The Issue The issue is whether a proposed amendment to the Pinellas County Countywide Future Land Use Plan (FLUP) changing the land use designation on a 22.18-acre parcel located at 2301 Chautauqua Avenue in the City of Clearwater (City) from Residential Suburban/Preservation to Residential Low/Preservation should be approved.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background In 1988, the Legislature provided the County with countywide planning authority (see Chapter 88-458, Laws of Florida). That same year, the Legislature enacted Chapter 88- 464, Laws of Florida, which amended Chapter 73-594, Laws of Florida, and required the County to develop "a countywide future land use plan" and "other [necessary] elements," also known as the Countywide Comprehensive Land Use Plan of Pinellas County. Among other things, Chapter 88-464 prescribes the process by which changes to land use designations are made within the County. Under that process, all local government comprehensive plans, including the City's, are required to be consistent with the FLUP. Presumably, the laws were enacted because of the County's dense development (it is one of, if not the most, densely developed counties in the State), the large number of incorporated cities and towns (24) within the County, and the desire to have some degree of countywide uniformity in land use planning decisions. The law goes on to provide that amendments to the FLUP "relating to land use designation for a particular parcel of property may be initiated only by a local government that has jurisdiction over the subject property." In this case, the subject property lies within the City; therefore, the proposed change was initiated by the City. Under the review process in place for adopting an amendment to the FLUP, the proposed amendment is first presented to the City, then to the PPC, which consists of 13 representatives from various towns and cities in the County, the School Board, and the County, and finally to the Pinellas County Board of County Commissioners, sitting as the CPA. The subject property is located at 2301 Chautauqua Avenue, Clearwater, Florida. Chautauqua Avenue (also identified as Main Street on some maps) runs for a short distance in a north-south direction parallel to, and just east of, U.S. Highway 19 in the northeastern part of the City. Except for two houses, some tennis courts, and assessory buildings, the 22.18-acre tract of land is largely undeveloped. The land also includes a small pond located in the northwest quadrant and wetlands along its eastern side, which fronts on Lake Chautauqua (the Lake). Mr. Lawrence H. Dimmitt, III, one of the two co-trustees, acquired ownership of the southern half of the property in January 1986, while the remainder of the parcel was not acquired by the Trustee until December 2001. In June 2002, the property was annexed by the City pursuant to a request by the Trustee (to enable City water and wastewater services to be extended to the property). The property is now under contract to be sold to a developer (The Rottlund Company, Inc.), who desires to construct 90 town homes in 34 buildings, assuming the amendment is approved. Since July 21, 1982, the upland portion of the property (16.22 acres) has been classified as RS, which allows 2.5 residential units per acre. The wetlands and some adjacent land totaling around 4.6 acres on the eastern portion of the property next to the Lake are classified as, and must remain, Preservation. In addition, a small pond (1.35 acres) on the property is classified as Water/Drainage Feature. The proposed amendment does not affect the classifications of the wetlands and pond. All of the surrounding property (except the property immediately to the west between Chautauqua Avenue and U.S. Highway 19, which is classified as Commercial Limited) also carries an RS land use designation. The other nearby property along U.S. Highway 19 is classified as some form of commercial or mixed office/residential use. Countrywide Mall, the County's only regional shopping mall, is situated on U.S. Highway 19, less than a mile away. The property is located approximately 700 feet east of U.S. Highway 19 between Second Avenue South and Second Avenue North. U.S. Highway 19 is six lanes wide, was described by witnesses as being the most heavily traveled roadway in the County, and has intense commercial or mixed use development on both sides of the highway. Immediately to the west of the property (between U.S. Highway 19 and Chautauqua Avenue) is a Chevrolet automobile dealership and repair facility owned by the Dimmitts. A Cadillac dealership (also owned by the Dimmitts) is just south of the Chevrolet dealership. The entire eastern boundary of the property fronts on the Lake, while perhaps a dozen or so single-family homes, mainly constructed in the 1990s, sit on large lots scattered throughout the area immediately north of the property. From that area to Enterprise Road, a major arterial east-west roadway approximately 2,000 feet north of the Trustee's property, the land is largely undeveloped. The property immediately to the south is also classified as RS and is also largely vacant at the present time, except for a few single-family dwellings. The land which lies southeast of the property and the Lake is also designated RS and consists of a series of upscale, large, single-family residential subdivisions. The local roads adjacent to and near the property are substandard and do not meet the City or County standards. The main access to the property (from the west) is from U.S. Highway 19 using First Avenue North, which intersects with U.S. Highway 19 next to the car dealership. Because of a median in the middle of U.S. Highway 19, however, cars entering U.S. Highway 19 from First Avenue North can only turn right (northbound).1 The only access from the property to an intersection allowing vehicles to turn north or south on