The Issue The issue in this matter is whether section 330.30(3)(f), Florida Statutes, exempts Petitioner from obtaining the approval of the Department of Transportation prior to using a private heliport site adjacent to his property.
Findings Of Fact The Department is authorized to administer and enforce the rules and requirements for airport sites, including initial airport site approval, registration of private airports, and licensing of public use airports. See § 330.29, Fla. Stat. Petitioner owns a home next to Honeymoon Lake in Brevard County, Florida. Petitioner, an aviation enthusiast, also owns several helicopters. Petitioner currently parks his helicopters at a nearby airport. Petitioner desires to takeoff and land his helicopters at his home. Petitioner built a dock on Honeymoon Lake next to his property. Over the dock, Petitioner constructed a wooden platform to use as his heliport. Petitioner built the platform directly into the submerged lands beneath Honeymoon Lake. The platform is approximately 36 feet long by 32 feet wide. The platform rests on wooden pilings and is raised to about 15 feet above Honeymoon Lake. The platform is connected to the shore by a wooden foot bridge. Petitioner harbors two boats at the dock beneath the platform. Petitioner constructed the heliport for his private, recreational use only. Petitioner wants to use his heliport without applying for approval from the Department. Honeymoon Lake is a private (not State) body of water whose history goes back to a deed issued in the late 18th century. In 1878, President Rutherford B. Hayes, on behalf of the United States government, deeded Honeymoon Lake to the original developer of the area. Honeymoon Lake is approximately 300 feet wide at Petitioner’s property line. The area of the lake where Petitioner’s heliport is located is owned by the Stillwaters Homeowners Association and used as a recreation area. On September 5, 2017, after Petitioner constructed the platform, the Stillwaters Homeowners Association Board of Directors approved Petitioner’s heliport by resolution. Prior to this administrative action, Petitioner applied to the Federal Aviation Administration (“FAA”) for airspace approval to operate his heliport on Honeymoon Lake. On April 13, 2017, the FAA provided Petitioner a favorable Heliport Airspace Analysis Determination in which the FAA did not object to Petitioner’s use of his helicopters in the airspace over Honeymoon Lake. The FAA’s determination included an approved Approach/Departure Path Layout and Agreement with the 45th Space Wing, which operates out of nearby Patrick Air Force Base. Petitioner also represents that the heliport platform does not violate the Brevard County Building Code. In support of this assertion, Petitioner introduced the testimony of Brevard County Code Enforcement Officer Denny Long. In August 2017, after receiving a complaint that Petitioner’s heliport might have been built in violation of Brevard County ordinances, Mr. Long inspected Petitioner’s dock structure. Upon finding that Petitioner had already constructed his platform, Mr. Long could not identify a code provision that he needed to enforce. Therefore, he closed his investigation. Petitioner contends that the Honeymoon Lake area is not taxed by Brevard County. Neither is Brevard County responsible for any improvements thereon.3/ Because his heliport is situated over water and not land, as well as the fact that he will only use the heliport for occasional, private use, Petitioner believes that he is entitled to the exemption under section 330.30(3)(f) from obtaining the Department’s approval prior to landing his helicopters at his heliport. Section 330.30 states, in pertinent part: SITE APPROVALS; REQUIREMENTS, EFFECTIVE PERIOD, REVOCATION.— (a) Except as provided in subsection (3), the owner or lessee of any proposed airport shall, prior to . . . construction or establishment of the proposed airport, obtain approval of the airport site from the department. * * * (3) EXEMPTIONS.—The provisions of this section do not apply to: * * * (f) Any body of water used for the takeoff and landing of aircraft, including any land, building, structure, or any other contrivance that facilitates private use or intended private use. Petitioner asserts that the exemption described in section 330.30(3)(f) extends to a “building, structure or any other contrivance” that is constructed on, or over, a body of water. Therefore, since his landing site is situated over water, Petitioner argues that his heliport should be considered a “structure . . . that facilitates private use” of a “body of water for the takeoff and landing of aircraft” which qualifies him for an exemption from Department approval. Although Petitioner does not believe that he needed to apply to the Department for approval of his proposed landing site, he did so at the FAA’s suggestion. Around April 2017, Petitioner contacted the Department inquiring about the process to obtain an airport license or registration for his heliport. On September 25, 2017, however, the Department denied Petitioner’s application as incomplete. Pursuant to section 330.30(1)(a), the Department instructed Petitioner to produce written assurances from the local government zoning authority (Brevard County) that the proposed heliport was a compatible land use for the location and complied with local zoning requirements. In response, instead of supplementing his application, Petitioner asserted to the Department that his heliport was exempt from registration under section 330.30(3)(f) because it was located in a private body of water. On April 6, 2018, the Department issued Petitioner a formal “Letter of Prohibition.” The Letter of Prohibition notified Petitioner that he was not authorized to operate his helicopter from his dock/heliport without first registering his heliport with the Department and obtaining an Airport Site Approval Order. The Letter of Prohibition further stated that Petitioner’s heliport did not meet the exception from site approval and registration requirements in section 330.30(3)(f). The Department expressed that the exception only applied to “a body of water used for the takeoff and landing of aircraft.” The exception did not apply to the platform Petitioner desired to use as his landing site. Petitioner challenges the Letter of Prohibition in this administrative hearing. The Department, through Alice Lammert and Dave Roberts, asserts that Petitioner must register his private-use heliport before he may use it to takeoff or land his helicopters. Ms. Lammert and Mr. Roberts testified that the Department has consistently interpreted section 330.30(3)(f) to pertain to actual bodies of water, e.g., waters used by seaplanes or other floatable aircraft. Both Ms. Lammert and Mr. Roberts commented that Petitioner is not seeking to takeoff or land his helicopters on Honeymoon Lake. Petitioner intends to use a platform, situated 15 feet above Honeymoon Lake, on which to land his helicopters. Ms. Lammert and Mr. Roberts expressed that Petitioner’s construction of his heliport over water does not change the fact that his heliport is a fixed wooden structure and not a “body of water.” Consequently, Petitioner must obtain Department approval prior to using the platform for his helicopters. Ms. Lammert and Mr. Roberts added that if Petitioner’s helicopters were equipped with pontoons and landed directly on the surface of Honeymoon Lake, his “landing site” would qualify for the exemption set forth in section 330.30(3)(f). Ms. Lammert and Mr. Roberts further explained that the Department is responsible for ensuring that aircraft operating in Florida takeoff and land in safe, controlled areas. Through section 330.30, the Department is tasked to inspect all potential airport sites to make sure that the landing zones do not pose a danger to any aircraft (or helicopter) that might use them. Safety is the Department’s primary focus when approving private airport/heliport registrations. For example, as Ms. Lammert explained, the Department would inspect Petitioner’s heliport to ensure that the platform is sturdy enough and wide enough to bear the weight of Petitioner’s helicopters. The Department might also determine whether the platform should be equipped with a safety net. Regarding Petitioner’s argument that the Department should consider his heliport a “structure . . . that facilitates private use” of a body of water, Mr. Roberts understands the exemption under section 330.30(3)(f) to include docks that are used for persons disembarking from a seaplane or other floatable aircraft. The exemption, however, does not apply if the dock, itself, serves as the landing site. Regarding Petitioner’s reference to the FAA analysis determination, Mr. Roberts explained that while the FAA has authority to approve the use of the airspace over Honeymoon Lake, the authority to approve the landing site remains with the Department. Based on the evidence and testimony presented at the final hearing, Petitioner did not prove, by a preponderance of the evidence, that his heliport qualifies for an exemption under section 330.30(3)(f). Accordingly, prior to his use of his heliport to takeoff or land his helicopters, he must apply for site approval from the Department.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order denying Petitioner’s request for an exemption from Department approval under section 330.30(3)(f) prior to the use of his wooden platform as a heliport. DONE AND ENTERED this 25th day of October, 2018, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 25th day of October, 2018.
