater runoff in the County's high recharge areas. Conservation Element Objective 3 provides: Throughout the planning period, the County shall protect all areas that fall within the 100-year floodplain. The County shall use the Flood Insurance Rate map and the site plan review process for all development, as the tools for implementation. Conservation Element Policy 3-1 provides: The County shall continue to enforce the existing floodplain ordinance restricting development if (sic) floodprone areas. The ordinance shall continue to prohibit the following within the 100 year floodplain: fill; structures (other than on stilts); common water supplies or sewage treatment facilities; and roads, except as infrequent intervals as necessary to provide access to private or public property. Permitted uses in the 100 year floodplain shall include agriculture; silviculture; residential structures, only where fill is not required and the first floor elevation is at least one foot above the 100 year flood, and, only at very low densities; recreation (such as hiking trails); native vegetation and wildlife habitat. The ordinance shall continue to protect the functions of floodprone areas through its requirement that flood areas are to be treated as positive visual open space, wildlife habitat, and as water recharge and discharge resources. Conservation Element Policy 3-2 provides: The floodplain ordinance shall protect the water quality and wildlife habitat values of shorelines and riverine floodplains by establishment of a contiguous vegetative buffer along the Wacissa and Aucilla Rivers, of at least 50 foot in width, measured from the wetlands jurisdictional line, within which permanent structures will be prohibited, and clearing of native vegetation (other than areas designated for silvicultural use) shall be limited to only to (sic) provide reasonable access to the shoreline. Shoreline buffers shall be established for Lake Miccosukee. Conservation Element Objective 4 provides: Throughout the planning period, the County shall conserve the water supply and protect the quantity and quality of current water source and any new water sources. This objective shall be accomplished using Policies 4-1 through 4-4. Conservation Element Policy 4-1 provides: The County shall enforce water conservation during times of drought by enacting an ordinance which prohibits irrigation between 10:00 AM to 6:00 PM, and shall keep the public informed of these restrictions through newspaper notices and posted notices. Conservation Element Policy 4-2 provides: The County shall continue to adhere to any emergency water conservation measures imposed by the Northwest Florida and Suwanee River Water Management Districts. Conservation Element Policy 4-3 provides that all new construction and all remodeling activities utilize fixtures conforming to a specified schedule of maximum water usage. Conservation Element Policy 4-4 provides: The County shall enact policies that allow septic tanks only in areas where public sewer is unavailable and only upon issuance of a Jefferson County Health Department permit. Conservation Element Policy 4-5 provides that the county will promote and encourage agricultural land owners to incorporate specified water conserving farming methods. Conservation Element Policy 4-6 provides: Future water demand for nonpotable water uses should be met through the use of water of the lowest acceptable quality for the purpose intended. To this end, the County may require that developers requiring large amounts of water for use other than drinking water utilize reclaimed water from stormwater systems and treated wastewater. Conservation Element Policy 5-1 provides: By the statutory deadline for adoption of land development regulations, the County shall adopt regulations for the preservation and conservation of those areas which are known habitats for threatened and endangered species, and species of special concern, and those areas characterized by wetlands. By 1995, the County shall develop and complete a program to identify, protect and enhance those specific areas which contain unique vegetative communities, springs, caves, sinkholes, ravines, or are suitable for, habitats for threatened and endangered species, and species of special concern, and those areas characterized by wetlands. Conservation Element Policy 5-7 provides: In order to carry out Policy 5-1, the County shall: establish a citizens or other committee to initiate the vegetation and wildlife habitat identification program, based upon the initial data provided by the Comprehensive Plan, and coordination with US Fish and Wildlife and the Florida Game and Freshwater Fish Commission. use innovative techniques in the land development regulations for preservation of such areas, such as: designation and regulations of conservation areas; site plan review; on-site density transfers to allow clustering of allowable units to protect environmentally sensitive portions of a site; and, overlay zoning whereby density calculations and developable land expectations area (sic) based on net developable acreage after excluding the environmentally sensitive portions. Conservation Element Policy 5-8 provides: The County shall promote the designation and protection of natural reservations designated within the County, through cooperation with the