The Issue The issue is whether the plan amendments adopted by the City of St. Pete Beach (City) by Ordinance No. 2008-15 on August 26, 2008, are in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: The Parties The City is a municipality in southwestern Pinellas County. Following an Evaluation and Appraisal Report (EAR) process, the City adopted its current Plan in 1998 (also known as the 2010 Plan), which has been found to be in compliance. Since 2007, municipalities within Pinellas County have participated in the Pilot Program for adoption of comprehensive plan amendments. The statutory process is described in Section 163.32465, Florida Statutes. Under the Pilot Program, municipalities have "reduced state oversight of local comprehensive planning," and plan amendments may be enacted in "an alternative, expedited plan amendment adoption and review process." Id. Although the City must send a transmittal package to the Department (and other designated agencies and entities) for its preliminary review, the Department does not issue an Objections, Recommendations, and Comments Report or a notice of intent. Instead, the Department "may provide comments regarding the amendment or amendments to the local government." Id. It may also initiate an administrative proceeding to challenge whether such amendments are in compliance, but it chose not to do so here. The amendments in dispute were adopted under the Pilot Program. Petitioner is a resident of, and owns property in, the City, and he submitted oral and written comments and objections concerning the proposed amendments. As such, he is an affected person and has standing to participate in this proceeding. The parties have stipulated that Lorraine Huhn and Deborah Nicklaus reside and own property within the City, and that both individuals submitted comments to the City during the transmittal public hearing on June 16, 2008, and/or the adoption public hearing on August 26, 2008. Therefore, they are affected persons and have standing to participate. According to the parties' Pre-Hearing Stipulation, SOLV is a Florida non-profit corporation with a principal address of 6370 Gulf Boulevard, St. Pete Beach, Florida. The parties have also stipulated that SOLV operates a business within the City. Whether it submitted comments to the City between the transmittal hearing on June 24, 2008, and the adoption hearing on August 26, 2008, is in dispute. SOLV's President, Lorraine Huhn, presented comments at the City's adoption hearing on August 26, 2008. See Petitioner's Exhibit 15, pages 63-64. During her brief oral presentation to the City Commission in support of the amendments, she did not state that she was speaking on behalf of SOLV, and at no time did she refer to that organization. However, on August 2, 2008, Ms. Huhn sent an email on behalf of SOLV to the City Clerk, which arguably can be interpreted as written support for the Ordinance being challenged. See Intervenors' Exhibit 9. Also, an email authored by the City Manager on August 1, 2008, indicates that SOLV representatives met with City representatives on July 31, 2008, to discuss the proposed amendments. See Intervenors' Exhibit 10. Since these written and oral comments were submitted between the transmittal and adoption hearings, SOLV meets the definition of an affected person and has standing to participate in this proceeding. Background By way of background, the City was initially incorporated in 1957 as St. Petersburg Beach by consolidating the towns of Pass-a-Grille, Don CeSar, Belle Vista, St. Petersburg Beach, and certain unincorporated areas of Pinellas County. It occupies a six-mile long barrier island (known as Long Key), which lies between the Gulf of Mexico and Boca Ciega Bay, with a maximum width of three-quarters of a mile and an area of approximately 2.25 square miles or 1,286.14 acres. The name was shortened to St. Pete Beach in 1994 to lessen the confusion with the City of St. Petersburg, which lies to the east. The City has about 4.5 miles of beaches and is very densely populated. Most of the City has been developed with only 13.40 acres, or around one percent of the land, vacant and undeveloped. The entire City is within the flood plain, and much of the City is within the Coastal High Hazard Area (CHHA). The current population is around 10,000. To place the current dispute in proper perspective, a history of events that began in 2002 is necessary. With the assistance of a consulting firm, beginning in April 2002 the City initiated redevelopment planning efforts for various areas within the City including Corey Avenue/Blind Pass Road, Pass-a- Grille, Gulf Boulevard, and residential neighborhoods. The intention of this effort was to define the starting point for subsequent master planning efforts by the City. A Final Report (also known as the Visioning Statement or Plan) was issued by the consulting firm in July 2002. See Respondent's Exhibit 1. This was followed by a master planning process by another consulting firm, which was intended, among other things, to develop a strategy for dealing with the redevelopment of older and outdated properties within the resort area of the City (along the Gulf of Mexico), rather than having them converted into residential condominiums because of existing regulatory restrictions. The final Master Plan was presented to the City Commission in August 2003. See Respondent's Exhibit 3. In response to the Master Plan, on June 28, 2005, the City enacted Ordinance 2004-24, known as the City's Community Redevelopment Plan (Redevelopment Plan), which implemented many of the recommendations in the Master Plan. See Respondent's Exhibit 8. Among other things, the Redevelopment Plan created a new land use category, the Community Redevelopment District, which included two sub-districts, the Gulf Boulevard Redevelopment District, depicted on Map 10 of Exhibit 8, and the Downtown Redevelopment District, depicted on Map 11 of the same exhibit. The amendment was intended to establish standards for redevelopment in the so-called "resort" area of the City, which runs north-south along Gulf Boulevard adjacent to the beach on the western side of Long Key, while the same thing was intended for the core downtown area. Although Petitioner is correct that Ordinance No. 2008-15 differs from Ordinance No. 2004-24 in some respects, there are many similarities between the two, including the creation of the two Redevelopment Districts, additional character districts within the two main Districts, and the maps of the Districts. Also, both Ordinances have many of the same Goals, Objectives, and Policies, and both include unnumbered narrative text setting out allowable uses as density and intensity standards. On August 19, 2005, Petitioner and a non-profit association filed a challenge to Ordinance No. 2004-24 under Section 163.3184, Florida Statutes. See Citizens for Responsible Growth and William C. Pyle v. Department of Community Affairs and City of St. Pete Beach, DOAH Case No. 05- 3159GM. The challengers later voluntarily dismissed their petition, the case was closed on October 17, 2005, and the Department found the amendments to be in compliance. Under the City's Charter, however, citizens may petition to require reconsideration by the City Commission of any adopted ordinance and, if the City Commission fails to repeal an ordinance so reconsidered, to approve or reject it at a City election. See Petitioner's Exhibit 26; § 7.02, City Charter. (Ten percent of the qualified registered voters in the City must sign a petition in order to have an ordinance placed on the ballot for approval or disapproval.) Petitioners in DOAH Case No. 05-3159GM were instrumental, at least in part, in securing the necessary number of voters to sign a petition, and a majority of the registered voters in the City later voted to repeal the Ordinance in 2006. Pursuant to that vote, the City Commission repealed Ordinance No. 2004-24 and it never took effect. In 2008, six ordinances (Ordinance Nos. 2008-09 through 2008-14) were proposed as citizen initiatives. After the City refused to act on the six initiatives, SOLV and others filed suit against City officials seeking a vote on the six ordinances. See Save Our Little Village, Inc., et al. v. Commissioner Linda Chaney, et al., Case No. 08-2408-CI-8 (6th Circuit, Pinellas County). On March 31, 2008, the City adopted Resolution 2008-09 approving a Settlement Agreement in the law suit. See Joint Exhibit 1, Appendix C. The Settlement Agreement required the City to transmit and adopt the Ordinance being challenged here subject to various conditions and limitations, if the voters approved Ordinance No. 2008-10, which was a Petition by SOVL proposing an ordinance to amend the Countywide Future Land Use Plan. (The City is required by the Countywide Plan Rules to transmit the countywide plan map amendment to the Pinellas County Planning Council for its review in order to adopt the City plan amendment. This process is described in Petitioner's Exhibit 33.) Notably, the City's staff did not prepare the text or the accompanying supporting data for Ordinance No. 2008-15; rather, the text and all supporting data were prepared by SOLV. The voters approved Ordinance No. 2008-10 on June 3, 2008, which provided for the review and approval of the amendments being challenged here. Pursuant to the results of the referendum, on June 16, 2008, the City approved Ordinance Nos. 2008-15, 2008-24, and 2008-25. Only the first Ordinance is in issue here; the other two are not contested. As required by Section 163.32465(4)(a), Florida Statutes, the amendments were then transmitted to the Department, Department of Environmental Protection, Department of Education, Department of State, Department of Transportation District Seven, Tampa Bay Regional Planning Council, Southwest Florida Water Management District, and Pinellas County Planning Department for their review and comment, if any. Comments on the amendments were offered by the Department on August 1, 2008, and by the Department of Transportation, Department of Education, and Tampa Bay Regional Planning Council. On August 26, 2008, the City adopted Ordinance No. 2008-15. Petitioner's challenge was then timely filed with the Division of Administrative Hearings on September 24, 2008. See § 163.32465(6)(a), Fla. Stat. ("[a]ny 'affected person' as defined in s. 163.3184(1)(a) may file a petition with the Division of Administrative Hearings . . . within 30 days after the local government adopts the amendment"). The Ordinance Ordinance No. 2008-15 establishes a new land use category, the Community Redevelopment District, which includes the Downtown and Gulf Boulevard Redevelopment Districts comprised of eleven character districts, and implements that change by amending the FLUM and certain text provisions within the FLUE and HE. The two new Districts comprise approximately twenty percent of the total land area of the City, or around 248.25 acres. The amendments are found in Attachment A, consisting of 115 pages, which is attached to the Ordinance. Attachment A includes six maps found on page 40 (Map 1 - Community Redevelopment Districts Location); page 41 (Map 2 - Gulf Boulevard Redevelopment Character Districts); page 42 (Map 3 - Downtown Community Redevelopment District 1); page 110 (Map 10 - Future Land Use Map - Gulf Boulevard Redevelopment District, Proposed Future Land Use); page 111 (Map 11 - Future Land Use Map - Downtown Redevelopment District, Proposed Future Land Use); and page 112 (Map 12 - Coastal High Hazard Area - Storm Surge for Category 1 (2007), St. Pete Beach, FL). Pages 1 through 6 are introductory material outlining the need for redevelopment. Pages 7 through 112 pertain to the Future Land Use Element, while pages 113 through 115 relate to the Housing Element. Because SOLV (rather than the City) prepared Attachment A, this is probably the reason why some parts of the lengthy Attachment A have been drafted in narrative style. Besides Attachment A, support documentation for the amendments is attached to the Ordinance and includes the legal notices published in a local newspaper; Citizen Courtesy Information Lists; Commission and Planning Board Agendas; excerpts from Division 31 of the City's Land Development Code; copies of various Ordinances; and a 127-page Special Area Plan submitted to the Pinellas Planning Council and Countywide Planning Authority in support of the amendment that was necessary in order for the City to adopt the Ordinance. In addition, the data and analyses used for the adoption of Ordinance No. 2004-24 were relied upon to support the amendments, including the Visioning Plan and the Master Plan. Petitioner's Objections In paragraphs 9 through 25 of his Petition, which are in the section entitled "Disputed Issues of Material Fact And/or Mixed Disputes [sic] Issues of Fact and Law," Dr. Pyle contends that the amendments adopted by the Ordinance are not in compliance for numerous reasons. The parties' Pre-Hearing Stipulation also states that "the Disputed Issues of Material Fact and/or Mixed Questions of Fact or Law set forth in the Petition for Administrative Hearing in this matter remain disputed issues for the purposes of the final hearing." In his Proposed Recommended Order, however, Petitioner