Findings Of Fact The following findings are based upon the stipulation of the parties filed on July 25, 1986: The Sarasota-Manatee Airport Authority (Authority) was created by the Sarasota-Manatee Airport Authority Act, Chapter 31263, Laws of Florida (1955), as amended by Chapter 77-651, Laws of Florida. The members of the Authority are elected--by the voters of Manatee and Sarasota Counties. Two members are from Manatee County and two members are from Sarasota County. The Authority owns and operates the "Sarasota-Bradenton Airport" on approximately 1,095 acres of land, portions of which are located within the jurisdictions of the City of Sarasota, Manatee County, and Sarasota County. The Sarasota-Bradenton Airport has been in its present location since 1941. Jet service was initiated in the 1960's. The Authority has proposed what was agreed to be a development of regional impact on a portion of its property. The project includes replacement of existing terminal buildings, automobile parking facilities, rental car agency service facilities, air freight facilities, the relocation of the airport entrance and exit roadways, the placement (sic) of the internal roadway network and construction of a new aircraft parking apron. No runway construction or expansion is proposed. The proposed project involves 173 acres. Improvements are proposed on 89 acres in Sarasota County, 72 acres within the corporate limits of the City of Sarasota, and 12 acres in Manatee County. The project is designed in two phases. Phase One involves demolition of existing structures and construction of new terminal facilities, including air sides A and B, construction of portions of the parking apron, the airport entrance, internal roadways, drainage and wastewater collection improvements on the airfield. Drainage improvements have been permitted and construction completed. Phase Two construction includes air side C and adjacent aircraft parking apron, relocation of the air freight facility, and development of non- aviation commercial lease plots. The present terminal building consists of approximately 83,700 square feet of space (including canopies and land area), about 900 parking spaces and an 18 acre aircraft apron. Since July 1, 1973, several additions to the terminal have been constructed. These include: 1978--Eastern baggage claim (5,250 square feet); 1979--Wood terminal (15,840 square feet); 1983--Peoples Express Departure Lounge (1,800 square feet); 1983--Commuter terminal (6,000 square feet); and 1984--Main terminal renovations (2,150 square feet). In Binding Letters of Interpretation Nos. 874-046, 874-030 and 975-030, the Department of Community Affairs determined that the construction of a parking lot, the strengthening of existing runways, the extension of taxiways, the addition of blast pads and the construction of a service road in and of themselves were not subject to the provisions of Chapter 380, Florida Statutes. The replacement terminal building will be 200,000 square feet with 1,200 parking spaces and 12 air carrier gates. The airport property zoning in the Manatee County area is "M-1-LI". The property is not zoned in Sarasota County or in the City of Sarasota. In early 1985, the Authority submitted an Application for Development Approval (ADA) to each local government having jurisdiction pursuant to Section 380.06(6), Florida Statutes, which local governments included Manatee County, the City of Sarasota and Sarasota County. In addition, the Authority submitted an application for a "special permit" (5P 85-80) to Manatee County pursuant to the Manatee County Land Development Code. By pre-application agreement, the ADA was limited to questions about general project description, wastewater management, drainage, water supply, solid waste and specific information about public transportation facilities and airports. Copies of the ADA were sent to all appropriate parties. The City of Sarasota and Sarasota County did, after publication and notice, hold joint public hearings on July 24, 1985, (Sarasota Planning Commission/City of Sarasota Planning Board) and September 12, 1985, (City of Sarasota Commission and Sarasota Board of County Commissioners). Pursuant to the requirements of Chapter 380, Florida Statutes, and the Manatee County Land Development Code, public hearings were held on September 11, October 2, 9 and 11, 1985, before the Manatee County Planning Commission and on October 13 and 17, 1985, before the Board of County Commissioners of Manatee County. The Southwest Florida Regional Planning Council, on July 18, 1985, adopted its "Assessment for the Sarasota-Bradenton Airport" DRI #28485-52 which constituted its Regional Report and Recommendations. The Tampa Bay Regional Planning Council met August 12, 1985, and adopted its Final Report and Recommendations for "DRI #124," Agenda Item #6B. The City of Sarasota and Sarasota County issued timely development orders approving the ADA with conditions. The Department of Community Affairs appealed those Orders regarding traffic impact mitigation required in the Orders. The appeal of the Orders by the Department of Community Affairs has been settled and dismissed. The Manatee County Board of County Commissioners denied both the "special permit" and also the Application of Development Approval. The following findings of fact are based upon the evidence presented, after considering the credibility and demeanor of witnesses who testified, as well as stipulations entered after the hearing commenced: The Authority and Southwest Florida Planning Council (SWFRPC) timely appealed Manatee County's denials of the "special permit" and ADA. On November 19, 1984, the Department of Community Affairs (Department) issued Binding Letter of Interpretation No. 984-035, which evaluated Phase One of the proposed airport expansion and concluded that Phase One was a development of regional impact. In its binding letter, the Department found that Phase One would allow an increase in the number of flights, and would thus impact on noise levels near the airport. Further, it was found that "potentially this project will have a substantial impact on noise levels within residential areas located in both Manatee and Sarasota Counties." Binding Letter of Interpretation No. 984-035 was not appealed and remains the Department's final agency action. The Department's Binding Letter of Interpretation No. 984-035 did not determine the extent of regional noise impact that would result from Phase One, nor did it determine or recommend noise mitigation conditions that might be imposed upon the proposed airport expansion at the conclusion of the development of regional impact process. An increase or decrease in airport operations is primarily a function of market demand and airfield capacity. Allen K. Eckle, who was accepted as an expert in civil engineering with expertise in airport planning, noise and transportation, testified that terminal improvements and an expansion of the airport terminal could potentially increase airport noise by increasing market demand, but such an increase resulting solely from terminal improvements or expansion would be imperceptible and unquantifiable. While market demand will be primarily responsible for a projected increase in aircraft volume of as much as 20 percent over the next five years, the portion of this increased volume attributable to this terminal project has not been established, and therefore it cannot be determined what, if any, increase in noise resulting from this increase in aircraft volume will be directly attributable to the terminal project. The terminal project will facilitate the use of the Sarasota-Bradenton Airport by larger, wide-body aircraft due to improved aircraft parking gate configuration, direct terminal access and larger departure lounge accommodations. The newer, larger, wide-body aircraft are quieter than smaller aircraft, and therefore the use of the airport by these larger aircraft will lower the average single event noise levels, and thereby lessen, and potentially eliminate, any increase in noise levels which would otherwise occur due to the projected increase in aircraft volume. Aircraft volume is projected to increase whether or not the terminal is replaced or improved. However, the terminal project will allow larger, quieter aircraft to use the airport and thereby have a positive impact on noise levels which would otherwise result from such increased volume. The Authority prepared an Airport Noise Control and Land Use Compatibility Study (ANCLUC), a document entitled "A Discussion of the Potential Noise Impacts Associated With the New Terminal Complex at the Sarasota-Bradenton Airport," as well as a Part 150 Study. A Part 150 Study evaluates noise impacts from airport operations by estimating areas of noise exposure expressed as 65 Ldn, 70 Ldn and 75 Ldn. The Ldn measurement of noise represents the average noise level during an entire day, weighted so as to double the measured values of nighttime noise. Outdoor speech interference occurs within the 65 Ldn contour and residential uses within the 70 Ldn and 75 Ldn contours are strongly discouraged. Based on the original Part 150 Study, as well as revised analyses of current conditions, there are between 4,250 and 5,127 residents within the 65 Ldn contour, which is an area that is generally accepted to be incompatible with residential use. Based upon the Part 150 Study, as well as the additional analyses completed by the Authority, the Department determined that the ADA provides adequate mitigation for any project related noise impacts when conditioned with the recommendations of the Tampa Bay Regional Planning Council (TBRPC) made on August 12, 1985, agenda item 6B, Recommended Regional Conditions Numbered 2-A through I. TBRPC Condition 2 is hereby incorporated by reference in its entirety. It is also found to be reasonable and provides effective mitigation of project impact. With the approval of the Federal Aviation Administration (FAA), the Authority has already implemented a noise abatement turn for jet aircraft taking off from runway 31 which allows aircraft to depart over water by making a left turn to 270 degrees as soon as practicable after take off. In this way, noise sensitive residential areas in Manatee County are avoided to the maximum extent feasible, although different residential areas west of the airport, including Longboat Key, are now impacted. Nevertheless, this noise abatement turn has been effective in reducing the overall impact of airport noise. While the noise abatement turn clearly does not result from the terminal project which has yet to be completed, it is relevant to this proceeding since TBRPC conditioned its approval of this project upon the institution of such a noise abatement turn on runway 31. The Authority has already voluntarily implemented a noise compatibility program substantially incorporating the short-term and long-term elements in TBRPC Condition 2-A. Short-term elements include: noise abatement turn on runway 13, as well as runway 31; between 10:00 PM and 7:00 AM, required use of ground power units, elimination of the use of external public address system, and prohibition of non-emergency maintenance runups; formation of a noise abatement advisory committee; hiring of a noise abatement officer; noise monitoring and complaint response programs; plan review and evaluation; and public information. Long-term elements include, in addition to continuation of short-term elements: purchase of aviation easements or fee simple interests in properties involved in a joint stipulation; purchase of aviation easements over residential properties in the 75 Ldn contour which were purchased by present owners prior to January 1, 1980; and purchase of fee-simple interest in residential properties in the 75 Ldn contour which were purchased by present owners prior to January 1, 1980. An apparent difference between the TBRPC conditions and the voluntary noise compatibility program implemented by the Authority is the fact that the Authority has specifically conditioned the purchase of fee-simple interests on the availability of federal funds, which TBRPC has not. Additionally, TBRPC Conditions Numbered 2-B through I (relating to periodic reporting, coordination with adjacent local governments, reduction of areas within the 70 to 75 Ldn and 75+ Ldn contours, review and comment by the Authority on rezonings and land use amendments, noise exposure disclosure in all deeds and real estate transactions, ongoing noise monitoring program, compliance with Federal Aviation Regulation Part 36 Stage Two noise limits, and requiring a demonstration of substantial compliance with the foregoing before commencing Phase Two of the project) are not specifically included in the Authority's voluntary program. The FAA expressed concerns about the Authority's Part 150 Study because 1983 airport operations data were used for existing (1985) conditions without any showing that 1983 data were valid for 1985. In response to the FAA's concerns, the Authority compiled supplemental information and an additional