federal government regarding St. Mark's National Wildlife Refuge and the Aucilla Wildlife Management Area, the State's CARL program, the Water Management District's Save Our Rivers and SWIM Program, and designation of such areas on the Future Land Use Map as conservation. Conservation Element Policy 5-10 provides: Natural resources, such as wetlands, water bodies, springs, sinkholes, caves, and habitat of endangered, threatened and species of special concern are valuable resources which need protection, and are therefore designated as environmentally sensitive lands. These lands which are threatened by urban development, as well as any lands identified during the County's vegetation and wildlife habitat program to be of critical habitat for designated species, shall be protected from encroachment through the land development regulations, adopted by the statutory deadline. The Regulations shall establish performanc standards for development in such environmen- tally sensitive areas. Any environmentally sensitive lands designated for Silviculture shall be required to us (sic) the US Forest Service Best Management Practices, and are subject to the requirements of Policy 5-11. Policy 5-11 prohibits development of land designated as "Agriculture I" on the Future Land Use Map. To develop such land requires amendment of the comprehensive plan, preceded by an inventory of all wetlands and other environmentally sensitive lands as well as documentation that the proposed use will not negatively impact the environmentally sensitive lands. Conservation Element Policy 5-6 provides conservation-related criteria for permitting commercial mining activities in the county, however, there are currently no commercial mining activities in Jefferson County. Conservation Element Policy 5-13 requires that the county continue its efforts in reducing erosion in coordination with the Soil Conservation Service, and continue to notify farmers of the opportunities available towards reducing erosion. Conservation Element Policy 5-14 requires that silvicultural lands be managed to reduce erosion. Conservation Element Policy 5-15 requires that best management practices be utilized for soil conservation. Conservation Element Objective 6 provides: Throughout the planning period, the County shall prohibit the disposal of hazardous wastes into the public sewer system, canals and ditches, wetlands, stormwater facilities, unlined landfills and other unsafe areas. The hazardous wastes which are prohibited will be listed in the County's revised land development regulations. The County shall ensure that all hazardous waste is properly handled, generated or stored during the site plan review process, required for all development. Conservation Element Policy 6-1 provides: Through intergovernmental coordination and public education programs, beginning within six months after plan adoption, the County shall encourage that residents participate with the City of Monticello in promoting and participating in hazardous waste amnesty days. Conservation Element Policy 6-2 provides: In order to protect natural resources and public sewer systems, the County shall prohibit the unsafe disposal of hazardous wastes by enacting and enforcing an ordinance by the statutory deadline for adoption of the land development regulations. The ordinance shall prohibit disposal into canals, ditches, wetlands, stormwater facilities, unlined landfills and other safe areas, as well as require that any land use proposing to store, generate, or handle hazardous waste; develop an emergency response plan addressing accidents; ensure that DER standards for transfer and storage of hazardous waste are implemented; and, ensure that the site will not degrade quality of ground or surface water or other natural resources. INFRASTRUCTURE ELEMENT Section 163.3177(6)(c), Florida Statutes, requires that the plan include a general sanitary sewer, solid waste, drainage, potable water, and natural groundwater aquifer recharge element (commonly identified as the "Infrastructure Element") as follows: A general sanitary sewer, solid waste, drainage, potable water, and natural groundwater aquifer recharge element correlated to principles and guidelines for future land use, indicating ways to provide for future potable water, drainage, sanitary sewer, solid waste, and aquifer recharge protection requirements for the area. The element may be a detailed engineering plan including a topographic map depicting areas of prime groundwater recharge. The element shall describe the problems and needs and the general facilities that will be required for solution of the problems and needs. The element shall also include a topographic map depicting any areas adopted by a regional water management district as prime groundwater recharge areas for the Floridan or Biscayne aquifers, pursuant to s. 373.0395. These areas shall be given special consideration when the local government is engaged in zoning or considering future land use for said designated areas. For areas served by septic tanks, soil surveys shall be provided which indicate the suitability of soils for septic tanks. (emphasis supplied) Section 373.0395, Florida Statutes, provides: Each water management district shall develop a ground water basin resource availability inventory covering those areas deemed appropriate