The Issue Whether the City of Fernandina Beach (“City” or “Respondent”) Future Land Use Map Amendment, adopted by Ordinance 2019-08 (“FLUM Amendment”), qualifies as a small scale development amendment to the City Future Land Use Map (“FLUM”); and, if so, whether the FLUM Amendment is “in compliance” as that term is used in section 163.3187(5)(a), Florida Statutes (2018).1/
Findings Of Fact The Parties and Standing ATC is a not-for-profit Florida corporation with a substantial number of members who reside in, own property in, or operate businesses in the City. ATC is an affected person under chapter 163, part II. ATC’s Petition for Administrative Hearing was timely filed. Members of ATC submitted oral and written comments on the FLUM Amendment to the City prior to and at the adoption public hearing. Sierra Club is a national nonprofit organization with 67 chapters, including the Nassau County Sierra Club Group with a substantial number of members who reside in, own property in, or operate businesses in the City. Sierra Club participates in activities and outings on the Egans Creek Greenway (“Greenway”) for its members and the general public and has organized and participated in the removal of invasive species in the Greenway. Sierra Club is an affected person under chapter 163, part II. Sierra Club’s Petition for Administrative Hearing was timely filed. Members of Sierra Club submitted oral and written comments on the FLUM Amendment to the City prior to and at the adoption public hearing. Petitioners have standing to maintain these proceedings because they are affected persons and presented (or had their attorney or representative present) comments at the adoption hearing of the proposed FLUM Amendment. The City is a municipal corporation of the State of Florida with the duty and authority to adopt and amend a comprehensive plan, pursuant to section 163.3167. The City provided timely notice to the parties and followed the plan amendment procedures required by the City’s codes and chapter 163, part II. The subject property is located within the City’s jurisdiction. Amelia Bluff is a Florida limited liability company conducting business in the City. By virtue of its ownership of the property that is subject to the FLUM Amendment and this dispute, Amelia Bluff is affected by the challenge to the FLUM Amendment and has standing to intervene in this proceeding. The Subject Property The Property is part of a larger parcel of approximately 15.07 acres (the “School Board Property”) that was previously owned by the School Board of Nassau County (the “School Board”). The School Board Property was essentially undeveloped, though it had been used as outdoor classroom space for the high school. The School Board Property is located on the east side of Citrona Drive and is bounded on the west by Fernandina Beach High School/Middle School. The School Board Property is bounded on the south by the Hickory Street right-of-way, which is an access to the Greenway. Across from the Hickory Street right-of-way is Shell Cove, a residential subdivision that, according to the City Staff Report, is zoned R-2 with a Medium Density Residential FLUM designation. Shell Cove, which is completed, is of greater density than the proposed Amelia Bluff subdivision. The School Board Property is bounded on the north by a tract of undeveloped property. According to the City Staff Report, the property to the north is zoned R-1 with a LDR FLUM designation. The School Board Property is bounded on the east by 200 to 400 feet of publicly-owned, predominantly wetland property. That property merges into the western edge of the main channel of Egans Creek. The Egans Creek Greenway then extends eastward from the western edge of Egans Creek. The School Board Property includes a relatively steep bluff running generally from the northwest corner of the Property at Citrona Drive, diagonally to the southeast to the Hickory Street right-of-way. The elevation of the upland portion of the School Board Property, which is the portion proposed for development, is from 18 to 20 feet above sea level at its northwest corner, to 11 to 12 feet above sea level at its southeast corner. Roughly 3.76 acres of the School Board Property at and east of the toe of the bluff consists of jurisdictional wetlands, dominated by wetland vegetation, at an elevation of 1 to 2 feet above sea level. The upland portion of the School Board Property includes the 10.29 acres of the proposed subdivision. Those uplands were, at the time of the June 2016 purchase by Amelia Bluff, fully wooded with predominantly hardwood species, interspersed with pine, holly and other species. The 10.29 acres of the proposed subdivision are appropriately zoned R-1 for low-density residential development. The Property that is the subject of the FLUM Amendment consists of approximately 6.40 acres of uplands within the 10.29 acres of the proposed subdivision. The Property is designated on the FLUM as Conservation. The remainder of the proposed subdivision is designated on the FLUM as LDR. The evidence indicates that there is no difference in the nature of the tree cover in the 6.4 acre Property and in the remaining acreage of the proposed subdivision. Maritime Forest/Maritime Hammock There was a good deal of testimony directed to the issue of whether the trees on the Property constitute a “maritime forest” or an imperiled “maritime hammock.” The tree cover on the Property, as established by the tree survey, consists largely of live oak, laurel oak, and water oak, interspersed with magnolia, pine, red maple, and other species. Ms. Jetton described the cover of the Property as maritime forest, and stated that “maritime forest” is identified as an imperiled community in the Florida Natural Areas Inventory (“FNAI”) and designated in the Egans Creek 2015 Greenway Management Plan (“Greenway Management Plan”) as such. Although a “maritime hammock” is designated as an imperiled vegetative community, a “maritime forest” is not. Ms. Jetton later clarified her testimony, stating that “I probably shouldn't have said ‘hardwood hammock.’ I'm accustomed to using that term in the Florida Keys. I know this is a maritime forest, but it is composed of hardwood trees, live oak trees, pine trees.” When asked about the terms “maritime forest” and “maritime hardwood hammock,” she stated that “it was a faulty use of my words. I should have stuck with ‘maritime forest.’” There was little to suggest that the Property contains a “maritime hammock,” which is a specific type of imperiled vegetative community identified in the FNAI and the Greenway Management Plan. Mr. Gerald indicated that it did not. Rather, Mr. Gerald indicated that the type of “maritime forest” that exists on the Property, i.e., a forest on a barrier island, is “very common throughout the mainland, throughout Nassau County, Duval County, St. Johns, Clay, all the way out through pretty much all of North Florida.” It is not an imperiled or unique community, as is a maritime hammock. The Ecological Assessment of Egans Creek Greenway indicates that maritime hammock communities associated with the Greenway “are located along the eastern part of the Greenway,” with another near an indeterminate stretch of Jasmine Street and bisected by a wide and deep canal that is not surficially connected to Egans Creek, and a third set at the southern portion of the Greenway that appear to be adjacent to a beach dune community. There is nothing in the Ecological Assessment to suggest that a maritime hammock community exists to the west of the Greenway. The evidence is insufficient to support a finding that the Property contains an imperiled “maritime hammock” as described in the FNAI and the Ecological Assessment of Egans Creek Greenway. There is little question that the Property is a beautifully wooded tract. However, the issue is not whether the Property merits preservation, but whether the FLUM Amendment, that will allow for the development of the Property as the Amelia Bluff subdivision, is inconsistent with the Comprehensive Plan. Egans Creek Greenway The Greenway is a system of approximately 317 acres of publicly-owned waterways, marshes, and wetlands that extends in a north-south direction through Amelia Island, separating the City’s beaches from its downtown and commercial areas. Egans Creek is not an Aquatic Preserve or Outstanding Florida Water. Egans Creek flows into the Amelia River and the Fort Clinch State Park Aquatic Preserve. The Greenway is a regional drainage facility that receives untreated stormwater from areas including part of the original plat of the City. Water quality in Egans Creek is degraded, though the creek is not designated as “impaired.” The City’s Greenway Management Plan provides that “[t]he primary purposes of the project are to protect this sensitive natural area from development,” and that “[a]ll of the property encompassed in this project will be designated as recreational/wetlands and protected in the City’s future land use plan.” The Greenway extends from the western bank of the Egans Creek channel eastward. The Greenway is separated from the Property by 200 to 400 feet of publicly-owned, predominantly wetland property, the first hundred feet or so of which is dense willow/wax myrtle/Chinese tallow shrub, and then brackish march to the Egans Creek channel. Procedural History of the Amelia Bluff Subdivision In June 2016, Amelia Bluff entered into a contract to purchase the 15.07-acre School Board Property from the School Board. The School Board Property includes the 6.4-acre Property. Amelia Bluff proposed to develop the upland portion of the School Board Property, including a significant portion of the Property, for the proposed subdivision. On September 27, 2016, the School Board filed an application to vacate a 60-foot right-of-way known as Gum Street extending through the School Board Property in connection with the School Board’s intent to sell the School Board Property to Amelia Bluff, memorialized as City Planning Advisory Board (“PAB”) Resolution 2016-24. On August 10, 2017, the School Board, Amelia Bluff, and the City executed a Memorandum of Understanding (“MOU”), which memorialized the parties’ understanding of the conditions of the City’s agreement to vacate a portion of Gum Street extending through the School Board Property. The MOU stipulated that Amelia Bluff would (i) provide access to the abutting properties owned by the Florida Department of Transportation (“FDOT”) located on the eastern boundary of the School Board Property through the creation of a City right-of-way to connect Hickory Street to the property owned by the FDOT; (ii) transfer the wetlands portion of the School Board Property to the City for conservation; and (iii) donate $115,000 to the City for land conservation efforts, to be paid at the conclusion of all legal challenges and/or appeals for all subdivision approvals. On August 15, 2017, the City adopted: (i) Ordinance No. 2016-40, which vacated a portion of Gum Street; and (ii) Resolution 2017-123, which approved the MOU. On November 29, 2017, the School Board conveyed the School Board Property to Amelia Bluff. On February 16, 2018, Amelia Bluff filed an application for preliminary plat approval for the subdivision. On March 9, 2018, in accordance with the MOU, Amelia Bluff conveyed to the City approximately 3.76 acres of jurisdictional wetlands in two parcels (3.63 acres and 0.13 acres in size) and dedicated to the City approximately 0.917 acres for the right-of-way connection between Hickory Street and the FDOT property. The City accepted the conveyance of wetlands and dedication of right-of-way on March 20, 2018, pursuant to Resolutions Nos. 2018-39 and 2018-40, respectively. On April 11, 2018, the PAB reviewed the application for preliminary plat and issued a recommendation of approval. On May 1, 2018, the Commission approved the preliminary plat for the Amelia Bluff subdivision. On May 10, 2018, the City’s Technical Review Committee (“TRC”) reviewed and approved the preliminary plat for technical completeness and issued a compliance letter on May 14, 2018 (SPR 2017-09), authorizing the commencement of subdivision infrastructure improvements. In August 2018, Amelia Bluff commenced work on subdivision infrastructure improvements. On October 18, 2018, Amelia Bluff applied for final subdivision plat approval. The City and Amelia Bluff determined that the Property was designated Conservation under the Comprehensive Plan and would require a Comprehensive Plan amendment to change the FLUM designation of the Property from Conservation to LDR. On November 15, 2018, Amelia Bluff filed the application for the FLUM Amendment to change the Conservation designation of the Property. City professional staff reviewed the FLUM Amendment application and determined that the FLUM Amendment sought by Amelia Bluff was consistent with the Comprehensive Plan and Land Development Code, and furthered the objectives of the Comprehensive Plan. The determination was memorialized in a Staff Report prepared for consideration by the PAB prior to the PAB’s regular meeting on January 9, 2019. On January 9, 2019, the PAB reviewed the applications for the FLUM Amendment and final plat and issued recommendations of approval for the FLUM Amendment (PAB 2019-01) and final plat (PAB 2018-26). On February 19, 2019, the Commission approved the FLUM Amendment on first reading. On February 21, 2019, Amelia Bluff stopped work on the subdivision infrastructure improvements pursuant to the City’s request. On April 16, 2019, the Commission adopted: (i) Ordinance No. 2019-08, which approved the FLUM Amendment to change the FLUM designation of the Property from Conservation to LDR, allowing up to four residential dwelling units per acre; and (ii) Resolution 2019-57, which approved the final subdivision plat. Because of Petitioners’ pending challenge, the effective date of Ordinance No. 2019-08 is delayed. The Ordinance provides: “If challenged within 30 days after adoption this Ordinance may not become effective until the state land planning agency or the Administration Commission, respectively, issues a final order determining that the adopted ordinance is in compliance pursuant to Section 163.3187, Fla. Stat.” Similarly, Resolution 2019-57 provides “[t]his Resolution shall become effective on the same date as Ordinance 2019-08 (a small scale Future Land Use Map Amendment that becomes effective pursuant to Section 163.3187, Fla. Stats.)” Thus, development may resume without any further action by the Fernandina City Commission if the FLUM Amendment becomes effective. Other Governmental Authorizations On December 28, 2017, the St. Johns River Water Management District (“SJRWMD”) issued Amelia Bluff an Environmental Resource Permit, No. 151737-1 (“ERP”), which notice was recorded in Official Records Book 2177, Page 1100 of the Public Records of Nassau County, Florida on February 15, 2018. On May 14, 2018, the Florida Department of Environmental Protection (“FDEP”) issued Amelia Bluff Permit No. 0003152-107-DWC, which authorized Amelia Bluff to construct a domestic wastewater collection/transmission system on the site, and accepted Amelia Bluff’s Notice of Intent to Use the General Permit for Construction of Water Main Extensions for PWSs. The Proposed Subdivision The proposed subdivision consists of 30 lots, designed with two entrances from Citrona Drive, and two cul-de-sacs. The legal description for the final plat approved on April 16, 2019, in Resolution 2019-57, describes the proposed subdivision as containing “10.29 acres more or less.”3/ In addition to the property conveyed to the City or dedicated to the city as right-of-way, the final plat depicts Tract “C” (0.25 acres) as a “recreation/open space tract” that is removed from development. The proposed subdivision was initially designed with stormwater detention ponds near the front of the subdivision, near Citrona Drive and away from the bluff. However, placement at that location would have required extensive grading and tree clearing to direct the flow of water against its natural flow direction. After discussion with City staff, the decision was made to reconfigure site drainage so that stormwater would be directed via overland flow and drainage structures from northwest to southeast, generally following site topography. Stormwater from lots, sidewalks, and streets will be directed to two dry detention ponds located at the southeast portion of the subdivision, and adjacent to the bluff. By allowing stormwater to follow the natural topography, grading and clearing for stormwater purposes will be minimized. The two dry detention ponds are connected by a 12-inch pipe approximately 100 feet in length that is designed to equalize water levels in the ponds. The ponds have a discharge structure in the southernmost pond that is designed to discharge treated stormwater after a 25-year storm to the bottom of the bluff. Efforts were made to design utilities, the stormwater system, and the roadways and associated structures to avoid particular specimen trees within the rights-of-way. In addition, Tract “C” located near the northwest corner of the subdivision, as well as portions of Tract “A” in the vicinity of the dry detention ponds were preserved due to an abundance of trees at those locations. The subdivision is designed with a 25-foot wetland buffer that prohibits removal of native vegetation or other disturbance within 25 linear feet of the jurisdictional wetlands. The buffer encompasses the entirety of the bluff. It was noted during the hearing that the buffer terminates near the southwest corner of the proposed subdivision. It was explained, credibly, that the 25-foot buffer is to buffer wetlands, and that there were no wetlands within 25 feet of the southwest corner that required a buffer. It was also noted that several lot lines extended into the wetland buffer. The buffer will be marked and restrictions recorded. Much of the evidence offered by Petitioners was directed to concern that the disturbance of the Property and removal of trees would destabilize the “relic dune” upon which the proposed subdivision is to be built. The testimony regarding that issue was conclusory, and not based on site- specific studies. However, Dr. McPhillips noted that there is residential development up and down the Greenway, and that the adjacent Shell Cove subdivision had experienced no evidence of dune collapse. Work Completed to Date In June 2016, after Amelia Bluff contracted to purchase the School Board Property, the owner representative, Wirt Beard, met with City planning staff to engage in preliminary discussions regarding the development of the proposed subdivision. At that time, Amelia Bluff and the City planning staff noted that the Property was subject to a Conservation designation on the FLUM. The planning director at the time, Marshall McCrary, indicated that it was his opinion that the FLUM Conservation designation was a “scrivener’s error,” and that it would be taken care of. Considerable discussions regarding the abandonment of the Gum Street right- of-way then commenced, and the Conservation designation was essentially disregarded. Nonetheless, there is no question but that Amelia Bluff knew and understood at that time that the Property was not designated for development. Amelia Bluff’s decision to proceed with development planning and construction was not taken without considerable support by the City. Despite the fundamental issue of whether the proposed subdivision could go forward in light of the unresolved Conservation designation, the City proceeded with a number of actions that would have led Amelia Bluff to the reasonable conclusion that the matter was, in fact, being “taken care of.” As set forth previously, the City entered into the MOU with Amelia Bluff and the School Board that required Amelia Bluff to establish a City right-of-way through the Property to connect Hickory Street to FDOT property and to transfer roughly 3.76 acres of wetlands on the Property to the City for conservation, upon which the City would vacate a portion of Gum Street extending through the Property. Ordinances approving the MOU and vacating the Gum Street right-of-way were adopted on August 15, 2017. The sale of the School Board Property to Amelia Bluff was then closed on November 29, 2017. On March 9, 2018, in accordance with the MOU, Amelia Bluff conveyed the 3.76 acres of jurisdictional wetlands to the City, and dedicated 0.917 acres for the FDOT right-of-way. The City accepted both by resolution on March 20, 2018. On February 16, 2018, Amelia Bluff filed its application for preliminary plat approval. On April 11, 2018, the PAB reviewed the application for preliminary plat and recommended approval, which was approved by the Commission on May 1, 2018. On May 10, 2018, the TRC issued a compliance letter authorizing the commencement of subdivision infrastructure improvements. Amelia Bluff commenced work on infrastructure improvements for the Project in August 2018. When work was suspended on February 21, 2019, pursuant to the City’s request, the stormwater collection system was substantially complete, stormwater ponds had been cleared and constructed, and the stormwater collection system had been installed. In addition, roads had been cleared and curbs installed. City Commission FLUM Amendment Meetings The undersigned viewed and listened to every minute of the City Commission meetings of February 19, 2019; March 19, 2019; and April 16, 2019. The exclusive theme of those meetings was whether the Conservation designation of the Property was a “scrivener’s error.” The staff presentations were directed solely to the historic zoning and land use designations of the Property. Aerial photographs going back to 1943, and plats going back nearly as far, formed the temporal starting point of the presentations. Charts, maps, and plans were presented and discussed that showed the Property to be subject to a residential “zoning map” designation starting in 1961 and extending through the 1990 FLUM. The Property then became subject to a Wetlands Protection zoning map designation in 1993 and FLUM designation in 1997. In 2005, the Property appeared with a LDR designation in the City GIS FLUM Map. The Property was then made subject to the Conservation designation in 2006, a designation that was adopted by City ordinance. Regardless of how the Property became subject to the Conservation designation, that is its official designation, adopted by ordinance, reviewed by the state land planning agency, and not subject to any timely challenge. The staff presented little or no “data and analysis” as to the compliance of the FLUM Amendment itself with the Comprehensive Plan for consideration by the Commission. The discussion of the FLUM Amendment by the Commissioners involved the alleged “scrivener’s error,” the cost associated with litigating a Bert Harris Act “takings” claim if the FLUM Amendment was denied, the cost of acquiring the Property from Amelia Bluff and the source of funds to do so, and nothing more. Though the evidence establishes that the Commission had “data and analysis” as to the compliance of the FLUM Amendment to the Comprehensive Plan, there was not a whisper of acknowledgment or direct evidence of consideration. Several Commissioners, and particularly Mr. Chapman and Mr. Kreger, made statements that their votes to approve the FLUM Amendment were driven solely by the assumption that the Conservation designation was an error, with Commissioner Chapman discussing the cost of buying the Property in lieu of other sensitive lands in the community, stating that “I cannot justify giving up . . . 