analysis. Laddie E. Irion, who was accepted as an expert in airport noise compatibility planning and was formerly the noise abatement officer at the Sarasota-Bradenton Airport, prepared the additional analysis which concluded there was little, if any, direct relationship between this terminal project and increased airport noise levels. Manatee County's expert in aircraft noise analysis and abatement, Edward M. Baldwin, agreed with the FAA's concerns about the Part 150 Study, but also agreed with Irion's approach in addressing those concerns and his conclusion that the terminal project itself is unlikely to have any positive or negative impact on noise exposure. The airport, including the specific location of the terminal project, is not within any area of critical state concern. The State Comprehensive Plan is found at Chapter 187, Florida Statutes, and includes among its goals and policies "insur(ing) that existing port facilities and airports are being used to the maximum extent possible before encouraging the expansion or development of new port facilities and airports to support economic growth." The project is consistent with this policy of the State Comprehensive Plan since it has been established that the existing terminal is permanently being used to the maximum extent possible. In its denial of the ADA, Manatee County failed to make a finding as to whether the ADA is compatible with the State Comprehensive Plan. The project is compatible with the reports and recommendations of TBRPC and SWFRPC, the applicable regional planning councils, if conditions recommended by those councils are included in any development order-. The parties have stipulated to the transportation conditions proposed by TBRPC which were filed at the hearing on August 13, 1986, as amended, which are hereby incorporated by reference. The parties also stipulated to conditions concerning wastewater management, drainage, water supply, solid waste and other conditions which were recommended by TBRPC, SWFRPC or other parties hereto, and said stipulation is hereby incorporated by reference. The City of Sarasota and Sarasota County have both issued development orders approving this development of regional impact after having found that the project is consistent with their local comprehensive plans. The Department has concurred with this finding of consistency. Manatee County determined that the proposed terminal project is inconsistent with its local comprehensive plan and accordingly denied the ADA, as well as the application for special permit SP-85-80. The Manatee County Comprehensive Plan was adopted pursuant to the Local Government Comprehensive Planning Act, Chapter 163, Part II, Florida Statutes. Elements of the Plan include plan administration, future land use, aviation and related elements. The aviation element was cited by Manatee County in its denial of development approval, even though the future land use element allows the airport as a primary use in the South County Industrial Area. The goal of the aviation element of the Manatee County Comprehensive Plan is as follows: Develop airport facilities that adequately provide for the services and needs of passengers, commercial airlines, and general aviation users, and that are compatible with adjacent land uses, high environmental standards and public safety. This goal is supported by the following objectives: Facilities--Construct support facilities (including terminal and parking facilities) that are functional, convenient, aesthetic- ally pleasing, and adequate for all levels-- passenger airline and general aviation. Service--Strive to attract increased avail- ability and quality of commercial air service. The terminal project is consistent with the above-quoted goal and objectives of the Manatee County Comprehensive Plan aviation element. It will provide a modern terminal and parking facilities which will allow passengers to enplane and deplane out of the weather, and will be able to handle present and projected passenger traffic more safely and comfortably. The present terminal facility is undersized and inadequate. The project is also compatible with adjacent land uses since it is within the South County Industrial Area where the airport is a primary use. There appears to be an internal conflict within the aviation element of the Manatee Plan concerning the subject of airport relocation. Objective I-D provides: Relocation--Continue to investigate the needs and opportunities for either expansion or relocation of Sarasota-Bradenton Airport. (Emphasis Supplied.) Policy 11-1A concerning airport development provides: Airport relocation--Airport facilities designed to handle major air carriers should be relocated east of the existing site. The new site should be closely coordinated with other governmental activities, such as the possible joint use of the site with sewage effluent spray irrigation, to ensure long term service ability of the new facility. (Emphasis Supplied.) The plan administration element of the Manatee Plan addresses the interpretation of the Plan when provisions are in conflict, as above, and states: . . . where two or more such provisions are inconsistent with each other they shall not be given effect nor considered as part of the Plan in the situation which causes the inconsistency. However, rather than recognizing this conflicting direction regarding airport relocation in its Plan, and therefore disregarding the conflicting provisions in its consistency determination, Manatee County determined that policy 11-1A, airport relocation, takes precedence over all other policies in the Plan in that it is the most specific policy, and further determined that the terminal project was inconsistent with this policy since it would preclude relocation in the future. No evidence was presented, however, that would support a finding that this project would, in fact, preclude relocation in the future. Additionally, Manatee County's determination of inconsistency itself appears to be inconsistent with the plan administration element wherein the use of the word "should" is specifically interpreted to be discretionary and not mandatory. Therefore, by using the discretionary "should" in policy 11-1A, airport relocation is discretionary by the very terms of the Manatee Plan. Furthermore, the capital projects necessary for airport relocation, such as site acquisition and construction, are also couched with discretionary language in the Plan. No site for relocation of the airport east of the existing airport has been designated in the Manatee Plan and no sites of sufficient acreage are currently zoned for airport use. The Manatee County Planning Commission is the designated local planning agency which actually prepared the Manatee Plan, and is responsible for reviewing proposed developments for consistency with the Plan. The Planning Commission recommended to the Manatee Board of County Commissioners that the terminal project be found to be consistent with the Manatee Plan. The Chief of Comprehensive Planning for Manatee County, Carole Clark, presented three possible interpretations of the Plan to the County Commission as follows, but offered no recommendation as to which was the correct interpretation: Conflicting Direction. The Board may determine that Policy 11-1A Airport Reloca- tion is in direct conflict with the policies of the Land Use Element, which makes airports a primary use in the South County Industrial Area. In accordance with principle A-6, those two provisions would not be considered part of The Plan in this instance. The determination would then be based on the remaining policies of the Aviation Element, and the proposal could be consistent with The Manatee Plan. Long Term Direction. The Commission may determine the policy of airport relocation to be long term and not necessarily precluded by the proposed improvements. This interpre- tation reflects the Implementation section of the Aviation Element which places reloca- tion between 1985-2000. Aviation Precedence. Finally, the Commission may find that Policy 11-1A, Airports Relocation, takes precedence over all other policies in that it is the most specific policy. If it was determined that the proposed expansion would preclude relocation, the proposal would then be found to be inconsistent wit the Plan. As previously stated, the Manatee Board of County Commissioners determined that the "aviation precedence" interpretation was correct and accordingly denied both the ADA and special permit. In making its recommendation of consistency, the Planning Commission had found that the "long term direction" interpretation was correct. During her review of this matter, Carole Clark testified she did not consider provisions of the State Comprehensive Plan found at Section 187.201(17), Florida Statutes. The Manatee Planning Commission's recommendation of consistency is supported by the testimony of Blain Oliver, who was accepted as an expert in land use planning, and Mark Woerner, who was accepted as an expert in comprehensive planning. Based upon findings of fact 33 through 41, it is found that the terminal project as proposed herein is consistent with the Manatee Plan. Because the airport is in an area zoned M-1, which treats airports as a "conditional use," the Authority was required to obtain a "special permit" from Manatee County. Factors in reviewing an application for a special permit include a determination of consistency with the Manatee Plan, and also a determination of compatibility with surrounding land uses. A finding of consistency with the Plan has been made above. Although there are residential areas in close proximity to the airport, the airport is located in the South County Industrial Area in which airports are a primary use. The proposed project to replace and improve the terminal facilities is clearly compatible with the primary use within the South County Industrial Area--the airport. Conditions recommended by TBRPC would reasonably address the concerns of residents in surrounding neighborhoods.
Recommendation Based upon the foregoing, it is, RECOMMENDED: That the Florida Land and Water Adjudicatory Commission enter a Final Order granting the Application for Development Approval and special permit sought by the Sarasota-Manatee Airport Authority, thereby reversing prior decisions of the Board of County Commissioners of Manatee County, and condition such approval upon the Authority's compliance with the terms of the stipulations entered into by the parties regarding transportation, drainage, wastewater supply, solid waste and other conditions, as well as the Tampa Bay Regional Planning Council Conditions Numbered 2-A through I referenced in Finding of Fact 24. DONE AND ENTERED this 15th day of October 1986, at Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 15th day of October 1986. APPENDIX Rulings on Proposed Findings of Fact filed on behalf of the Sarasota- Manatee Airport Authority: 1. Adopted in Finding of Fact 1. 2. Adopted in Finding of Fact 2. 3. Adopted in Finding of Fact 3. 4. Adopted in Finding of Fact 4. 5. Adopted in Finding of Fact 5. 6. Adopted in Finding of Fact 6. 7. Adopted in Finding of Fact 7. 8. Adopted in Finding of Fact 8. 9. Adopted in Finding of Fact 9. 10. Adopted in Finding of Fact 10, 11. 11. Adopted in Finding of Fact 12. 12. Adopted in Finding of Fact 13. 13. Adopted in Finding of Fact 14. 14. Adopted in Finding of Fact 15. 15. Adopted in Finding of Fact 16. 16. Adopted in Finding of Fact 17. 17. Adopted in Findings of Fact 21, 22, 24. 18. Adopted in Findings of Fact 21, 22, 24. 18. Adopted in Findings of Fact 21, 22, 24. 19. Adopted in Findings of Fact 21, 22, 24. 20. Adopted in Findings of Fact 21, 22, 24. 21. Adopted in Findings of Fact 23, 24, 28. 22. Adopted in Finding of Fact 26. 23. Adopted in Finding of Fact 24. 24. Adopted in Finding of Fact 28. 25. Adopted in Finding of Fact 28. 26. Adopted in Finding of Fact 28. 27. Adopted in Findings of Fact 25, 26. 28. Adopted in Finding of Fact 23. 29. Adopted in Finding of Fact 23. 30. Adopted in Finding of Fact 23. 31. Adopted in Finding of Fact 23. 32. Adopted in Findings of Fact 25, 26. 33. Adopted in Findings of Fact 25, 26. 34. Adopted in Findings of Fact 25, 26. Adopted in Findings of Fact 25, 26. Adopted in Findings of Fact 25, 26. Adopted in Finding of Fact 28. Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 30. Adopted in Finding of Fact 30. Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 29. Adopted in Finding of Fact 31. Adopted in Finding of Fact 31. Adopted in Finding of Fact 32. Adopted in Finding of Fact 32. Rejected as irrelevant and unnecessary. Adopted in Findings of Fact 33-42, but otherwise rejected as unnecessary, irrelevant and not based on competent substantial evidence. Adopted in Findings of Fact 33-42, but otherwise rejected as unnecessary, irrelevant and not based on competent substantial evidence. Adopted in Findings of Fact 33-42,,but otherwise rejected as unnecessary, irrelevant and not based on competent substantial evidence. Adopted in Findings of Fact 33-42, but otherwise rejected as unnecessary, irrelevant and not based on competent substantial evidence. Adopted in Findings of Fact 33-42, but otherwise rejected as unnecessary, irrelevant and not based on competent substantial evidence. Adopted in Findings of Fact 33-42, but otherwise rejected as unnecessary, irrelevant and not based on competent substantial evidence. Adopted in Findings of Fact 33-42, but otherwise rejected as unnecessary, irrelevant and not based on competent substantial evidence. Adopted in Findings of Fact 33-42, but otherwise rejected as unnecessary, irrelevant and not based on competent substantial evidence. Adopted in Findings of Fact 33-42, but otherwise rejected as unnecessary, irrelevant and not based on competent substantial evidence. Adopted in Findings of Fact 33-42, but otherwise rejected as unnecessary, irrelevant and not based on competent substantial evidence. Adopted in Findings of Fact 33-42, but otherwise rejected as unnecessary, irrelevant and not based on competent substantial evidence. Adopted in Findings of Fact 33-42, but otherwise rejected as unnecessary, irrelevant and not based on competent substantial evidence. Adopted in Findings of Fact 33-42, but otherwise rejected as unnecessary, irrelevant and not based on competent substantial evidence. Adopted in Findings of Fact 33-42, but otherwise rejected as unnecessary, irrelevant and not based on competent substantial evidence. Adopted in Findings of Fact 33-42, but otherwise rejected as unnecessary, irrelevant and not based on competent substantial evidence. Adopted in Findings of Fact 33-42, but otherwise rejected as unnecessary, irrelevant and not based on competent substantial evidence. Adopted in Findings of Fact 33-42, but otherwise rejected as unnecessary, irrelevant and not based on competent substantial evidence. Adopted in Findings of Fact 33-42, but otherwise rejected as unnecessary, irrelevant and not based on competent substantial evidence. Adopted in Findings of Fact 33-42, but otherwise rejected as unnecessary, irrelevant and not based on competent substantial evidence. Adopted in Finding of Fact 43. Rulings on Proposed Findings of Fact filed on behalf of Manatee County: Adopted in Finding of Fact 2. Adopted in Finding of Fact 5. Adopted in Findings of Fact 4, 6, 7. Adopted and rejected in part in Findings of Fact 21 and 22, but otherwise rejected as not based on competent substantial evidence. Adopted and rejected in part in Findings of Fact 21 and 22, but otherwise rejected as not based on competent substantial evidence. Adopted in Finding of Fact 23. Adopted in Finding of Fact 23. Adopted in part in Finding of Fact 24, but otherwise rejected as unnecessary. Adopted in part in Finding of Fact 28, but otherwise rejected as unnecessary. Rejected as irrelevant and not based on competent substantial evidence. Adopted in part in Finding of Fact 34. Adopted in part in Findings of Fact 33-42, but otherwise rejected as not based on competent substantial evidence. Adopted in part in Findings of Fact 33-42, but otherwise rejected as not based on competent substantial evidence. Adopted in part in Findings of Fact 33-42, but otherwise rejected as not based on competent substantial evidence. Adopted in part in Findings of Fact 33-42, but otherwise rejected as not based on competent substantial evidence. Adopted in part in Findings of Fact 33-42, but otherwise rejected as not based on competent substantial evidence. Adopted in Finding of Fact 43. Rejected as irrelevant and unnecessary based on Findings of Fact 24- 26. 26. 26. 26. 26. Rejected as irrelevant and unnecessary based on Findings of fact 24- Rejected as irrelevant and unnecessary based on Findings of Fact 24- Rejected as irrelevant and unnecessary based on Findings of Fact 24- Rejected as irrelevant and unnecessary based on Findings of Fact 24- Adopted in part in Finding of Fact 26. Rejected as cumulative, irrelevant and contrary to Finding of Fact 28. Rejected as irrelevant and unnecessary. Rejected as irrelevant and unnecessary. Ruling on proposed Finding of Fact filed on behalf of the Department of Community Affairs: Introductory material. Adopted in Findings of Fact 19, 20. Adopted in Finding of Fact 22. Conclusion of law. Conclusion of law. Conclusion of law. Conclusion of law. Conclusion of law. Conclusion of law. Conclusion of law. Conclusion of law. COPIES FURNISHED: Ross A. McVoy, Esquire Post Office Box 669 Tallahassee, Florida 32302 David Bruner, Esquire 983 1/2 North Collier Boulevard Marco Island, Florida 33937 Philip Parsons, Esquire Post Office Box 271 Tallahassee, Florida 32302 Charles D. Bailey, Jr., Esquire Post Office Box 3258 Sarasota, Florida 33578 Richard L. Smith, Esquire 2070 Ringling Boulevard Sarasota, Florida 33577 Silvia Alderman, Esquire 315 South Calhoun Street Suite 800 Tallahassee, Florida 32301 David Jordan, Esquire Department of Community Affairs 2571 Executive Center Circle, East Tallahassee, Florida 32399 Roger S. Tucker, Esquire 9455 Koger Boulevard Suite 209 St. Petersburg, Florida 33702 Luis Figuerdo, Esquire Governor's Legal Office The Capitol Tallahassee, Florida 32301 Glen W. Robertson, Esquire Florida Land and Water Adjudicatory Commission Office of the Governor The Capitol Tallahassee, Florida 32301
Findings Of Fact On September 22, 1981, the Respondent, Sonoma International (hereafter Sonoma) , through its vice president, Claudette Bruck, filed an application with the Florida Department of Transportation (hereafter D.O.T.) for a license to construct and operate a private airport to be known as Greener Pastures Private Airport. The proposed airport site is located on Loxahatchee Road (SR 827) in an unincorporated area of southwest Palm Beach County. The parcel on which the proposed airport is to be located consists of approximately 63.42 acres and is owned by Sonoma. The property is approximately 800 feet east to west and 3900 feet north to south. The proposed landing strip would be located on the western-most portion of the property and will run the entire length of the property except for any applicable setback requirements. Petitioner, John J. Burton, (hereafter Burton) owns approximately 15 to 20 acres of undeveloped land in the area of the proposed site. The eastern portion of Burton's property is directly north of the location of the proposed landing strip. The Burton property is approximately 300 feet north of the Hillsborough Canal and approximately 600 to 800 feet north of the proposed airport site. The Petitioner, Florida National Properties, Inc., owns the land contiguous to the southern boundary of the proposed site. This property is also undeveloped. The Loxahatchee National Wildlife Refuge is located approximately 3/4 of a mile north of the proposed site. The area where the proposed site is located remains undeveloped. Sonoma proposes to sell subdivided five (5) acre parcels with the landing strip located on the western portion of each lot. The landing strip is for the use of the owners of these parcels and their guests. The proposed landing strip will be a grass strip and will run the full length of the property. D.O.T. reviewed Sonoma's application, performed site inspections and found the proposed site was adequate to meet the site approval requirements set forth in Rule 14-60.05, Florida Administrative Code. The site inspections were performed by Mr. Boswell and Mr. Brown of D.O.T., who submitted reports of their findings. On October 20, 1982, D.O.T. entered a site approval order which contained the following conditions: All operations are to be conducted in VFR weather conditions. Use of the airstrip is limited to property owners and their invited guests. Left traffic patterns will be established for Runway 18 and Right traffic patterns will be established for Runway 36. Aircraft arriving or departing the airport will avoid overflying the Loxachatchee National Wildlife Refuge below 2000 feet AGL. Users of the airport and invited guests will be informed of possible bird activity in the vicinity of the site. Traffic patterns and operational procedures are subject to review by this Department prior to licensing or re-licensing. The landing strip surface for private airports must be a minimum of 1800 feet in length with a primary surface width of 100 feet and a usable width of 50 feet. The proposed site is more than adequate for a landing strip with these dimensions. A private airport must have and maintain approach zones which are a trapezoidal area increasing in width from 50 feet either side of the runway centerline at a distance of 3000 feet outward from the ends of each runway. Rule 14-60.07(5), Florida Administrative Code. These approach zones must be clear of obstructions above a glide path of 20:1 from the ends of each usable runway. Rule 14-60.07(6). It is not necessary for the applicant to own or control the ground area beneath the approach zones. The approach zones for the proposed airport will extend over property owned by the Petitioner Burton on the north and Petitioner Florida National on the south. Neither of the Petitioners has granted an easement or other right of use of the airspace above their property. There are presently no obstructions which will prevent Sonoma from obtaining the necessary approach zones at the time of licensing. There are Australian Pines located on the northern tip of Sonoma's property and along the right-of-way of Loxahatchee Road where it abuts Sonoma's property on the north. These trees are 80 to 90 feet in height. By constructing the landing strip the full length of Sonoma's property, the threshold for landing may be displaced to the south of these trees. The 90 foot height will require a displacement of 1800 feet in order to obtain the 20:1 glide path clear zone. With a runway length of 3700 feet (3900 feet minus 2 x 100 feet set back) leaves a usable runway length of 1900 feet. This exceeds the minimum 1800 feet requirement. The trees may be topped or removed prior to final inspection. Although there are bird-nesting areas within the Loxahatchee National Wildlife Refuge from which regular flights of birds occur, these flights are fairly predictable as to time and location and will not create an abnormal safety hazard for the proposed site. There are also microwave towers in the general area of the proposed site, but these towers do not constitute a hazard to planes landing or taking off from the proposed airport. Safe air traffic patterns can be developed on the site for takeoff and landing. Herbert L. Brown, an Aviation Specialist with D.O.T., flew low approaches over the proposed site on two different occasions on December 2, 1982, and April 22, 1983. Mr. Brown flew right-hand traffic patterns and approaches to Runway 36 and left-hand patterns and approaches to Runway 18. On each occasion, he could have landed safely on the proposed site but made a go- around. Mr. Brown did not detect any potential hazards on either of these flights and determined that safe air traffic can be developed on the proposed site. On April 29, 1982, the Board of County Commissioners of Palm Beach County approved Sonoma's petition for a Special Exception to the Palm Beach County zoning ordinance. This approval permits Sonoma to construct a private use airport on the proposed site with the following conditions: The developer shall convey to Palm Beach County within ninety (90) days of Special Exception approval 80 feet south of the south right-of-way line of the Hillsboro Canal for the ultimate right-of-way for State Road #827. The developer shall contribute Three Thousand Dollars ($3,000) toward the oust of meeting this project's direct and identifiable traffic impact, to be paid on a pro-rata basis at the time of issuance of the building permit(s). A 100 ft. setback shall be required between the runway edge and any property line. No structure or navigation aids shall be closer than 50 ft. from any property line. Use of this airstrip shall be limited to owners of this property and their guests. The developer has agreed, and shall limit the County's liability for any future condemnation to exclude any improvements constructed as a result of this Special Exception. Airspace approval for the proposed site was obtained from the FAA on February 24, 1982. A private use airport constructed on this site will conform to the minimum standards of safety for a private use airport if constructed in accordance with D.O.T. requirements. The determination of such conformity is made by D.O.T. in a final inspection prior to licensing. The procedure for obtaining a private use license is a two-step procedure. The first determination is site approval and basically addresses the question of whether it is feasible to establish a private use airport on the proposed site which will meet D.O.T. requirements. In this phase, no detailed construction plans or site plans are required. After site approval, the proposed licensee prepares the site and constructs the airport. Upon completion, D.O.T. makes a final inspection to determine if all D.O.T. requirements have been met. If the airport fails to meet any D.O.T. requirement, the license will not be issued.