states in a more concise fashion that the amendments are not in compliance because they: are not clearly based upon appropriate data, including data required for the FLUE; [are not] based upon and supported by an appropriate analysis of the best available data; did not demonstrate "need"; [are] inconsistent with the State Comprehensive Plan; [are] not "financially feasible"; [do] not meet format requirements; [do] not contain two planning periods; establish a mixed-use FLUM designation of CRD [Community Redevelopment District] that [does] not meet the statutory and rule requirements; [are] internally inconsistent; and [do] not meet the minimum procedural and notice requirements. These objections will be considered below, although not in the order listed above. Procedural Irregularities Petitioner contends that the City failed to follow certain notice requirements and therefore he was unduly prejudiced by these irregularities. Specifically, he claims that the notices published by the City in the St. Petersburg Times on June 8 and August 20, 2008, did not advise the public of all amendments, particularly one relating to the Resort Facilities Overlay District; did not include a map showing areas subject to the FLUM amendments in relation to major streets; did not advise that the City was amending the coastal construction control line (CCCL) definition in the Preservation land use category; and the actual changes being made "did not comport with the title of the adopted Ordinance." Copies of the published notices, albeit in very small and sometimes illegible print, are found in Joint Exhibit 2. Assuming all of these notice deficiencies are true, Petitioner did not establish that he was prejudiced by any irregularities. Besides being intimately involved in this controversy since its inception in 2002, the evidence shows that he attended both the transmittal and adoption hearings of Ordinance No. 2008-15; that he addressed the City Commission at both meetings; that he was provided copies of all pertinent documents; that through counsel he filed a Petition requesting a formal evidentiary hearing, which raises a litany of compliance issues; that he was allowed to conduct discovery; and that he was given an opportunity to fully litigate each issue in his Petition. The contention that he was prejudiced by procedural irregularities is hereby rejected. Planning Time Frames Petitioner alleges that the Plan, as amended, does not set forth either a short-term planning time frame for the five- year period following adoption, or a long-term planning timeframe for at least a ten-year period following adoption. He contends that this is inconsistent with Florida Administrative Code Rule 9J-5.005(4), which requires that "[e]ach local government comprehensive plan shall include at least two planning periods: one for at least the first five year period subsequent to the plan's adoption and one for at least an overall 10-year period." See also § 163.3177(3)(a)5., Fla. Stat. The existing Plan includes at least two planning periods, a Capital Improvements Plan (CIP) covering the first five years after the adoption of the Plan in 1998, and the School Board's Five-Year Work Program for fiscal year 2007-08 through 2011-2012. Although the CIP was first adopted in 1998, the statutory deadline for all local governments to transmit an updated CIP was December 1, 2008, or after the amendment was adopted. Also, the existing Plan utilized a population estimate from the Bureau of Economic and Business Research (BEBR) to project population for the City for the upcoming ten-year period. Besides the above time frames, the new amendment contains two other planning time frames for implementation of the redevelopment incentives in the Plan. First, it contains a Residential Unit Reserve section for the new District, holding specific numbers of residential units in reserve in three of the character districts (Downtown Core Residential District, Commercial Corridor Blind Pass Road District, and Commercial Corridor Gulf Boulevard District) for the first five years after adoption of the plan amendments. See Joint Exhibit 2, pages 106-107. This allows the City to evaluate the effectiveness of the redevelopment incentives in the amendment without releasing all residential density otherwise authorized. Second, the amendment contains a General Residential Unit Density Pool Reserve of 195 residential units in the Large Resort District which cannot be released in the first ten years after adoption of the amendment. See Joint Exhibit 2, page 108. Like the other provision, this planning tool allows the City to reevaluate the effectiveness of the redevelopment incentives in the amendment prior to authorizing additional density. Petitioner's own planner agreed that these time frames were part of the planning period for the proposed amendment. While Petitioner contends that the time periods are "minimum waiting periods not tied to any fixed time frame," it is reasonable to infer from the evidence that they will become operative once the Ordinance is implemented. The preponderance of the evidence shows that the Plan, as amended, complies with the requirement for two planning time frames and is not inconsistent with either the rule or statute. Mixed-Use Categories Florida Administrative Code Rule 9J-5.006(4)(c) encourages mixed use categories of land and provides that if they are used, "policies for the implementation of such mixed uses shall be included in the comprehensive plan, including the types of land uses allowed, the percentage distribution among the mix of uses, or other objective measurement, and the density and intensity of each use." Petitioner contends that FLUE Policy 2.1.1 establishes a new mixed use district (the Community Redevelopment District) but the Plan, as amended, does not contain the requirements set forth in the rule. The Community Redevelopment District is a mixed use land use category, as is each of the character districts included within the two sub-districts. The Plan identifies four character districts within the Gulf Boulevard Redevelopment District (Large Resort, Boutique Hotel/Condo, Activity Center, and Bayou Residential) and seven character districts within the Downtown Redevelopment District (Town Center Core, Town Center Corey Circle, Town Center Coquina West, Downtown Core Residential, Upham Beach Village, Commercial Corridor Blind Pass Road, and Commercial Corridor Gulf Boulevard). FLUE Policy 2.1.1 incorporates the development standards found in the "Community Redevelopment District" section of the FLUE for the two larger sub-districts and eleven smaller character districts. Therefore, it provides the policies required for the implementation of the new land use category. These policies govern the distribution, location, and extent of uses and densities and intensities of uses within the sub-districts. They also establish the boundaries, uses, densities, and intensities of use for the eleven character districts. The types of land uses allowed in each character district are clearly listed in a section of the text amendment corresponding to each character district titled "Permitted Uses and Standards." See Joint Exhibit 2, Attachment A, pages 75, 79, 82, 84, 91, 93, 98, 100, 102, and 105. For example, in the Large Resort District, primary uses are hotel, motel, resort condominium, and medium density multi-family residential. Id. at page 75. The density and intensity standards for each type of use allowed within each character district are also listed in the same sections of the Attachment. For example, the maximum density of residential development in the Boutique Hotel/Condo District is eighteen units per acre. Id. at page 75. Finally, the policies for each character district provide objective criteria governing the actual mix of uses permitted on any redevelopment site within the Community Redevelopment District. The location of each allowable use will be distributed throughout each district. For example, the Downtown Redevelopment District creates a traditional downtown core area with traditional downtown core services surrounded by residential neighborhoods buffered from commercial intrusion. See Joint Exhibit 2, Attachment A, page 36. On the other hand, the Gulf Boulevard Redevelopment District is a core resort and shopping destination for residents and visitors. Id. The Community Redevelopment District does not use a percentage distribution among the mix of uses since the City is essentially built out and already has a mix of uses within the newly-created districts. Therefore, the plan amendment accomplishes a distribution of mix of land through location of uses in multi- story buildings, rather than a percentage distribution of mix. By doing so, it satisfies the requirement of the rule. See, e.g., The University Park Neighborhood Association, Inc. v. Department of Community Affairs, et al., DOAH Case No. 92- 0691GM, 1993 Fla. ENV LEXIS 19 (DOAH Nov. 2, 1992, DCA Feb. 24, 2003). Therefore, it is found that Petitioner failed to demonstrate by a preponderance of the evidence that the amendment is inconsistent with the rule. Preservation District The plan amendment is based upon the City's Visioning Plan and Master Plan. See Respondent's Exhibits 1 and 3. Neither document contains any recommendation that the City's Preservation Land Use District be revised in any way. In the existing 2010 Plan, the Preservation District is defined in FLUE Policy 1.1.1 as those beaches seaward of the CCCL, Fuller Island, and other environmentally significant natural resource areas. No development is allowed in the Preservation District except dune walkovers. Ordinance No. 2008-15 renumbers Policy 1.1.1 as 2.1.1 and makes a one-word change (underscored below) in the definition of the Preservation District so that it now reads as follows: Preservation (P), applied to the beaches seaward of the Florida Coastal Construction Control Line, Fuller Island and other environmentally significant natural resource areas; such designated areas shall not be developed except to provide beach access dune walkovers from adjacent developed properties under the provisions of the City's Beach Management Regulations. Petitioner argues that the effect of this change is to establish a new boundary line for the Preservation District (further seaward in some instances) and to no longer use the setback line previously used by the City, which was known as the Coastal Construction and Excavation Setback Line. He further contends that the City's setback line and the Florida (State) CCCL encompass different areas along the beach. In some cases, the City's setback line is more seaward than the State, and vice versa. Petitioner contends that the data and analysis for the 2010 Plan "implies" that the location of the Preservation land use category should be based upon the more restrictive of the City setback line or State CCCL, that is, whichever is less seaward. It is fair to infer from the evidence that the underlying reason for raising this claim is that an old Travelodge motel sits just south and east of Petitioner's condominium building and is scheduled to be redeveloped as a new high-rise condominium. Petitioner is concerned that if the State CCCL (rather than the City setback line) is used, it will allow the new building to be constructed closer to the Gulf of Mexico, presumably reducing his view and beach access. The City's witness Holly established that the City does not have a CCCL. Rather, it has an excavation and setback line. He further established that the City has consistently enforced the Preservation District geographically as the area seaward of the State CCCL. Also, the City's land development regulations implementing the existing Plan define the Preservation District as the property seaward of the State CCCL. The Countywide Plan also uses the State CCCL. The amendment is clarifying in nature and is intended to make the text in the City's Plan consistent with the Countywide Plan and existing enforcement practices. As explained by Mr. Holly, the City's setback line predates the establishment of the State CCCL, and functions much in the same manner as the State CCCL "in that it precludes structural development seaward of that line without specific application for approval of variance for those standards." See Transcript, page 415. Petitioner has failed to establish by a preponderance of the evidence that this clarifying change in the definition of the Preservation District in FLUE Policy 2.1.1 is not supported by adequate data and analysis. Format of Plan Amendment Petitioner next contends that the plan amendment is inconsistent with Florida Administrative Code Rule 9J-5.005(1), which contains general format requirements for comprehensive plans. For example, he points out that there are lengthy unnumbered narrative sections in Attachment A that apparently supplement the numbered sections, that the references to the land development regulations do not identify the specific land development regulation adopted by reference, that the series of maps are not labeled properly, and that the maps do not include north-south arrows or a scale. The amendment contains specific goals, objectives, and policies for the Community Redevelopment District. See Joint