452 acres of land for six, I just can’t do it,”4/ and Vice-Mayor Kreger stating explicitly at the April 16, 2019, meeting that “to me, this is a mapping error, . . . I made the motion and I will vote yes on this.”5/ The undersigned is convinced that, at least as to the public discussions of the issue, little consideration was given to whether the FLUM Amendment was consistent with the Comprehensive Plan. If the issue in this case was whether the Commission actually considered available data and analysis supporting consistency, the evidence would suggest the answer is “no.” However, the issue in this de novo proceeding is whether data and analysis that was available to the Commission at the time of the adoption of the FLUM Amendment, and whether that data and analysis, together with any subsequent analysis, establishes that the FLUM Amendment is “in compliance” with the Comprehensive Plan under a “fairly debatable” standard. Available Data and Analysis Section 163.3177(1)(f) requires all plan amendments to be based upon relevant and appropriate data and an analysis by the local government that may include, but is not limited to, surveys, studies, and other data available at the time of adoption of the plan amendment. Section 163.3177(2) requires the elements of the Comprehensive Plan to be supported by data and analysis. Likewise, section 163.3177(6)(a)8. requires FLUM amendments to be based upon an analysis of data. Section 163.3178(2) states that a local government’s coastal management element of its Comprehensive Plan must be based upon studies, surveys, and data. When the application for the FLUM Amendment was filed, Amelia Bluff provided the City with a substantial volume of information for consideration by City staff, and to which the Commission had access at the time it voted to approve the FLUM Amendment. The surveys, studies, and data included: a site survey prepared by Manzie & Drake Land Surveying; engineering plans for the proposed subdivision, including water and sewer design and stormwater system design prepared by Gillette & Associates, Inc.; a wetland delineation, wetland survey, and documents conveying all wetlands to the City; a topographic survey; preliminary and final plats which include a depiction of the upland/wetland buffer; stormwater modeling data and site drainage calculations prepared by Gillette & Associates, Inc.; the SJRWMD ERP; a geotechnical and soils report for the stormwater model and roads prepared by AGES of Jax, Inc.; a tree survey with input from an arborist; and a wildlife assessment prepared by LG2 Environmental Solutions, Inc. Challenges to the Plan Amendment Small Scale Development Amendment Section 163.3187 applies to “small scale development amendments,” which may be adopted when “[t]he proposed amendment involves a use of 10 acres or fewer.” Petitioners allege that the FLUM Amendment is not a small scale development amendment since the 6.4 acre FLUM Amendment is part of a use, i.e., the proposed subdivision, that is greater than 10 acres in size. The FLUM Amendment is designed to change the land use category on the 6.4-acre Property. Both Ms. Gibson and Mr. Teeple testified credibly that the size of a FLUM amendment application is the acreage of the property on which the land use category is to be changed. Mr. Teeple testified that, in his extensive experience, he was unaware of any instance in which the 10-acre threshold was applied to the applicant’s total acreage, on the size of a “parent parcel,” or on the overall size of a development of which a FLUM amendment parcel was a part. Ms. Jetton testified on behalf of Petitioners that the Amelia Bluff subdivision is the “use,” which includes “the lots, the driveways, the stormwater ponds, the entire use,” although only the land use designation on the 6.4 acres would be amended. She asserted that the FLUM Amendment “should have been for the Conservation land with an explanation along with it that it would be part of a use that includes” the entire proposed subdivision. Her opinion as to “use” notwithstanding, Ms. Jetton testified that if the FLUM Amendment had occurred prior to the plat approval, “and they only offered the Conservation land as a small scale amendment, then that would have met the statute,” and the FLUM Amendment would properly be for the 6.4 acres for which the land use category change was being sought. Ms. Jetton, and Petitioners, rely exclusively on St. George Plantation Owners Association, Inc. v. Franklin County, Case No. 95-5124GM (Fla. DOAH Feb. 13, 1997; Fla. ACC Mar. 27, 1997). That case will be discussed in the Conclusions of Law herein. The preponderance of the evidence demonstrates that it is the established and accepted practice of the City and the regional council to base the determination of whether an amendment is a small scale amendment on the size of the property subject to modification. That determination is consistent with the plain language of the statute and is accepted as reflecting an accurate application of the standards for a small scale FLUM amendment. Internal Inconsistency In the Joint Pre-hearing Stipulation, Petitioners identified the specific goals, objectives, and policies of the Comprehensive Plan that they assert render the FLUM Amendment inconsistent with the Comprehensive Plan. Each of those goals, objectives, and policies is addressed as follows: Policy 5.07.09. The City shall prohibit any development activity that would potentially endanger lives and/or harm property, water quality, and quantity or any other valued environmental system resulting from an alteration to existing drainage structures and natural drainage patterns. Ms. Gibson testified that the City applied this policy and found that it was met as evidenced by modifications to the original stormwater system design and the permitting of the stormwater system by the city and the SJRWMD. As originally configured, the stormwater system would have required significant regrading and virtual clear-cutting of the entire Property to allow stormwater to flow against the natural topography of the land to the front of the proposed subdivision adjacent to Citrona Drive. With input and direction from the City, the system was redesigned to direct stormwater generally from the high point of the property to its low point at the southeastern corner, following the natural topography of the proposed subdivision. All stormwater is to be directed to the permitted stormwater facility. The 25-foot upland buffer is not designed or intended to treat stormwater. The stormwater system consists of dry detention ponds, which are preferred by the SJRWMD. The vertical percolation rate is calculated at 42.8 feet per day. The horizontal percolation rate was calculated at 0.6 feet per day. Mr. Gillette testified that the stormwater system was designed to manage 100 percent of the stormwater from a 25-year storm event, which exceeds the City requirement of a system capacity to handle a 10-year storm event. The treatment volume does not include infiltration and percolation of stormwater. Mr. Desilet reviewed the drainage plans and calculations and determined that they were in compliance with the City Land Development Code. He further confirmed that Amelia Bluff received a stormwater permit from the SJRWMD as required by the Local Development Order. The system is designed and engineered such that flow from the proposed subdivision in its post-development state does not exceed flow from the proposed subdivision in its pre-development state. The system is designed to hold and treat stormwater on site from a 25-year storm. After that, stormwater will be allowed to “pop-off” to the stormwater drain and culvert. Nonetheless, the preponderance of the evidence establishes that any water leaving the site will be treated stormwater, meeting both permitting and water quality standards. Mr. Gillette testified that the modeling performed in support of the stormwater system indicates that for a mean storm event (5.4 inches of rain), pre-development stormwater outfall from the proposed subdivision is 3.8 cubic feet per second (“CFS”), while post-development outfall is expected to be 0.67 CFS. For a 25-year storm event, pre-development stormwater outfall from the proposed subdivision is 16 CFS, while post- development outfall is expected to be 5.6 CFS. Mr. Desilet testified that the engineered stormwater system proposed by Amelia Bluff “addresses water quality by providing the minimum required treatment volume and infiltration under [SJRWMD] guidelines.” As such, he testified that under rules governing the SJRWMD, “[i]f the specified volume required by the pervious area of the site is provided, and it's shown that it infiltrates in the system and it meets other site criteria in the [SJRWMD] code, it is presumed to meet state water quality standards.” Consistent with Mr. Desilet’s testimony, Florida Administrative Code Rule 62-40.432(2)(a), which is applicable to the SJRWMD, provides that “[w]hen a stormwater management system complies with rules establishing the design and performance criteria for such systems, there shall be a rebuttable presumption that the discharge from such systems will comply with state water quality standards.”6/ The stormwater system complied with the applicable rules, thus leading the SJRWMD to issue a stormwater permit to Amelia Bluff. There was no persuasive evidence introduced to rebut the presumption that state water quality standards would be met. The City reviewed Amelia Bluff’s stormwater plans for compliance with the City’s Land Development Code and determined that water quality was addressed, and that the data and analysis regarding stormwater from the proposed subdivision was compliant with the Comprehensive Plan. The evidence offered to establish that the stormwater system designed for the proposed subdivision would “endanger lives and/or harm property, water quality, and quantity or any other valued environmental system resulting from an alteration to . . . natural drainage patterns” was not persuasive. The evidence does not establish beyond fair debate that the FLUM Amendment is inconsistent with Comprehensive Plan Policy 5.07.09. Policy 5.07.12. The City shall require low-impact development strategies or conservation-based landscape planning and installation, water efficient irrigation, and appropriate measures that promote conservation of water resources and reduction of non-point source pollution as part of sustainable water management for new public and private development. New waterfront development shall be designed so that stormwater runoff and erosion are retained on-site or are channeled so as not to degrade water quality of adjacent waters. Ms. Gibson testified that the City required Amelia Bluff to apply low-impact development strategies, including its dedication of all wetlands to the City; the requirement of the 25-foot, naturally vegetated wetland buffer; modifications to the stormwater system to account for the natural topography of the land; and modification and realignment of infrastructure to preserve significant trees. Mr. Teeple testified that the proposed density of less than three units per acre is less than the four units per acre allowed under the LDR designation, thus supporting his opinion that Amelia Bluff applied a low-impact development strategy. Petitioners’ alternatives to the low-impact development strategies identified by Ms. Gibson included clustering all development onto that portion of the proposed subdivision currently designated as LDR, requiring swales in lieu of a “focused” drainage pattern, and increasing the width of the buffer. The City’s decision to accept Amelia Bluff’s proposed subdivision as consistent with its low-impact development policy was supported by data and analysis, and was a legislative decision to accept the plans and specifications as being in compliance with the Comprehensive Plan. There are different ways to measure the effectiveness of low-impact development strategies, and people may -- and do -- disagree as to the appropriate means to accomplish the policy. The issue is not, however, which strategies should be implemented, but whether the City’s decision to accept Amelia Bluff’s strategy was beyond fair debate. The evidence does not establish beyond fair debate that the FLUM Amendment is inconsistent with Comprehensive Plan Policy 5.07.12. Objective 5.08. - Wetlands Protection and Preservation Petitioners assert that the FLUM Amendment is inconsistent with Objective 5.08. of the Comprehensive Plan, which provides as follows: The City shall direct incompatible land uses away from wetlands, and shall protect and preserve wetlands from physical and hydraulic alterations, in order to maintain the following functions: natural biological functions . . . natural drainage systems impacting sedimentation patterns, salinity distribution, flushing characteristics . . . shielding other areas from wave action, erosion, or storm damage; storage areas for stormwater and flood waters; natural recharge areas; and natural water filtration processes that serve to purify water. Objective 5.08. is implemented through the City’s wetland Comprehensive Plan policies. Petitioners allege that the proposed FLUM Amendment is inconsistent with the following policies: Policy 5.08.05. The City shall continue to ensure the protection and mitigation of wetlands, consistent with existing state and federal regulations, and shall ensure the following: Land uses which will have little or no adverse impact on wetlands; Standards and criteria for wetlands which possess significant functional value; and Activities that would provide direct public benefits and that would exceed those benefits lost to the public as a result of the degradation or destruction of wetlands. Policy 5.08.06. The City shall protect wetlands from impacts of adjacent development, and shall ensure through regulations included in the Land Development Code: Proper siting of development structures and infrastructure, including clustering of development away from wetlands; Location of buffer zones of native vegetation around wetlands and surface water bodies to prevent erosion, retard runoff, and provide habitat; and Setback of buildings and other structures from wetlands and water bodies. Policy 5.08.08. In instances in which development is proposed that is adjacent to a wetland, the boundary of a wetland transition area shall be established by an on-site field survey . . . . The City shall maintain land development regulations which ensure that the transition area provides a buffer between wetlands and upland development. Such buffer shall ensure existing vegetation is not disturbed; where new vegetation is required, plants or ground cover native or appropriate to a wetlands transition area shall be used. The data and analysis established clearly that the Property encompassed by the FLUM Amendment includes no wetlands, and that the proposed subdivision will result in no direct degradation, destruction, or impact to wetlands. Ms. Gibson testified that the Wetlands Protection and Preservation objective and policies were advanced in several ways, including the dedication of all wetlands on the School Board Property to public ownership so as to protect and preserve the wetlands, the creation of the wetland buffer between wetlands and the upland development, and the requirement -- enforced through the plat and engineering documents, Homeowners’ Association covenants, and City code provisions -- that native vegetation be maintained in the buffer. Petitioners argued that wetlands are adjacent to the proposed subdivision, that stormwater can drain from the proposed subdivision to the wetland, and that, ipse dixit, there will be an adverse affect on the wetlands. That allegation was not proven, and is inconsistent with the SJRWMD stormwater permit creating a presumption that the stormwater system complies with water quality standards. The City’s decision to accept Amelia Bluff’s proposed subdivision as consistent with its wetland protection and preservation objective and policies was supported by data and analysis, and was a legislative decision to accept the plans and specifications as being in compliance with the Comprehensive Plan. The evidence does not establish beyond fair debate that the FLUM Amendment is inconsistent with Comprehensive Plan Objective 5.08., or Policies 5.08.05, 5.08.06, or 5.08.08. Objective 5.10. - Wildlife Planning. The City shall encourage development and management of resources in a manner which sustains local wildlife, their habitat and the ecological services of the land, and shall protect significant habitats of populations of threatened or endangered species in accordance with the provisions of the Endangered Species Act (ESA) 16 USC 1531, and Florida Administrative Code Division 68A. Objective 5.10. is implemented through the City’s wildlife management Comprehensive Plan policies. Petitioners allege that the proposed FLUM Amendment is inconsistent with the following policies: Policy 5.10.01. When reviewing development proposals for public or private development, the City shall take into account the following strategies: * * * Preserve native vegetation and habitat types; Preserve forested areas, the understory and native soil associations; and Avoid activities that dehydrate landscape features or alter seasonal water flows or duration of inundation to wetlands, hammocks or water bodies. Policy 5.10.02. The City shall protect significant habitats for native wildlife and vegetation in areas of known environmentally sensitive habitats, including habitats of endangered species. The Land Development Code shall be updated with regulations to ensure that prior to the issuance of development permits in such areas, detailed inventories and assessments of impacts of development shall be conducted. If on-site habitat will be disturbed by new development, the habitat shall be relocated or the impacts mitigated, if viable by virtue of its size, configuration, and connecting habitat. . . . Mr. Teeple testified that the donation of wetlands and the efforts taken, as described herein, to minimize impacts to trees on the Property, is consistent with the Comprehensive Plan. When confronted with the fact that the proposed subdivision will not “preserve the forested areas, the understory, and the native soil associations,” Mr. Teeple testified credibly that Policy 5.10.01 “doesn't say ‘preserve all native vegetation and all habitat types.’ It's incongruous with the nature of development.” The data and analysis demonstrate that Amelia Bluff made efforts to preserve native vegetation and forested areas on the property, as described herein, though it is without question that the Property will be subject to the normal impacts of low- density development. Compliance with the stormwater standards is sufficient to demonstrate that there will be no adverse water quality or water quantity impacts from the stormwater collection and management system, and that the system will not alter seasonal water flows or duration of inundation to wetlands, hammocks, or water bodies. Dr. McPhillips testified as to her concern that the buffer vegetation on the northern -- and more elevated -- side of the proposed subdivision will be desiccated, and that the vegetation on the southern -- and lower -- side near the dry detention ponds will, from time to time, become saturated. Her concern was that trees at the buffer would not be able to generate interfacial friction between the roots and soil to stabilize them under any appreciable wind load. However, Dr. McPhillips was not familiar with the adjacent Shell Cove subdivision, which has similar characteristics, or the requirements of the SJRWMD and the calculations required for a stormwater permit. Her opinions were not supported by specific facts as to how the site will hold or drain water, and were more in the nature of “pure opinion” testimony based on her admittedly extensive professional education and experience. The data and analysis was adequate to establish that the stormwater management system would not result in adverse impacts resulting from the system, including dehydration of landscape features. As to Policy 5.10.02, the evidence indicated that the City Land Development Code required detailed inventories and assessments of impacts of development. As part of the data available to the City, Amelia Bluff provided a wildlife survey. The survey established that the Property contained no environmentally sensitive habitats, including habitats of endangered species. The known environmentally sensitive habitats in the form of wetlands have been protected through conveyance to public ownership and the establishment of naturally vegetated buffers to protect off-site habitat. The City’s decision to accept Amelia Bluff’s proposed subdivision as consistent with its wildlife planning objective and policies was supported by data and analysis, and was a legislative decision to accept the plans and specifications as being in compliance with the Comprehensive Plan. The evidence does not establish beyond fair debate that the FLUM Amendment is inconsistent with Comprehensive Plan Objective 5.10., or Policies 5.10.01 or 5.10.02. Objective 5.11. - Tree Preservation and Urban Forestry. The City shall commit to preservation of community trees and the urban forest to improve air quality, community health, quality of life, aesthetics, and energy conservation. Objective 5.11. cannot be read in isolation from the policies adopted to implement the objective. Those policies include Policy 5.11.09., which requires the City’s Land Development Code to “protect and retain existing trees and require replacement of trees lost to land clearing,” with the objective of “achiev[ing] no net loss of trees per development site,” as well as “[m]aintenance of a Tree Fund for payments in lieu of replanting or mitigation of protected trees.” Mr. Platt testified that the City’s objective has been met through a number of strategies and policies applied to Amelia Bluff. Mr. Platt and Ms. Gibson testified that individual lots will be required to submit a land clearing application at the time of the single-family home permit, and the lot grading and tree removal associated with each individual lot will be reviewed on a parcel-by-parcel basis at that time. The City's Land Development Code has provisions for the protection of noninvasive, healthy trees larger than five inches in diameter at breast height (“DBH”) within five feet of a home footprint. For any tree in the protected class that must be removed, the City has a mitigation and minimum planting ordinance which requires that any tree planted as part of mitigation be a noninvasive, native tree, at a minimum of two and a half inches DBH and eight feet in height. In addition to the foregoing, the City Land Development Code has a provision that allows for up to 50 percent of on-site mitigation to be accomplished through an “inch-for-inch” payment to a tree mitigation fund. That provision is, according to Mr. Platt, rarely used, though it is consistent with Policy 5.11.09 described above. As indicated previously, Amelia Bluff set aside several areas of the proposed subdivision, both within the Property and within the remaining generally indistinguishable acreage, for protection of both important specimen trees and clusters of trees, most notably Tract “C” (0.25 acres) near the northwest corner of the proposed subdivision, areas around the dry detention ponds (0.17 acres), and tree “islands” in the cul- de-sacs. In addition, Amelia Bluff worked with the City to realign roadways and utilities to avoid particular trees. Petitioners assert that Objective 5.11. has not been met because the overall forest will be altered, not only through the installation of infrastructure, but also through the clearing that will be necessary for homes and driveways. Petitioners argue that the inevitable thinning of the forest and damage caused through construction activities will weaken the remaining trees, and diminish the storm protecting qualities of an unbroken forest. The City’s decision to accept Amelia Bluff’s proposed subdivision as consistent with Objective 5.11. was supported by data and analysis, including the tree survey and the retention/removal plan. It was a legislative decision to accept the plans and specifications, when considered in conjunction with the related policies and the City’s Land Development Code, as being in compliance with the Comprehensive Plan. People clearly, and in good faith, disagree as to the best means of preserving the urban forest. Development, even of low density, by its very nature entails a modification of the natural state. However, the issue is whether the City’s determination that the FLUM Amendment, including protections proposed by Amelia Bluff, was, beyond fair debate, in error. The evidence does not establish beyond fair debate that the FLUM Amendment is inconsistent with Comprehensive Plan Tree Preservation and Urban Forestry Objective 5.11. Objective 6.05. - Open Space. Open spaces shall be protected within urbanized areas for their aesthetic, health, environmental, and economic benefits. The City shall continue to maintain standards in its land development regulations for the provision and maintenance of open space in the community, including in private developments and publicly owned lands. Objective 6.05. is implemented through the City’s open space Comprehensive Plan policies. Petitioners allege that the proposed FLUM Amendment is inconsistent with the following policy: Policy 6.05.03. Privately-owned open space, such as those within subdivisions or PUD developments, which consist of a conservation future land use or contains environmentally sensitive lands, shall be protected through the acquisition of conservation easements. There was surprisingly little or no testimony offered by anyone other than Ms. Gibson and Mr. Teeple regarding the consistency of the FLUM Amendment with this objective and policy. Mr. Teeple testified to the difficulty in applying Policy 6.05.03 -- despite the provision that open space “within subdivisions or PUD developments, which consist of a conservation future land use . . . shall be protected through the acquisition of conservation easements” -- due to “the out- of-sequence process that we're going through by dealing with land use last.” Had the FLUM Amendment been considered “in- sequence,” there would have been no subdivision to which Policy 6.05.03 would have applied. Several witnesses testified that had the sequence of events not been skewed by Mr. McCrary’s ill- advised statement that the “scrivener’s error” would be taken care of, a number of issues created as a result of the amendment of the FLUM after plat approval would not have been problems. This appears to be one. It does appear that Policy 6.05.03. was designed to apply to open space lands within a developed subdivision, ensuring through a conservation easement that such designated open space lands would not be encroached upon. That scenario does not present here. The evidence establishes that all of the “environmentally sensitive lands” on the School Board Property were conveyed to the City. Though the Property is forested, it is of a nature common throughout north Florida, and not imperiled “maritime hammock.” Amelia Bluff conveyed all wetlands on the Property to the City. Amelia Bluff also placed 0.25 acres into “recreation/open space, preserved significant stands and individual trees, and donated $115,000 to the City for land conservation efforts. The City’s decision to accept Amelia Bluff’s proposed subdivision as consistent with Objective 6.05. and Policy 6.05.03. was supported by data and analysis as described above. Though a facially credible argument can be made that the Property is land designated as Conservation within a “subdivision”, under the specific -- and peculiar -- facts of this case, the legislative decision to adopt the FLUM Amendment as being consistent with the Comprehensive Plan, when considered in conjunction with the related policies and the City’s Land Development Code, was fairly debatable. Objective 6.10. - Egans Creek Greenway. The City shall protect Egans Creek Greenway for its value as a recreational asset, for its significance as an outstanding natural resource, and for its role in providing wildlife habitat. The Amelia Bluff subdivision does not front onto the Egans Creek Greenway. Rather, the easternmost edge of the Property is from 200 to 400 feet removed from the Greenway. The Greenway was protected by the dedication of all wetlands that were part of the School Board Property to the City. The Greenway is further protected by the establishment of the 25-foot naturally vegetated upland buffer. As established herein, any stormwater discharged from the dry detention ponds is not reasonably expected to result in the violation of water quality or water quantity standards established by the SJRWMD or the City. While recognizing the value of the Egans Creek Greenway, the evidence does not demonstrate that the proposed subdivision will impair the Egans Creek Greenway’s value as a recreational asset, its significance as an outstanding natural resource, or its role in providing wildlife habitat, and does not establish beyond fair debate that the FLUM Amendment is inconsistent with Comprehensive Plan Objective 6.10. Policy 1.02.04. Decision on amendments to the FLUM shall be based on an analysis of the suitability and compatibility of the proposed use, based on the following factors: Type and density or intensity of surrounding uses; Zoning districts in the surrounding area; Demonstration of adequate water supply and water supply facilities; Appropriateness of the size of the parcel compared to the proposed use; Physical condition of the site, and the suitability of soils and topography for the proposed use; Suitability of the site based on the presence or absence of natural resources, environmentally sensitive lands, flood zones, or historic resources; Compatibility factors; Impact on adopted levels of service standards and quality of service standards; and Location in a Coastal Upland Protection Zone (CUPZ). Petitioners’ argument on this point is essentially that the FLUM Amendment is not supported by relevant data and analysis in the form of the assessments called for in the policy. That argument is separate and apart from the issue of whether the FLUM Amendment creates an internal inconsistency with the policy. As set forth herein, the data available to the City, and the analysis of that data, met the substantive requirements of Policy 1.02.04. Thus, the record does not support a finding that the FLUM Amendment is inconsistent with Policy 1.02.04. Data and Analysis Petitioners’ last argument is, as expressed in section II.a.(3) of the Joint Pre-hearing Stipulation, the FLUM Amendment is inconsistent with various provisions of section 163.3177, including that the proposed FLUM Amendment be based on “accurate” data and analysis. In that regard, section 163.3177(1)(f) provides that: All . . . plan amendments shall be based upon relevant and appropriate data and an analysis by the local government that may include, but not be limited to, surveys, studies, community goals and vision, and other data available at the time of adoption of the . . . plan amendment. (emphasis added). Section XI of the Joint Pre-hearing Stipulation then identifies the following issues as remaining for disposition: Whether the [FLUM] Amendment is based upon appropriate data and analysis including the character of the undeveloped land, soils, topography, natural resources, and suitability of the property for the proposed use in accordance with Section 163.3177(6), Florida Statutes. Whether the development . . . ensures the protection of natural resources and the compatibility of adjacent land uses as required under Section 163.3177(3). Whether the development . . . directs future land uses that are incompatible with the protection of wetlands and wetland functions in violation of section 163.3177(6), Florida Statutes. Whether the development . . . will adversely impact water, wetlands, wildlife, habitat, soils, native vegetative communities, existing natural preserve areas, and other natural and environmental resources pursuant to Section 163.3177(2), (6), Florida Statutes. (emphasis added). Ms. Gibson testified that the FLUM Amendment is supported by information described in paragraph 73, and described in further detail throughout these Findings of Fact. The availability of the data was corroborated by Mr. Platt, Mr. Desilet, Mr. Gillette, and Mr. Gerald. Though there was little evidence that the data and analysis was fully considered by the Commission,7/ the evidence established that there was substantial data “available at the time of adoption of the . . . plan amendment,” and that the data was, at a minimum, analyzed and considered by City staff. Consistency of the FLUM Amendment with section 163.3177(2), (3), and (6) has been addressed in conjunction with the specific Comprehensive Plan objectives and policies set forth in detail herein. Based thereon, Petitioner did not prove beyond fair debate that the FLUM Amendment is not based upon relevant and appropriate data and analysis, or are otherwise inconsistent with section 163.3177(1)(f), (2), (3), and (6). Conclusion In analyzing the consistency of the FLUM Amendment with the Comprehensive Plan, the undersigned gave full attention to not only the witnesses and evidence produced by the parties, but also to the public comment taken during the evening of July 15, 2019. This project has clearly evoked a great deal of justifiable passion from people who are concerned, invested, and involved in their community. However, the burden applicable in proceedings of this nature -- beyond fair debate -- is substantial. The decision that was made by the City officials was, as discussed herein, a legislative decision. Regardless of the extent that their attention may have been misdirected to the issue of whether the adopted and valid Conservation designation was a “scrivener’s error,” the data and analysis in support of the FLUM Amendment was available. Under the specific facts of this case, the decision of the elected City officials to approve the FLUM Amendment, regardless of their publicly stated reasons, was one that reasonable persons could differ over, and was therefore “fairly debatable.”
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity enter a final order determining that the City of Fernandina Beach Comprehensive Plan FLUM Amendment adopted by Ordinance No. 2019-08 on April 16, 2019, is “in compliance,” as that term is defined in section 163.3184(1)(b), Florida Statutes. DONE AND ENTERED this 16th day of September, 2019, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 16th day of September, 2019.
The Issue The issue is whether certain revisions to the Liveable Communities and Transportation Elements of the Comprehensive Plan (Plan) adopted by Hillsborough County (County) on May 17, 2012, are in compliance.
Findings Of Fact The Parties The County is a local government within the meaning of section 163.3164(29), Florida Statutes, and has the responsibility of administering its Plan. It adopted the challenged amendments under the expedited state review process codified in section 163.3184(3). Petitioner owns a vacant, undeveloped parcel in the County, described as being between "320 and 360 acres" in size. The parcel is located on Lutz Lake Fern Road just west of the intersection of that roadway and the Suncoast Parkway in the northeastern corner of the KOCP. Mr. Dibbs is concerned that the amendments will prevent him from developing his property in a meaningful way. During the amendment process, he submitted written and oral comments objecting to the two amendments. The KOCP The Livable Communities Element is an optional element in the Plan. Besides the KOCP, it contains 20 other community plans, and the County is currently in the process of adopting three others. The community plans were originally in the Future Land Use Element (FLUE) but were moved to the Livable Communities Element in 2008. A community plan is comprised of a study area and discusses the special and unique characteristics of the study area, examines the issues and problems facing that area, and provides strategies for solutions. In contrast to the Plan, which is more general in nature and provides broad planning guidance on a countywide basis, the community plan is more detailed in nature and is intended to provide specific recommendations on issues in a particular area of the County. The original KOCP was adopted in 2001 and was found to be in compliance by the then Department of Community Affairs. The Plan requires that it be updated every ten years. The current version consists of 11 pages of unnumbered narrative text, divided into 15 sections. At issue in this case are certain revisions to the Rural Residential Community Character, Commercial, and Transportation sections. The KOCP study area, comprising almost 23,000 acres, is located in the northwestern corner of the County and is bordered on the west by Pinellas County, on the north by Pasco County, on the east by Dale Mabry Highway, and on the south by Race Track and Ehrlich Roads. Because a wellhead protection area occupies a significant part of the KOCP, more than half of the KOCP cannot be developed, and only around 20 percent of the remaining land is potentially available for development. Many areas of the County have high population centers and an urban character; however, the Keystone-Odessa community, which makes up the study area, is characterized in the KOCP as "rural" in nature, with many lakes, wetlands, creeks, and a network of two-lane rural roads. There are, however, commercial enclaves, planned developments, and residential subdivisions within the community area. Most, if not all, of these projects were approved or vested before the adoption of the KOCP. In addition, some of the roads are highly congested. A few small areas (less than 10 percent of the KOCP) lie within the urban service area and can receive water and sewer services, while properties that are vested but not in the urban service area can also receive those services. The record contains different population estimates for the area. The Planning Commission used an estimated 2009 population of 10,700 in its support data; in February 2009, a Planning Commission employee used census block data to update that estimate to 17,483; and sometime later, Petitioner's demographer relied on June 2011 census block data to arrive at an estimated 2010 population of 21,259. The Planning Commission serves as the local planning agency for all local governments in the County and is tasked with the responsibility of developing the periodic updates for the community plans. The recommended update is then submitted to the Board of County Commissioners for its final approval. The same review process is used for all community plans. In January 2010, the Planning Commission staff, along with interested citizens who wished to participate in the process, began development of the ten-year KOCP update. Although the entire KOCP was subject to review, most of the effort was directed to the few areas "that the community [participants] brought forward" for possible change; therefore, a substantial part of the original KOCP remains unchanged. Whether other changes to the KOCP could or should have been made is not at issue. The review process included 20 meetings and two open houses over a two-year period and resulted in the adoption of a proposed plan amendment on December 12, 2011. The County approved the recommendation without change and adopted Plan Amendment No. 12-01 on May 17, 2012. No more than 35 or so citizens (out of the thousands who reside in the KOCP area) actively participated throughout