Recommendation Based upon the foregoing findings of fact and conclusions of law it is RECOMMENDED: That the Department of Transportation issue its site approval order to Sonoma International for the proposed private airport, subject to those specific conditions set forth in the Notice of Intent and proposed Site Approval Order. DONE and ENTERED this 18th day of January, 1984, in Tallahassee, Florida. MARVIN E. CHAVIS Hearing Officer Division of Administrative Hearings Department of Administration 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 FILED with the Clerk of the Division of Administrative Hearings this 18th day of January 1984. COPIES FURNISHED: Gerald K. Burton, Esquire Mark A. Seff, Esquire 2740 Hollywood Boulevard Hollywood, Florida 33020 Paul A. Pappas, Secretary Department of Transportation 605 Suwannee Street Tallahassee, Florida 32301 Thomas G. Wright, Jr., Esquire Gregory S. Sollitto, Esquire 3300 University Drive Coral Springs, Florida 33065 Leslie T. Ahrenholz, Esquire Post Office Box 2656 Fort Myers, Florida 33921 Vernon L. Whittier, Jr., Esquire Department of Transportation 605 Suwannee Street Tallahassee, Florida 32301
Findings Of Fact The Garemore airport is located in Marion County and is known as the Greystone Airport. The Garemores were issued a private airport license for the period September 24, 1980, through September 30, 1981, and have made timely application for annual renewal of this license. Neighboring property owners and residents who objected to grant of the initial license also object to renewal. Generally, their objections concern excessive noise and unsafe aircraft operations. Several Petitioners raise and breed thoroughbred horses on property adjacent to the airport. They fear for their personal safety and the well-being of these horses and other livestock. These Petitioners also contend that aircraft noise and low flying upset their animals and interfere with mating. However, Respondent introduced opposing evidence, and Petitioners' contention was not established as factual. Through unrebutted testimony, Petitioners established that crop dusters routinely originate operations from Greystone Airport, and that crop dusting chemicals are stored on the site. About six months ago, a crop duster taking off from Greystone Airport dumped his chemical load on a Petitioner's property and subsequently crashed on this property. Petitioners also argue that the airport glide slope does not meet accepted criteria and that runway surfacing is inadequate. Respondent DOT has recently inspected the facility and through the testimony of its airport inspector, demonstrated that the glide slope has been measured and meets the 20 to 1 requirement set forth in Section 14-60.07, Florida Administrative Code. The runway is not surfaced and Petitioners contend it is not hard enough for aircraft operations during the rainy season. As evidence of this, they cite an incident where a visiting airplane ground looped on landing and appeared to lose a wheel. This incident did not establish a runway deficiency, however, nor did Petitioners offer evidence that the runway surface fails to meet any statutory or rule standard. Petitioners related numerous examples of low flying, night flying and acrobatic maneuvering at and near the Greystone Airport. They contend that these activities along with the concentration of World War II and antique aircraft, and the crop dusting operations, have made this a commercial facility.
Recommendation From the foregoing, it is RECOMMENDED: That the private airport license issued to James and Geraldine Garemore be renewed subject to a restriction against crop dusting operations. DONE AND ENTERED this 30th day of November, 1981, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 1981. COPIES FURNISHED: Mrs. Clark Hardwick 900 Northeast 100th Street Ocala, Florida 32677 Charles and Terry Kerr 8149 West Anthony Road, Northeast Ocala, Florida 32670 Mr. John P. Edson 8610 West Anthony Road, Northeast Ocala, Florida 32671 Sherry and Vince Shofner Post Office Box 467 Anthony, Florida 32617 Frank and Carol Constantini 8545 West Anthony Road, Northeast Ocala, Florida 32670 Mr. James B. Banta, Sr. 9349 West Anthony Road, Northeast Ocala, Florida 32670 Ms. Deborah Allen 8263 West Anthony Road, Northeast Ocala, Florida 32671 Mr. Worthy E. Farr, Jr. 8215 West Anthony Road, Northeast Ocala, Florida 32671 Mr. Michael J. Stavola Post Office Box 187 Anthony, Florida 32617 Frances Spain Post Office Box 128 Anthony, Florida 32617 Ms. Beatrice Shepherd Post Office Box 215 Anthony, Florida 32617 J. W. Houston 900 Northeast 100th Street Ocala, Florida 32670 John F. Welch, Esquire Post Office Box 833 Ocala, Florida 32678 Philip S. Bennett, Esquire Department of Transportation Haydon Burns Building, Suite 562 Tallahassee, Florida 32301
The Issue The issue is whether that portion of Plan Amendment 98-1ER known as LU-97-02 is in compliance.
Findings Of Fact Based upon all of the evidence, including the stipulation of counsel, the following findings of fact have been determined: Background In this land use dispute, Petitioners, Janet Bollum (Bollum) and Glenn and Mary Brewer (the Brewers), who are property owners within or near the City of Deland, contend that a portion of Plan Amendment 98-1ER adopted by Respondent, City of Deland (City), is not in compliance. The portion of the amendment under challenge, known as Plan Amendment LU-97-02, changes the land use on 39.56 acres of land owned by Intervenor, Marcia Berman, Trustee (Berman), to Highway Commercial. The property is currently under contract to be sold to Intervenor, Wal-Mart Stores East, Inc. (Wal-Mart), who intends to construct a Wal-Mart super store on a part of the site. Respondent, Department of Community Affairs (Department), is the state agency charged with the responsibility of reviewing comprehensive land use plans and amendments. Until 1997, the Berman property was located in the unincorporated area of Volusia County (County). Prior to 1994, it carried an Urban Medium Intensity land use designation. That year, the County redesignated the property as Industrial. In 1997, the City annexed the Berman property and revised its Future Land Use Map the following year to change the land use to Highway Commercial. This change was accomplished through the plan amendment under challenge. On May 1, 1998, the Department issued its Statement of Intent to Find Portions of Plan Amendment Not in Compliance. More specifically, it found that the new land use designation would "generate traffic which causes the projected operating conditions of roadways to fall below adopted level of service standards and exacerbates projected roadway deficiencies." The Department also found that the amendment was "not supported by or based on, and does not react in an appropriate way to, the best available data and analyses." In making these findings, the Department relied in part upon a traffic study prepared by "TEI" in 1998 which reflected that the City's traffic system did not have sufficient capacity to accommodate the new land use. The Department determination triggered this action. On May 27, 1998, Petitioners, and 82 other property owners, filed a paper styled "Petition for Administrative Hearing and Petition to Intervene" challenging the change of land use on the Berman property in numerous respects. The paper was treated as a petition to intervene and was later granted. After the case was temporarily abated in August 1998 pending efforts to settle the matter, in January 1999, a new traffic study was prepared for the City by Ghyabi, Lassiter & Associates (GLA study), which determined that the existing and planned City transportation network could accommodate the impacts from the development allowed under the amendment. All parties except Petitioners then executed a Stipulated Settlement Agreement in February and March 2000, which resolved all issues originally raised by the Department. Thereafter, the Department issued an Amended Notice of Intent to find the plan amendment in compliance. As required by Section 163.3184(16)(f), Florida Statutes (1999), the parties were realigned consistent with their respective positions. Through an Amended Petition filed by Petitioners on July 19, 2000, all original Petitioners except Bollum and the Brewers have been dismissed, and the factual issues in this case narrowed to two: (a) whether the recent traffic studies "demonstrate a transportation concurrency failure, and a failure to fall within a lawful transportation concurrency exception under F.S. 163.3180(5)(c) and (d)"; and (b) whether the "plan amendment data and analyses continue a failure to show demand for additional 'highway commercial' land, as originally asserted by the Department's Notice of Intent." Standing of the Parties Bollum owns property, resides within, and owns and operates a business within the City. She also submitted written and oral comments to the City while the amendment was being adopted. The parties have stipulated that she is an affected person and thus has standing to participate. The Brewers own property and reside in an unincorporated area of the County in the immediate vicinity of the proposed plan amendment. They also reside within what is known as the "Greater Deland Area," as defined by Chapter 73-441, Laws of Florida. However, they do not own property, reside within, or own and operate a business within the corporate limits of the City, and thus they lack standing to participate. The parties have stipulated that Intervenors Berman and Wal-Mart have standing to participate in this proceeding. The Amendment The Berman property lies on the eastern side of U.S. Highway 17 just north of the intersection of U.S. Highways 17 and 92, approximately three miles north of the City's central business district. The land is currently undeveloped. Prior to being annexed by the City, the property was located within the unicorporated area of the County, just north of the City limits. The earliest County land use designation was Urban Medium Intensity, a primarily residential land use classification which also allowed some commercial development, including small neighborhood shopping centers. In 1993, the County began a comprehensive examination of land use and zoning restrictions in the vicinity of the Berman property. In May 1994, it redesignated the Berman property from Urban Medium Intensity to Industrial. This use allowed not only industrial development, but also some commercial development. Before the Berman property was annexed by the City, it was depicted on the City's Urban Reserve Area Map (map). That map established advisory designations for unincorporated County land abutting the City, and was meant to be a guide for City land use decisions when property was annexed. The property was designated on the map as approximately one-half Commercial and one-half Industrial. In 1997, the Berman property was annexed by the City. Because the City was then required to place a land use designation on the property, on May 16, 1998, it adopted Amendment 98-1ER, which redesignated the property from Volusia County Industrial to City Highway Commercial. The new mixed-use designation allows "a wide range of retail and service and office uses," as well as up to twenty percent residential land uses, including multi-family manufactured housing developments. Thus, the Highway Commercial land use designation is meant to