U.S. Highway 19 is provided by traveling south on a series of narrow, meandering, residential County roads (e.g., Third Avenue South, Second Street East, Fourth Avenue South, Union Street, and Soule Road) and eventually reaching Sunset Point Road (State Road 588), an east-west roadway intersecting with U.S. Highway 19 to the west. There is no access to the property from the north. The evidence shows that partly because of the poor road access, the nearby car dealerships and other commercial development, and the commercial lighting at the car dealerships which remains on throughout the night, the property has never been developed. Another contributing factor is that the former long-time owners of the northern half of the property (until it was sold to the Dimmitts in December 2001) had no wish to develop the property while they retained ownership. The Land Use Categories and History of the Area When the County's first comprehensive plan was adopted in 1974, three residential categories were established: low density (up to 7.5 units per acre); medium density (up to 15 units per acre); and high density (up to 30 units per acre). At that time, the Trustee's property and most of the surrounding residential properties were designated the least intensive residential use category and remained unchanged until 1982. In response to the state Growth Management Act, in 1980 the PPC developed more specific residential categories to manage population growth. The low density category was further defined to include five residential categories: Preservation (0.5 units per acre); Residential Conservation (1.0 units per acre); Residential Suburban (2.5 units per acre); Residential Low (5.0 units per acre); and Residential Urban (7.5 units per acre). As noted above, in 1982 the County reclassified the upland portion of the property, as well as the properties to its north and south, and west of the Lake, as RS. Some other areas to the southeast and northwest of the Trustee's land were reclassified at 5.0 dwelling units per acre, which category is now known as RL. In September 1984, two zoning requests "in the neighborhood [of the Trustee's property]" to allow "multifamily development at 5.0 units/acre" were denied by the County, mainly because the area contained "very low density single-family housing, with houses sitting on large lots (mostly about 2 acres in size), used in a residential/agricultural manner." At the same time, the County instructed its staff to "review zoning and Land Use Plan designation in the area to insure protection of the existing character of the land." That same year, the County amended the land use classification on these properties from RL, which permitted 5.0 units per acre, to RS, which permitted only 2.5 units per acre. In 1987, the City annexed a 17.4-acre vacant tract of land directly south of the Lake (and southeast of the Trustee's property). Before annexation, the property was classified as Residential/Open Space. According to a PPC recommendation presented to the County, the City filed an application with the County seeking to amend the CLUP (now known as the FLUP) by changing the land use to RS so that the vacant land would "be compatible with the existing land use pattern in this vicinity." The change was approved by the County. In all, at least thirteen parcels in the Lake Chautauqua area have been reclassified since 1980. Many of these are downzoning changes which merely reflect what had actually been planned, developed, and built pursuant to the dictates of the marketplace. In other words, the change reflected existing development of not more than 2.5 units per acre. There are also two instances when the Commission upzoned parcels in the area, that is, increased the allowable density from Recreation/Open Space to a higher category (7.5 units per acre), but these properties are outlying parcels and not in the immediate area. Most recently (early 2003), a developer proposed (and has pending a request) to develop six lots 130 feet by 600 feet in depth with single-family dwellings on property lying on the western shore of the Lake just north of the Trustee's property. These large lots would be consistent with the development now existing immediately to the west (and just north of the Trustee's property). It is fair to infer from the evidence that the County's intent over the last 25 years or so has been to restrict development in the area around the Trustee's property to single-family residences with a density of no more than 2.5 units per acre. The Application On February 21, 2002, the Trustee filed an application with the City for a change in land use designation on its property from RS and P to RL and P (so as to increase density from 2.5 to 7.0 units per acre). Although not a part of this proceeding, the Trustee also filed an application seeking to rezone the property from Rural Residential to Low Medium Residential and Preservation. The City's Zoning Department reviewed the application, found that all applicable criteria had been met, and recommended approval. The application then proceeded to a public hearing before the City's Community Development Board (CDB) on May 21, 2002. Following the public hearing, the CDB recommended approval of both applications. On June 20, 2002, the matters were taken up by the City Commission. The staff's detailed report recommending approval is found in Petitioners' Exhibit 2. Because of neighborhood opposition, however, the Trustee agreed to amend the application by reducing the density from 7.5 units per acre (RL) to 5.0 units per acre (RS). Thereafter, the City approved the application. This approval was formalized through the adoption of Ordinance No. 6978-02. At that point, the City became the nominal applicant for the amendment. A copy of the amendment was then forwarded to the Department of Community Affairs (DCA). The DCA's review was completed on October 3, 2002, when it advised the