the entire Planning Commission review process. However, the evidence shows that it is not unusual for a very small number of persons to participate in a community plan update process.1 Through various forms of notice, all interested residents and property owners, including Mr. Dibbs and/or his agents, were given the opportunity to provide input concerning suggested changes to the KOCP. Petitioner contends that a small group of anti-growth activists controlled the review process; that he and his representatives who attended meetings were made to feel "unwelcome"; that the anti-growth group rejected any attempt to reduce or eliminate the restrictions on development within the KOCP; and that the Board of County Commissioners simply rubber- stamped the Planning Commission's recommended changes. Even if this is true, Petitioner's remedy for changing the County's community plan review process lies in another forum, and not in a plan amendment challenge. Notably, Petitioner has not contended that the County failed to comply with the adoption procedures required under the expedited state review process. The Corridor Preservation Plan Besides updating the KOCP, the County also revised its 2025 (now designated as 2035) Corridor Preservation Plan, which identifies the strategy for long-term planning and management of important roadways within the County. The Corridor Preservation Plan is found in Appendix G of the Transportation Element and consists of a multi-page listing of County roadways that are anticipated to need enhancements because of safety or capacity issues. Among other things, it identifies the proposed enhancements for each roadway or segment included in the Appendix, such as turn lanes, widening, extensions, sidewalks, shoulders, or added bike lanes. Plan Amendment 12-03 deletes a listing on line 5 of page G-7 that provides for the enhancement of Gunn Highway from Pasco County to South Mobley Road. Gunn Highway, "a primary north/south roadway," is a highly congested two-lane arterial road that runs south from Odessa in Pasco County through the Odessa-Keystone community. It is on the County's Table of Highly Congested Roads with about 4,215 hours of daily vehicle delays. Petitioner's property is located on Lutz Lake Fern Road, which appears to intersect with Gunn Highway just south of the Pasco County line. The deletion eliminates Gunn Highway from the Corridor Preservation Ordinance. That Ordinance allows the County to acquire right-of-way from developments as they occur and require setbacks from existing roads in order to preserve future right- of-way for road widening and improvements. Thus, if the County decides at some future time to enhance that part of Gunn Highway, and additional right-of-way is required for a particular improvement, the cost of making that improvement will likely rise. The amendment does not change the roadway in any other respect. Objections to the KOCP Petitioner purchased his property from Tampa Electric Company in 2002 or 2003, or after the initial KOCP was adopted and its development restrictions were in place. Although Petitioner says he knew there were some restrictions when he bought the property, it was not until a few years later that he says he learned the full extent of these restrictions. He desires to develop his property and has a potential buyer who believes that a 920-unit apartment complex could be a successful venture. However, under the current Plan, he is limited to building one dwelling unit per five upland acres (most of the parcel is wetlands), and because the parcel is not in the urban service area, he is prohibited from hooking up to County urban services (water and sewer) even though they are located in the right-of-way of the street in front of his property. At the same time, owners of properties that are vested (grandfathered) are able to develop their properties and connect to water and sewer. For example, one of his neighbors is zoned to allow up to 304 residential units on quarter-acre lots, 25,000 square feet of commercial space, and access to urban services; there is a major subdivision (built by Cheval) across the street to the south; and a major residential subdivision lies to the north just across the Pasco County line. There are also a number of other planned developments and subdivisions that were approved in the early 1990s before the KOCP was adopted. Even if he prevails on the narrow issues in this case, it appears that Petitioner would still be unable to develop his property in the manner that he chooses unless further amendments to the Plan and/or KOCP are made. His ultimate goal is to "eliminate" the KOCP, which he says is "unconstitutional." In any event, Petitioner has challenged five revisions in the KOCP, which relate generally to strategies for preserving the rural residential community character of the area, locating commercial development, and relieving traffic on Gunn Highway. Rural Residential Community Character Revisions Petitioner contends that two changes in the first paragraph of the section entitled "Rural Residential Community Character" are not in compliance. That section describes the County's vision for the character of the community and expresses a desire that the community retain its rural residential character. As revised, the paragraph reads as follows: The Keystone-Odessa community desires to retain its predominant rural residential character as an area of lakes, agriculture activities, and homes built on varied lot sizes and in a scattered development pattern. Rural is based on the County's Future Land Use Element, Urban Service Area boundary objectives and policies. (Underlined language represents new language, while strike through language has been deleted.) Petitioner's primary concern is that the deletion of the word "predominant" changes the meaning, intent, and application of the provision and will require that the entire area remain rural in perpetuity. In striking the word "predominant," however, the County simply deferred to the standards found in the urban services area boundary objectives and policies of the FLUE, cited in the second sentence of the paragraph. These broad guidelines provide that if land is in the urban service area, the land is considered urban, while land outside the urban service area is considered rural. In distinguishing between rural and urban areas, the FLUE recognizes that within the rural area, there may be small suburban enclaves and other non-rural properties that predate the KOCP and which are located in the urban service area. To make the first sentence more consistent with the Plan, the County removed the word "predominant," as being unnecessary. It is not unreasonable to interpret this revision as not being the equivalent of a declaration that the KOCP is exclusively rural and as not materially changing the meaning of the provision. Finally, it is not unreasonable for the County to rely on FLUE provisions having countywide application in characterizing the Keystone-Odessa area as rural. Petitioner contends that the changes in the paragraph violate sections 163.3177(4)(a) and (6)(a). The first statute requires coordination of the plan with the plans of adjacent local governments. (It does not require coordination with other elements, as alleged in the Amended Petition.) But aspirational amendments that simply express the desire of a community and nothing more do not require review and coordination by Pasco County before being adopted. The second statute requires generally that FLUE amendments be based on surveys, studies, and data regarding the affected area, which include projected population, availability of urban services, proximity to schools, protection of the environment, diversification of the economy, and the like, and which ensure that the amendment does not promote urban sprawl. The plan amendment being challenged is a part of the Livable Communities Element, and not the FLUE. Therefore, the requirements imposed on a local government when adopting a FLUE amendment do not apply.2 Finally, an allegation that the changes violate Florida law because they may result in "a taking of or unreasonable burden on private property" is not a consideration in a compliance proceeding. Petitioner has failed to prove to the exclusion of all reasonable debate that the revisions are not in compliance. Commercial Revisions This section describes the visions and strategies for commercial uses within the community area. Plan Amendment 12-01 made only minor changes to the section. One change is to place commercial activities into two categories: the "Keystone-Odessa Rural Activity Center" and "Other Commercial." Also, the amendment describes the activities envisioned for each category. The following changes were made to the second sentence in the first paragraph of the Keystone-Odessa Rural Activity Center category: It is the desire of the community to encourage transfer of development rights for some of this the currently approved unbuilt commercial within the community planning area and to direct the new commercial to the intersection of Gunn Highway and North Mobley Road with the community plan boundary, and to other eligible receiving areas in Hillsborough County. Before the revision, the KOCP reflected a desire by the community to direct new commercial activity to Gunn Highway and North Mobley Road. In the following paragraph of the Commercial section, not changed by Plan Amendment 12-01, the intersection of those two roads is "recognized as a rural activity center." To implement that recognition, the County later developed a section in the Land Development Code defining the intersection of those two roads as the Keystone Activity Center. The new language is intended to clarify that the KOCP activity center is the intersection of those two roads and to direct new commercial activity to that location. It does not bar commercial development at other locations in the community area, provided that other Plan requirements are met. Petitioner contends that before the revision, commercial activity could be placed "along" the two roads, but the amendment now directs all commercial activity in the KOCP to a single intersection. He argues that the revision violates section 163.3177(4)(a) because the County failed to coordinate this provision with the FLUE. However, the statute requires, where appropriate, coordination of plan amendments with the plans of adjacent local governments, and not coordination with other elements in the Plan. He also contends that the amendment violates subsections 163.3177(6)(a)2. b., d., and h. These provisions prescribe certain requirements for FLUE amendments. Because the changes are to the Livable Communities Element, the requirements do not apply. See Endnote 1, infra. Petitioner has failed to show to the exclusion of all fair debate that these revisions are not in compliance. Transportation Revisions The Transportation section addresses the visions and/or strategies for transportation issues that affect the community. Among other changes, the County amended the third paragraph of the section by adding the following language: The community supports the expansion of the Suncoast Parkway to 6 lanes (3 in each direction) to relieve traffic through the Keystone-Odessa Community Plan area. The Suncoast Parkway is a toll road running in a north-south direction from Hernando County to the northern terminus of the Veterans Expressway (in the northern part of the County), passing on the eastern side of the KOCP. The new language does not mandate that the State or any other entity expand the Suncoast Parkway. Also, it does not mean that an expanded toll road would cure all traffic problems throughout the Keystone-Odessa community area. The language is simply a statement of support by the community for the widening of the toll road if that project is ever considered in the future. Petitioner contends that the statement of support must be coordinated with adjacent local governments; that it equates to a failure to provide a safe and efficient transportation system on the other roadways within the KOCP, as required by the Transportation Element; that an expanded Suncoast Parkway cannot relieve traffic on other KOCP roads; and that there is no consensus among the Odessa-Keystone community to support the expansion of the Suncoast Parkway. The amendment depends on future activities, assessments, and decision-making by the County or other entities that have the responsibility of funding and building toll roads. It does not require the County to take any immediate action. In short, it does not mandate anything. Given these considerations, Petitioner has failed to prove to the exclusion of all fair debate that the aspirational language is not in compliance for the reasons alleged. Finally, the penultimate paragraph of the Transportation section, as revised, reads as follows: Gunn Highway will be identified as a County roadway, which cannot be widened further due to social, economic, policy and environmental constraints. The identified and designated constrained corridors list found in the Transportation Element will also be recognized. The provision to eliminate the truck route on Gunn Highway from Pasco County Line to Van Dyke, when the Suncoast Corridor is completed, will be is enforced as set out by the adopted Hillsborough County Truck Route Ordinance.3 Since the KOCP was adopted in 2001, Gunn Highway has been constrained to two lanes. Until that language is amended, Gunn Highway "cannot be widened further." This provision was not changed by Plan Amendment 12-01 and is not subject to challenge in this proceeding. The Suncoast Parkway and Veterans Expressway were completed years ago. Therefore, the phrase "when the Suncoast Corridor is completed" is obsolete and should be deleted. When the KOCP was first adopted, the Transportation section contained a provision that would eliminate a portion of Gunn Highway between Pasco County and Van Dyke as a truck route. It further provided that this provision would be enforced after the Suncoast Corridor was completed. During the update process, the County decided that this kind of specific direction does not belong in a community plan and chose to defer that decision to the County's Truck Route Ordinance. That Ordinance contains a list, periodically updated, of designated County roads on which certain types of trucks may operate. The KOCP now acknowledges that Gunn Highway's truck route status will be as designated in the Truck Route Ordinance, a more logical place for that type of decision. It does not force the County to take action one way or the other regarding the status of Gunn Highway. Petitioner contends that these changes violate section 163.3177(2), which provides that coordination of the various elements is a major objective in the planning process, and that the elements should be consistent with one another. Petitioner asserts that the County failed to coordinate with Transportation Element Objectives 1.1, 1.5, and 6.9 and Policy 6.9.1 and the Florida Department of Transportation's Goods Movement Study. The cited objectives, policy, and study require generally that the County provide a safe, efficient, and environmentally sensitive transportation system, and that the transportation system provide for the efficient and effective movement of goods. There is insufficient evidence to establish a lack of coordination between the two elements, or to prove that by deferring the truck route status of Gunn Highway to the Truck Route Ordinance, the County has created an internal inconsistency between the KOCP and the Transportation Element. Petitioner also contends that the amendment violates section 163.3177(6)(a) because it is not based on the necessary surveys, studies, and data required for FLUE amendments. However, the amendment is to the Livable Communities Element and not the FLUE. Petitioner has failed to show to the exclusion of all fair debate that the revisions in the Transportation section of the KOCP are not in compliance. Objections to the Corridor Preservation Plan Plan Amendment 12-03 modifies the County's Corridor Preservation Plan. The changes were required because, since the Corridor Preservation Plan's last update, several community plans, including the KOCP, were adopted, and they provided direction for widening certain roads and the need for other roadway improvements. Also, in 2009, the Metropolitan Planning Organization adopted a 2035 Long Range Transportation Plan that extended the horizon year by ten years. Among the changes is the removal of the planned expansion and enhancement of Gunn Highway from the Pasco County line to South Mobley Road. According to the staff report, this deletion was required because the adopted community plan says that Gunn Highway should not be widened. The original KOCP acknowledges, however, that "some changes to roadway configurations may be needed for safety" in the future, but these changes should be limited to turn lanes, pedestrian/ equestrian crossings or traffic control mechanisms rather than widening the road. These provisions were not amended by Plan Amendment 12-01 and are not subject to challenge here. Petitioner contends that this amendment violates sections 163.3177(6)(b)1.e. and 337.273. The first statute requires that the Transportation Element reflect the "data, analysis, and associated principles and strategies" relating to "[h]ow the [County] will correct existing facility deficiencies, meet the needs of the projected transportation system, and advance the purpose of this paragraph and the other elements of the comprehensive plan." The second statute provides generally that if a "transportation corridor" is used by a local government to address transportation issues, it should be included in the comprehensive plan. Petitioner essentially argues that unless the County creates a plan that addresses all failing roads in the KOCP, it cannot delete Gunn Highway from the Corridor Preservation Plan. But this would mean that no amendment affecting transportation in the KOCP, or any other area of the County, could ever be adopted until the County develops a plan for funding and correcting each roadway deficiency. Given the existing constraint on widening Gunn Highway, the effect of the amendment is simply to make the Transportation Element consistent with the KOCP, a requirement under section 163.3177(2). Also, under these circumstances, there was no need to coordinate with Pasco County before making this change. Petitioner also argues that the deletion violates section 163.3177(2) because the County failed to coordinate this change with numerous other Transportation Element objectives and policies, which generally promote right-of-way protection and the use of enhancements for constrained roads. The KOCP currently allows only certain improvements to Gunn Highway. Even though the deletion of the line item may increase the cost of these enhancements, it does not prevent the County from adding them at a future time. It is at least fairly debatable that the deletion does not conflict with the above objectives and policies, and that the County reviewed the relevant portions of the Transportation Element before the amendment was adopted. Finally, an argument that the deletion violates sections 163.3180(1) and (5) has been rejected. In summary, Petitioner has failed to prove to the exclusion of all fair debate that the deletion in Plan Amendment 12-03 is not in compliance. All other arguments not specifically addressed in this Recommended Order have been considered and rejected.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity enter a final order determining that Hillsborough County Plan Amendments 12-01 and 12-03 are in compliance. DONE AND ENTERED this 22nd day of April, 2013, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of April, 2013.
The Issue The sole issue to be addressed is whether the Petition to contract the Gateway Services District meets the applicable criteria set forth in Chapter 190, Florida Statutes, and Chapter 42-1, Florida Administrative Code.