by the governing board. This inventory shall include, but not be limited to, the following: A hydrogeologic study to define the ground water basin and its associated recharge areas. Site specific areas in the basin deemed prone to contamination or overdraft resulting from current or projected development. Prime ground water recharge areas. Criteria to establish minimum seasonal surface and ground water levels. Areas suitable for future water resource development within the ground water basin. Existing sources of wastewater discharge suitable for reuse as well as the feasibility of integrating coastal wellfields. Potential quantities of water available for consumptive uses. Upon completion, a copy of the ground water basin availability inventory shall be submitted to each affected municipality, county, and regional planning agency. This inventory shall be reviewed by the affected municipalities, counties, and regional planning agencies for consistency with the local government comprehensive plan and shall be considered in future revisions of such plan. It is the intent of the Legislature that future growth and development planning reflect the limitations of the available ground water or other available water supplies. (emphasis suplied) Although Jefferson County's groundwater system includes the upper and lower Floridan Aquifer, the regional water management districts have not completed their studies and have not designated areas of Jefferson County as prime groundwater recharge areas for the Floridan or Biscayne aquifers, pursuant to Section 373.0395. Accordingly, the plan does not designate areas of prime groundwater recharge. Plan maps indicate where the potential for high recharge exists. As stated in the "needs assessment" at page 57 of the support documents to the Conservation Element: [A]t the present time insufficient information is available to allow the county to institute a site specific comprehensive aquifer recharge protection program. This problem should be remedied with the completion of the GWBRAI groundwater basin study for Jefferson County by the NWFWMD (Northwest Florida Water Management District) and the SRWMD (Suwanee River Water Management District). Until this GWBRAI becomes available, the county should adopt interim measures to promote protection of aquifer recharge functions, based on the known characteristics of development within the County, and general knowledge of aquifer recharge principles. The interchange at I-10/S.R. 59 exists over a potential area of high groundwater recharge. Pursuant to the special exception requirements set forth in the "mixed use business interchange" designation, the area shall receive special consideration in zoning or considering future land use for the area. Until prime groundwater recharge areas are designated, in order to promote protection of aquifer recharge functions, land use decisions will be based on the known characteristics of development within the County, and general knowledge of aquifer recharge principles. Rule 9J-5.011(2)(c)(3), Florida Administrative Code, states that an Infrastructure Element shall contain policies addressing the implementation activities for establishing and utilizing potable water conservation strategies and techniques. Rule 9J-5.011(2)(c)(4), Florida Administrative Code, states that an Infrastructure Element shall contain policies addressing the implementation activities for regulating land use and development to protect the functions of natural drainage features and natural groundwater aquifer recharge areas. The Jefferson County Comprehensive Plan Infrastructure Element includes the information required by the statute and rules. Jefferson County's Infrastructure Element Goal 4 is to conserve and preserve the values and functions of the County's natural groundwater aquifer recharge areas. Infrastructure Element Goal 4, Objective 1 provides: The County shall conserve and protect the values and functions of natural groundwater aquifer recharge areas from adverse impacts through adoption of land development regulations by the statutory deadline and coordination with federal, state, and local agencies throughout the planning period. Infrastructure Element Goal 4, Policy 1-1 provides: The County shall seek assistance from the Northwest Florida and Suwanee River Water Management Districts in the management of prime aquifer recharge areas, once such information is made available. The comprehensive plan shall be amended at that time as necessary to protect prime aquifer recharge areas. Infrastructure Element Goal 4, Policy 1-2 provides: The land development regulations shall limit impervious surface ratios for new development and shall require management of stormwater to ensure post development run-off does not exceed predevelopment run-off rates. Infrastructure Element Goal 4, Policy 1-3 provides: The County shall allow the re-use of treated effluent and stormwater for irrigation, and shall encourage such re-use during the site plan review process. Infrastructure Element Goal 4, Policy 1-8 provides for closure of the current landfill upon completion of the replacement landfill, such closure to be handled in accordance with DER requirements. Infrastructure Element Goal 2, Policy 2-1 sets forth limits on the use of new on-site wastewater treatment systems in new development