Exhibit 2, pages 43-48. It also contains goals, objectives, and policies for the two redevelopment districts, numbered policies for each character district, as well as unnumbered text setting forth permitted uses and standards for each character district. See Joint Exhibit 2, pages 67-70, 71-77, 78-80, 83-85, 86-90, 90-92, 92-94, 94-97, 97-98, 99-101, 101-103, and 104-106. The deposition testimony of Michael McDaniel, Chief of the Department's Office of Comprehensive Planning, established that while they are not typically used, the narrative sections of Attachment A are permissible to explain the goals, policies, and objectives. He further stated that nothing in the governing statutes or rules requires that all material adopted as part of a plan be labeled as, or be in the form of, a goal, policy, or objective, that many variations of format are found in plans adopted by local governments throughout the State, and that the Plan, as amended, is not inconsistent with any requirement. As to the makeup of the maps, Mr. McDaniel stated that while the Department prefers that maps be labeled as future land use maps, and that they contain the detail suggested by Petitioner, a failure to do so does not render the plan amendment not in compliance. Finally, he stated that the Department staff had no difficulty in understanding the maps or map series when they were reviewed by the Department in July 2008. Notably, the Department did not address any of these format issues when it prepared comments to the proposed amendment on August 1, 2008. Petitioner has failed to show by a preponderance of the evidence that the plan amendment is inconsistent with the requirements of Florida Administrative Code Rule 9J-5.005(1). Data and Analyses Petitioner alleges that the City failed to rely upon the best available data sources to support the amendment, that a proper analysis of the data was not made, and that the City did not react to the data in an appropriate way, as required by Florida Administrative Code Rule 9J-5.005(2). Petitioner presented no expert testimony or other evidence supporting the claim that the plan amendment lacked supporting data and analysis. Although he introduced into evidence various documents on the theory that this information constituted better data than that used by the City, the evidence does not support this allegation. For example, various documents concerning hurricane evacuation times were submitted, including the Tampa Bay Regional Hurricane Evacuation Study Update 2006, the Pinellas County Local Mitigation Strategy (LMS), and the 2008 Statewide Emergency Shelter Plan. See Petitioner's Exhibits 4, 16, and Since the plan amendment does not increase density, however, it does not conflict with established hurricane evacuation times. Also, the City is not increasing population to be evacuated to other zones; therefore, the Statewide Emergency Shelter Plan is irrelevant. Finally, the amendment is not contrary to any mitigation strategies in the LMS. Population estimates for the year 2006 prepared by the BEBR were introduced by Petitioner, presumably for the purpose of showing that more current population data should have been used, rather than the 2000 Census data relied upon by the City. See Petitioner's Exhibit 21. However, there is no requirement that the City update its population estimates and projections each time it adopts an amendment. According to Mr. McDaniel, this is normally done every seven years at the time of the EAR. In any event, the BEBR estimates an increase in population in the City of only 48 persons during the six-year period from 2000 to 2006 (from 10,002 to 10,050). Petitioner also introduced a list of claims for flood losses within the last ten years in the City for the purpose of demonstrating that the City failed to consider the location of these properties in adopting the amendment. However, the evidence shows that redevelopment policies in the amendment would bring existing older structures up to National Flood Insurance Protection standards. A list of Licensed Dwelling Units was also introduced to show that the list relied upon by the City was incomplete and failed to include a motel in close proximity to Petitioner's condominium. Assuming that this is true, the error was minor and did not affect the overall validity of the City's data. The plan amendment is supported by the City's visioning project, economic analysis, master planning project, and evaluation of infrastructure capacity and availability of services. It is also supported by data submitted by SOLV to the County in support of the amendment to the Countywide Future Land Use Plan, which includes the Special Area Plan. The more persuasive evidence supports a finding that there is relevant and appropriate data supporting the amendment, that the data was properly analyzed, and that the City reacted in an appropriate manner. Internal Inconsistency Petitioner further alleges that the plan amendment is internally inconsistent with Intergovernmental Element Policy 1.5.3, which requires that the City coordinate with the Pinellas County Emergency Management Department when adopting map amendments resulting in an increase in population within the CHHA. Under the existing definition of the CHHA in the 2010 Plan, the entire City is within the CHHA. The amendment implements a new definition, as required by Section 163.3178(2), Florida Statutes, which removes some parts of the City from the CHHA. Because the new amendment does not relate to either hurricane shelters or evacuation routes, and does not increase the residential density in the CHHA, compliance with the cited policy was not required. Petitioner further alleged that FLUE Policy 4.1.1 is internally inconsistent with Goals 2 and 3 of the Conservation and Coastal Element as well as the implementing objectives for those Goals. However, no testimony or other credible evidence was offered on this issue and the claim must fail. The preponderance of the evidence supports a finding that the Plan, as amended, in not internally inconsistent with other Plan provisions. Need Petitioner contends that the City did not prepare an analysis of need for future land uses authorized by the Ordinance, that it did not prepare an updated existing land use map series, that no tabular form of the approximate acreage and general range of density and intensity of each existing land use was prepared, and no population projections were presented, as required by Florida Administrative Code Rule 9J-5.006(1)(a), (b), (c), and (g). Therefore, he argues that the plan amendment is not supported by a demonstration of need for the new land use category to accommodate the anticipated growth. The supporting documentation for the plan amendment demonstrates the need for redevelopment of the City's lodging establishments, the need for additional height for tourist lodging uses in order to prevent conversion of those uses to condominium uses, and the need for aesthetic and other design changes to the City's building facades, streetscapes, and public areas with the redevelopment area. See Joint Exhibit 2, Attachment A, pages 1-3. The plan amendment does not propose new density to accommodate new populations. In fact, it reduces the overall residential density in the City, and the total amount of dwelling units, temporary lodging units, and non-residential (commercial) floor area ratio will also be reduced. Because the plan amendment does not increase the total amount of development, but is simply a plan for redevelopment of existing uses, there is no requirement that a need analysis be prepared. Financial Feasibility Petitioner also contends that the Plan, as amended, has not been shown to be financially feasible and does not include an updated five-year CIP. See § 163.3177(3)(a)5., Fla. Stat. ("the comprehensive plan shall contain a capital improvements element [which] set[s] forth: . . . [a] schedule of capital improvements . . . "). The statutory requirement for a CIP applies to projects necessary to ensure that adopted levels of service (LOS) standards are achieved and maintained. It applies to all public facilities and services for which an LOS standard is adopted pursuant to Section 163.3180, Florida Statutes. This was confirmed by the testimony of Mr. McDaniel. The evidence shows that all relevant City infrastructure facilities are operating at or above the adopted LOS. Therefore, there are no deficiencies which need correction in order to implement the redevelopment plan. As further confirmed by Mr. McDaniel, if a plan has been found to be in compliance, and the local government proposes changes that do not create a need for capital improvements, the plan amendment does not need to include an amendment to its CIP. In this case, the amendment does not increase the total permissible amount of residential density or non-residential use within the Community Redevelopment District, and no additional infrastructure capacity is needed. Petitioner's expert identified certain infrastructure projects for which he contended an updated CIP is needed, such as sidewalks, street lighting, and bike lanes. While these types of projects are all integral to the proposed redevelopment plan, they are not subject to concurrency or the financial feasibility standard. Even if they were, Petitioner's expert agreed such improvements could be accomplished through private investment when permits for projects are issued. Because Petitioner failed to show that the plan amendment would require the construction of any new or expanded public facilities to provide additional capacity to serve the development, his contention that the plan is not financially feasible must necessarily fail. Other Contentions All other contentions not discussed herein have been considered and rejected because no evidence on the issues was presented or the more credible and persuasive evidence supports a finding that the contentions are without merit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining that the plan amendments adopted by Ordinance No. 2008-15 are in compliance. DONE AND ENTERED this 4th day of May, 2009, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of May, 2009.
The Issue The issue before the Florida Land and Water Adjudicatory Commission (“Commission”) in this proceeding is whether to grant the Petition of the Rivers Edge Community Development District and the Main Street Community Development District (“Petition”), to merge the boundaries of the Rivers Edge Community Development District (“Rivers Edge”) and the Main Street Community Development District (“Main Street”) (collectively, the “Districts” or “Petitioners”). Under Section 190.005(1)(d), Florida Statutes, the local public hearing was conducted for the purpose of taking testimony and public comment and receiving exhibits. This Report of the public hearing and the hearing record is made for the consideration of the Commission in its determination whether to adopt a rule to merge the Districts’ boundaries.
Findings Of Fact Based on the record evidence, the Hearing Officer makes the following Findings of Fact: The City of Islandia: General Description and Location The City of Islandia is a municipality situated within the jurisdictional boundaries of Dade County, Florida. It was incorporated in 1961. The City is located in an environmentally sensitive area in the southeastern corner of the county several miles east of the mainland. The City is separated from the mainland by Biscayne Bay and is accessible only by boat, seaplane, or helicopter. The City consists of 42,208 acres of submerged and non-submerged land, 41,366 acres of which are owned by the federal government and are part of Biscayne National Park. Biscayne National Park Biscayne National Park was established as a national monument in 1968. Twelve years later it was designated a national park. The park was established because of the unique natural resources within its boundaries. Its designation as a national park promotes the preservation and protection of these valuable resources. The park attracts visitors who engage in passive, marine-oriented recreational activities, such as fishing and snorkeling. Some development has taken place within the park. Among the structures currently standing are the buildings that house the park rangers who work and reside in the park and the docks that are used by those who travel to and from the park by boat. The City's Privately Held Land The remaining 842 acres of land in the City are owned by twelve private landowners, five of whom serve on the Islandia City Council. This land contains no infrastructure and is almost entirely undeveloped. As a result, it is in virtually pristine condition. Because the privately held land in the City is part of the same ecosystem as Biscayne National Park, the development of the privately held land will necessarily have an impact on the activities in the park. Of the 842 acres of privately held land in the City only approximately three acres consist of uplands. These uplands, at their highest elevation, are only four feet above sea level. The other 839 acres of privately held land are submerged bottom lands of Biscayne Bay and the Atlantic Ocean. The privately held land in the City is located in an area of coastal barrier islands known as the Ragged Keys. These islands lie between Biscayne Bay and the Atlantic Ocean. They are separated from one another by surge channels, through which the ocean waters enter the bay. Because of their location and low elevation, these islands are extremely vulnerable to the threat of storm surges and coastal flooding. It therefore is imperative that individuals on the islands evacuate to safety as soon as possible in advance of any storm or hurricane. 