Findings Of Fact Overview The Petitioner is seeking the adoption of a rule by the Commission to contract a community development district currently comprised of approximately 5,474 acres located within the boundaries of unincorporated Lee County, Florida and the incorporated City of Fort Myers, Florida. The name for the District, after contraction, will be the Gateway Services Community Development District. At the time the Petition was filed, the District consisted of approximately 5,324 acres. However, on July 29, 2002, a Rule Amendment adopted by the Commission, and filed with the Secretary of State became effective, expanding the District to approximately 5,474 acres. The Petitioner seeks to contract the District by approximately 973 acres. The District, after contraction, will encompass approximately 4,501 acres. All of the property proposed to be contracted out of the District is located within the City of Fort Myers, Florida. The sole purpose of this proceeding was to consider the contraction of the District as proposed by the Petitioner. Summary of Evidence and Testimony Whether all statements contained within the Petition have been found to be true and correct. Petitioner's Composite Exhibit 9 was identified for the record as a copy of the Petition and its exhibits as filed with the Commission, dated January 2002; the Addendum to the Petition, dated March 25, 2002; and the Second Addendum to the Petition, dated July 16, 2002; and the Third Addendum to the Petition, dated July 25, 2002. Ward testified that he had reviewed the contents of the Petition and Exhibits as supplemented and amended by the addenda to the Petition. Ward testified that the Petition and exhibits as supplemented and amended by the addenda, are true and correct to the best of his knowledge. Tilton testified that he had reviewed Exhibits 1, 2, and 3 of the Petition. Exhibit 1 is the metes and bounds legal description and sketch of the existing District boundaries. Exhibit 2 is the legal description and sketch of the contraction parcels. Exhibit 3 is the amended legal description and sketch of the District, after contraction. Tilton testified that the legal description of the existing CDD boundaries was true and correct, and would be amended by a proposed Rule Amendment filed with the Secretary of State July 9, 2002, and effective July 29, 2002. Tilton testified that Exhibit 2 truly and accurately depicted the legal description of the property proposed for contraction from the District. A Third Addendum to the Petition, filed with the Department of Administrative Hearings on July 29, 2002, identified a scrivener's error in the proposed Rule Amendment filed on July 9, 2002, and included a legal description and sketch of the land within the District, after the contraction. This legal description and sketch amends and replaces Exhibit 3 of the Petition. This legal description was certified as true and accurate by CES Engineering. Garland testified that his office had prepared Exhibit 7 to the Petition, the Statement of Estimated Regulatory Costs (SERC). Garland also testified the SERC included with the Petition was true and correct to the best of his knowledge. Gnagey testified that at the time of the hearing, Worthington Holdings, Inc. was the owner of all of the lands to be contracted out of the District. Gnagey testified that a portion of the contraction property was under contract for sale. A consent and joinder to the Petition to Contract, executed by the contract purchaser was placed into the record as Exhibit 3. The Petition does not contain the written consent of the owners of all real property to be included in the new District after contraction; nor was there any documentation or other evidence demonstrating that either the District or those giving their written consent to the contraction have control by deed, trust agreement, contract, or option of one-hundred percent (100%) of the real property to be included in the new District, after contraction. See Conclusion of Law 65. Based upon the foregoing, the Petition and its exhibits, as amended and supplemented by the addenda to the Petition, are true and correct. Whether the contraction of the District is inconsistent with any applicable element or portion of the State Comprehensive Plan or of the effective local government comprehensive plan. Ward addressed whether the contraction of the District was inconsistent in any way with the State Comprehensive Plan, Chapter 187, Florida Statutes. Ward also reviewed the contraction of the District, in light of the local government comprehensive plans. Ward testified that the District would continue to assist the local government in providing infrastructure services required pursuant to its locally adopted comprehensive plan. Furthermore, since the State Comprehensive Plan requires local governments to provide infrastructure in accordance with locally adopted comprehensive plans, the District would continue to function and assist in meeting this objective of Chapter 187. Resolution No. 2002-11, adopted by the City Council of the City of Fort Myers, Florida, was introduced into evidence as Petitioner's Exhibit 5. Pursuant to this Resolution, the City Council made a determination that after the contraction, the District is not inconsistent with applicable elements or portions of the State Comprehensive Plan or the City of Fort Myers local comprehensive plan. The Florida Department of Community Affairs reviewed the Petition and provided a letter dated April 16, 2002, which was placed into Evidence as Petitioner's Exhibit 7. The letter states that the Petition A "is consistent with the goals, objectives and policies of Lee County's Comprehensive Plan.” Based on the testimony and exhibits in the record, the proposed District will not be inconsistent with any applicable element or portion of the State Comprehensive Plan, the Lee County Comprehensive Plan, or City of Fort Myers Comprehensive Plan. Whether the area of land within the district, after contraction, is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developable as one functional interrelated community. Testimony on this criterion was provided by Ward and Tilton. The lands that comprise the District, after contraction, will consist of approximately 4,501 acres, located within the borders of unincorporated Lee County, and the incorporated City of Fort Myers. From a management perspective, the District, after contraction, will continue to be sufficiently sized, compact and contiguous to be developed as a functional interrelated community. The property remaining within the District will continue to be amenable to receiving services through a community development district. From an engineering perspective, the District, after contraction, will still be larger than other community development districts. It is contiguous and relatively compact. The land remaining within the District can be well- served by water management facilities, water and sewer and irrigation, roads lighting, landscaping and parks provided by the District. From a development planning perspective, the owner of the property, which will be contracted out of the District, intends to market the contraction property for development as three separate, stand-alone communities. This property will be developed independently from the property remaining within the District. Its utility needs will be serviced by the City of Fort Myers. From development planning, engineering, and management perspectives, the area of land to be included in the proposed District is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developed as a single functionally interrelated community. Whether the district, after contraction, is the best alternative available for delivering community development services and facilities to the area that will be served by the contracted district. The District currently provides certain infrastructure improvements and facilities to the property which will remain in the District. Currently, no services or facilities are provided by the District to the property to be contracted out of the District. Ward, Tilton, and Garland testified concerning whether the District, as contracted, is the best alternative available for delivering community development services and facilities to the area remaining in the District. Ward testified that since the 1980's, the District has provided and maintained infrastructure which services the existing residents of the District, and is also available to service future residents of the District. The District is responsible for financing, operating and maintaining this infrastructure. Based upon its historical track record, and its current activities, the District will continue to serve these purposes. Tilton testified that, from an engineering perspective, the District is an excellent alternative for providing community services and facilities to the property remaining in the District because it provides a higher level of service than would be afforded by Lee County or the City of Fort Myers. This higher level of service meets the desire of the residents within the District. Garland testified that, from an economic perspective, the District as contracted, will still consist of approximately 5,799 equivalent residential units. There will be no financial impact to the landowners remaining in the District because neither the capital assessments nor the operations and maintenance assessments will be affected by the contraction. Currently, the contraction parcel is not taking any of the load for capital assessments or operations and maintenance assessments. Garland also testified that the contraction property is geographically closer to infrastructure facilities available from the City of Fort Myers, than it is to District facilities. Therefore, the District is not the best alternative for providing this infrastructure to the contraction property. From economic, engineering, and special district management perspectives, the District, after contraction, is the best alternative available for delivering community development services and facilities to the area that will continue to be served by the District. Whether the community development services and facilities of the district, as contracted, will be incompatible with the capacity and uses of existing local and regional community development services and facilities. The services and facilities which will continue to be provided by the District are not incompatible with uses and existing local and regional facilities and services. The District's facilities and services within the boundaries, as contracted, will not duplicate any existing regional services or facilities which are provided to the lands within the District by another entity. None of the proposed services or facilities are presently being provided by another entity for the lands to remain within the District. Ward, Tilton, and Garland testified concerning whether the community development services and facilities of the district, as contracted, would be incompatible with the capacity and uses of existing local and regional community development services and facilities. Ward testified that the District provides services and facilities which compliment the general purpose local governments’ services and facilities. For example, the District has constructed drainage facilities. These services address the requirements for infrastructure of the local government. After contraction, the District will continue to provide these infrastructure services. Tilton testified that the services and facilities provided by the District work very well in concert with the adjacent facilities of the general purpose local government. The roadways, utilities, and water management facilities constructed by the District are integrated into the overall system of the adjacent areas. From a management perspective and an engineering perspective, the facilities and services to be provided by the District, after the contraction, will not be incompatible with the existing local and regional community development services and facilities. Whether the area that will be served by the district, after contraction, is amenable to separate special district government. As cited previously, from economics, engineering, and special district management perspectives, the area of land to be included in the proposed District is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developed and become a functionally interrelated community. The community to be included in the District, after contraction, will continue to require basic infrastructure systems. A determination was made when the District was formed, that the District could best provide these services. This determination will not change as a result of the contraction. From engineering, economic and management perspectives, the area that will be served by the amended District is amenable to separate special-district government. Other requirements imposed by statute or rule. Chapter 190, Florida Statutes, and Chapter 42-1, Florida Administrative Code, impose specific requirements regarding the Petition and other information to be submitted to the Commission. Elements of the Petition The Commission has certified that the Petition to Contract the Gateway Services District meets all of the required elements of Section 190.005(1)(a), Florida Statutes. Statement of Estimated Regulatory Costs (SERC) The SERC contains an estimate of the costs and benefits to all persons directly affected by the proposed rule to contract the District--the State of Florida and its citizens, the County and its citizens, the City and its citizens, the landowners within the District after contraction, and the Petitioner. Beyond administrative costs related to rule adoption, the State and its citizens, are not anticipated to incur any costs from contracting the District. Administrative costs incurred by Lee County and the City of Fort Myers related to this Petition are minimal and should be offset by the filing fees paid by the Petitioner. Landowners remaining within the District will continue to pay non-ad valorem or special assessments for certain facilities. The contraction of District will have no impact on the level of capital assessments or operations and maintenance assessments paid by residents remaining in the District. Benefits to landowners in the District will continue to be a higher level of public services and amenities than might otherwise be available, construction, operation and maintenance of District-sponsored improvements to the area on a timely basis, and a larger share of direct control over community development services and facilities within the area. 45. Sections 190.046(1)(g) and 190.005(1)(a), Florida Statutes, require the Petition to include a SERC which meets the requirements of Section 120.541, Florida Statutes. The Petition contains a SERC. It meets the requirements of Section 120.541, Florida Statutes. Other Requirements 46. Sections 190.046(1)(g) and 190.005(1)(d), Florida Statutes, require the Petitioner to publish notice of the local public hearing in a newspaper of general circulation in Lee County for four consecutive weeks prior to the hearing. The notice was published in The News-Press, a newspaper of general circulation in Lee County for four consecutive weeks, on June 18, 2002, June 25, 2002, July 2, 2002, and July 9, 2002. The Affidavit of Publication was placed into evidence as Petitioner’s Exhibit 4. Lee County Support for Establishment Pursuant to the requirements of Sections 190.046(1)(g) and 190.005(1)(b), Florida Statutes, Petitioner filed a copy of the Petition with the City of Fort Myers and Lee County prior to filing the Petition with the Commission. As permitted by Sections 190.046 and 190.005(1)(c), Florida Statutes, the City Council of the City of Fort Myers held a public hearing on March 4, 2002, to consider the contraction of the Gateway Services District. At the conclusion of its public hearing on March 4, 2002, the City Council adopted Resolution 2002-11 expressing support for the Commission to promulgate a rule contracting the Gateway Services District. The City of Fort Myers City Council Resolution specifically found that all six (6) of the statutory factors for evaluating the contraction of community development districts found in Section 190.005(1)(e), Florida Statutes, had been met by the Petitioner in this matter. As permitted by Sections 190.046 and 190.005(1)(c), Florida Statutes, the Board of County Commissioners of Lee County held a public hearing on June 25, 2002, to consider the contraction of the Gateway Services District. At the conclusion of the public hearing on June 25, 2002, the Board of County Commissioners of Lee County adopted Resolution No.02-06-43, expressing support for the Commission to promulgate a rule contracting the Gateway Services District.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Governor and Cabinet, sitting as the Florida Land and Water Adjudicatory Commission, pursuant to Chapters 190 and 120, Florida Statutes, and Chapter 42-1, Florida Administrative Code, contract the Gateway Services District as requested by the Petitioner by formal adoption of the proposed Rule Amendment attached to this Report as Exhibit C. DONE AND ORDERED this 9th day of August, 2002, in Tallahassee, Leon County, Florida. ___________________________________ CHARLES A. STAMPELOS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 92106847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of August, 2002. COPIES FURNISHED TO: Erin McCormick Larrinaga. Esquire Fowler, White, Boggs, Banker, P.A. 501 East Kennedy Boulevard Suite 1700 Tampa, Florida 33602 Gregory Munson, Esquire Office of the Governor The Capitol, Room 209 Tallahassee, Florida 32399 Charles Canady, General Counsel Florida Land and Water Adjudicatory Commission Office of the Governor The Capitol, Room 209 Tallahassee, Florida 32399 Donna Arduin, Secretary Florida Land and Water Adjudicatory Commission Office of the Governor The Capitol, Room 2105 Tallahassee, Florida 32399 Barbara Leighty, Clerk Growth Management and Strategic Planning The Capitol, Room 2105 Tallahassee, Florida 32399 Exhibit A Petitioner’s Witnesses at Public Hearing John Gnagey The Worthington Group 14291 Metro Parkway, Building 1300 Fort Myers, Florida 33912 James P. Ward Severn Trent Environmental Services, Inc. 210 N. University Drive, Suite 702 Coral Gables, Florida 33071 Andrew D. Tilton Johnson Engineering, Inc. 2158 Johnson Street Fort Myers, Florida 33901 Carey Garland Fishkind & Associates, Inc. 11869 High Tech Avenue Orlando, Florida 32817 Exhibit B List of Petitioner’s Exhibits Exhibit Description Exhibit 1: Memorandum from Greg Munson, Staff Attorney for the Florida Land and Water Adjudicatory Commission to Barbara Leighty, Clerk for the Florida Land and Water Adjudicatory Commission, dated March 12, 2002 Exhibit 2: Sketch depicting Gateway Services District Boundaries (Parcels marked “A” constitute the Contraction Parcels which Petition seeks to have contracted from the Gateway Services District) Exhibit 3: Consent and Joinder to Petition to Contract Gateway Services District, executed by Pulte Home Corporation on July 16, 2002 Exhibit 4: News-Press Affidavit of Publication, dated July 9, 2002 Exhibit 5: Certified Copy of Resolution No. 2002-11, approved by the City Council of the City of Fort Myers on March 4, 2002 Exhibit 6: Certified Copy of Resolution No. 02-06-43, approved by the Board of County Commissioners of Lee County, Florida on June 25, 2002 Exhibit 7: Letter from the Florida Department of Community Affairs to Ms. Donna Arduin, Secretary, Florida Land and Water Adjudicatory Commission, dated April 16, 2002 Exhibit 8: Notice of Receipt of Petition, published by the Florida Land and Water Adjudicatory Commission in the Florida Administrative Weekly on May 17, 2002 Composite Exhibit 9: Petition to Contract Gateway Services District, dated January, 2002 (includes City of Ft. Myers Comprehensive Plan and Lee County Comprehensive Plan); Addendum to the Petition to Contract Gateway Services District, dated March 25, 2002; Second Addendum to the Petition to Contract Gateway Services District, dated July 16, 2002; and Third Addendum to the Petition to Contract Gateway Services District, dated July 25, 2002. Exhibit C THE FULL TEXT OF THE PROPOSED RULE AMENDMENT IS: 42F-1.002 Boundary. The boundaries of the district are as follows: A tract or parcel of land lying Section 35, Township 44 South, Range 25 East and in Sections 1, 2, 3, 4, 10, 11 and 12, Township 45 South, Range 25 East; Section 31, Township 44 South, Range 26 East and in Sections 5, 6, 7, 8, 17, 18 and 19, Township 45 South, Range 26 East, Lee County, Florida, more particularly described as follows: Beginning at the southwest corner of said Section 35 run N 00__47' 42" W along the west line of the southwest quarter (SW-3) of said Section for 2643.18 feet to the quarter corner on the west line of said section; thence run N 00_ 43' 47" W along the west line of the northwest quarter (NW-3) of said Section for 1361.42 feet; thence run N 35__45' 29" E for 947.82 feet; thence run N 56__15' 44" E for 690.61 feet to the south line of the Colonial Boulevard right-of-way (State Road 884) (250 feet wide); thence run S 89__38' 27" E along said south line for 2763.96 feet to an intersection with the west line of the northeast quarter (NE-1/4) of the northeast quarter (NE-1/4) of said Section; thence run S 02__16' 01" E along said west line for 1,168.38 feet to the southwest corner of said fraction; thence run N 89_ 54' 24" E along the south line of said fraction for 1324.86 feet to the southeast corner of said fraction; thence run S 03__20' 25" E for 1284.37 feet to the quarter corner on the east line of said Section; thence run S 00__01' 59" E along said east line for 2635.65 feet to the northwest corner of said Section 1; thence run N 89__28' 42" E along the north line of the northwest quarter (NW-1/4) of said Section 1 for 2,642.98 feet to the quarter corner on said north line; thence run S 89__57' 06" E along the north line of the northeast quarter (NE-1/4) of said Section 1 for 2523.38 feet to the northeast corner of said Section; thence run N 00__57' 01" W along the west line of said Section 31 for 2644.12 feet to the quarter