accommodate major shopping centers like the one proposed by Wal-Mart. Transportation issue In their Amended Petition, Petitioners allege that accepting as fact the "most recent traffic studies," those studies still "demonstrate a transportation concurrency failure, and a failure to fall within a lawful transportation concurrency exception under F.S. 163.3180(5)(c) and (d)." The "most recent traffic studies" are the GLA study, and it shows that the existing and planned City transportation network can accommodate the traffic impacts arising from development allowed under the plan amendment. Some of the transportation impacts from the expected development on the Berman property will affect roadways within an area of the City that was formally designated in May 1992 as a Special Transportation Area (STA) or road segments with specialized level of service (LOS) standards. The STA includes the central business district and certain outlying areas essentially bounded by Minnesota Avenue, Amelia Avenue, the rear property lines of properties along the north side of New York Avenue (State Road 44), South Hill Avenue, Beresford Avenue, Boundary Avenue, and Clara Avenue, which extend to approximately one mile from the Berman property. None of the roadways within the STA are on the Florida Intrastate Highway System. Rule 9J-5.0055(2), Florida Administrative Code, requires that the City adopt LOS standards on roadways within its planning jurisdiction (which are not on the Florida Intrastate Highway System), including the disputed portion of U.S. Highways 17 and 92. The applicable LOS standards and STA provisions are found in Policies 3.1.7 and 3.1.10, respectively, of the Transportation Circulation Element of the plan. They read as follows: 3.1.7 For those roadways listed in Policy 3.1.6 [which include U.S. Highways 17 and 92], the City of Deland may permit development to occur until the peak hour traffic volumes exceed a 20% increase over the peak traffic counts published in the FDOT's 1989 Traffic Data Report. 3.1.10 As a result of FDOT's approval of the STA designation for US 17/92 (Woodland Boulevard), from Beresford Avenue to Michigan Avenue, and SR 44 (New York Avenue), from SR 15A to Hill Avenue, the following maximum LOS and/or traffic volumes shall be permitted. ROADWAY SEGMENT US 17/92, from Beresford to Michigan = 22,028 SR 44, from SR 15A to US 17/92 = LOS E SR 44, from US 17/92 to Hill = LOS E *The proposed maximum traffic volume is compatible with the maximum LOS for this section of roadway, as stated in Policy 3.1.7. These two policies have been found to be in compliance and are not subject to challenge in this proceeding. Although the STA is identified as a specific area, the City's Comprehensive Plan anticipates that development from outside of this area will impact the STA. As noted above, however, the undisputed GLA study demonstrates that the plan amendment will not allow development which would cause these adopted LOS standards to be exceeded. The STA was approved in May 1992, or prior to the enactment of Section 163.3180, Florida Statutes (1993), which allows certain exceptions from the otherwise blanket requirement to adopt and enforce a transportation LOS standard for roadways. Two planning tools made available to local governments by Section 163.3180(5), Florida Statutes (1993), are a Transportation Concurrency Exception Area (TCEA) and a Transportation Concurrency Management Area, both of which allow exceptions to transportation concurrency requirements. The practical effect of a TCEA is to allow development to proceed without having to comply with transportation concurrency. Petitioners essentially contend that the STA created by the City for the central business district and certain outlying areas is "the substantial equivalent of a TCEA," and thus it should be treated as one for purposes of this proceeding. They go on to argue that while the City may grant an exception to concurrency requirements for transportation facilities for projects located within a TCEA, those benefits cannot be extended to any other area, including the Berman property. Based on this premise, Petitioners conclude that without the benefit of the TCEA exception, the anticipated traffic from the new development on the Berman property will cause a "continuation of a [LOS] failure on the constrained segments of US 17/92 and on the unconstrained segment from SR44 to Wisconsin Avenue," in violation of the law. Petitioners' contention is based on an erroneous assumption. The evidence shows that the City has never adopted a TCEA. Neither has the STA "transformed" into a TCEA, as Petitioners suggest. Moreover, as noted above, the undisputed GLA study shows rather clearly that the plan amendment will not allow development which would cause the adopted LOS standards to be exceeded. Petitioners further contend that the plan amendment is somehow inconsistent with the transportation exception requirements in Section 163.3180(5)(b) and (c), Florida Statutes (2000). However, these provisions apply to developments "which pose only special part-time demands on the transportation system[,]" that is, "one that does not have more than 200 scheduled events during the calendar year and does not affect the 100 highest traffic volumes." The evidence shows that the Highway Commercial land use category is not designed for such developments and, in fact, encourages far more intense uses. Is There a Need for Additional Commercial Land? Petitioners next contend that "the plan amendment data and analyses continue a failure to show demand for additional 'highway commercial' land, as originally asserted by the Department's Notice of Intent and not resolved by the Compliance Agreement." In the immediate vicinity of the Berman property, near the intersection of U.S. Highways 17 and 92 north of the City, "there is an emerging trend of 'regional-type' commercial developments." This area is already partially developed with commercial uses, and it has additional areas depicted for future commercial and industrial use. There are no other parcels in the City, especially in this area, of a sufficient size to accommodate this type of regional commercial development. There are numerous ways to project the raw, numerical need for commercial land in the City. The City's Comprehensive Plan, its Evaluation and Appraisal Report, and the GLA study all contain statements regarding projected population and employment, each portraying a slightly different result. In fact, Petitioners' own expert criticized the numbers used in these documents as being unreliable and suspect. The need calculus basically involves projecting population over a ten-year planning period and then allocating commercial, residential, and other land uses in an amount to match that projection. For the reasons set forth below, this process is imprecise, and it must be tempered by other factors. First, the planner must project population over the ten-year planning timeframe. Any mistake in this projection will skew the numbers. Second, employment ratios used in the calculus can change from year to year, especially in a smaller community. Also, other planning objectives are inherently subject to change year by year. Given this imprecision and changing market demands, it is appropriate for professional planners to overallocate land uses. An excess allocation of twenty-five percent (or an allocation factor of one hundred and twenty-five percent) is recognized by professional planners as being appropriate. The evidence supports a finding that this amount is reasonable under the circumstances present here. There are numerous professionally acceptable ways in which to allocate land uses. The City has not adopted a particular methodology in its Comprehensive Plan. The specifics of the plan amendment and the City's Comprehensive Plan make application of a strict numerical calculus even more difficult. The prior designation of the property was Industrial, which is not a pure industrial category, but actually allowed up to thirty percent of commercial uses. The amendment here simply changes the land use from Industrial, with some commercial uses allowed, to a mixed-use Highway Commercial designation. As noted earlier, the City's Comprehensive Plan anticipates regional commercial uses in the area of the Berman property. Finally, the parcel is relatively small (less than 40 acres) and is embedded within an urban area. Given the uncertainty of a numerical calculation of commercial need in the City, the size and location of the property, the property's inclusion in an urban area, and the surrounding commercial land uses, the evidence supports a finding that either Industrial or Commercial would be an appropriate land use for the property. The evidence further supports a finding that the need question is not a compliance issue here and does not support a finding that the plan amendment is not in compliance.
Recommendation Based on the Foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining Plan Amendment 98-1ER adopted by the City of Deland by Ordinance Number 98-07 on March 16, 1998, to be in compliance. DONE AND ENTERED this 20th day of November, 2000, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of November, 2000. COPIES FURNISHED: Steven M. Siebert, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 100 Tallahassee, Florida 32399-2100 C. Allen Watts, Esquire Cobb, Cole & Bell Post Office Box 2491 Daytona Beach, Florida 32115 Shaw P. Stiller, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 315 Tallahassee, Florida 32399-2100 F. Alex Ford, Jr., Esquire Landis, Graham, French, Husfeld, Sherman & Ford, P.A. Post Office Box 48 Deland, Florida 32721-0048 Mark A. Zimmerman, Esquire James, Zimmerman, Paul & Huddleston Post Office Drawer 2087 Deland, Florida 32721-2087 David L. Powell, Esquire Hopping, Green, Sams & Smith, P.A. Post Office Box 6526 Tallahassee, Florida 32314 Margaret E. Bowles, Esquire Margaret E. Bowles, P.A. 205 South Hoover Street Suite 402 Tampa, Florida 33609 Cari L. Roth, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325 Tallahassee, Florida 32399-2100
Findings Of Fact Port Largo Airport, Key Largo, Monroe County, Florida has been operated as a public airport under DOT license (p-1) and a zoning variance (R-2) since 1973. A recent rezoning of the R-2U (residential two-family) area of the airport to private airport (P-10) has not been finalized. The most recent lease of the property was executed July, 1977 for a period of five years (P-4) The Port Largo Airport has one asphalt runway oriented nearly north/south that is more than 65 feet wide and 2,100 feet long (P-1 and 3). Between the west side of the runway edge and an airplane parking area there is 30 feet of unpaved area; on the east side at least 20 feet of unpaved area exists between the runway and the ocean. The full length of the paved and unpaved area appears to he on a long, narrow breakwater or strip of land 150 feet wide and 2,400 feet long with the Atlantic Ocean on the east and a wide canal on the west (P-9) The south end of the runway is approached over the water, while the north end has a clump of mangroves 15 feet high a distance of 360 feet from Runway 19's displaced threshold. The height and location of the mangroves from the displaced threshold is such that there is an elevation angle of 2 degrees 17 feet 19 inches and an offset angle of 5 degrees 42 feet 28 inches (P-1).