2/ The Coast Guard, which assists in the early evacuation of coastal residents, removes its assets from the water when wind speeds reach 35 miles per hour. This heightens the need for those on the islands to leave before the weather takes a turn for the worse. There are five Ragged Keys in private ownership. Ragged Key One, the northernmost of these islands, is surrounded by an old, breached bulkhead. Tidal waters enter where the bulkhead is breached. Coastal wetland vegetation is the only vegetation found on the island. Ragged Key Two is totally submerged and has no uplands. Mangroves are scattered throughout the island. Unlike Ragged Key Two, Ragged Key Three includes some uplands. Its shoreline, however, is fringed with white, red and black mangroves, vegetation associated with wetlands. Mangroves play a vital role in maintaining the health of the Biscayne Bay ecosystem. They contribute a leafy matter, known as detritus, to the nutrient budget of the bay. In addition, mangroves help filter upland runoff and protect against shoreline erosion. Most of Ragged Key Four is covered with mangroves. Red mangroves dominate, but there are also white and black mangroves. A narrow band of uplands, approximately 30 to 50 feet in width, runs through the center of the island. The island's upland vegetation consists of an unusual, and therefore ecologically significant, tropical hardwood hammock species not found on the mainland. Ragged Key Five, the southernmost of the privately owned Ragged Keys, is completely inundated by tidal waters twice a day. The vegetation on the northern one-half to two-thirds of the island consists almost exclusively of mangroves, with white mangroves dominating. Mangroves are also found on the island's southeastern perimeter. Less than an acre of uplands lies toward the center of the island. The dominant vegetation on these uplands is Australian pine. The privately held bottom lands in the City that are on the ocean side of the Ragged Keys consist of a number of species of hard coral as well as soft coral and sponges not found further to the north. Consequently, these hard- bottom communities are very significant ecologically. The privately held bottomlands in the City that are on the bay side of the Ragged Keys are covered almost entirely with seagrass beds. These seagrass beds are an essential component of the bay's ecosystem. They help to maintain water quality by stabilizing and filtering sediment and serve as habitat and food for fish and other marine organisms. This is significant from not only an environmental perspective, but from an economic perspective as well, inasmuch as commercial fishing is an important industry in the area. Seagrasses depend on light for their survival. If they are beneath, or otherwise shaded by, a structure, such as a "stilt home" or dock, or deprived of light as a result of construction-related turbidity, they will die. Water depths in the City on both the ocean and bay side of the Ragged Keys are extremely shallow. In most areas, the depth of the water never exceeds four feet. Consequently, one has to be a competent boater to navigate in these areas without running aground. Boats that travel in these shallow waters, even if piloted by competent navigators, are likely to scrape and scar the ocean and bay bottom and damage the seagrass and hard-bottom communities that exist there. Furthermore, these boats are likely to leave behind in the waters they have traversed bilge waters, oils, greases and metallic-based paints from their undersides. This has the effect of lowering water quality. Fortunately, boating activities in these waters have been limited to date and, consequently, these activities have resulted in only minor environmental damage. Substantial damage will occur, however, if boat traffic on these waters increases significantly. Comprehensive Plan Preparation and Adoption The City's comprehensive plan was drafted by the staff of Robert K. Swarthout, Inc., a consulting firm that specializes in land use planning. Before retaining the services of the Swarthout firm, the City's governing body, the City Council, voted that, in the plan, all of the privately held land in the City would be designated for "residential" use and that the allowable density would be six units per acre. Sound planning dictates that such decisions be made only after the character of the land and its suitability for development are analyzed. A proposed plan for the City was developed by the Swarthout firm. Following a vote of the City Council, the proposed plan was transmitted to DCA. Upon its receipt of the proposed plan, DCA distributed copies to other governmental agencies, including Dade County, and solicited their comments. After receiving these comments and conducting its own review, DCA sent to the City a report containing DCA's objections, recommendations and comments regarding the City's proposed plan. In response to this report, the Swarthout firm drafted certain modifications to the proposed plan. The proposed plan, as so modified, was adopted by the City Council on January 13, 1989, and thereupon transmitted to DCA. The City Council held public hearings before transmitting the proposed plan and the adopted plan to DCA. The twelve private landowners in the City were notified of these hearings by mail. No one else, including any park ranger residing in the City or any other representative of the federal government, was given direct, individual advance notice of these hearings, nor were the hearings advertised in any newspaper or other publication. In failing to provide advance notice of these hearings to any one other than the City's twelve private landowners, the City Council relied upon the opinion of its attorney that no additional notice was necessary to meet the requirements of the law. Format of the City's Adopted Plan The City's adopted plan focuses upon the 842 acres of privately held land in the City. It does not discuss in great detail the future of Biscayne National Park, which comprises more than 98% of the City's land area. The plan consists of nine elements: future land use; transportation; housing; infrastructure; coastal management; conservation; recreation and open space; intergovernmental; and capital improvements. Each element contains goals, policies and objectives. In addition, the future land use element includes a future land use map and the capital improvements element includes both an implementation section and a section prescribing monitoring, updating and evaluation procedures. The document containing the City's adopted plan also describes and discusses the data and analysis upon which the plan is purportedly based. According to the document, however: Only the following segments of this document were adopted by the City Council: Goals, Objectives and Policies Capital Improvements Element Implementation section Future Land Use map Monitoring, Updating and Evaluation Procedures Future Land Use Element The future land use element of the City's adopted plan sets forth the following goals, objectives and policies: Goal 1 To provide for minimal residential development compatible with the natural resources of the National Park and balance of the islands. Objective 1.1 By 1994, achieve first phase new development sited appropriately for the topographic/flood conditions and infrastructure compatible with soil conditions. Policy 1.1.1 As the residential development occurs, require acceptable private paths, drainage, water and sewer systems through the development code; special care is needed due to limited wellfield and soil absorption areas. Policy 1.1.2 Private automobiles shall not be permitted; adequate boat or aircraft access facilities shall be required by the development code. Policy 1.1.3 Development permits shall be issued only if facilities meeting the following levels of service can be made available concurrent with the impacts of development: -Sewage disposal: septic tanks 3/ or package treatment plants providing a treatment capacity of 300 gallons per residential unit per day -Water: wells providing 300 gallons per residential unit per day -Drainage: on-site retention and drainage systems that can accommodate a one-day storm that occurs once in ten years (statistically) -Solid waste: off-island disposal by individual homeowners or other property owners 4/ -Circulation: pedestrian and golf cart paths -Open space: public and private of 175 acres per permanent resident Objective 1.2 Ensure reasonable protection of historic and natural resources (particularly) mangroves as development occurs. See policy for measurability Policy 1.2.1 Within one year of transmitting this plan, a development code will be prepared to assure adequate protection of the vegetative communities (particularly mangroves) as well as sensitive to hurricane considerations and the bay bottom ecology. Policy 1.2.2 The City shall consult with the National Park Service should any archaeological sites be found on the privately owned islands. Policy 1.3 Facilitate planned unit development projects through the 1989 adoption of a development code. Policy 1.3.1 Within one year of transmitting this plan, include Planned Unit Development provisions in the zoning provisions of a development code to help achieve residential development. Objective 1.4 By July 1989, adopt a development code to implement land use policies that correspond to the category on the Future Land Use Plan and minimize hurricane evacuation. Policy 1.4.1 The following land use densities, intensities and approaches shall be incorporated in the land development code; development will be required to use these densities in a mixed use Planned Unit Development format -Residential: Single-family detached and attached units at a density of 6 units per acre or less in a PUD mixed-use format. -Commercial: Supporting boat clubs/marinas, restaurants and light convenience retail; this would either be in the residential PUD or the National Park Recreation category i.e. not shown on the map. -Recreation and Open Space: This category includes primarily the National Park. The future land use map depicts only two future land uses: "recreational," which is described on the map as constituting lands of the "National Park and City Park;" and "residential," which is indicated on the map as constituting "[l]ess than 6 units per acre in Planned Unit Developments with supporting service commercial." Because Policy 1.4.1 of the future land use element permits a maximum "residential" density in the City of "6 units per acre" whereas the future land use map reflects that the City's maximum permissible "residential" density is "less [emphasis supplied] than 6 units per acre," these two provisions of the City's adopted plan are inconsistent. On the future land use map, only Ragged Keys One through Five are designated for "residential" use. The remaining land in the City, including the privately held bay and ocean bottom surrounding these islands, is designated on the map for "recreational" use. There are statements in the plan document that reflect that "residential" development is contemplated not just for the five Ragged Keys, but for the entire 842 acres of privately held land in the City. Such statements include the following which are found in the discussion of the data and analysis allegedly underlying the future land use element: Residential Capacity- The islands under municipal jurisdiction have not been developed, and there are only 842 acres of suitable vacant land for the development of residential units. Based on the Land Use Plan PUD density of six units per acre, this would suggest a build-out of 5,000 housing units. * * * Needs Assessment: Not Applicable and Other Issues- There are no incompatible or blighted uses. Some private redevelopment might be involved in upgrading the boat dock and several recreational housing units. Rather than an analysis of the land required to accommodate the projected population, this is a case where the 842 acres of buildable private land can accommodate a build-out population of about 5,000 although 720 is projected for the year 2000 based upon a projected private market demand for development at five units per acre requiring 78 acres. * * * Future Land Use Plan: Land Use Category- As indicated above, all non-Park Service land and bay bottom (842 acres) is designated "Residential Planned Unit Development With Supporting Commercial;" this will accommodate the projected population. * * * Future Land Use Plan: Impact- It is important to note the minimal impact that the private development area (842 acres), will have on the total area of the City which encompasses 42,208 acres. * * * Future Land Use Plan: Density- Approximately 842 acres, at a density of less than six units per acre, are proposed for development of the recreational