corner on said west line; thence run N 00__35' 02" W along said west line of said Section 31 for 1705.47 feet to an intersection with the southwesterly line of Immokalee Road (State Road 82) (200 feet wide); thence run S 46__07' 29" E along said southwesterly line for 6215.51 feet to an intersection with the south line of said Section 31; thence continue S 46__07' 29" E along said southwesterly line for 1227.27 feet to an intersection with a line common to said Sections 5 and 6; thence continue S 46__07' 29" E along said southwesterly line for 1535.36 feet to a point of curvature; thence run Southeasterly along said southwesterly line along the arc of a curve to the left of radius 5824.88 feet (delta 18_ 13' 21") (chord bearing S 55__14' 10" E) (chord 1844.76 feet) for 1852.55 feet to a point of tangency; thence continue along said southwesterly line S 64__20' 50" E for 22.21 feet to an intersection with the east line of the west half (W-1/2) of said Section 5; thence run S 00__06' 33" E along said east line for 2271.81 feet to the quarter corner common to said Sections 5 and 8; thence run S 01__02' 00" E along the east line of the west half (W-1/2) of said Section 8 for 3,028.35 feet; thence run N 89__33' 57" E for 605.03 feet; thence run S 01__02' 00" E for 1800.10 feet; thence run S 89__33' 57" W for 605.03 feet; thence run S 01__02' 00" E for 500.03 feet to the quarter corner common to said Sections 8 and 17; thence run S 01__00' 12" E along the east line of the northwest quarter (NW-1/4) of said Section 17 for 926.76 feet to an intersection with the northeasterly line of a Florida Power and Light Company substation site as described in deed recorded in Official Record Book 1606 at Page 1286 of the Lee County Records; thence run N 37__57' 04" W along said northeasterly line for 361.70 feet; thence run S 52__02' 56" W along the northwesterly line of said Site for 361.70 feet; thence run S 37__57' 04" E along the southwesterly line of said Site for 741.48 feet to an intersection with the northwesterly line of Daniels Road Extension (200 feet wide) as described in deed recorded at Official Record Book 1644 at Page 1739 of the Lee County Records; thence run N 68__38' 13" E along said northwesterly line for 64.84 feet to an intersection with said easterly line of said northwest quarter (NW-1/4) of said Section 17; thence run S 01__00' 12" E along said east line for 1238.52 feet to the southeast corner of said fraction; thence run S 89__30' 38" W along the south line of said fraction and the north line of the Southwest Florida Regional Airport for 2110.83 feet to an intersection with the southeasterly line of said Daniels Road Extension; thence run S 54__00' 05" W through said Sections 17, 18 and 19 along the southeasterly line of a road right-of-way (200 feet wide) for 7032.17 feet to an intersection with the west line of said Section 19; thence run N 00__55' 36" W along said west line for 1,477.45 feet to the northwest corner of said Section; thence run N 00_ 54' 13" W along the west line of the southwest quarter (SW-1/4) of said Section 18 for 2,643.95 feet to the quarter corner on said west line; thence run N 00_ 39' 39" W along the west line of the northwest quarter (NW- 1/4) of said Section 19 for 2,674.35 feet to the northwest corner of said Section; thence run N 00_ 57' 26" W along the west line of the southwest quarter (SW-1/4) of said Section 7 for 2,645.34 feet to the quarter corner common to said Sections 7 and 12; thence run S 89_ 55' 12" W along the south line of the northeast quarter (NE-1/4) of said Section 12 for 2,524.67 feet to the west line of the east 2,524.14 feet of said northeast quarter (NE-1/4); thence run N 01_ 05' 33" W along said west line for 2,646.07 feet to the south line of said Section 1; thence run S 89_ 56' 14" W along said south line for 2,663.19 feet to the southwest corner of said Section, passing through the quarter corner on the south line of said Section at 69.26 feet; thence run S 89__03' 50" W along the south line of said Section 2 for 2645.12 feet to the quarter corner on said south line; thence run S 00__08' 50" E line of the northwest quarter (NW-1/4) of said Section 11 for 2670.22 feet to the center of said Section; thence run S 88__33' 56" W along the south line of said northwest quarter (NW-1/4) for 2745.77 feet to the quarter corner on the west line of said Section 11; thence run S 89__29' 50" W along the south line of the northeast quarter (NE-1/4) of said Section 10 for 2546.16 feet to the center of said Section; thence run N 00__06' 58" W along the west line of said northeast quarter (NE-1/4) for 2668.79 feet to the quarter corner on the north line of said Section; thence run S 88__57' 32" W along the south line of said Section 3 for 2649.25 feet to the southwest corner of said Section; thence run S 88_ 54' 32" W along the south line of said Section 4 for 2059.99 feet to an intersection with the southeasterly line of the Six Mile Cypress Acquisition Area; thence run Northeasterly along said southeasterly line the following courses and distances: N 31__38' 21" E for 261.19 feet; N 01__23' 47" W for 277.78; N 37__53' 18" E for 246.16 feet; N 18_ 15' 00" E for 91.84 feet; N 56__35' 37" E for 169.92 feet; N 85__38' 45" E for 379.20 feet; N 70__16' 34" E for 105.12 feet; N 06__16' 12" E for 108.95 feet; N 89__11' 29" E for 322.80 feet; N 71_ 11' 39" E for 95.05 feet; N 55__29' 43" E for 156.24 feet; S 86__54' 42" E for 285.36 feet; N 55_ 11' 00" E for 58.82 feet; N 73__00' 08" E for 140.00 feet; N 54__05' 49" E for 115.77 feet; N 10_ 34' 05" E for 104.79 feet; N 24__05' 57" E for 100.09 feet; N 67__22' 01" E for 230.59 feet; S 85__03' 28" E for 211.24 feet; N 05__10' 02" E for 54.09 feet; N 27__24' 58" E for 106.63 feet; N 10__08' 05" E for 139.90 feet; N 44__41' 11" E for 147.83 feet; N 62__35' 02" W for 105.53 feet; N 23__59' 48" E for 476.74 feet; N 15__42' 08" E for 368.41 feet; N 20__55' 23" E for 222.23 feet; N 45__09' 19" E for 183.23 feet; N 31__07' 36" E for 305.01 feet; N 32__55' 08" E for 155.78 feet; N 17__03' 28" E for 110.45 feet; N 26__26' 47" E for 300.81 feet; N 18__42' 17" E for 150.86 feet; N 04__51' 19" W for 340.19 feet; N 12__09' 34" E for 251.79 feet; N 27__12' 34" E for 210.15 feet; N 14__53' 31" E for 323.53 feet and N 35__18' 42" E for 275.49 feet to an intersection with the north line of said Section 3; thence run N 88__37' 17" E along said north line for 530.84 feet to an intersection with the westerly line of State Road No. 93 (Interstate 75) (324 feet wide); thence run S 14_ 49' 52" E along said westerly line for 677.99 feet to an intersection with the east line of the northwest quarter (NW-1/4) of said Section 3; thence run S 00__49' 04" E along said east line for 1299.77 feet to the northwest corner of the west half (W-1/2) of the southwest quarter (SW-1/4) of the northeast quarter (NE-1/4) of said section; thence run N 88__12' 52" E along the north line of said fraction for 323.06 feet to an intersection with said westerly line of State Road No. 93; thence run S 14__49' 52" E along said westerly line for 2.67 feet to an intersection with the east line of said fraction ; thence run S 00__37' 05" E along said east line for 650.21 feet to the southeast corner of said fraction; thence run N 88__09' 46" E along the north line of the southeast quarter (SE-1/4) of said Section 3 for 2250.18 feet to the quarter corner common to said Sections 2 and 3; thence run N 00__47' 03" E along the west line of the northwest quarter (NW-1/4) of said Section 2 for 2605.26 feet to the Point of Beginning. Less and except all that part of the right-of-way for State Road No. 93 (Interstate 75) lying within the southeast quarter (SE-1/4) of Section 3 and within the northeast quarter (NE- 1/4) of Section 10, Township 45 South, Range 25 East, Lee County, Florida, as more particularly described in the petition for this rule. Containing 5,474 5324 acres, more or less. PARCEL "A" A TRACT OR PARCEL OF LAND LYING IN SECTION 35 TOWNSHIP 44 SOUTH, RANGE 25 EAST, SECTIONS 1, 2, 11 AND 12, TOWNSHIP 45 SOUTH, RANGE 25 EAST; SECTION 31, TOWNSHIP 44 SOUTH, RANGE 26 EAST AND IN SECTIONS 5, 6, 7, 8, 17, 18 AND 19, TOWNSHIP 45 SOUTH, RANGE 26 EAST, LEE COUNTY, FLORIDA, MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTHWEST CORNER OF SAID SECTION 35 RUN N 00?47'42" W ALONG THE WEST LINE OF THE SOUTHWEST QUARTER (SW 3) OF SAID SECTION FOR 2643.18 FEET TO THE QUARTER CORNER ON THE WEST LINE OF SAID SECTION; THENCE RUN N 00?43'47" W ALONG THE WEST LINE OF THE NORTHWEST QUARTER (NW 3) OF SAID SECTION FOR 1361.42 FEET; THENCE RUN N 35?45'29" E FOR 947.82 FEET; THENCE RUN N 56?15'44" E FOR 690.61 FEET TO THE SOUTH LINE OF THE COLONIAL BOULEVARD RIGHT-OF-WAY (STATE ROAD 884) (250 FEET WIDE); THENCE RUN S 89?38'27" E ALONG SAID SOUTH LINE FOR 539.91 FEET TO THE POINT OF BEGINNING; THENCE CONTINUE S 89?38'27" E ALONG SAID SOUTH LINE FOR 2224.05 FEET TO AN INTERSECTION WITH THE WEST LINE OF THE NORTHEAST QUARTER (NE 1/4) OF THE NORTHEAST QUARTER (NE 1/4) OF SAID SECTION; THENCE RUN S 02?16'01" E ALONG SAID WEST LINE FOR 1168.38 FEET TO THE SOUTHWEST CORNER OF SAID FRACTION; THENCE RUN N 89?54'24" E ALONG THE SOUTH LINE OF SAID SECTION FOR 1324.86 FEET TO THE SOUTHEAST CORNER OF SAID FRACTION; THENCE RUN S 03?20'25" E FOR 1284.37 FEET TO THE QUARTER CORNER ON THE EAST LINE OF SAID SECTION; THENCE RUN S 00?01'59" E ALONG SAID EAST LINE FOR 2635.65 FEET TO THE NORTHWEST CORNER OF SAID SECTION 1; THENCE RUN N 89?28'42" E ALONG THE NORTH LINE OF THE NORTHWEST QUARTER (NW 3) OF SAID SECTION 1 FOR 2642.98 FEET TO THE QUARTER CORNER ON SAID NORTH LINE; THENCE RUN S 89?57'06" E ALONG THE NORTH LINE OF THE NORTHEAST QUARTER (NE 3) OF SAID SECTION 1 FOR 2523.38 FEET TO THE NORTHEAST CORNER OF SAID SECTION; THENCE RUN N 00?57'01" W ALONG THE WEST LINE OF SAID SECTION 31 FOR 2644.12 FEET TO THE QUARTER CORNER ON SAID WEST LINE; THENCE RUN N 00?35'02" W ALONG SAID WEST LINE OF SAID SECTION 31 FOR 1705.47 FEET TO AN INTERSECTION WITH THE SOUTHWESTERLY LINE OF IMMOKALEE ROAD (STATE ROAD 82) (200 FEET WIDE); THENCE RUN S 46?07'29" E ALONG SAID SOUTHWESTERLY LINE FOR 6215.51 FEET TO AN INTERSECTION WITH THE SOUTH LINE OF SAID SECTION 31; THENCE CONTINUE S 46?07'29" E ALONG SAID SOUTHWESTERLY LINE FOR 1227.27 FEET TO AN INTERSECTION WITH A LINE COMMON TO SAID SECTIONS 5 AND 6; THENCE CONTINUE S 46?07'29" E ALONG SAID SOUTHWESTERLY LINE FOR 1535.36 FEET TO A POINT OF CURVATURE; THENCE SOUTHEASTERLY ALONG SAID SOUTHWESTERLY LINE ALONG THE ARC OF A CURVE TO THE LEFT OF RADIUS 5824.88 FEET (DELTA 18?13'21") (CHORD BEARING S 55?14'10" E) (CHORD 1844.76 FEET) FOR 1852.55 FEET TO A POINT OF TANGENCY; THENCE CONTINUE ALONG SAID SOUTHWESTERLY LINE S 64?20'50" E FOR 22.21 FEET TO AN INTERSECTION WITH THE EAST LINE OF THE WEST HALF (W 2) OF SAID SECTION 5; THENCE RUN S 00?06'33" E ALONG SAID EAST LINE FOR 2271.81 FEET TO THE QUARTER CORNER COMMON TO SAID SECTIONS 5 AND 8; THENCE RUN S 01?02'00" E ALONG THE EAST LINE OF THE WEST HALF (W 2) OF SAID SECTION 8 FOR 3028.35 FEET; THENCE RUN N 89?33'57" E FOR 605.03 FEET; THENCE RUN S 01?02'02" E FOR 1800.10 FEET; THENCE S 89?33'57" W FOR 605.03 FEET; THENCE RUN S 01?02'00" E FOR 500.03 FEET TO THE QUARTER CORNER COMMON TO SAID SECTIONS 8 AND 17; THENCE RUN S 01?00'12" E ALONG THE EAST LINE OF THE NORTHWEST QUARTER (NW 3) OF SAID SECTION 17 FOR 926.76 FEET TO AN INTERSECTION WITH THE NORTHEASTERLY LINE OF A FLORIDA POWER & LIGHT COMPANY SUBSTATION SITE AS DESCRIBED IN DEED RECORDED IN OFFICIAL RECORD BOOK 1606 AT PAGE 1286, LEE COUNTY RECORDS; THENCE RUN N 37?57'04" W ALONG SAID NORTHEASTERLY LINE FOR 361.70 FEET; THENCE RUN S 52?02'56" W ALONG THE NORTHWESTERLY LINE OF SAID SITE FOR 361.70 FEET; THENCE RUN S 37?57'04" E ALONG THE SOUTHWESTERLY LINE OF SAID SITE FOR 741.48 FEET TO AN INTERSECTION WITH THE NORTHWESTERLY LINE OF DANIELS ROAD EXTENSION (200 FEET WIDE) AS DESCRIBED IN DEED RECORDED IN OFFICIAL RECORD BOOK 1644 AT PAGE 1739, LEE COUNTY RECORDS; THENCE RUN N 68?38'13" E ALONG SAID NORTHWESTERLY LINE FOR 64.84 FEET TO AN INTERSECTION WITH SAID EASTERLY LINE OF SAID NORTHWEST QUARTER (NW 3) OF SAID SECTION 17; THENCE RUN S 01?00'12" E ALONG SAID EAST LINE FOR 1238.52 FEET TO THE SOUTHEAST CORNER OF SAID FRACTION; THENCE RUN S 89?30'38" W ALONG THE SOUTH LINE OF SAID FRACTION AND A NORTH LINE OF THE SOUTHWEST FLORIDA REGIONAL AIRPORT FOR 2110.83 FEET TO AN INTERSECTION WITH THE SOUTHEASTERLY LINE OF SAID DANIELS ROAD EXTENSION; THENCE RUN S 54?00'05" W THROUGH SAID SECTIONS 17, 18, AND 19 ALONG THE SOUTHEASTERLY LINE OF A ROAD RIGHT-OF-WAY (200 FEET WIDE) FOR 7032.17 FEET TO AN INTERSECTION WITH THE WEST LINE OF SAID SECTION 19; THENCE RUN N 00?55'36" W ALONG SAID WEST LINE FOR 1477.45 FEET TO THE NORTHWEST CORNER OF SAID SECTION; THENCE RUN N 00?54'13" W ALONG THE WEST LINE OF THE SOUTHWEST QUARTER (SW 3) OF SAID SECTION 18 FOR 2643.95 FEET TO THE QUARTER CORNER OF SAID WEST LINE; THENCE RUN N 00?39'39" W ALONG THE WEST LINE OF THE NORTHWEST QUARTER (NW 3) OF SAID SECTION 18 FOR 2647.35 FEET TO THE NORTHWEST CORNER OF SAID SECTION; THENCE RUN N 00?57'26" W ALONG THE WEST LINE OF THE SOUTHWEST QUARTER (SW 3) OF SAID SECTION 7 FOR 2645.34 FEET TO THE QUARTER CORNER COMMON TO SAID SECTIONS 7 AND 12; THENCE RUN S 89?55'12" W ALONG THE SOUTH LINE OF THE NORTHEAST QUARTER (NE 3) OF SAID SECTION 12 FOR 2524.67 FEET TO THE WEST LINE OF THE EAST 2524.14 FEET OF SAID NORTHEAST QUARTER (NE 3); THENCE RUN N 01?05'33" W ALONG SAID WEST LINE FOR 2646.07 FEET TO THE SOUTH LINE OF SAID SECTION 1; THENCE RUN S 89?56'14" W ALONG SAID SOUTH LINE FOR 2663.19 FEET TO THE SOUTHWEST CORNER OF SAID SECTION, PASSING THROUGH THE QUARTER CORNER ON THE SOUTH LINE OF SAID SECTION AT 69.26 FEET; THENCE RUN S 89?03'50" W ALONG THE SOUTH LINE OF SAID SECTION 2 FOR 3096.18 FEET TO AN INTERSECTION WITH THE EASTERLY RIGHT-OF-WAY OF PROPOSED TREELINE BOULEVARD; THENCE ALONG SAID EAST RIGHT- OF-WAY LINE THE FOLLOWING BEARING AND DISTANCES: THENCE ALONG THE ARC OF A CURVE TO THE RIGHT HAVING A RADIUS OF 2625.00 FEET (DELTA 29?13'02") (CHORD BEARING S 15?09'16" W) (CHORD 1324.12 FEET) FOR 1338.58 FEET TO A POINT OF TANGENCY; THENCE RUN S 29?45'46" W FOR 618.63 FEET; THENCE ALONG THE ARC OF A CURVE TO THE LEFT HAVING A RADIUS OF 1487.50 FEET (DELTA 28?50'26") (CHORD BEARING S 15?20'33" W) (CHORD 740.87 FEET) FOR 748.75 FEET TO A POINT OF TANGENCY; THENCE RUN S 00?55'22" W FOR 166.10 FEET TO A POINT ON THE SOUTH LINE OF THE NORTHWEST QUARTER OF SECTION 11; THENCE RUN S 88?33'56" W ALONG SAID LINE FOR 125.11 FEET TO AN INTERSECTION WITH THE WESTERLY RIGHT-OF-WAY OF PROPOSED TREELINE BOULEVARD; THENCE ALONG SAID WEST RIGHT-OF-WAY LINE THE FOLLOWING BEARING AND DISTANCES: THENCE RUN N 00?55'22" E FOR 171.23 FEET; THENCE ALONG THE ARC OF A CURVE TO THE RIGHT HAVING A RADIUS OF 1612.50 FEET (DELTA 28?50'26") (CHORD BEARING N 15?20'33" E) (CHORD 803.13 FEET) FOR 811.67 FEET TO A POINT OF TANGENCY; THENCE N 29145"46' E FOR 618.63 FEET; THENCE ALONG THE ARC OF A CURVE TO THE LEFT HAVING A RADIUS OF 2500.00 FEET (DELTA 33?36'51") (CHORD BEARING N 12?57'22" W) (CHORD 1445.75 FEET) FOR 1466.69 FEET TO A POINT OF TANGENCY; THENCE N 03?51'03" W FOR 959.31 FEET; THENCE ALONG THE ARC OF A CURVE TO THE RIGHT HAVING A RADIUS OF 2800.06 FEET (DELTA 10?24'15") (CHORD BEARING N 01?21'04" E) (CHORD 507.76 FEET) FOR 508.45 FEET TO A POINT OF TANGENCY; THENCE N 06?33'12" E FOR 1166.54 FEET; THENCE ALONG THE ARC OF A CURVE TO THE LEFT HAVING A RADIUS OF 1000.00 FEET (DELTA 43?02'49") (CHORD BEARING N 14?58'12" W) (CHORD 733.76 FEET) FOR 751.31 FEET TO A POINT OF TANGENCY; THENCE N 36?29'36" W FOR 266.36 FEET; THENCE ALONG THE ARC OF A CURVE TO THE RIGHT HAVING A RADIUS OF 2000.00 FEET (DELTA 37?40'00") (CHORD BEARING N 17?39'36" W) (CHORD 1291.27 FEET) FOR 1314.81 FEET TO A POINT OF TANGENCY; THENCE N 01?10'24" E FOR 245.33 FEET; THENCE S 89?25'36" W LEAVING SAID WEST LINE FOR 114.67 FEET TO A POINT ON THE EAST LINE OF TREELINE BOULEVARD (TO BE RE-ALIGNED) AS DESCRIBED IN OFFICIAL RECORD BOOK 1529 BEGINNING AT PAGE 412 OF THE PUBLIC RECORDS OF LEE COUNTY; THENCE N 00?02'17" W FOR 68.31 FEET TO AN INTERSECTION WITH THE SOUTH LINE OF SECTION 34, TOWNSHIP 44 SOUTH, RANGE 25 EAST; THENCE N 01?00'06" W ALONG SAID EAST LINE OF TREELINE BOULEVARD (TO BE RE-ALIGNED) FOR 2642.68 FEET; THENCE N 00?58'02" W ALONG SAID EAST LINE OF TREELINE BOULEVARD (TO BE RE-ALIGNED) FOR 1048.01 FEET TO A POINT ON A NON-TANGENT CURVE TO THE RIGHT HAVING A RADIUS OF 1050.00 FEET AND TO WHICH POINT A RADIAL LINE BEARS S 47?49' 01" E; SAID POINT ALSO BEING ON THE EAST LINE OF A ROAD RIGHT-OF-WAY AS DESCRIBED IN OFFICIAL RECORD BOOK 2581 BEGINNING AT PAGE 4060 OF THE LEE COUNTY RECORDS; THENCE ALONG THE ARC OF A CURVE TO THE RIGHT HAVING A RADIUS OF 1050.00 FEET (DELTA 41?49'26") (CHORD BEARING N 21?16'16" E) (CHORD 749.56 FEET) FOR 766.46 FEET TO A POINT OF TANGENCY; THENCE N 00?21'33" E ALONG SAID EAST LINE FOR 721.50 FEET; THENCE N 45?21'33" E FOR 42.68 FEET TO THE POINT OF BEGINNING. CONTAINING 4,390 ACRES, MORE OR LESS. SUBJECT TO EASEMENTS, RESTRICTIONS, RESERVATIONS AND RIGHTS- OF-WAY (RECORDED AND UNRECORDED, WRITTEN AND UNWRITTEN) BEARINGS ARE BASED ON THE NORTH LINE OF SECTION 10, TOWNSHIP 45 SOUTH, RANGE 25 EAST AS BEARING S88?57'32"W. TOGETHER WITH: DESCRIPTION SECTION 3, TOWNSHIP 45 SOUTH, RANGE 25 EAST LEE COUNTY, FLORIDA PARCEL "B" A TRACT OR PARCEL OF LAND LYING IN SECTION 3, TOWNSHIP 45 SOUTH, RANGE 25 EAST, LEE COUNTY, FLORIDA WHICH TRACT OR PARCEL IS DESCRIBED AS FOLLOWS: COMMENCING AT THE NORTHWEST CORNER OF SAID SECTION 3 RUN N 88?37'17" E ALONG THE NORTH LINE OF THE NORTHWEST ONE-QUARTER (NW 3) OF SAID SECTION 3 FOR 2477.68 FEET TO AN INTERSECTION WITH THE WESTERLY RIGHT-OF-WAY LINE OF INTERSTATE 75 (I-75) (STATE ROAD NO. 93) (324 FEET WIDE) AND THE POINT OF BEGINNING; THENCE RUN S 14?49'52" E ALONG SAID WESTERLY RIGHT- OF-WAY LINE FOR 677.94 FEET TO AN INTERSECTION WITH THE EAST LINE OF THE NORTHWEST ONE-QUARTER (NW 3) OF SAID SECTION 3; THENCE RUN S 00?49'05" E ALONG SAID EAST LINE FOR 1299.77 FEET TO THE NORTHWEST CORNER OF THE WEST HALF (W 2) OF THE SOUTHWEST QUARTER (SW 3) OF THE NORTHEAST QUARTER (NE 3) OF SAID SECTION; THENCE RUN N 88?12'52" E ALONG THE NORTH LINE OF SAID FRACTION FOR 323.06 FEET TO AN INTERSECTION WITH SAID WESTERLY LINE OF STATE ROAD NO. 93; THENCE RUN S 14?49'52" E ALONG SAID WESTERLY LINE FOR 2.67 FEET TO AN INTERSECTION WITH THE EAST LINE OF SAID FRACTION; THENCE RUN S 00?37'05" E ALONG SAID EAST LINE FOR 650.21 FEET TO THE SOUTHEAST CORNER OF SAID FRACTION; THENCE RUN N 88?09'46" E ALONG THE NORTH LINE OF THE SOUTHEAST ONE-QUARTER (SE 3) OF SAID SECTION 3 FOR 163.88 FEET TO AN INTERSECTION WITH SAID WESTERLY RIGHT-OF-WAY LINE; THENCE RUN S 14?49'52" E ALONG SAID WESTERLY RIGHT-OF-WAY LINE FOR 1474.99 FEET TO A POINT OF CURVATURE; THENCE RUN SOUTHERLY ALONG AN ARC OF A CURVE TO THE RIGHT OF RADIUS 22800.31 FEET (CHORD BEARING S 13?33'28" E) (CHORD 1013.23 FEET) (DELTA 02?32'47") FOR 1013.31 FEET TO A POINT ON A NON-TANGENT LINE; THENCE RUN N 82?23'52" W FOR 122.32 FEET TO A POINT ON A NON- TANGENT CURVE; THENCE RUN NORTHERLY ALONG AN ARC OF A CURVE TO THE LEFT OF RADIUS 22685.31 FEET (CHORD BEARING N 13?36'38" W) (CHORD 966.55 FEET) (DELTA 02?26'29") FOR 966.63 FEET TO A POINT OF TANGENCY; THENCE RUN N 14?49'52" W FOR 542. 01 FEET TO A POINT OF CURVATURE; THENCE RUN NORTHWESTERLY ALONG AN ARC OF A CURVE TO THE LEFT OF RADIUS 250.00 FEET (CHORD BEARING N 54?04'24" W) (CHORD 316.30 FEET) (DELTA 78?29'05") FOR 342.45 FEET TO A POINT OF TANGENCY; THENCE RUN S 86?41'03" W FOR 1133.06 FEET; THENCE RUN N 02?10'37" W FOR 387.06 FEET; THENCE RUN N 87?40'37" W FOR 838.00 FEET; THENCE RUN N 01?19'23" E FOR 243.00 FEET; THENCE RUN S 88?09'46" W FOR 190.18 FEET TO AN INTERSECTION WITH THE SOUTHEASTERLY LINE OF SIX MILE CYPRESS PRESERVE, AS RECORDED IN OFFICIAL RECORD BOOK 1741 AT PAGE 1241 OF THE PUBLIC RECORDS OF LEE COUNTY, FLORIDA; THENCE RUN THE FOLLOWING FIFTEEN (13) COURSES ALONG SAID SOUTHEASTERLY LINE; N 15?42'08" E FOR 184.34 FEET; N 20?55'23" E FOR 222.23 FEET; N 45?09'19" E FOR 183.23 FEET; N 31?07'36" E FOR 305.01 FEET; N 32?55'08" E FOR 155.78 FEET; N 17?03'28" E FOR 110.45 FEET; N 26?26'47" E FOR 300.81 FEET; N 18?42'17" E FOR 150.86 FEET; N 04?51'19" W FOR 340.19 FEET; N 12?09'34" E FOR 251.79 FEET; N 27?12'34" E FOR 210.15 FEET; N 14?53'31" E FOR 323.53 FEET; N 35?18'42" E FOR 275.49 FEET TO AN INTERSECTION WITH THE NORTH LINE OF THE NORTHWEST ONE-QUARTER (NW 3) OF SAID SECTION 3; THENCE RUN N 88?37'17" E ALONG SAID NORTH LINE FOR 530.87 FEET TO THE POINT OF BEGINNING. CONTAINING 111.14 ACRES, MORE OR LESS. TOTAL AREA FOR BOTH PARCELS 4,501.14 ACRES, MORE OR LESS. BEARINGS HEREINABOVE MENTIONED ARE BASED ON THE NORTH LINE OF THE NORTHWEST QUARTER (NW 3) OF SAID SECTION 3 TO BEAR N 88?37'17" W WHICH BEARING IS DERIVED FROM PLANE COORDINATE FOR THE FLORIDA WEST ZONE (1979 ADJUSTMENT). Specific Authority 120.53(1), 190.005, FS. Law Implemented 190.004, 190.005, FS. History - new 5-22-86, Amended .
The Issue The issue in this case is whether an amendment to the City of Hallandale's comprehensive plan adopted in Ordinance No. 1999-12 is "in compliance" as defined in Section 163.3184(1)(b), Florida Statutes.