City by letter that it had "no objections to the proposed amendment" and that its letter would serve as the DCA's Objections, Recommendations and Comments. The application was submitted to the PPC on August 13, 2002. Following its review, the PPC staff, together with the staff of the Professional Advisory Committee (PAC), which is composed of professional planning staff members from the various municipalities throughout the County, recommended that the application be approved. On September 18, 2002, the PPC, by a 6-5 vote, recommended denial of the application, mainly because of traffic issues. Under the review process, the matter then came before the CPA. However, the City and the Trustee requested that the matter be remanded to the PPC to enable the Trustee to address the traffic issues. A remand was approved by the CPA on October 15, 2002. After reconsideration of the matter, which included proposed changes by the City to mitigate the traffic impact, the PPC staff and PAC unanimously recommended approval of the application. The application then proceeded to the PPC, and by a 9-3 vote on March 19, 2003, the PPC recommended approval. Although land use amendments recommended for approval by the PPC are "rarely" overturned or changed by the CPA, on April 1, 2003, the Board of County Commissioners, sitting as the CPA, unanimously rejected the proposed amendment. The same date, Resolution No. 03-55 was adopted which memorialized this action and indicated that the decision was based "upon the facts presented at the hearing, which included the character of the neighborhood and transportation impacts." According to the parties' Pre-Hearing Stipulation, the rejection was "due to [the amendment's] incompatibility with and negative impact on the established character of the neighborhood and the precedence [sic] of allowing multi-family development into an overwhelming single-family residential area." This appeal followed. The issues in the case Under the Countywide Rules, which were adopted in 1989 and govern changes to the FLUP, depending on their size and nature, plan amendments are classified into two categories: subthreshold amendments and general amendments. The former type of amendment is minor in nature and entails a less rigid review process while general amendments (those that do not qualify as subthreshold amendments) must be evaluated according to six "Relevant Countywide Considerations" (Considerations) found in Sections 5.3.5.1 through 5.3.5.6. Because the proposed amendment falls within the general amendment category, the six Considerations must be reviewed to determine if any come into play. If an amendment adversely impacts a Consideration, it is not consistent with the FLUP. In denying the amendment, the CPA determined that only two Considerations were relevant and would be impacted - Section 5.3.5.2 (Adopted Roadway Level of Service (LOS) Standard) and Section 5.3.5.6 (Adjacent to or Impacting an Adjoining Jurisdiction). All other Considerations were determined to be inapplicable. Although the County's Resolution indicated that the traffic Consideration played a part in its decision to deny the amendment, the parties' Prehearing Stipulation reflects that the CPA no longer considers that Consideration to be in issue. However, because evidence concerning traffic was presented at hearing, albeit more in the context of impacts on the character of the neighborhood than on LOS standards on U.S. Highway 19, a discussion of that Consideration is appropriate. Section 5.3.5.2 provides in part that "the amendment must not be located on or impact a roadway segment where the existing Level of Service (LOS) is below LOS 'D', or where projected traffic resulting from the amendment would cause the existing LOS to fall below LOS 'D'." Here, however, the evidence shows that the portion of U.S. Highway 19 (directly west of the property) between Enterprise Road and Sunset Point Road is already operating at LOS "F". Under the existing land use classification (RS), the Trustee (or developer) can construct as many as 46 single- family homes. At hearing, the developer acknowledged that the property can be successfully developed in that mode. Assuming that the maximum number of homes would be built, regardless of which type of development occurs, the traffic impacts would be essentially the same since a town home generates only 60 percent of the traffic of a single-family home. The evidence also shows that any additional traffic generated by development will have a negligible overall impact (less than three-tenths of one percent of the existing capacity) on U.S. Highway 19, which is already at LOS "F". The Florida Department of Transportation concurs in this finding, and has concluded that the development will not adversely impact that road. As noted above, the plan amendment was initially rejected by the PPC by a 6-5 vote, mainly because of traffic issues, and a concern that the additional traffic onto U.S. Highway 19 at First Avenue South might have a negative impact on that roadway. The City and Trustee then requested that the CPA remand the application to the PPC so that traffic issues could be further addressed. At that time, the City considered two alternatives to alleviate traffic concerns and provide a different access route to the area. First, it considered the possibility of extending Second Avenue South to the east and southeast to connect with, and widen, Lake Shore Drive (a County road), which runs around parts of the northwestern and southwestern sections of the Lake, and eventually provides access to Sunset Point Road, which then runs west to U.S. Highway 19. However, the County declined to participate in that effort and thus this proposal was not considered to be feasible. The City also considered extending Chautauqua Avenue north (over City right-of-way) to Enterprise Road, a main arterial east-west roadway that also intersects with