units. These statements, however, are not included in those portions of the plan document that were adopted by the City Council and therefore are not part of the City's adopted plan. In addition to depicting future land uses, the future land use map also shows shoreline areas. Beaches, wetlands, and flood plains, however, are not identified on the map. Transportation Element The transportation element of the City's adopted plan contains the following goals, objectives and policies: Goal 1- To meet the unique circulation needs of Islandia. Objective 1.1- As development occurs, achieve an internal circulation system that uses paths for pedestrians, bicycles and golf carts but not automobiles. Policy 1.1.1- By July 1989, enact a development code that requires developers to provide such a path system, a) concurrent with development, and b) that connects with other adjacent developments and the boat dock facilities. Policy 1.1.2- Include development code provisions that require adequate access to the development from the mainland i.e. either by boat or aircraft facilities. Housing Element The following goals, objectives and policies are set forth in the housing element of the City's adopted plan: Goal 1- To provide recreational housing units compatible with the unique locational and environmental character of Islandia. Objective 1.1- Achieve and maintain quality housing with supporting infrastructure. Policy 1.1.1- By July 1989, enact a development code that provides an expeditious review process yet assures concurrent adequate private infrastructure. Policy 1.1.2- Include building and property maintenance standards that will assure that units are maintained in sound condition. Policy 1.1.3- To assure environmentally sound design, City codes shall include building standards (sensitive to hurricanes) and site plan review. Infrastructure Element As evidenced by the following goals, objectives and policies set forth in the infrastructure element of the City's adopted plan, the City intends that infrastructure needs will be met by private developers, rather than by the City through the expenditure of public funds: Goal 1- To provide adequate private infrastructure to serve the projected limited recreational residential development. Objective 1.1- Assure provision of adequate, environmentally sensitive private infrastructure concurrent with development through a 1989 development code. Policy 1.1.1- By July 1989, enact a development code that requires City site plan review with engineering design standards in the areas of water supply, sewage disposal, drainage, solid waste, groundwater recharge and wellfield protection plus incentives for the use of solar energy and solid waste recycling (to reduce disposal quantities by 30 percent). Policy 1.1.2- Require all development to meet the following level of service standards: -Sewage disposal: package treatment plants providing treatment capacity of 300 gallons per residential unit per day 5/ -Water: wells providing 300 gallons per residential unit per day -Drainage: on-site retention and drainage systems that can accommodate a one-day storm that occurs once in ten years (statistically) -Solid waste: off-island disposal by individual homeowners or other property owners. Objective 1.2- Encourage multi-unit water and sewer systems in order to protect the fragile environment through the 1989 development code. Policy 1.2.1- Include planned unit development provisions in the development code to be enacted by July 1989 thereby encouraging joint systems rather than individual wells and septic tanks. 6/ Policy 1,3- Protect wellfield aquifer recharge areas from development. Policy 1.3.1- By 1991, enact development code provisions that require developers to designate their wellfield aquifer recharge areas, and authorize the City to then prohibit development within said areas and related drainage systems. Objective 1.4- Each developer shall provide a mechanism for water conservation. Policy 1.4.1- At the time building permits are issued for the first development, the City and developer shall jointly prepare a water conservation plan for normal and emergency consumption. Coastal Management Element The City's adopted plan contains the following goals, objectives and policies relating to coastal management: Goal 1- To conserve, manage and sensitively use the environmental assets of Islandia's coastal zone location. Objective 1.1- Through the 1989 development code adoption, continue to protect the barrier island function and wildlife habitat. Policy 1.1.1- Retain the integrity of the islands by strictly regulating shoreline dredge and fill through the development code. Policy 1.1.2- Require common open space in conjunction with private development to retain wildlife habitats, wetlands and mangroves and assist in preservation of marine water quality and living resources. Objective 1.2- Through the 1989 development code adoption, include estuarine protection policies and thus assure environmental quality. Policy 1.2.1- The development code shall result in drainage, sewage disposal and shoreline setback policies that protect the estuary. Policy 1.2.2- As private development occurs, the City shall use the County's Biscayne Bay Aquatic Preserve Management Plan as a basis for review and maintain liaison with the Biscayne Bay Management Committee's staff. This will also be the vehicle for coordinating with the City of Miami (which is some 10 miles to the north) in terms of estuarine. Objective 1.3- Continue the current pattern which is all uses, including shoreline uses, are water dependent. Policy 1.3.1- Use the development code to maintain a shoreline use pattern that is either park, natural private land or residential with supporting boat facilities; by definition, all Islandia uses are water dependent. Objective 1.4- Protect the current natural beach and dune configuration. Policy 1.4.1- Through the development code, require any private development to a) setback far enough from the beach to retain the dunes and b) retain the related vegetative cover and wetlands or mitigate on a fair value ratio. Goal 2- To minimize hurricane damage both to property and people. Objective 2.1- Continue the current City policy of not providing infrastructure unless public safety or natural resource preservation so requires. Policy 2.1.1- The City shall not program any municipal infrastructure; private development will provide its own circulation, water and sewer systems. Objective 2.2- Residential development will be limited in amount and density, and setback from the shoreline due to the coastal high hazard area location. Policy 2.2.1- Maintain density controls so that the City will experience only limited new residential development and thereby not jeopardize hurricane evacuation capabilities or undue concentration on the private islands which are the high hazard area. (Analysis explains why directing population away from the coastal high hazard area is not feasible.) 7/ Objective 2.3- By July 1989, adopt development code provisions that assure adequate boat evacuation capability by developers and occupants. Policy 2.3.1- The development code shall require, as a condition of development permit approval, an evacuation plan showing adequate boat or aircraft capability. Objective 2.4- By 1993, prepare an emergency redevelopment plan. Policy 2.4.1- By 1993, the first phase of residential development should be underway; that will permit preparation of a realistic post-disaster redevelopment plan. Currently there is little to "redevelop." Objective 2.5- Preserve both resident and general public access to the beach. Policy 2.5.1- Over 98 percent of Islandia's area is public land with shoreline access. However, the remaining two percent should be developed so as to maximize resident beach access through planned unit development requirements. 8/ Objective 2.6- The City's objective is not to provide any public infrastructure; private developers shall provide infrastructure in conformance with level of service standards, concurrent with development. Policy 2.6.1- Developers shall provide infrastructure, with a design sensitive to hurricane vulnerability, concurrent with the impact of development within a development code concurrency management system and in keeping with the following levels of service: -Sewage Disposal: package treatment plants providing treatment capacity of 300 gallons per residential unit per day. 9/ -Water: wells providing 300 gallons per residential unit per day. -Drainage: on-site retention and drainage systems that can accommodate a one-day storm that occurs once in ten years (statistically). -Solid Waste: off-island disposal by individual homeowners or other property owners. Conservation Element The following goals, objectives and policies are found in the conservation element of the City's adopted plan: Goal 1- To preserve and enhance the significant natural features of Islandia. Objective 1.1- Continue policies that help achieve compliance with State Department of Environmental Affairs [sic] air quality regulations; see policy for measurability. Policy 1.1.1- Continue to prohibit automobiles in the City. Objective 1.2- By July 1989, require drainage practices that avoid direct development runoff into the ocean or bay. Policy 1.2.1- By July 1989, enact development code provisions that require on-site runoff detention. Objective 1.3- By July 1989, achieve protection of existing vegetation and wildlife communities. Policy 1.3.1- By July 1989, enact development code provisions that require retention of a percentage 10/ of prime vegetative cover and wildlife habitat; particularly mangroves. Policy 1.3.2- These development regulations shall also address preservation/mitigation of the scattered island wetlands and related soils. Policy 1.3.3- Work with Federal park officials to assure that any National Park improvements are sensitive to the mangrove and other environmentally sensitive vegetative/wildlife/ marine habitats. Objective 1.4- By July 1989, have basis to avoid development activities that adversely impact the marine habitat. Policy 1.4.1- By July 1989, enact development code provisions that control dredge and fill activities, and boat anchorages in order to protect the marine and estuarine character, including the fish feeding areas on the Biscayne Bay side of the islands; special care must be taken to avoid any disruption of the tidal channels between the islands. Objective 1.5- When development occurs, achieve carefully located and designed well and sewage disposal systems. Policy 1.5.1- By July 1989, enact development code provisions that require City technical review of all well and sewage disposal systems to assure well water protections, groundwater conservation and sewage effluent control. Policy 1.5.2- When the first phase residential development permits are issued, develop an emergency water conservation program. This element of the City's adopted plan does not contain a land use and inventory map showing wildlife habitat and vegetative communities. Recreation and Open Space Element The recreation and open space element of the City's adopted plan prescribes the following goals, objectives and policies: Goal 1- To provide recreation facilities and open space which are responsive to the leisure-time needs of residents. Objective 1.1- By July 1989, achieve controls that achieve common access to the bay and the ocean. Policy 1.1.1- The City shall enact development code provisions that protect common access to the shoreline as development occurs. Objective 1.2- By July 1989, assure private recreational resources in the limited development projects to complement the National Park. Objective 1.2.1- The City shall enact development code provisions that require private recreational facilities for developments over a certain size, to complement the public National Park. Policy 1.3.1- The City shall urge Congress to retain the National Park thereby providing a Level of Service of at least 57 acres of public open space per permanent resident prior to the year 2000. 11/ Objective 1.4- Ensure the preservation of public and private open space. Policy 1.4.1- By July 1989, enact development code regulations to assure preservation of adequate private open space in conjunction with private development. Policy 1.4.2.