Findings Of Fact The Parties. Petitioner, Mickey Biss, is an individual who resides in Miami, Dade County, Florida. Respondent, City of Hallandale (hereinafter referred to as the "City"), is a municipal corporation located within Broward County, Florida. The City is a political subdivision of the State of Florida. Respondents, Ocean Marine Yacht Club, Inc. and Security Management Corporation (hereinafter collectively referred to as "Ocean Marine"), are corporations organized under the laws of Florida and Maryland, respectively. Intervenor, the Department of Community Affairs (hereinafter referred to as the "Department"), is an agency of the State of Florida. The Department is charged with responsibility for, among other things, the review of local government comprehensive plans and amendments thereto pursuant to Part II, Chapter 163, Florida Statutes (hereinafter referred to as the "Act"). Standing. Mr. Biss owns a condominium, unit No. 2109, located at 2030 South Ocean Drive, Hallandale, Broward County, Florida. Mr. Biss' parents reside in the condominium unit. Mr. Biss made oral and written comments to the City during the adoption of the amendment at issue in this case. Ocean Marine and Security Management own parcels of property located at 1935 and 1945 South Ocean Drive, Hallandale, Broward County, Florida (hereinafter referred to as the "Subject Property"). The Subject Property is the subject of the plan amendment at issue in this proceeding. All of the parties proved that they are "affected persons" as those terms are defined in Section 163.3184(1)(a), Florida Statutes. All of the Parties have standing to participate in this proceeding. The City and Its Comprehensive Plan. General The City is located in Broward County, Florida. Broward County is a charter county with county-wide powers over land use planning. The City has adopted the City of Hallandale Comprehensive Plan (hereinafter referred to as the "City's Plan"). The City's Plan has been determined to be "in compliance" as those terms are defined in the Act. The City's Plan includes a Future Land Use Element (hereinafter referred to as the "FLUE") and Future Land Use Maps (hereinafter referred to as the "FLUM"), a Coastal Management Element, a Capital Improvements Element, and other elements required by the Act. Among the land use categories allowed pursuant to the FLUE are residential "High Density" and residential "High Density-2." Residential property designated High Density is subject to a "maximum density of twenty-five (25) dwelling units per net acre." The residential High Density-2 land use category was created by an amendment to the City's Plan adopted by the City on February 5, 1998, through Ordinance No. 1998-3. Residential property designated High Density-2 is subject to a maximum density of 50 dwelling units per net acre. This new land use category was also added to the FLUM. The amendment to the City's Plan to add High Density-2 as a land use category was found to be "in compliance" by the Department. It was also found to be consistent with the Broward County Comprehensive Plan. The High Density-2 land use category is subject to the following limitation: Dwelling units and accessory structures subject to a maximum density of fifty (50) dwelling units per net acre, provided however that any density over 25 dwelling units per net ace may only be permitted by the City Commission on site specific properties by assignment of Flexibility Units in accordance with the Flexibility Rules of the Administrative Rules Document, Broward County Land Use Plan. The High Density-2 land use category of the City's Plan is consistent with the Broward County Comprehensive Plan, which contains a "High (50) Residential" land use category allowing up to 50 dwelling units per acre. The City's Urban Infill Area and Transportation Concurrency Exception Areas The FLUE of the City's Plan establishes an Urban Infill Area in the City. The Urban Infill Area is delineated on the FLUM. The following Objective and Policies concerning the Urban Infill Area are included in the City's Plan: OBJECTIVE 1.17: Establish criteria which encourage development of urban infill and urban redevelopment area(s) to promote economic development, increase housing opportunities, and maximize the use of existing public facilities and services. POLICY 1.17.1: Increase economic development and employment opportunities within urban infill and urban redevelopment area(s). POLICY 1.17.2: Adequate housing opportunities necessary to accommodate all segments of present and future residents shall be provided within urban infill and urban redevelopment area(s). The City's Plan also designates Urban Infill Areas as Transportation Concurrency Exception Areas. FLUE Policy 1.17.4 of the City's Plan provides the following: Designated urban infill and urban redevelopment area(s) shall be excepted from transportation facilities concurrency requirements consistent with Chapter 163, Florida Statutes; however, application will be subject to providing a traffic analysis consistent with the Traffic Circulation Element and potential improvements to minimize impacts. Coastal High Hazard Area The City's Plan includes a Coastal Management Element addressing, among other things, hurricane evacuation from the City's coastal high-hazard area and participation in the development of evacuation plans by Broward County. The FLUE of the City's Plan also includes Policies providing for protection of the City's coastal high-hazard area. The City's Plan, prior to the adoption of the Challenged Amendment, allowed the designation of property located anywhere in the City, including the coastal high-hazard area, as High Density-2. This fact must be considered in interpreting the provisions of the Coastal Management Element and the FLUE of the City's Plan dealing with development within the coastal high hazard area. Flexibility Units. The Broward County Comprehensive Plan (hereinafter referred to as the "County's Plan") includes an Administrative Rules Document. The Administrative Rules Document was adopted to assist local governments, among others, in interpreting the County's Plan. The FLUE of the City's Plan adopts by reference the Administrative Rules Document as they relate to flexibility units. The Future Land Use Maps of the County's Plan divide Broward County into 125 geographic areas designated as "flexibility zones." The number of flexibility units available within each zone is determined by subtracting the number of dwelling units permitted within a flexibility zone by a local government's plan from the number of dwelling units permitted within the same flexibility zone by the County's Plan. Local governments are allowed to, within certain specified limits, rearrange land uses, including residential densities, within flexibility zones located within the local government's jurisdiction. The City is divided into two flexibility zones: Flex Zones Nos. 93 and 94. The FLUE of the City's Plan contains a table on pages 2-28 and 2-32 which sets out the number of flexibility units available in Flex Zone Nos. 93 and 94. The City's Plan allows the use of flexibility units anywhere within either Flex Zone of the City, including areas within the coastal high hazard area. A "Summary" included with the table provides, in pertinent part, that flexibility units may be "assigned to any particular site within the Flexibility Zone to allow for increased residential densities above the amount permitted under the Hallandale Land Use Plan map. . . ." The flexibility units are available for transfer without the need to amend the City's Plan. At the time that the Challenged Amendment was adopted, there were a total of 2,429 flexibility units available within Flex Zone No. 93. The Subject Property. The Subject Property consists of approximately 5.75 acres of land. The parcel of the Subject Property located at 1935 Ocean Drive is vacant. The parcel of the Subject Property located at 1945 Ocean Drive is developed. The developed parcel has an 80-unit motel on it. The motel located on the Subject Property was constructed in 1956. The buildings on the Subject Property are in substantial decay. The Subject Property is surrounded on three sides by property used for high density multi-family residences. The property to the north, Chelsea Hall, has been developed at a density of 54 units per acre. The properties to the east, Malage Towers, Biltmore Mansions, Taromina Apartments, and Hemispheres Ocean, have been developed at densities of 75, 19, 45, and 117 units per acre, respectively. The property to the south, Hemispheres, has been developed at a density of 85 units per acre. Densities in the area surrounding the Subject Property averaged approximately 86 units per acre. The Subject Property lies totally within the City's Urban Infill Area. The Subject Property is, therefore, also considered to be located totally within a Transportation Concurrency Exception Area. The Subject Property also lies within the coastal high-hazard area. The Subject Property is located within the City's Flex Zone No. 93. The Subject Amendment. On June 1, 1999, the City passed Ordinance No. 1999-12, amending the City's Plan by changing the FLUM land use designation for the Subject Property (hereinafter referred to as the "Challenged Amendment"). The Challenged Amendment changed the land use designation of the Subject property from residential High Density to residential High Density-2. The Challenged Amendment was adopted pursuant to the procedures allowed for "small scale" development amendments set forth in Section 163.3187 of the Act. Pursuant to this provision, the City decided that it would elect to have the Department review the Challenged Amendment. The change in land use designation on the Subject Property increased the allowable development of the Subject Property from a maximum of 25 units per acre to a maximum of 50 units per acre through the use of "flexibility units." The Challenged Amendment assigns 143 flexibility units out of the 2,429 available within Flex Zone No. 93 to the Subject Property and specifically provides " . . . the applicant agrees the assignment of 143 Flexibility Units to the parcel is a maximum and agrees the use of density above 25 units per acre will be determined by the City Commission upon review of a future major development plan." Mr. Biss' Challenge. Mr. Biss filed a Petition for Hearing to Challenge Compliance of a Small Scale Development Amendment with the Division of Administrative Hearings. Mr. Biss alleged generally that the Challenged Amendment is not "in compliance" for the following reasons: The Challenged Amendment is not a small scale amendment pursuant to Section 163.3187(1)(c) of the Act because the density of the Subject Property is more than ten units per acre and the Subject Property is not vacant; The Challenged Amendment is contrary to the State Comprehensive Plan. Chapter 187, Florida Statutes (1997). In particular, Mr. Biss alleged that the Challenged Amendment is contrary to Section 187.201(7)(b)22., Florida Statutes (1997), which requires the following: 22. Require local governments, in cooperation with regional and state agencies, to prepare advance plans for the safe evacuation of coastal residents. The Challenged Amendment, by increasing densities in the coastal high-hazard area, increases the dangers from hurricanes contrary to Coastal Element Goals 2 and 3, and Objective 2.2 of the City's Plan, and FLUE Policies 1.9.5 and 2.7.2 of the City's Plan; The Challenged Amendment degrades the level of service standard of Hallandale Beach Boulevard contrary to FLUE Element Policy 1.12.4 and Section 9.3.2.1 of the Transportation Element of the City's Plan; There is insufficient data and analysis to demonstrate that the possible additional 143 residential units in the coastal high-hazard zone will not negatively impact the City's ability to evacuate the coastal high-hazard area; and The Challenged Amendment fails to consider the impacts on public schools contrary to the County's Plan. Qualification as a Small Scale Amendment. The Subject Property is located within the Urban Infill Area and a Transportation Concurrency Exception Area. Therefore, the Challenged Amendment may involve a residential use with a density of more than ten units per acre and still qualify as a small scale amendment. Mr. Biss failed to prove that the Challenged Amendment is not a small scale amendment pursuant to Section 163.3187(1)(c) of the Act. I. The State Comprehensive Plan. The City has prepared plans for evacuation of coastal residents as required by Section 187.201(7)(b)22., Florida Statutes (1997). Mr. Biss failed to prove that the requirements of Section 187.201(7)(b)22., Florida Statutes (1997), concerning the preparation of evacuation plans, apply to the Challenged Amendment. Density Increase in the High-Hazard Area; Coastal Management Element Goals 2 and 3, and Objective 2.2 of the City's Plan, and FLUE Policies 1.9.5 and 2.7.2 of the City's Plan. The Coastal Element of the City's Plan includes Goals 2 and 3, and Objective 2.2 pertaining to the City's high hazard area: GOAL 2: The City of Hallandale Shall Protect Human Health and Safety in the Coastal Area. . . . . OBJECTIVE 2.2: The City shall direct populations away from High-Hazard Areas in concert with the established hazard mitigation strategies developed by Broward County . . . . GOAL 3: The City Shall Discourage or Limit Development in Areas Subject to Destruction by Natural Disasters. The evidence failed to prove that the Challenged Amendment is inconsistent with these Goals or the Objective of the Coastal Management Element of the City's Plan. These Goals and the Objective were intended to provide broad planning guidelines and were not intended to apply specifically to a small scale amendment such as the Challenged Amendment. The Goals and the Objective of the Coastal Management Element relied upon by Mr. Biss must be evaluated with other provisions of the City's Plan. In particular, those provisions which allow the transfer of residential dwelling unit densities through flexibility units anywhere within the City, including the coastal high-hazard area. Because of these existing provisions the Challenged Amendment does not increase densities within the coastal high-hazard area or increase the danger from hurricanes anymore than already allowed by the City's Plan. Although not required by Coastal Management Element Goals 2 or 3, or Objective 2.2 of the City's Plan, even a consideration of the impact of the Challenged Amendment on actual hurricane evacuation times does not support Ms. Biss' challenge. The City's projected hurricane evacuation time for roads which would be impacted by increased density on the Subject Property are less than seven hours. The addition of up to 143 dwelling units will not significantly impact that evacuation time. Ongoing road improvements will even mitigate any such impacts. Mr. Biss failed to prove that the Challenged Amendment is inconsistent with the Coastal Management Element of the City's Plan. FLUE Policy 1.9.5 of the City's Plan provides: POLICY 1.9.5: The City shall direct populations away from High-Hazard Areas, to the extent legally feasible, through the establishment of redevelopment regulations for High-Hazard Areas by 1998. The City has complied with this Policy by adopting redevelopment regulations. Mr. Biss failed to prove that the Challenged Amendment is inconsistent with this Policy. FLUE Policy 1.9.3 of the City's Plan provides the following: POLICY 1.9.3: Encourage development and redevelopment in the coastal high hazard area to include hazard mitigation measures for beach and beachfront property protection to minimize loss of life and property against beach erosion. This Policy has no relevance to the Challenged Amendment. Mr. Biss failed to prove that the Challenged Amendment is inconsistent with the Policy. The City's Plan does not include a Policy 2.7.2. The FLUE of the City's Plan includes a "Section 2.7.2" which describes the following "Natural Conditions Affecting Development" as part of the description of the dangers from flooding in the City: The danger from hurricanes can be somewhat controlled by limiting future allowable densities in high hazard areas. This subject is more fully addressed in the Coastal Management and Conservation Elements of the Comprehensive Plan. Mr. Biss failed to prove that the Challenged Amendment is inconsistent with Section 2.7.2 of the City's Plan. Impacts on Traffic. FLUE Element 1.12.4 of the City's Plan establishes a level of service standard "D" for City roads. Section 9.3.2.1 of the Transportation Element of the City's Plan recognizes existing traffic circulation problems within the City, including roads impacted by the Challenged Amendment. This Section is not, however, a goal, objective, or policy of the City's Plan. Mr. Biss has argued that the Challenged Amendment degrades the level of service standard for the City on roads which may be impacted by the Challenged Amendment and further exacerbates the traffic circulation problems recognized by Section 9.3.2.1 of the Transportation Element of the City's Plan. The evidence failed to support this argument. While the addition of 143 dwelling units will naturally increase traffic in the area surrounding the Subject Property, Mr. Biss failed to prove the extent of that impact. More importantly, Mr. Biss failed to prove that the impact will be so great as to be considered inconsistent with the City's Plan. Data and Analysis. Mr. Biss has argued that the City did not have sufficient data and analysis to demonstrate that an additional 143 residential units will not negatively impact the City's ability to evacuate the coastal high hazard area. Mr. Biss failed to prove this allegation. Hurricane evacuation times for roads which may be impacted by the Challenged Amendment are well below acceptable hurricane evacuation time standards. An additional 143 dwelling units will not significantly impact those evacuation times. Data relied upon by the City indicated that, after ongoing road improvements, hurricane evacuation times, even with the Challenged Amendment, will decrease. Mr. Biss failed to prove that the City did not have adequate data and analysis to support the Challenged Amendment. Impacts on Public Schools. Mr. Biss failed to prove that the Challenged Amendment did not consider the impacts on public schools contrary to the County's Plan. The Challenged Amendment is not required to be consistent with County's Plan until it is reviewed for "recertification" by the Broward County Planning Council. At the time of recertification, the Challenged Amendment will likely be considered exempt from school concurrency pursuant to Policy 13.01.10 of the County's Plan. Mr. Biss failed to prove that the Challenged Amendment is inconsistent with any provision of the City's Plan dealing with public schools. Mr. Biss also failed to prove that the impact on public schools by the Challenged Amendment will be more than the addition of nine students. Finally, the evidence failed to prove that the Challenged Amendment is inconsistent with Coastal Management Element Policy 3.1.1 of the City's Plan.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Secretary of the Department of Community Affairs enter a final order finding the Challenged Amendment to be a small scale amendment and that it is "in compliance" as defined in Section 163.3184(1)(b), Florida Statutes. DONE AND ORDERED this 19th day of November, 1999, in Tallahassee, Leon County, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of November, 1999. COPIES FURNISHED: Kent Harrison Robbins, Esquire 1224 Washington Avenue Miami Beach, Florida 33139 Clifford R. Steele, Esquire John C. Hanson, II, Esquire Steele & Hanson, P.A. Museum Tower, Penthouse 150 West Flagler Street Miami, Florida 33130 Barbara Hall, Esquire Greenberg, Taurig, et al 515 East Las Olas Boulevard Suite 1500 Fort Lauderdale, Florida 33301 Richard Kane, City Attorney City of Hallandale 400 South Federal Highway Hallandale, Florida 33009 Karen A. Brodeen, Assistant General Counsel Office of the General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 315 Tallahassee, Florida 32399-2100 Arnold Lanner, Mayor City of Hallandale City Hall 400 South Federal Highway Hallandale, Florida 33009 Steven M. Seibert, Secretary Department of Community Affairs Suite 100 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Cari L. Roth, General Counsel Department of Community Affairs Suite 315 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100
The Issue The issues to be determined in this consolidated proceeding are (1) whether the Petitioners have demonstrated standing under section 163.3184, Florida Statutes (2018), and (2) whether the Okeechobee Business District Comprehensive Plan Amendment (OBD Amendment) adopted on August 13, 2018, by the Respondent by Ordinance No. 4783-18 (Ordinance) is "in compliance" under section 163.3184(1)(b).