and provides that such existing on-site systems may remain in service until central service is available. INTERGOVERNMENTAL COORDINATION Petitioners allege that the Intergovernmental Coordination Element contained within the plan is not in compliance, in that it allegedly fails to provide a mechanism for coordinating protection of the Floridan Aquifer and water quality in Leon and Jefferson Counties. Petitioners further allege that the plan contains no coordination of common issues such as fire protection and protection of drinking water. The goals, objectives, and policies of the Intergovernmental Coordination Element appropriately provide for formalized coordination of land use decisions with surrounding counties in order to protect water quality and quantity. The Intergovernmental Coordination Element does not specifically address fire protection. However, the evidence fails to establish that currently available fire protection is inadequate, or that, if additional protection is required, the county is unable to provide such services. INTERNAL INCONSISTENCY Section 163.3177(2), Florida Statutes, provides: Coordination of the several elements of the local comprehensive plan shall be a major objective of the planning process. The several elements of the comprehensive plan shall be consistent.... Rule 9J-5.005(5)(a), Florida Administrative Code, provides: The required elements and any optional elements shall be consistent with each other. All elements of a particular comprehensive plan shall follow the same general format. Where data are relevant to several elements, the same data shall be used, including population estimates and projections. Petitioners allege that the plan's Future Land Use Element, which includes the "mixed use interchange business" designation, is inconsistent with the policies and goals of the Conservation Element, which includes the policies related to water quality protection. The evidence fails to support the assertion that the plan is internally inconsistent. The "mixed use interchange business" designation, including the enhanced scrutiny of the special exception provisions for specified and more intensive uses, is not inconsistent with the provisions of the plan related to protection of groundwater and aquifer recharge areas. Further, the evidence does not establish that the plan is inconsistent with Chapter 187, Florida Statutes, the state's comprehensive plan. Petitioners asserted that the plan did not contain the best available information in existence at the time the plan was adopted. Section 163.3177(10)(e), Florida Statutes, provides: It is the Legislature's intent that support data or summaries thereof shall not be subject to the compliance review process, but the Legislature intends that goals and policies be clearly based on appropriate data....Chapter 9J-5, F.A.C., shall not be construed to require original data collection by local governments.... The county did not, and is not required to, produce original data in order to prepare and adopt a comprehensive plan. Petitioners suggest that the DCA erred in not considering Department of Environmental Regulation data identifying petroleum storage facilities which experienced leaks or spills reported to the DER. However, the evidence offered by Petitioners at hearing did not support the suggestion that such data was more appropriately considered than the data set forth in the county's plan. The inference suggested by Petitioner's evidence is that some petroleum storage facilities pose a threat to groundwater supplies due to leaking tanks and operational errors. However, the evidence does not indicate whether such facilities were designed to the prevent such occurrences, the types of safeguards installed, the types of maintenance required at such facilities (and whether it was performed), or whether, and the extent to which, the reported leaks or spills resulted in ground or surface water contamination. The Petitioners further assert that the plan's data related to aquifer recharge is unacceptable because it is not site specific. The general aquifer recharge map in the plan is based upon U.S. Geological Survey data, and a U.S. Bureau of Geology map. The plan also includes wetlands maps based on U.S. government information and a National Wetlands Conservatory survey. Due to the failure of the water management districts to complete the study of the county's prime aquifer recharge areas, reliable site specific information is not yet available. The plan maps adequately indicate the areas where the potential for high groundwater recharge may exist.
Recommendation Based on the foregoing, it is hereby recommended that the Department of Community Affairs enter a Final Order dismissing the Petition of Friends of Lloyd, Inc., Robert B. Rackleff and Jo Ellyn Rackleff and finding the Jefferson County Comprehensive Plan to be "in compliance" as defined at Section 163.3184(1)(b), Florida Statutes. RECOMMENDED this 31st day of July, 1991, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 1991.