- Work with Congress and National Park Service to assure preservation of this public open space resource. Policy 1.4.3- The City shall retain City Key in its ownership for potential use as a municipal park. Intergovernmental Element The following goals, objectives and policies in the City's adopted plan address the matter of intergovernmental coordination: Goal 1 - To maintain or establish processes to assure coordination with other governmental entities where necessary to implement this plan. Objective 1.1- By 1994, at least three of the seven issues listed in the Analysis shall be the subject of formal agreement, assuming development review has been initiated. Policy 1.1.1- The Mayor shall oversee the implementation of the recommendations outlined in the Analysis section of this element. Policy 1.1.2- In particular, the Mayor shall work with County Office of Emergency Management relative to hurricane warning and evacuation mechanisms. Policy 1.1.3- The City shall continue to work with the County and Regional planning agencies in an attempt to reach consensus on a mutually agreeable land use designation for the private islands. Policy 1.1.4- If necessary, the City shall use the South Florida Regional Planning Council to assist in the mediation of any major intergovernmental conflicts; the County land use plan is a potential example. Policy 1.1.5- After development is initiated, the Mayor shall annually issue a report outlining the services the City is providing and providing information on intergovernmental coordination. Policy 1.1.6- The City shall review all development applications in the context of the Biscayne Bay Aquatic Management Plan and maintain liaison with the staff to the Committee responsible for this plan. Objective 1.2- The Mayor shall meet at least annually with the National Park Superintendent to coordinate the impact of the City's development upon adjacent areas. Policy 1.2.1- City officials shall maintain liaison with the National Park Service on any land use or development impacts along their common boundaries. Objective 1.3- By 1999, assure level of service standards coordination with the County relative to solid waste. Policy 1.3.1- As first phase development is completed, City officials shall work with County officials on the long range implications of solid waste disposal to determine adequacy and approach. The "seven issues listed in the [intergovernmental] Analysis" section of the plan document (reference to which is made in Objective 1.1) concern the following subjects: land uses and densities; historic resources; private holdings within the National Park; permitting for construction and related infrastructure; solid waste; Biscayne Bay water quality; and emergency evacuation. The "land uses and densities" issue raised in the Intergovernmental Analysis section of the plan document relates to the alleged inconsistency between the City's plan and Dade County's plan regarding the land use designation of the privately held land in the City. It is asserted in this section of the document that the "Metro-Dade Comprehensive Plan shows the privately owned land in Islandia as 'Parks and Recreation' rather than residential." The following recommendation to resolve this alleged conflict is then offered: To date, the coordination on this issue has been sporadic. 12/ If neither the County nor National Park Service are willing to acquire these islands at a fair price, then the County plan should be amended to show them as residential. The Regional Planning Council can serve as a mediator. Dade County's adopted plan provides the following explanation of the significance of a "Parks and Recreation" land use designation in terms of the development potential of the land so designated: Both governmentally and privately owned lands are included in areas designated for Parks and Recreation use. Most of the designated Privately owned land either possess outstanding environmental qualities and unique potential for public recreation, or is a golf course included within a large scale development. The long term use of such golf courses is typically limited by deed restriction. If the owners of privately owned land designated as Parks and Recreation choose to develop before the land can be acquired for public use, the land may be developed for a use, or at a density comparable to, and compatible with surrounding development providing that such development is consistent with the goals, objectives, policies of the CDMP (the County's plan). This allowance does not apply to land designated Parks and Recreation that was set aside for park or open space use as a part of, or as a basis for approving the density of, a residential development. Certain commercial activities that are supportive of the recreational uses and complementary to the resources of the park, such as marine supply stores, fuel docks or tennis and golf clubhouses may be considered for approval in the Parks and Recreation category. Other commercial recreational or entertainment, or cultural uses may also be considered for approval in the Parks and Recreation category where complementary to the site and its resources. Some of the land shown for Parks is also environmentally sensitive. These areas include tropical hardwood hammocks, high- quality Dade County pineland, and viable mangrove forests. Some sites proposed for public acquisition under Florida's Conservation and Recreational Lands (CARL) program are identified in this category on the LUP (Land Use Plan) map although they may be as small as ten acres in size. Many of these areas are designated on the LUP map as "Environmentally Protected Parks" however, some environmentally sensitive areas may be designated simply as Parks and Recreation due to graphic restraints. All portions of parkland designated Environmentally Protected Parks or other parkland which is characterized by valuable environmental resources is intended to be managed in a manner consistent with the goals, objectives, and policies for development of the applicable environmental resources or protection area. Because it is an environmentally sensitive area, the City of Islandia, including the five Ragged Keys, has been designated "Environmentally Protected" parkland on the County's future land use map. Under the County's plan, the maximum density permitted on land so designated is one unit per five acres. With respect to the issue of historic resources, it is stated in the Intergovernmental Analysis section of the document containing the City's plan that the preservation of such resources within Biscayne National Park is the responsibility of the "National Park Service working with the State Bureau of Historic Preservation (within the Department of State) and the County Historic Preservation Division." Regarding the matter of private holdings within Biscayne National Park, the assertion is made in the Intergovernmental Analysis section of the plan document that "[a]lthough existing formal agreements exist relative to individual life estates and long-term leases by private owners within the Park, there is a need for a formal agreement relative to joint development review and agreements between the National Park Service and the City." As to permitting requirements, the Intergovernmental Analysis section of the plan document acknowledges "the array of permits required [from federal, state and county agencies] for private development and related infrastructure" in the City. In view of the regulatory authority of these agencies, the recommendation is made that the "City development code should establish a systematic review process flow chart meshing with the concurrency management system." Concerning the issue of solid waste, it is suggested in the Intergovernmental Analysis section of the plan document that "once first phase development is completed, the off-island disposal of solid waste by residents should be monitored for effectiveness" and if "this system is not working, a City-County collection arrangement would have to be developed." With respect to the issue of the water quality of Biscayne Bay, it is noted in the Intergovernmental Analysis section of the plan document that the County's "Biscayne Bay Aquatic Preserve Management Plan (Biscayne Bay Management Plan) can serve as a guide to intergovernmental estuary planning and protection as development occurs" and that therefore the "City should consult with the [County's Biscayne Bay Management Committee] staff when development proposals reach preliminary status." 13/ The Biscayne Bay Management Plan is codified in Chapter 33-D of the Metro-Dade County Code. It identifies guidelines and objectives designed to optimize the quality and quantity of marine life in the bay, to protect the bay's endangered and rare plants and animals, and to avoid irreversible and irretrievable loss of the bay's resources. The following are among the guidelines set forth in the plan: Coastal construction should be compatible with the Bay's natural features. . . * * * 8. Siting of new marinas and docking facilities should avoid use of shoreline areas containing viable submerged communities and near-shore areas of inadequate navigational depths. Such facilities should not negatively impact existing water quality. * * * The total impact from the many individual development or user activities along the Bay shoreline should not be allowed to negatively affect the Bay's biological, chemical or aesthetic qualities. Facilities in and over Bay waters and its tributaries should only be constructed if their development and use are water- dependent. Concerning the issue of emergency evacuation, the observation is made in the Intergovernmental Analysis section of the document that the "City's hurricane vulnerability makes an effective early warning imperative." It is therefore recommended that "[w]hen development occurs, the City should formalize an arrangement with the County 14/ including formal contacts, evacuation route/shelter designations and boat monitoring mechanism." 15/ Capital Improvements Element The capital improvements element of the City's adopted plan establishes the following goals, objectives and policies: Goal 1- To undertake municipal capital improvements when necessary to complement private new development facilities, within sound fiscal practices. Objective 1.1- The Mayor shall annually monitor public facility needs as a basis for recommendations to the City Council. Policy 1.1.1.- Engineering studies shall form the basis for annual preparation of a five- year capital improvement program, including one year capital budget if and when such municipal projects are deemed necessary. This element shall be reviewed annually. Policy 1.1.2- Overall priority for fiscal planning shall be those projects that enhance residential development and the environment, as per Land Use Plan. Policy 1.1.3- In setting priorities, the following kinds of criteria will be used: -Public Safety implications: a project to address a threat to public safety will receive first priority. -Level of service or capacity problems: next in priority would be projects needed to maintain the stated Level of Service. -Ability to finance: A third criteria is the budgetary impact; will it exceed budget projections? -Quality of life projects: lowest priority would be those projects not in categories 1 or 2 but that would enhance the quality of life. -Priority will be given to projects on islands experiencing development. Policy 1.1.4- Pursue a prudent policy in terms of borrowing for major capital improvements; in no case borrow more than two percent of the total assessed value in any one bond issue or loan. Objective 1.2- By July 1989, the City shall adopt a development code containing a concurrency management system to integrate the land use plan, capital improvement element and levels of service. Policy 1.2.1- City officials shall use both the Future Land Use Plan and financial analyses of the kind contained herein as a basis for reviewing development applications, in order to maintain an adequate level of service; all except parks are expected to be private: -Sewage disposal: septic tanks or package treatment plants providing treatment capacity of 300 gallons per residential unit per day 16/ -Water: wells providing 300 gallons per residential unit per day -Drainage: on-site retention and drainage systems that can accommodate a one-day storm that occurs once in ten years (statistically) -Solid Waste: off-island disposal by individual homeowners or other property owners -Public open space: 57 acres per permanent resident Objective 1.3- Major future development projects shall pay their fair share of the capital improvement needs they generate. Policy 1.3.1- The proposed development code and related review process shall require on-site detention and drainage structures acceptable to regional environmental agencies plus private water and sewer systems. Policy 1.3.2- The development code preparation shall include the consideration of impact fees. Policy 1.3.3- Pedestrian paths shall be installed as a part of all new development. Objective 1.4- Achieve mechanisms whereby public and private facility requirements generated by new development are adequately funded in a timely manner. Policy 1.4.1- The development code shall specify that no development permit shall be issued unless assurance is given that the private (or possibly public) facilities necessitated by the project (in order to meet level of service standards) will be in place concurrent with the impacts of the development. The capital improvements element of the City's adopted plan also contains an Implementation section which provides as follows: Five-Year Schedule of Capital Improvements Not applicable; no deficiencies and no projects planned for 1990-1994 period. Programs For purposes of monitoring and evaluation, the principal programs needed to implement this Element are as follows: Initiate an annual capital programming and budgeting process as soon as warranted by prospective projects; use project selection criteria. Use engineering or design studies to pinpoint the cost and timing of any potential needs or deficiencies as they are determined. Amendments to the development code to a) assure conformance to the "concurrency" requirements relative to development orders, levels of service and public facility timing, and b) explore selected impact fees e.g. for park, boat dock and beach renourishment. Data and Analysis If a comprehensive plan is to be an effective tool in managing a community's future growth and development, it must be based, not upon unsubstantiated assumptions or wishful thinking, but rather upon appropriate data and reasoned analysis of that data. Typically, the first step in developing a comprehensive plan is to ascertain the projected population of the community. Once such a projection is made, the amount of land needed to accommodate the projected population must then be determined. The analysis does not end there, however. Before any decision is made regarding how, and to what extent, the community's land will be used in the future to meet the needs of the projected population, the character of the land, including its soils, topography, and natural and historic resources, must be examined so that its suitability for development can be determined. Only after such a suitability determination is made and the carrying capacity of the land is evaluated is it appropriate to assign land use designations and densities. The City Council did not follow this conventional approach in developing its comprehensive plan. Instead, it used a methodology that is fundamentally flawed and not professionally accepted. Without collecting and analyzing available information concerning the amount of land needed to accommodate the City's future population and the character and suitability of the City's land to meet the needs of the population, it arbitrarily determined at the outset of the planning process that the privately held land in the City would be designated for "residential" use and that a maximum density of six units per acre would be allowed. It appears that the City Council simply assumed, based on nothing more than the fact that the land was in private ownership, that it was suitable for residential development at six units per acre. Had the City Council examined the information that was readily available to it concerning the character of the privately held land in the City, it undoubtedly would have realized that such land is actually unsuitable for such intense residential development. The City Council, through its consultant, the Swarthout firm, subsequently, but prior to the January 13, 1989, adoption of the City's plan, projected the population of the City and the amount of land needed to accommodate the anticipated population. It estimated that the City's population would be about 300 in 1994 and approximately 720 in the year 2000 and that 78 acres of land would be needed to accommodate the projected population in the latter year. These projections, however, were not made pursuant to a professionally accepted methodology inasmuch as they were based, at least in part, upon the preconceived notion that the City's plan should permit residential development of the privately owned land in the City at a density of six units per acre. In making these projections, the City Council assumed that all of the 842 acres of privately held land in the City would be subject to residential development. The future land use map adopted by the City Council, however, designates only a small portion of that land, the approximately 12 acres comprising the five Ragged Keys, for residential use. This is considerably less land than that the City Council projected would be needed to accommodate the City's population in the year 2000. The final land use decisions reflected on the future land use map were not the product of a thoughtful and reasoned analysis of issues that should have been considered before such decisions were made. The City Council failed to adequately consider and analyze, among other things, the following significant matters before making these decisions and adopting the City's comprehensive plan: the character of the five Ragged Keys and their suitability for residential development at a density of six units per acre, particularly in light of their location in a flood prone area; the adverse impact that such development, including related housing and infrastructure construction activities, would have on the area's natural resources and fragile environment; 17/ whether the potable water 18/ and sanitary sewer needs generated by such development can be met given logistical and environmental constraints; 19/ the financial feasibility of, and problems associated with, siting infrastructure on the land to be developed; 20/ whether the future residents of the City can be safely evacuated from the City in the face of a hurricane or tropical storm given the City's location in a coastal high-hazard area accessible from the mainland only by water and air; 21/ and the need for boat docking and other water-dependent facilities. The City's adopted plan therefore is not supported by appropriate data and analysis. The Regional Plan for South Florida The South Florida Regional Planning Council has adopted a Comprehensive Regional Policy Plan (Regional Plan) to guide future development in Broward, Dade and Monroe Counties. The Regional Plan addresses issues of regional significance. Goal 51.1 of the Regional Plan provides as follows: By 1995 the amount of solid waste placed in landfills will be reduced by 30 percent over the 1986 volume. A local government's comprehensive plan must establish a level of service for solid waste disposal if it is to be consistent with, and further, this goal of the Regional Plan. The City's comprehensive plan does not do so. Goal 57.1 of the Regional Plan states as follows: New development will not be permitted in areas where public facilities do not already exist, are not programmed, or cannot be economically provided. The City's comprehensive plan contemplates new development in areas where there are no existing nor planned public facilities. Although the plan suggests that infrastructure will be provided by private developers, there is no indication that any consideration was given to the costliness of such a venture. Goal 58.1 of the Regional Plan imposes the following requirement: Beginning in 1987, all land use plans and development regulations shall consider the compatibility of adjacent land uses, and the impacts of development on the surrounding environment. The State Comprehensive Plan The State of Florida also has a comprehensive plan. The State Comprehensive Plan confronts issues of statewide importance. Among other things, it requires "local governments, in cooperation with regional and state agencies, to prepare advance plans for the safe evacuation of coastal residents [and] to adopt plans and policies to protect public and private property and human lives from the effects of natural disasters." It also reflects that it is the policy of the State to "[p]rotect coastal resources, marine resources, and dune systems from the adverse effects of development" and to "[e]ncourage land and water uses which are compatible with the protection of sensitive coastal resources." Dade County Dade County is a political subdivision of the State of Florida. It has regulatory authority over the tidal waters, submerged bay bottom and coastal wetlands in the City of Islandia. It also has the authority under its Home Rule Charter to prescribe appropriate land uses and planning principles for the entire area within its territorial boundaries. Dade County municipalities, however, are free to deviate from the County's plan in fashioning a comprehensive plan of their own. If the residential development permitted by the City's adopted plan occurs, it will have a substantial adverse impact on areas within Dade County's jurisdiction, including Biscayne Bay, which have been designated as areas warranting protection and special treatment. Tropical Audobon Society The Tropical Audobon Society is a not-for-profit Florida corporation which engages in educational, scientific, investigative, literary and historical pursuits relating to wild birds and other animals and the plant, soil, water and other conditions essential to their development and preservation. On occasion, Tropical and its members engage in activity in the City of Islandia. They participate from time to time in census surveys of the City's bird population. In addition, they conduct tours through the City for people who want to observe the area's wildlife. The overwhelming majority of Tropical members are South Floridians. None of its members, however, reside or own land in the City of Islandia. Neither Tropical, nor anyone acting on its behalf, submitted oral or written objections during the City Council proceedings that culminated in the adoption of the City's comprehensive plan.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED the Administration Commission issue a final order which: (1) dismisses the Tropical Audobon Society's petition to intervene; (2) finds the City of Islandia's adopted comprehensive plan not "in compliance," within the meaning of Section 163.3184(1)(b), Florida Statutes, for the reasons set forth in the foregoing Conclusions of Law; (3) directs the City to remedy these specific deficiencies to bring the plan "in compliance;" and (4) imposes appropriate sanctions authorized by Section 163.3184(11), Florida Statutes. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 27th day of March, 1990. STUART M. LERNER 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 March, 1990.
Conclusions An Administrative Law Judge of the Division of Administrative Hearings has entered an Order Closing File in this proceeding. A copy of the Order is attached to this Final Order as Exhibit A.
Other Judicial Opinions REVIEW OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030 (b) (1) (C) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT’S AGENCY CLERK, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. FINAL ORDER NO. DCA09-GM-287 CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Community Affairs, and that true and correct copies have been ol, U.S. Mail to each of the persons listed below on this nD. day of Ages 2009. Paula Ford pore Clerk The Honorable Bram D. E. Canter Administrative Law Judge Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 By U.S. Mail Thomas S. Hogan, Jr. City Attorney The Hogan Law Firm 20 South Broad. Street Brooksville, Florida 34601 By Hand Delivery Lynette Norr Assistant General Counsel Department of Community Affairs
The Issue The issue to be determined in this case is whether the Wellness Way Area Plan Map and Text Amendment to the Lake County Comprehensive Plan (“Remedial Amendment”) adopted through Lake County Ordinance No. 2016-1 is “in compliance,” as defined in section 163.3184(1)(b), Florida Statutes.
Findings Of Fact The Parties Petitioner Cemex is a Florida limited liability company doing business in Lake County. Cemex made timely objections and comments to Lake County on the Remedial Amendment. Petitioner Lake Louisa is a limited liability company that owns property in Lake County. Lake Louisa made timely objections and comments to Lake County on the Remedial Amendment. Cemex leases 1,200 acres of land in Lake County from Lake Louisa. The leased property is located within the area affected by the Remedial Amendment. Cemex proposes sand mining on the leased property and obtained all the required state permits. Prior to adoption of the Remedial Amendment, Cemex sought a conditional use permit from Lake County for its proposed sand mining. Respondent Lake County is a political subdivision of the State of Florida and adopted the Lake County Comprehensive Plan, which it amends from time to time pursuant to section 163.3184, Florida Statutes. Intervenors South Lake Crossings I, LLC; South Lake Crossings II, LLC; South Lake Crossings III, LLC; Clonts Groves, Inc.; Catherine Ross Groves, Inc.; and Cra-Mar Groves, Inc., (referred to collectively as “South Lake”) own 2,500 acres in Lake County which are subject to the Remedial Amendment. Intervenors made timely comments to Lake County on the Remedial Amendment.1/ The Wellness Way Area The Wellness Way Area comprises 15,471 acres in southeastern Lake County. It is bordered by U.S. Highway 27 to the west, the City of Clermont to the north, and Orange County to the east. Currently, the Wellness Way Area is mostly designated as agricultural with some small areas of residential and industrial uses. However, there is only one active agricultural operation. The majority of properties within the Wellness Way Area are large tracts of unused land. Directly east of the Wellness Way Area, in Orange County, is the Horizon West Sector Plan which consists of 23,000 acres and is one of the fastest growing areas in the United States. The Remedial Amendment To address DEO’s objections to the Lake County Wellness Way Sector Plan, the County adopted the Remedial Amendment which converted the Sector Plan into the Wellness Way Urban Service Area. Based on the terms of the settlement agreement, the ordinance adopting the Remedial Amendment, and Lake County’s stipulation on the record, the Wellness Way Sector Plan no longer has force or effect. The Remedial Amendment creates five future land use categories within the Wellness Way Area: Town Center and Wellness Way 