Recommendation From the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the renewal license application of Port Largo Aero and Marine, Inc. for the Port Largo Airport be granted and License No. 3778 continued in effect to its termination date of January 31, 1981. DONE and ORDERED this 4th day of December, 1980, in Tallahassee, Leon County, Florida. HAROLD E. SMITHERS Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 Joseph B. Allen, III, Esquire 604 Whitehead Street Key West, Florida 33040 Joe L. Sharit, Jr., Esquire 255 Magnolia Avenue Post Office Box 2295 Winter Haven, Florida 33880
Conclusions This matter was considered by the Secretary of the Department of Community Affairs following receipt of a Recommended Order issued by an Administrative Law Judge of the Division of Administrative Hearings. A copy of the Recommended Order is appended to this Final Order as Exhibit A.
The Issue The issue in this case is whether the amendments to the Palm Beach County Comprehensive Plan adopted by Ordinances 2008- 048, 2008-049, and 2008-050 are “in compliance,” as that term is defined in Section 163.3184(1)(b), Florida Statutes (2008).1/
Findings Of Fact The Parties The Department is the state land planning agency and has the statutory power and duty to review amendments to local comprehensive plans and determine whether the amendments are “in compliance,” pursuant to Section 163.3184, Florida Statutes. The County is a political subdivision of the State and has adopted a comprehensive plan that the County amends from time to time pursuant to Section 163.3187, Florida Statutes. Patricia Curry, Alexandria Larsen, and Sharon Waite own property and reside in Palm Beach County. They made comments to the County regarding the three amendments during the period of time beginning with the transmittal hearing for the amendments and ending with the adoption of the amendments. Patrick Wilson owns property and resides in Palm Beach County, but he presented no evidence at the final hearing to show that he made comments to the County on any of the challenged amendments. Sluggett is the owner of the parcel that is the subject of the amendment adopted by Ordinance 2008-050 (“Sluggett Amendment”). He resides in Palm Beach County on the land affected by the amendment. Coconut Northlake LLC and Northlake Land Group LLC are Florida corporations with their principal place of business in Palm Beach County. Coconut Northlake LLC is the owner of the property that is affected by the amendment adopted by Ordinance 2008-049 (“Northlake Amendment”). Northlake Land Group LLC has an option to purchase the property. Panattoni is a Florida corporation that entered into a contract in 2006 to purchase the property affected by Ordinance 2008-048 (“Panattoni Amendment”). Panattoni was the applicant for the Panattoni Amendment. After the application was filed, Panattoni transferred its rights and obligations under its contracts, including the contract to purchase the Panattoni Property, to Panattoni Development Company, Inc. The Amendments Ordinance 2008-50 (“Sluggett Amendment”) would change the future land use designation of a 64.48-acre parcel located at the northwest intersection of Southern Boulevard and Seminole Pratt Whitney Road (“Sluggett Property”) from Rural Residential 10 (one dwelling unit per 10 acres) to Commercial-Low/Rural Residential 5 (one dwelling unit per five acres). Ordinance 2008-49 (“Northlake Amendment”) would change the future land use designation of a 30.71-acre parcel located on the southwest corner of Coconut Boulevard and Northlake Boulevard (“Northlake Property”) from Rural Residential 20 to Commercial-Low/ Rural Residential 5. Ordinance 2008-48 (“Panattoni Amendment”) would change the future land use designation of a 37.85-acre parcel located on the south side of Lake Worth Road, 1,320 feet east of Lyons Road (“Panattoni Property”) from Low-Residential 2 to Commercial-High with an underlying 2 units per acre. Findings Applicable to all Amendments The County adopted a Managed Growth Tier System in 1999, which places all lands in the County into one of five tier classifications: Urban/Suburban, Exurban, Rural, Agricultural Reserve, and Glades. The tiers are intended to define distinct geographical areas within the County that “allow for a diverse range of lifestyle choices, and livable, sustainable communities.” None of the three amendments propose to change the Tier in which the affected properties are located. The new future land use designations created by the three amendments are allowable land uses within their respective tiers. In the Department’s Objections, Recommendations, and Comments Report, following the transmittal of the three amendments, the Department objected to the amendments for the following reason: These amendments include statements or conditions that would limit development to a certain size, use, or intensity. Without these development limitations, one or more specific facilities (water supply, water and wastewater treatment, and road capacity) would not be available at the adopted level of service standards to serve these sites if they are developed at their maximum development potential. The County has not included these site specific limitations or conditions in a policy in the Future Land Use Element nor included a corresponding and appropriate notation on the Future Land Use Atlas to clearly indicate that development limitations apply to these sites. The County addressed the Department’s objection by agreeing to place notations in its Future Land Use Atlas (FLUA) to indicate that the land uses on the properties affected by the amendments are subject to special limitations and conditions. The three amendments affect properties located near the “Acreage” and “Loxahatchee,” which are areas of antiquated subdivisions that are suburban in nature and home to approximately 50,000 people. When these areas were first platted and developed, they were far to the west of the urbanized areas of the County, and had insufficient commercial uses in or around them to serve the residents. The planning studies that have been conducted for this central-western area of the County have consistently concluded that the area needs more commercial land uses to serve the residential population. Today, there are only about 40,000 square feet of commercial uses in this central-western area of the County. Based on a planning ratio of 35 square feet of commercial uses per capita, about 1.5 million square feet of commercial uses would be needed to serve the residential population. The Palm Beach County Comprehensive Plan requires applicants for a FLUA amendment to demonstrate consistency with Policy 3.5-d of the Future Land Use Element (FLUE), regarding traffic impacts. Policy 3.5-d requires a long-term traffic analysis based on the Metropolitan Planning Organization’s 2025 Long Range Transportation Plan (“Test One”) and a short-term, five-year traffic analysis based on the County’s five-year plan (“Test Two”). Under Test One, if the traffic associated with an amendment to the FLUA would significantly impact a road that is projected to fail to operate at adopted level of service (LOS) standard “D” based on the 2025 Long Range Transportation Plan, the amendment cannot be adopted. In contrast, a failure to meet an LOS standard based on the County’s five-year plan -- Test Two -- can be remedied. Under Test Two, if LOS standards on affected roads would not be maintained, the applicant must commit to make or fund additional road improvements to accommodate the traffic impacts associated with the future land use re-designation. Alternatively, an applicant could be required to develop the land in phases so that the traffic impacts associated with each development phase can be accommodated without exceeding the capacity of the roadways. The County’s income from gas tax sources which are used to fund transportation improvements has decreased due to the nationwide downturn in the economy, and the decrease has affected the timing of some planned transportation improvements. However, the County has not abandoned the scheduled improvements for the roads that are affected by the challenged amendments. Map LU 4.1 of the comprehensive plan depicts the public wellfield protection zones within the County and the Turnpike Aquifer Protection Overlay. These planning zones were established to protect sources of public drinking water. The properties affected by the three amendments are located outside of these protection zones. Petitioners presented no competent evidence that the three amendments, alone or in combination, would harm the sources of public drinking water. Petitioners’ evidence was only sufficient to support the general proposition that more land development increases the potential for contamination of surface water and groundwater. The evidence did not establish that the three amendments, alone or in combination, create a measurable increase in the potential for contamination or pose a foreseeable threat of adverse impact to surface water or groundwater. Petitioners’ expert witnesses conceded that they had insufficient data and had conducted no specific studies to support an opinion that any of the amendments would cause harm to natural resources, generally, or to the aquifer, in particular. Ordinance 2008-50, the Sluggett Amendment2/ The Sluggett Amendment would change the future land use designation of a 64.48-acre parcel located at the northwest intersection of Southern Boulevard and Seminole Pratt Whitney Road from Rural Residential 10 to Commercial-Low/Rural Residential 5. The Sluggett Property is within the Rural Tier. Southern Boulevard and Seminole Pratt Whitney Road are major arterial roadways. The Commercial-Low designation limits building coverage to a maximum of 10 percent. On the Sluggett Property, that would equate to about 280,000 square feet of commercial development. However, the Sluggett Amendment contains a condition that further restricts the intensity of commercial development on the Sluggett Property to 161,000 square feet. Residential density on the Sluggett Property is limited to 15 residential units, and is derived from the allowed density for the 64-acre parcel (12 units), plus three more units which are allowed under the County’s Workforce Housing bonus program. The Workforce Housing bonus program allows an increase in density when some units will be developed as low or moderate income housing. The Sluggett Amendment includes a condition that requires that the commercial and residential development on the Sluggett Property meet a Traditional Marketplace Development form. Traditional Marketplace Development is a development form that requires low intensity commercial and institutional uses, vertically integrated with residential uses, with a pedestrian orientation. This development form is achieved primarily through the design and organization of buildings and public spaces and the dispersal of parking. The Sluggett Amendment limits any single non- residential or commercial single tenant to a maximum of 65,000 square feet. To the north of Sluggett Property are lands classified Rural Residential 5 and Rural Residential 2.5. To the east is Loxahatchee Groves, the County’s newest municipality. Directly south, across Southern Boulevard, is land owned by the South Florida Water Management District. Southeast of the Sluggett Property is the incorporated Village of Wellington. The Sluggett Property is separated from the Acreage community to the west by a stormwater drainage canal and 80- foot-wide stormwater drainage easement managed by Seminole Improvement District. To provide compatibility with the residential areas north of the Sluggett Property, the Sluggett Amendment includes a condition that requires a minimum of ten acres of open space on the northern portion of the Sluggett Property. Because the Sluggett Property is located at the intersection of two arterial roadways, it meets the siting requirement of FLUE Policy 1.4-f for commercial uses in the Rural Tier. In prior planning studies in the central-western area of the County, the Sluggett Property was specifically identified as an appropriate location for neighborhood-serving commercial development. The residential component of the Sluggett Amendment is supported by the Bureau of Economic and Business Research population projections and by other data and analyses in the record. The residential units are also necessary to achieve the preferred Traditional Marketplace Development form. The inclusion of residential units also serves to achieve the