Findings Of Fact Based upon all of the evidence, including the stipulation of counsel, the following findings of fact are determined: Background The parties Respondent, Franklin County (County), is a local governmental unit subject to the land use planning requirements of Chapter 163, Florida Statutes. That chapter authorizes the County, under certain conditions, to adopt what is known as a small scale development amendment to its comprehensive plan. At issue in this case is a small scale development amendment adopted by the County on October 3, 1996. Petitioner, St. George Plantation Owners Association, Inc. (petitioner), is a not-for-profit corporation organized for the protection and management of the Plantation Area of St. George Island. The island lies just south of Apalachicola, Florida in the Gulf of Mexico. The parties have stipulated that petitioner is an affected person within the meaning of the law and thus it has standing to bring this action. Intervenors, Ben Johnson and Coastal Development Consultants, Inc., are the owners of approximately 58 acres on St. George Island known as the Resort Village Property. The property is adjacent to the St. George Island Airport. A portion of intervenors' property, 9.6 acres, is the subject of the plan amendment being challenged. The nature of the dispute Intervenors' property is subject to a 1977 Development of Regional Impact (DRI) order adopted by the County in 1977. The order has been amended from time to time. Among other things, the order provides conceptual approval for the development of "one or more high quality resort hotels or motels, together with such affiliated uses as may be appropriate or desirable, such as gift and tourist shops, restaurants, recreational activities and similar activities." Intervenors desire to develop the Resort Property Village consistent with the 1977 DRI order. The first part of the project consists of approximately 9.6 acres which they have designated as Phase I. The land is located within the Plantation Area of St. George Island and has a land use designation of residential. In June 1995, intervenors submitted detailed site plans for Phase I to the County. On August 1, 1995, the County conducted a public hearing to review the proposed site plans and specifications for Phase I. It adopted a motion which directed its staff "to review and perfect the plans presented, so that the Board can consider the final approval of the plan." It also directed its staff to provide advice concerning the procedure to be followed. After consulting with the Department of Community Affairs (DCA), which recommended that the comprehensive plan be amended to change the land use to accommodate the commercial uses, the staff recommended that the County adopt a small scale development amendment by changing the designation on its Future Land Use Map (FLUM) for 9.6 acres from residential to commercial. By a 3-2 vote, on October 3, 1996, the County adopted Ordinance No. 96- 22 which changed the designation for the 9.6 acres on the FLUM from residential to commercial. Because the amendment affected ten or fewer acres, the County opted to make the change with a small scale development amendment under Section 163.3187(1)(c), Florida Statutes. According to the site plan which accompanied a Notification of Proposed Change filed with the County on May 26, 1996, the Phase I development includes four hotels, 10,250 square feet of commercial space, 300 square feet of retail space, a beach club, a 325 seat conference center, various support and recreational facilities, and a wastewater treatment plant. The Phase I site plan, however, does not include the three subsurface absorption beds which are required to service the effluent from the wastewater treatment plant. If the absorption beds were included, they would increase the size of Phase I from 9.6 to approximately 14.6 acres. In a petition challenging the adoption of the small scale amendment, petitioner contends that, if the absorption beds are properly included in the land use amendment, the land use area would exceed ten acres and thus would require a full-scale land use amendment subject to DCA review. In response, the County and intervenors have contended that, under the current plan, there is no need to change the land use where the wastewater treatment facility will be located since such facilities are allowed in any land use category. As such, they contend there is no requirement to include such property in Ordinance 96- 22. The Wastewater Treatment Facility The proposed development will be served by a wastewater treatment facility. The Department of Environmental Protection (DEP) has issued a permit to Resort Village Utility, Inc., a utility certified by the Florida Public Service Commission to serve the entire 58-acre Resort Village property. The permit provides that the plant can accommodate up to, but not exceeding, 90,000 gallons of treated effluent per day. The facility consists of the wastewater treatment plant, lines to the plant from the development which carry the untreated wastewater to the plant, and lines from the plant to three sub-surface absorption beds where the treated effluent is disbursed. The absorption beds required for the Phase I project wastewater treatment facility will not serve any residential customers. Rather, they will only serve Phase I and any other subsequent phases of Resort Village development, which is a commercial development. Construction must begin on the wastewater treatment plant once the flow of waste effluent reaches 7,500 gallons per day, or if the wastewater from restaurants reaches 5,000 gallons per day. The