Findings Of Fact The Parties and Standing Lakeview is a Delaware limited liability company, registered with the State of Florida. Lakeview owns Esperanté, a 20-story office tower at 222 Lakeview Avenue within the boundaries of the OBD. Lakeview submitted oral and written objections to the City during the process leading to adoption of the OBD Amendment. Lakeview's concerns included impact to views of the Intracoastal Waterway by potential development of a 25-story office tower to the east of Esperanté at the location referred to as the "church site," as well as increased traffic congestion on Lakeview Avenue. Lakeview is an affected person under section 163.3184(1)(a). The Town is a Florida municipal corporation and a home rule charter municipality. The Town owns property within the City, including its public works facility in close proximity to the OBD. The Town submitted oral and written comments, recommendations, and objections to the City during the adoption process for the OBD Amendment. The Town is an adjoining local government to the City. The Town was concerned that the OBD Amendment would produce substantial impacts on the increased need for publicly funded infrastructure by increasing the cost of traffic signalization on Okeechobee Boulevard and Lakeview Avenue in the OBD. The Town is an affected person under section 163.3184(1)(a). The County is a political subdivision of the State of Florida and a home rule charter county. The County owns property within the jurisdiction of the City, including its convention center and parking garage, which are located on Okeechobee Boulevard in close proximity to the OBD. The County was concerned that the OBD Amendment would produce substantial impacts on the increased need for publicly funded infrastructure in the form of increased cost for traffic signalization and other active traffic management measures on Okeechobee Boulevard and on increased cost of providing bus services. The County submitted oral and written comments, recommendations, and objections to the City during the adoption process for the OBD Amendment. The County is an affected person under section 163.3184(1)(a). The City is a Florida municipal corporation located in the County and is responsible for adopting a comprehensive plan and plan amendments. The City adopted the OBD Amendment under the state expedited review process in section 163.3184(3). The City also owns a parcel within the OBD referred to throughout this proceeding as the "tent site." Background The OBD includes all the properties located between Okeechobee Boulevard, Lakeview Avenue, Rosemary Avenue, and Flagler Drive in the City's downtown. It is a five-block area with the church site as its easternmost parcel. The OBD is a new district within the area defined in the Downtown Master Plan (DMP) Element of the City's Comprehensive Plan (City Comp Plan). The DMP Element is an optional element of the City Comp Plan that was adopted in 1995. The DMP's vision includes promoting a place of sustainable and efficient transportation systems that promote greater connectivity for pedestrians, cyclist, and transit riders. The OBD Amendment is a small component of the City's large and comprehensive strategy to encourage mode shift within the DMP area. The DMP currently sets forth 13 districts that are described in Policy 1.1.1 and whose boundaries are depicted on the Downtown District Map in the City Comp Plan. DMP Policy 3.1.1 directs the City to maintain the DMP Zoning Atlas showing the districts from DMP Policy 1.1.1, the planning areas and the subdistricts. The OBD is also located within the Downtown Transportation Concurrency Exception Area (TCEA) established in Objective 2.3.5 of the Transportation Element in the City Comp Plan. The Downtown TCEA is also adopted in the County's Comprehensive Plan (County Comp Plan), and the TCEA boundaries are coterminous with the DMP area. The City entered into an agreement with the County and FDOT in 1998 regarding the TCEA. Adoption of the TCEA meant that the City, the County, and FDOT acknowledged that in order for desired development and redevelopment to occur in the City's downtown area, it would be difficult for certain roadways to continue to meet the adopted level of service standards. Thus, the City was exempted from meeting transportation concurrency requirements and traffic performance standards in the TCEA. A Florida Standard Urban Transportation Modeling System (FSUTMS) traffic analysis of the area that was done prior to adoption of the TCEA ultimately established the required residential and nonresidential development ratios described in Transportation Element Policy 2.3.5(h). The development ratios required the City to have both residential and nonresidential space in the downtown area. The City achieved the projection for residential units set forth in Transportation Element Policy 2.3.5(g), but has approximately five million square feet more of nonresidential space available to reach the stated projection for nonresidential space. The OBD Amendment On April 30, 2018, Gabe Klein, a consultant for the City, presented the Downtown Mobility Plan to the mayor and city commission. The workshop was open to the public and televised on the City's website. At this workshop, the Mayor initiated the process for pursuing the OBD Amendment. The City then timely sent its executive summary of the proposed OBD Amendment to the Interlocal Plan Amendment Review Committee (IPARC) Clearinghouse on May 3, 2018. On May 7, 2018, the Clearinghouse provided notice (IPARC Notice) of the OBD Amendment to the Town and the County under the terms of the Interlocal Agreement that established the IPARC. On May 21, 2018, by Resolution No. 134-18, the City Commission adopted the Downtown Mobility Plan, along with the Okeechobee Corridor Study, Downtown Parking and Transportation Demand Management Study, and the Citywide Bicycle Master Plan. In addition to the IPARC Notice, the City provided notice to both the County and Lakeview by mail and published required notices in the newspaper. Counsel for Lakeview presented oral comments regarding the OBD Amendment at the City's Planning Board meeting on May 15, 2018; at the Downtown Action Committee (DAC) meeting on June 13, 2018; at the transmittal hearing on June 18, 2018; and at the adoption hearing on August 13, 2018. County representatives made oral comments at the transmittal hearing on June 18, 2018, and the adoption hearing on August 13, 2018. A Town representative made oral comments at the adoption hearing on August 13, 2018. The Ordinance reflected the City's continuing policy of seeking to attract high-intensity office uses to consolidate the area as an economic center of downtown, with innovative high-rise buildings and an active pedestrian environment. The Ordinance further allowed for the creation of incentives to permit building heights to increase from five stories to 25 stories in the OBD 5 subdistrict without increasing the permitted floor area ratio (FAR) of 2.75. The Ordinance amended the City Comp Plan's DMP Element to identify the location, development capacity, and height allowed within the OBD. DMP Policy 1.1.1 was amended to create the OBD. DMP Policy 3.1.3 was amended to show maximum development capacity, subdistrict boundaries and incentive areas for the OBD. The text added to DMP Policy 1.1.1 stated: N. Okeechobee Business District: The Okeechobee corridor is the traditional business district of downtown, around which office buildings have historically located. The focus of the Okeechobee business district should be towards attracting high intensity office uses to consolidate the area as an economic center of downtown, with innovative high-rise buildings and an active pedestrian environment. The district shall function as a connection between the north and south portions of the City, with enhanced pedestrian crossings and a large percentage of public open spaces. Intensity and Density The OBD Amendment did not increase development intensity or density. In fact, the OBD Amendment reduced the allowable development within the Okeechobee Corridor. The evidence established that the FAR of 2.75 on the church site remained the same with the OBD Amendment. Ms. Aponte is in charge of overseeing the development and implementation of the DMP. She testified that prior to adoption of the OBD Amendment, the FAR on the church site was 2.75 and that the church site property could have been developed to accommodate approximately 300,000 square feet of usable office space and provide parking on site. With the same FAR of 2.75 after adoption of the OBD Amendment, the church site's development capacity remained the same. Ms. Aponte also concluded that from a planning perspective, since the development capacity at the church site remained the same before and after the OBD Amendment, and the use did not change, there would not be additional traffic impacts. Mr. Greene explained that the OBD Amendment would actually reduce the development capacity on the tent site and that all other blocks in the OBD would retain the same development capacity as before the OBD Amendment. Since there was a reduction in the actual development capacity within the OBD, there was not an increase in intensity. Mr. Greene and/or his staff explained the reduction in development capacity in the OBD at all four public hearings and in many telephone conversations with staff from the County and the Town. The tent site is located within the City Place Development of Regional Impact (DRI) that holds certain development rights. Sites located within the DRI may use the DRI's development rights on a "first come, first serve" basis until they are exhausted. Reducing capacity on the tent site would allow another site within the DRI to use those development rights. This would shift development away from the Okeechobee Corridor in the OBD to another site within the DRI. The City proved that the OBD Amendment did not increase development intensity or density. The City credibly established that the OBD Amendment reduced the allowable development within the OBD. Petitioners' Objections The Petitioners jointly presented their cases during the hearing. They argued that the OBD Amendment was not "in compliance" because it created internal inconsistencies within the City Comp Plan, it was not supported by relevant and appropriate data and analysis, it was not properly coordinated with the neighboring local governments, it was not coordinated with the comprehensive plans of the Town and the County, and it was a de facto future land use plan amendment. Each argument is generally addressed below. However, the major underlying premise of the Petitioners' challenge was that the OBD Amendment would allow more intense development and that the City had not evaluated potential impacts to traffic and parking. As found above, the City proved that the OBD Amendment did not increase development intensity or density. Thus, the City did not need to evaluate the traffic impacts of the OBD. In addition, the City was exempted from meeting transportation concurrency requirements and traffic performance standards in the TCEA. Internal Consistency The Town and County identified elements in the City Comp Plan in order to argue internal inconsistency. Those were the Coastal Management Element, Intergovernmental Coordination Element, and Transportation Element. The Town and County also claimed the OBD Amendment was inconsistent with the Strategic Regional Policy Plan. Lakeview claimed the OBD Amendment was inconsistent with the entire City Comp Plan generally, and specifically inconsistent with the vision of the DMP Element, DMP Policies 3.1.3, 1.1.1.H, and 1.1.1.M; Future Land Use Policy 1.1.7; Transportation Element Policy 2.3.1(a), Objective 2.3.4, Policies 2.3.5(a) and 2.3.5(h); and Intergovernmental Coordination Element Objectives 1.1, 1.2, 1.3, and 1.4, Policies 1.3.1, 1.3.3, 1.3.4, and 1.5.3. The Petitioners argued that "high-rise Class A" buildings must be built in the Quadrille Business District (QBD) described in DMP Policy 1.1.1.H. However, the DMP Element does not limit tall buildings to the QBD. For example, a maximum height of 30 stories is allowed in the Quadrille Garden District, 25 stories in the QBD, and 15 stories in the Transit Oriented District and Flagler Waterfront District. During the hearing, Mr. Greene narrated drone footage that showed high-rise buildings are located throughout the downtown area, including in and near the OBD in the Okeechobee Corridor. Two residential towers that are 32 stories in height are also located along the waterfront in the Flagler Waterfront District. The evidence supported the description in the OBD that "[t]he Okeechobee corridor is the traditional business district of downtown, around which office buildings have historically located." The evidence also established that the tallest buildings in the downtown are not located in the QBD. The City Comp Plan does not prohibit high-rise buildings in districts other than the QBD. Lakeview's witness, Ms. Ward, opined that creation of the OBD conflicted with the intention of the Flagler Waterfront District to preserve waterfront views and its function as a transition from more intense development in the urban core of downtown. The evidence showed that these intentions can be realized with creation of the OBD. The OBD's implementing regulations adopted at the same time as the OBD Amendment as changes to the DMP Urban Regulations required that any development be set back 400 feet from the Intracoastal Waterway and that open space be increased. This would maintain an open space promenade along Flagler Drive. The County argued that the OBD Amendment conflicted with Policy 1.2-m of its Transportation Element, which provides in part: "Based on the results of the traffic monitoring report, the City will pursue strategies including, but not limited to . . . develop a centrally-managed system of strategically located parking facilities." The same language is found in the Transportation Element of the City Comp Plan in Policy 2.3.5(a). Contrary to the County's argument, the OBD Amendment in no way prohibited or directed the location of centrally-managed parking garages. The OBD Amendment complemented the many strategies referenced in Policy 1.2-m and Policy 2.3.5(a) by promoting public transit services, encouraging transportation mode options, and implementing employer-based Transportation Demand Management (TDM) activities. The evidence established that parking requirements for any developments within the DMP, including the new OBD, complied with the provisions of DMP Element Objective 4.3 and the implementing DMP Urban Regulations. DMP Objective 4.3 states that "[t]he City shall develop strategies to manage the downtown parking supply and demand." Lakeview argued that Exhibit 3 to the Ordinance showed two Okeechobee Business subdistricts but did not list the other subdistricts that were created under the OBD, specifically OBD-12CP. Mr. Hansen explained that OBD-12CP is contained within the City Place DRI, which was amended by the adoption of a separate Ordinance No. 4782-18 and is not subject to review in a comprehensive plan challenge. At the hearing, the County and Town withdrew their claim relating to conflict with the Coastal Management Element. In an abundance of caution, the City presented evidence and established that the OBD is not in a coastal high hazard area. The Treasure Coast Regional Planning Council (Treasure Coast) is the regional planning council that reviewed the City's OBD Amendment. Treasure Coast's review and comments were limited to any adverse effects on regional resources or facilities identified in the Strategic Regional Policy Plan, and any extra- jurisdictional impacts that would be inconsistent with the comprehensive plan of any affected local government within the region. Based on the City's staff report for the OBD Amendment, Treasure Coast found that the maximum development potential of property, as expressed by FAR, did not increase as a result of the creation of the OBD. Treasure Coast found no adverse effects on regional resources or facilities and no extra-jurisdictional impacts resulting from creation of the OBD. The Petitioners did not present any evidence that would establish the OBD Amendment was not consistent with the requirements of the Strategic Regional Policy Plan. The Petitioners did not prove beyond fair debate that the OBD Amendment conflicted with the policies, goals, and objectives of the City Comp Plan or the County Comp Plan. Data and Analysis The City Commission adopted the Downtown Mobility Plan (Mobility Plan), along with the Okeechobee Corridor Study, Downtown Parking and Transportation Demand Management Study and the Citywide Bicycle Master Plan. The various studies that make up the Mobility Plan included data relating to mode shift, walkability, mobility, circulation on Okeechobee Boulevard, economic growth in the downtown, and TDM initiatives. The Mobility Plan created a vision of desired outcomes, goals, a mode hierarchy, a mode-shift goal, and a series of proposed projects and strategies to improve mobility, not only along the Okeechobee Corridor, but also the entire downtown. The plan estimated needs in 2040 based on jobs and population rates and provided specific proposed projects that could be implemented to manage future growth in the entire downtown. The study specifically included streets within the OBD and was, therefore, relevant data and analysis that supported the OBD Amendment. The Okeechobee Corridor Study looked at the needs, capacity, and characteristics along Okeechobee Boulevard, all of which are related to the OBD. The Downtown Parking and Transportation Demand Management Study provided an audit of the parking in the downtown area. The study supported adoption of the OBD Amendment since the OBD is an area included within the overall parking demand study. The Citywide Bicycle Master Plan included an analysis of bike facilities and bike lanes along and accessing the OBD. It discussed the existing transit network in the Okeechobee corridor, obstacles, and the need for modification to some of the street systems to achieve the Bicycle Master Plan's long-term goals of producing a connected series of trails. The City also relied upon traffic count data for Okeechobee Boulevard produced by the County. In addition to the County's traffic count data, the City relied on an FDOT analysis dated June 7, 2018, which showed existing conditions before and after the Brightline train service began and which revealed that there were no intersections on the relevant portions of Okeechobee Boulevard that were failing. The City Commission also reviewed data concerning trolley ridership and skybike ridership. There were numerous other data and analyses that existed at the time of adoption of the OBD Amendment that supported the City's action in adopting the amendment including: The Economic Impact Analysis of the OBD by Fishkind & Associates, which found that the City's Class-A office market is underserved, that the City's market has a vacancy rate far below average for business districts in Florida or the United States, that a new Class-A office building in the OBD is likely to have a beneficial impact on the City's office market, that the OBD could create 1,000 new high-wage jobs and create additional demand for residential housing, that a new Class-A office building would likely generate $1 million in tax revenue for the City, and that approval of the OBD would not have a detrimental impact on surrounding Class-A offices. The West Palm Beach Downtown Walkability Analysis specifically stated that certain streets, most notably the state- owned Okeechobee Boulevard and Quadrille Avenue, are considered "downright hazardous" to pedestrians. Dr. Depew explained that the study was relevant to the OBD Amendment because it explained how the City could get people out of their personal automobiles and move them into an urban environment in different modes of transportation, which is consistent with the TCEA's aim to have more people living and working downtown. The City has adopted the walkability study in the Transportation Element Policy 2.4.4(a) of the City Comp Plan. The FDOT District 4 Road Safety Audit Report was intended to look at the performance of existing or future road intersections, including the intersection of Okeechobee Boulevard and Florida Avenue and Rosemary Avenue, to determine how the area itself could be made safer for pedestrians, provide alternative means of transportation, and reduce conflicts between pedestrians, bicycles, and vehicles in the area. The Transit Choices Report + Sketch Alternatives contained data related to population and employment trends in the downtown area and alternatives for transit in the downtown area. It provided options, alternatives, and recommendations that included a portion of the OBD area. The report contained a map related to the mobility plan and shifting transit services to a new downtown site as a potential for future consideration within the OBD. It also referenced the Okeechobee Boulevard Corridor Study. The West Palm Beach Economic Development Study by Avalanche evaluated economic and demographic data, assessed the City's business climate, analyzed visitor trends, analyzed real estate trends, and reviewed economic development assets and programs in the City. With regard to infrastructure and real estate, the study found that Class A office space was in high demand, that office vacancy rates have been falling since 2011, and that the potential OBD would allow the City to increase in-demand Class A office product in a prime downtown location. The appraiser report by Aucamp, Dellenback and Whitney concluded that the proposed OBD would not have an adverse effect on property values for the downtown-at-large, no adverse effect on property values for nearby residential buildings, and no adverse effect on property values for nearby office buildings. The Palm Beach Metropolitan Planning Organization (MPO) 2040 Long Range Transportation Plan included growth forecasts regarding population and employment (population growth at 35 percent and employment growth at 56 percent by 2040), which Dr. Depew looked at to confirm that the materials in other reports he reviewed were accurate. The City did not perform a site-specific traffic impact study because it was exempt under the TCEA, and there was a reduction of development intensity within the Okeechobee Corridor. Dr. Depew opined that the proposed OBD Amendment did not require a traffic impact study. The Petitioners argued that the various surveys, studies, and reports did not expressly refer to the OBD and the OBD Amendment. However, section 163.3177(1)(f) does not require creation of a plan amendment prior to conducting studies and gathering data to support it. In fact, a plan amendment is usually the reaction to surveys, studies, community goals and vision, and other data. The data and analyses relied on by the City were prepared by recognized professionals using professionally accepted methodologies and sources. The City's reaction to the data and analyses was appropriate. The Petitioners did not prove beyond fair debate that the OBD Amendment was not supported by relevant data and analysis or that the City did not react appropriately to the data and analysis. Intergovernmental Coordination The County, Town, and City entered into the Comprehensive Plan Amendment Coordinated Review Interlocal Agreement, dated October 1, 1993 (Interlocal Agreement), to comply with the intergovernmental coordination requirements of chapter 163. The Interlocal Agreement established a countywide coordinated review process designed to provide cooperation between affected local governments and opportunities to resolve potential disputes within the plan amendment process with the least amount of infringement upon existing processes. The Interlocal Agreement established the IPARC Clearinghouse. Local governments are obligated to provide the Clearinghouse with an executive summary and hearing information. The City timely sent its executive summary to the Clearinghouse, and the Clearinghouse provided notice of the OBD Amendment to the Town and the County. The Interlocal Agreement provided that a written notice of intent to object may be filed by a participating local government and must be filed no later than 15 days before the transmittal hearing. Once filed, a meeting is required between the jurisdictions, a fact-finding panel is established, an opinion letter is issued, and conflict resolution is available as provided under Article X. The Town signed the Interlocal Agreement. It also adopted Policy 1.1.3 in the Intergovernmental Coordination Element (ICE) of its Comprehensive Plan requiring it to cooperate with all other local governments in a voluntary dispute resolution process for the purpose of facilitating intergovernmental coordination. The County also signed the Interlocal Agreement. In the County's ICE, it too recognized the intergovernmental review process established under the Interlocal Agreement. The County and Town did not present any evidence that they filed notices of intent to object to the OBD Amendment 15 days prior to the transmittal hearing as required by the Interlocal Agreement. In addition to the IPARC Notice, the City provided notice to both the County and Lakeview by mail and published required notices in the newspaper. Mr. Greene and Ms. Aponte spoke with John Lingren from the Town about the OBD Amendment. During that conversation, the purpose of the amendment was clarified, development capacity was discussed, and it was explained that the amendment did not increase development capacity on the corridors and did not change the uses. Ms. Aponte and Mr. Hansen also spoke with Mr. Mohyuddin, a principal planner from the County, and clarified that the City was not modifying development capacity and that there was no effect on traffic in the corridor. Mr. Hansen also spoke to Jorge Perez, a senior urban designer with the County, regarding the plan amendments. The FDOT sent a findings letter to the City after reviewing the OBD Amendment. Following receipt of the letter, Mr. Greene communicated with Larry Hymowitz, the FDOT transportation planner who prepared the letter. After reviewing information provided by Mr. Greene, Mr. Hymowitz testified that he no longer believed that there were adverse impacts to transportation facilities and no longer had concerns about the data and analysis used to support the OBD Amendment. Mr. Hymowitz stated that he considered this type of communication to be intergovernmental coordination. The City also received letters from the Petitioners and heard public comment made by the Petitioners' representatives at the public hearings before making its final decision to adopt the OBD Amendment. The Petitioners did not prove beyond fair debate that the City did not comply with the intergovernmental coordination requirements of the Comp Plans of the County, Town, or City, or of chapter 163. De Facto Future Land Use Plan Amendment The Petitioners argued that the OBD Amendment conflicts with the Future Land Use (FLU) Element and is a de facto future land use plan amendment. On its face, the Ordinance amended the City's DMP Element, not the City's Future Land Use Map (FLUM). The only FLU designation for the entire DMP area is the Urban Central Business District. The OBD Amendment did not change the FLUM since the designation remains Urban Central Business District. DMP Element Policy 3.1.3 stated that the City would establish zoning designations, and specifically indicated that Table DMP-1 identified the maximum FAR and maximum height allowed within each zoning subdistrict by right and with incentives. The City's illustrative zoning maps included in the DMP Element were reviewed in the past by the state land planning agency and were accepted as part of the DMP Element, not as a part of the FLU Element or FLUM. The Petitioners' argument is an attempt to challenge the status quo by claiming that the OBD Amendment is part of a change to or in conflict with the FLU Element when no change to the FLUM has occurred. The City's interpretation of its Comp Plan is reasonable. Ultimate Findings The Petitioners did not prove beyond fair debate that the Ordinance is not in compliance. All other contentions not specifically discussed have been considered and rejected. The City's determination that the Ordinance is in compliance is fairly debatable.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity enter a final order finding the OBD Amendment adopted by the City by Ordinance No. 4783-18 "in compliance," as defined by section 163.3184(1)(b), Florida Statutes (2018). DONE AND ENTERED this 26th day of December, 2019, in Tallahassee, Leon County, Florida. S FRANCINE M. FFOLKES Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of December, 2018. COPIES FURNISHED: Nathan E. Nason, Esquire Nason, Yeager, Gerson, White & Lioce, P.A. 3001 PGA Boulevard Palm Beach Gardens, Florida 33410 (eServed) John Kenneth Rice, Esquire Nason, Yeager, Gerson, White & Lioce, P.A. 750 Park of Commerce Boulevard Boca Raton, Florida 33487 (eServed) Terrell K. Arline, Esquire Terrell K. Arline, Attorney at Law, Company 1819 Tamiami Drive Tallahassee, Florida 32301 (eServed) Kimberly L. Rothenburg, Esquire K. Denise Haire, Esquire City of West Palm Beach 401 Clematis Street, 5th Floor West Palm Beach, Florida 33401 (eServed) Peter Penrod, General Counsel Department of Economic Opportunity Caldwell Building, MSC 110 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed) Cissy Proctor, Executive Director Department of Economic Opportunity Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed) Stephanie Webster, Agency Clerk Department of Economic Opportunity Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed)