County’s objective of increasing workforce housing. The need for the Sluggett Amendment was adequately demonstrated. The Sluggett Amendment is compatible with surrounding land uses. The LOS standard for the affected roads would not be maintained if the Sluggett Property were developed at the maximum commercial intensity allowed under the proposed future land use designation (plus 15 dwelling units). This situation would cause the Sluggett Amendment to fail Test One of FLUE Policy 3.5-d, described above. If development of the Sluggett Property is limited to 161,500 square feet of commercial, Test One is met. Therefore, the Sluggett Amendment limits development of the Sluggett Property to 161,500 square feet or commercial. The Sluggett Amendment includes two other conditions related to traffic to avoid potential roadway failures based on Test Two’s five-year analysis. These conditions limit the development to 46,500 square feet of commercial, “until construction commences on the south approach of the intersection of Southern Boulevard and Big Blue Trace to provide for dual left turn lanes, or one through lane and dual right turn lanes.” The potential traffic impacts associated with the Sluggett Amendment have been addressed in a manner consistent with relevant provisions of the comprehensive plan. Water and wastewater utilities are available to the Sluggett Property and there is adequate capacity to serve the Property. School facilities, emergency medical services, and fire and police services are also available and adequate to serve the Sluggett Property. Although Petitioners suggested that the Sluggett Amendment would cause stormwater drainage problems, no competent evidence was presented to demonstrate that a real threat of stormwater contamination exists or that any comprehensive plan provision related to stormwater would be violated. In their petition for hearing, Petitioners claimed that the Sluggett Amendment meets the definition of urban sprawl, but included no specific factual allegation other than the amendment would allow “strip-type commercial development.” The requirement of the Sluggett Amendment that ten acres of open space be set aside in the northern portion of the property, and the requirement to develop as a Traditional Marketplace Development prevents a strip development, as that term is normally applied in land use planning. The Sluggett Property is somewhat distant from other commercial uses, a consequence of the poorly planned development of the residential subdivisions in the area. The Sluggett Amendment reduces a deficit in neighborhood-serving commercial uses and thereby remedies an existing imbalance of land uses caused by the past urban sprawl. Treasure Coast Regional Planning Council determined that the Sluggett Amendment was consistent with the Council’s Strategic Regional Policy Plan. Petitioners did not show how the Sluggett Amendment causes an inconsistency with any provision of the Strategic Regional Policy Plan. Ordinance 2008-49, the Northlake Amendment3/ The Northlake Amendment would change the future land use designation of a 30.71-acre parcel located on the southwest corner of Coconut Boulevard and Northlake Boulevard from Rural Residential 20 to Commercial-Low/ Rural Residential 5. The Northlake Property is in the Exurban Tier. East of the Northlake Property, along Northlake Boulevard, are the residential communities of Bayhill Estates and Rustic Lakes, which were developed at a density of one unit per two acres and one unit per five acres, respectively. Farther east, is the large, gated golf course development called Ibis, which consists of approximately 2,000 units developed at 1.25 dwelling units per acre. On the north side of Northlake Boulevard is a large tract of agricultural land located in the City of Palm Beach Gardens. Northeast are Osprey Isles and Carlton Oaks, which are residential developments with quarter-acre lots, and a cemetery and land designated for commercial low/office development. South of the Northlake Property, across two-lane Hamlin Road, is the Acreage. Existing and proposed institutional development in the vicinity of the Northlake Property include the adjacent parcel to the east, which is proposed to be developed as a 21,000- square-foot U.S. Post Office and, to the west, the existing Pierce Hammock Elementary School. The comprehensive plan allows development of institutional uses in the Exurban Tier at intensities of up to .20 Floor Area Ratio (FAR). The Northlake Amendment proposes development at less than half that intensity, .08 FAR. The Northlake Property is located in an area that was the subject of a regional planning effort called the Western Northlake Corridor Study (WNCLUS) conducted by the county, the City of West Palm Beach, and the City of Palm Beach Gardens. The WNCLUS was completed in 1998 and is now being updated. In April 2008, an updated, intergovernmental analysis of the need for commercial uses in the study area concluded that the need exceeded the square footage of commercial uses that would be provided by the Northlake Amendment. The Northlake Property is one of the few parcels in the area that meets the commercial land use siting criterion in FLUE Policy 1.3-f, having frontage on an arterial road and a collector road. In their petition for hearing, Petitioners claimed that the Northlake Amendment meets the definition of urban sprawl, but included no specific factual allegation other than the amendment would allow “strip-type commercial development.” The Northlake Amendment only affects one parcel. The amendment would not extend any existing commercial uses on Northlake Boulevard or Coconut Boulevard. The applicant has agreed to record restrictive covenants on parcels owned by the applicant that are west of the Northlake Property, which would remove any potential for their future development for commercial uses. Executed restrictive covenants and easements are being held in escrow by the County Attorney and would be recorded after the approval of the Northlake Amendment. Although the Northlake Property is not integrated with other commercial uses, that situation is a consequence of the poorly planned development of the residential subdivisions in the area. The Northlake Amendment reduces a deficit in neighborhood-serving commercial uses and thereby remedies an existing imbalance of land uses caused by past urban sprawl. The residential density allowed by the Northlake Amendment (one dwelling unit per five acres) conforms with the adjacent residential densities, which range from one unit per five acres to one unit per 1.25 acres. The Northlake Amendment is compatible with surrounding land uses. If the Northlake Property were developed at the maximum commercial intensity of 133,000 square feet, LOS standards on affected roadways would likely be exceeded. Therefore, the Northlake Amendment includes a condition that limits development to 106,566 square feet of commercial. Water and wastewater utilities are available to the Northlake Property and there is adequate capacity to serve the property. School facilities, emergency medical services, fire and police services are all available and adequate to serve the Northlake Property. The Treasure Coast Regional Planning Council reported that it considered the Northlake Amendment to be inconsistent with the Strategic Regional Policy Plan, “unless and until the County updates the WNCLUS in coordination with the Cities of Palm Beach Gardens and West Palm Beach.” The Council did not identify any specific provision of the Strategic Regional Policy Plan with which the Northlake Amendment was inconsistent. The Council issued its comments without the opportunity to consider subsequent data and analysis that are included in the record of this case. For example, after the Council issued its report, the City of Palm Beach Gardens expressed support for the Northlake Amendment. In addition, the County planning staff’s objections to the Northlake Amendment, which appeared to be the primary basis for the Council’s finding of inconsistency, were subsequently refuted by the County’s Planning Director. Ordinance 2008-48, the Panattoni Amendment4/ The Panattoni Amendment would change the future land use designation of a 37.85-acre parcel located on the south side of Lake Worth Road, and 1,320 feet east of Lyons Road, from Low- Residential 2 to Commercial-High with an underlying 2 units per acre. The Panattoni Property is within the Urban/Suburban Tier. The Urban/Suburban Tier is described in the Plan as “urban levels of service.” The Urban/Suburban Tier is expected to accommodate about 90 percent of the County’s population. The Panattoni Property is also within the County’s Urban Service Area. The Urban Service Area is the area in which the County anticipates the extension of urban services through the long range planning horizon. The properties to the north, south, east, and west are designated Low Residential 2. There is an existing residential community to the west. The properties to the north, south, and east are vacant. The Panattoni Amendment requires the property to be developed as a Lifestyle Commercial Center. The Lifestyle Commercial Center is similar to a Traditional Marketplace Development, being a mixed-use, pedestrian-friendly form of development. The Panattoni Amendment meets the commercial land use siting criteria in FLUE Policy 1.2-k. The county planning staff anticipated that the surrounding vacant properties would be developed at a higher density than two units per acre through one or more of the county’s density bonus programs. The Panattoni Amendment includes a condition that at least five percent of the project must be designated as public open space as squares, greens, or plazas. Parking must be dispersed through the site. The interconnected vehicular and pedestrian circulation system must provide on-street parking and access to transit stops and off- site pedestrian and bicycle systems where feasible. The Panattoni Property be developed with building mass and placement to provide a spatial definition along streets. Additionally, the design must incorporate human-scale elements along streets and in common areas that includes seating, landscaping, lighting and water or art features. No single tenant can exceed 100,000 square feet and cannot not be a “big box.” The Panattoni Amendment would not result in strip development. The Panattoni Amendment is compatible with surrounding land uses. Petitioners testified that a number of stores in the area have closed as evidence that the area does not need additional commercial uses. A window survey of empty stores is not an accurate way to evaluate vacancy rates, in particular, or the need for commercial uses, generally. Panattoni provided an adequate justification and demonstrated need for the 396,000 square feet of commercial uses authorized by the Panattoni Amendment. The Panattoni Property is located in the tier in which the County has indicated it wants most of its development to occur. Petitioners presented no evidence that the Panattoni Amendment would cause urban sprawl. There are adequate public services and infrastructure to accommodate the Panattoni Amendment. The potential traffic impacts associated with the Panattoni Amendment were reviewed under the Test One and Test Two analyses. As to Test One, the traffic analysis shows that affected roads will not meet the LOS standard in 2025 at the maximum development intensity. Therefore, the Panattoni Amendment includes a condition that the development must be limited to 396,000 square feet of commercial use. As to Test Two, the traffic analysis shows that all roads will operate at the adopted LOS standard if the project is limited to 65,000 square feet until construction has commenced for the recommended improvements at Lake Worth Road/Turnpike interchange. Therefore, the Panattoni Amendment includes this condition on the development. Construction of the improvements has already commenced. The Treasure Coast Regional Planning Council determined that the Panattoni Amendment is consistent with the Strategic Regional Policy Plan. Petitioners did not show how the Panattoni Amendment causes an inconsistency with any provision of the Strategic Regional Policy Plan.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining that the amendments adopted by Palm Beach County by Ordinances 2008-48, 2008-49, and 2008-50 are "in compliance." DONE AND ENTERED this 21st day of October, 2009, in Tallahassee, Leon County, Florida. BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of October, 2009.