Phase I project is required to use this facility once the rate of flow of waste effluent exceeds 10,000 gallons per day. Until these thresholds are met, the project will rely temporarily on aerobic systems to handle and treat waste effluent. Under the permit issued by the DEP, the wastewater treatment facility required for Phase I consists of both a wastewater treatment plant and three absorption beds. Through expert testimony of a DEP professional engineer, it was established that the absorption beds were integral to the design and successful operation of the facility. The County and intervenors acknowledge this fact. Therefore, the "use" that is the subject of the amendment is the entire wastewater treatment facility, including the absorption beds, and "involves" some 14.6 acres. Since the plan amendment does not involve "10 or fewer acres," as required by statute, the amendment cannot qualify as a small scale development amendment and is thus not in compliance. In making these findings, the undersigned has considered a contention by the County that Policy 2.3 of the comprehensive plan sanctions its action. That policy reads as follows: Public utilities needed to provide essential service to existing and future land uses in Franklin County shall be permitted in all the land use classifications established by this plan. Public utilities includes all utilities (gas, water, sewer, electrical, telephone, etc.) whether publicly or privately owned. At hearing, the County planner construed the term "public utilities" as being "minor (utility) infrastructure," including wastewater treatment plants not exceeding 100,000 gallons per day. Relying on this provision, the County reasons that the proposed facility is "minor" infrastructure, since it will only have 90,000 gallons per day capacity, and thus it can be placed in a residential land use category. They go on to argue that, since no change in land use classification is needed to permit the facility, it is unnecessary to include the facility in the plan amendment. According to the County, however, the plant (but not the beds) was included only because it was easier to draw a map for the entire 9.6 acres rather than excise that portion of the land where the plant will be located. Under the same theory, the County has placed at least two existing wastewater treatment facilities in the residential land use category. Those facilities, however, predate the adoption of the comprehensive plan in April 1991, and both serve residential, as opposed to commercial, developments. Moreover, the County admitted that it lacks any "clear" policy about the meaning of "public utilities," and it has never adopted a land development regulation to implement the interpretation given at hearing. The County's position is contrary to conventional land use planning practices which define "utilities" as infrastructure such as water or electrical lines that transport a service and would, by their very nature, be required to cross different land uses. Conversely, conventional land use planning practices define "facilities" as infrastructure that performs a service, such as power plants or pumping stations. This infrastructure does not cross different land use categories. In this case, the absorption beds perform a service by further processing and treating waste effluent from Phase I. Therefore, conventional land use planning practices would logically call for the plant and related absorption beds to be classified as "public facilities" under Policy 2.2(i) of the County's comprehensive plan. That policy defines the term as including "water and sewer facilities." The classification would also be compatible with the definition of "public facilities" found in DCA Rule 9J-5.003(105), Florida Administrative Code. Finally, the County and intervenors point out that the facility may not be constructed for many years, depending on the rate and amount of development that occurs in Phase I. Thus, they contend that there is no immediate requirement for the County to change the future land use designation of the property where the absorption beds will be located. But given the fact that the beds and plant are a single, interrelated system, the County cannot choose to change the land use designation for a portion of the facility while ignoring the remainder.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Administration Commission enter a Final Order determining Ordinance No. 96-22 adopted by Franklin County on October 3, 1996, as not in compliance for failing to meet the criteria of Section 163.3187(1)(c), Florida Statutes. DONE AND ENTERED this 13th day of February, 1997, in Tallahassee, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 13th day of February, 1997. COPIES FURNISHED: Barbara Leighty, Clerk Growth Management and Strategic Planning The Capitol, Room 2105 Tallahassee, Florida 32399-0001 Richard W. Moore, Esquire Post Office Drawer 1759 Tallahassee, Florida 32302-1759 Alfred O. Shuler, Esquire Post Office Drawer 850 Apalachicola, Florida 32320-850 L. Lee Williams, Esquire Post Office Box 1169 Tallahassee, Florida 32302-1169 Stephanie Gehres Kruer, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325-A Tallahassee, Florida 32399-2100 Gregory C. Smith, Esquire Office of the Governor The Capitol, Room 209 Tallahassee, Florida 32399-0001