1 through Wellness Way 4. Each future land use category allows a mix of uses, but with different density and intensity limits in each category. The highest density and intensity limits are in the Town Center category, located along U.S. Highway 27. The lowest limits are in the Wellness Way 4 category. The Town Center and Wellness Way 1-3 categories have identical permitted and conditional land uses. Wellness Way 4 allows fewer types of land uses and no residential land use because the land is publicly owned and contains a large wastewater reclamation facility. The new land use categories provides for a distribution of land uses by percentage of total land area within the category. In Town Center, the distribution is 25 percent non- residential, 45 percent residential, and 30 percent open space. In Wellness Way 1-3, the distribution is 10 percent non- residential, 60 percent residential, and 30 percent open space. The allowable residential density for each category differs. The Town Center has a minimum density of 6.0 dwelling units per net buildable acre (“du/ac”) and a maximum density of 25 du/ac. Net buildable acre is defined as gross acres minus wetlands, waterbodies, and open spaces. Wellness Way 1 has a minimum density of 3 du/ac and a maximum density of 20 du/ac. Wellness Way 2 has a minimum density of 2.5 du/ac and a maximum density of 15 du/ac. Wellness Way 3 has a minimum density of 2 du/ac and a maximum density of 10 du/ac. Wellness Way 4 has no density criteria because residential uses are not allowed. The allowable intensity for non-residential uses in each category also differs. The Town Center has a minimum average Floor Area Ratio (“FAR”) of 30 percent and a maximum average FAR of 200 percent. Wellness Way 1 has a minimum average FAR of 25 percent and a maximum average FAR of 200 percent. Wellness Way 2 has a minimum average FAR of 20 percent and a maximum average FAR of 200 percent. Wellness Way 3 has a minimum average FAR of 15 percent and a maximum average FAR of 200 percent. Wellness Way 4 has no intensity criteria. Implementation of the Remedial Amendment goals, objectives, and policies is to be accomplished through the review and approval of planned unit developments (“PUDs”). Despite the density allowances stated above, the total number of dwelling units that can be included in a PUD are further controlled by Policy I-8.2.1.1, which ties residential development to job creation. For each dwelling unit proposed in a PUD, a certain number of jobs must be created through the setting aside of areas for non-residential uses. The jobs-to- housing ratio assumes that one job is created for every 450 square feet of non-residential development. Each land use category has a different jobs-to-housing ratio applicable to approved PUDs. In Town Center, the jobs-to- housing ratio is 2.0 to 1.0, meaning 900 square feet of non- residential development must accompany every proposed dwelling unit. In Wellness Way 1, the jobs-to-housing ratio is 1.75 to 1.0. In Wellness Way 2, the ratio is 1.50 to 1.0. In Wellness Way 3, the ratio is 1.35 to 1.0. In the Remedial Amendment, the information and criteria for a PUD application are more detailed and extensive than under the Comprehensive Plan provisions for PUDs outside the Wellness Way Area. For example, a PUD application under the Remedial Amendment must include a report on the PUD’s impact on transportation facilities and the need for additional transportation improvements, and a detailed plan for public facilities, such as potable water, sanitary sewer, and schools. The Remedial Amendment requires each PUD to establish Wellness Way Corridors, which serve as buffers around the border to connect job hubs and neighborhoods through trails and other pedestrian facilities. Meaningful and Predictable Standards Sand Mining Approval Petitioners contend the Remedial Amendment fails to provide meaningful and predictable standards governing sand mining within the Wellness Way Area. Sand mining is listed as a conditional use in all land use categories. Comprehensive Plan Objective III-3.5 and its policies, which address sand mining, were not changed by the Remedial Amendment. They prohibit mining in environmentally sensitive areas which cannot be reclaimed, require mining within aquifer protection zones to be performed in a manner that would not negatively impact water quality, and require mining operators to demonstrate a practical and environmentally sound reclamation plan. Under the Remedial Amendment, an application for a conditional use in the Wellness Way Area must be combined with a PUD application and must comply with the detailed PUD criteria of new Policy I-8.7. By combining a conditional use application with a PUD application, Lake County can impose additional conditions designed to assure the conditional use will be compatible with the surrounding land uses. The Remedial Amendment adds more criteria and greater detail than exists currently in the Comprehensive Plan for reviewing a proposal for sand mining. Adding these review criteria is not a failure to provide meaningful and predictable standards. PUD Densities and Intensities Petitioners contend that the densities and intensities within the Wellness Way Area cannot be reasonably predicted because Policy I-8.2.1.2 permits the density and intensity of developments to exceed or fall below the required maximum and minimum densities and intensities of use so long as a PUD as a whole fits within the limits. Petitioners’ evidence on this point was not persuasive. Applying density and intensity limits to the entire area of a PUD is not unreasonable and does not fail to provide meaningful and predictable standards. Location of Future Land Uses A more persuasive argument made by Petitioners is that the land use planning flexibility in the Remedial Amendment goes too far because the location of particular land uses will not be known until PUDs are approved. Lake County’s arguments in this regard do not overcome the fact that, under the Remedial Amendment, the determination where land uses will be located in the Wellness Way Area is deferred to the PUD process. The Remedial Amendment itself does not establish the location of future land uses in the Wellness Way Area. A landowner or citizen cannot predict where future land uses will be located in the Wellness Way Area. Lake County did not present evidence to show that any other local government comprehensive plan in Florida uses a similar planning approach. There appears to be no other comprehensive plan amendment that was the subject of a DOAH proceeding which left the location of future land uses unspecified in this way. Potential PUDs Petitioners contend that the Remedial Amendment fails to provide meaningful and predictable standards because applications for development approvals in the Wellness Way Area are reviewed on a case-by-case basis for their effect on approved and “potential PUDs.” Policy I-8.7.1 provides: Until and unless a PUD is approved by the Lake County Board of County Commissioners, the property in the WWUSA area shall maintain the existing zoning (e.g. A, R-1, CFD, PUD). All applications for development approvals (i.e. lot splits, conditional use permits, variances, etc.) on any property within the WWUSA area shall be reviewed on a case-by- case basis for the effect of such development approval on adopted or potential PUDs and compliance with the general principles of the Urban Service Area. The Remedial Amendment’s requirement that development approvals account for potential PUDs makes it impossible to predict how Lake County will make a land use decision because it is impossible to know or account for an unapproved, potential PUD. This standard lacks meaning and predictability for guiding land development. Case-by-Case Approvals Petitioners assert that Policy I-8.7.1 also creates internal inconsistency because it requires all development to be approved through the PUD process, but then appears to also provide for non-PUD development approvals on a case-by-case basis. The testimony presented by Lake County seemed to support Petitioners’ claims. Exceptions can be stated in a comprehensive plan without constituting an internal inconsistency. However, the ambiguity of Policy I-8.7.1 causes it to lack meaning and predictability for guiding land development. Urban Form Guiding Principles Policy I-8.2.2 of the Remedial Amendment sets forth guiding principles for development derived from the goals, objectives, and policies for the Wellness Way Area and establishes principles to guide development. Petitioners argue that the principles are not meaningful and predictable standards for the use and development of land because they were described by a Lake County witness at the final hearing as “aspirational.” The policy itself states that, “These guiding principles shall be specifically demonstrated in the PUDs.” The plain meaning of this statement is that application of the principles is mandatory. A witness’ testimony cannot alter the plain meaning of a policy for purposes of an “in compliance” determination. Data and Analysis Planning Timeframes Petitioners contend that the Remedial Amendment is not supported by appropriate data and an analysis because they address only infrastructure needs at the time of the Wellness Way Area’s buildout in 2040; no intermediate timeframes were used. Although section 163.3177(5)(a) requires comprehensive plans to “include at least two planning periods, one covering at least the first 5-year period occurring after the plan’s adoption and one covering at least a 10-year period,” the statute is less clear on the requirements applicable to a comprehensive plan amendment. Petitioners’ evidence and argument on this claim was insufficient to meet their burden of proof. Potable Water Supply Petitioners claim the Remedial Amendment is not supported by appropriate data and an analysis to show that the demand for potable water will be met at buildout. Petitioners’ evidence was insufficient to prove this claim. Internal Consistency Goal I-8 Petitioners argue that Goal I-8 of the Remedial Amendment contains an impermissible waiver of any Comprehensive Plan goals, objectives, or policies that conflict with the Remedial Amendment. Goal I-8 provides: The following Objectives and Policies shall govern the WWUSA as depicted on the Future Land Use Map. In the event that these Goals, Objectives or Policies present either an express (direct) or implied (indirect) conflict with the Goals, Objectives and Policies that appear elsewhere in the comprehensive plan, the provision elsewhere in the comprehensive plan that is in direct or indirect conflict with a Wellness Way Goal, Objective or Policy shall not apply to the WWUSA area. All Goals, Objectives and Policies in the Lake County Comprehensive Plan that do not directly or indirectly conflict with this Goal and associated Objectives and Policies shall apply to the WWUSA area depicted in the Future Land Use Map. Goal I-8 gives no hint as to the nature or the number of potential direct or indirect conflicts that could arise. As explained in the Conclusions of Law, the goal creates an unlawful waiver of unidentified inconsistencies. Urban Service Area The Wellness Way Area is intended to be an urban service area. “Urban service area” is defined in section 163.3164(50): “Urban Service Area” means areas identified in the comprehensive plan where public facilities and services, including, but not limited to, central water and sewer capacity and roads, are already in place or are identified in the capital improvements element. The term includes any areas identified in the comprehensive plan as urban services areas, regardless of local government limitations.” Petitioners contend the Capital Improvements Element of the Comprehensive Plan is inconsistent with the Remedial Amendment because Lake County did not amend the Capital Improvements Element to address public facilities and services in the Wellness Way Area. Lake County responds that it does not own or operate the utility companies that would provide the services, but who owns and operates the utilities has no effect on the statutory requirement to do public utility planning. Lake County argues that it was sufficient for the County to simply identify the utility providers. Section 163.3164(50) requires more. It requires the identification of public facilities and services. Furthermore, section 163.3177(3)(a) requires a capital improvement element “to consider the need for and location of public facilities.” The Remedial Amendment creates an internal inconsistency in the Comprehensive Plan by providing for greater growth and a new urban service area in the Wellness Way Area without amending the Capital Improvements Element to address the greater growth or the urban service area. The Capital Improvements Element should have been amended to include some of the data and analysis that was used to support the Remedial Amendment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission issue a final order determining that the Remedial Amendment adopted by Lake County Ordinance No. 2016-1 is not in compliance. DONE AND ENTERED this 21st day of November, 2016, 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 21st day of November, 2016.