U.S. Highway 19 (and enables the driver to turn either left or right at that intersection). If the road is extended in that fashion, it would provide residents in and near the subject property with access to Enterprise Road, and also provide other area residents with access to a City park that may be built just south of Enterprise Road. As to this alternative, even though the developer's share of costs (using the City's calculations) is only 17 percent, the developer has agreed to pay one-half of the cost of the road improvements. With this improvement, both parties now agree that the traffic Consideration has been resolved. Based on the foregoing, it is found that the plan amendment is consistent with the transportation Consideration and will not adversely impact LOS standards on U.S. Highway Two of the County witnesses conceded as much at the final hearing. Section 5.3.5.6 generally provides that if the property adjoins another jurisdiction, the plan amendment must not adversely impact that jurisdiction. In determining whether the plan amendment is consistent with this Consideration (and does not impact the adjoining County land), reference to the goals and policies within the Countywide Comprehensive Plan is necessary. The Land Use Element Goal provides in part that "[t]he land uses associated with development should be compatible and reasonable in terms of both the land, surrounding uses, and the public interest." Two unnumbered Policies within the same Element further provide that "land development patterns should recognize and support coherent neighborhoods," and that "land planning should weigh heavily the established character of predominately developed areas when changes of use or intensity of development is contemplated." In this case, there are enclaves of County land lying on the northern, southern, and eastern boundaries of the Trustee's land. The County contends that the proposed change is inconsistent with the Consideration because it adversely affects the "character" of the adjoining County land in two ways: (a) by the creation of a new access road to the north through a quiet, residential neighborhood, and (b) by the construction of town homes in an area historically classified as RS, which only allows the construction of single-family homes. If the plan amendment is approved, the City has decided to extend Chautauqua Avenue to Enterprise Road, giving the new (and existing) residents an outlet to the north. This alternative was chosen since the County has declined to participate in the southern alternative. The extension will provide access to a new City park, and the developer will pay more than his fair share to aid in the construction of the road. According to the City, the extension is necessary to mitigate the increased traffic from the new project. Currently, the roads in the area around where the extension will be built can be characterized as secluded and rural, with only a small amount of traffic. Besides the automobiles of the existing residents, the only other vehicles using the roads are those being tested by the nearby Chevrolet dealership after being repaired. If the plan amendment is approved, and the town homes constructed, the project will generate hundreds of new trips per day. Understandably so, existing residents of the area (as well as the County) fear that if the road is extended, it will become a "cut-through" street for non-residents traveling north on U.S. Highway 19 to Enterprise Road and who wish to avoid that intersection. Given the current level of traffic on U.S. Highway 19 (LOS "F"), it is fair to infer that this fear is well-founded. Accordingly, by extending Chautauqua Avenue to Enterprise Road, the character of the existing neighborhood will be adversely impacted by the increased traffic generated by new residents seeking an outlet and non-residents using the street as a cut-through. It is true that some form of traffic mitigation will still be required if the plan amendment is not approved, and single-family homes are built on the Trustee's property. However, when or if the property will be developed, and the extent of such development, is not known, and there is no indication in the record that the City will still seek to mitigate this traffic by extending Chautauqua Avenue. The evidence shows that the established character of the neighborhood is quiet, secluded, and low density residential, with many of the homes having large, oversized lots. As noted earlier, a proposal is now pending before the County to develop the area directly north of the Trustee's property along the Lake with six single-family dwellings on "large estate lots behind a gated wall." By doubling the density on the Trustee's property from 2.5 to 5.0 units per acre, the character of the area would be changed, and the new density would be inconsistent with the historic land use and development pattern of the area. The evidence also shows that the residents who live immediately north of the Trustee's property purchased their land, and built their homes, with the expectation that the area would be "a detached single-family residential community within the 2.5 units per acre limitation." For more than 20 years, the County's land use decisions have been consistent with this expectation. Petitioners' witnesses contend, however, that the town homes will (a) serve as a buffer between the commercial uses which lie on the western side of Chautauqua Road and the existing single-family homes which lie on the eastern side, and (b) provide a transition or gradual stepdown in intensity from the commercial uses along U.S. Highway 19 to town homes to single-family homes, which practice is consistent with good land use planning. However, the area maps and site plan introduced into evidence clearly show that the town homes would not buffer anything except the Lake, since the town homes would run from the Lake all the way westward to the rear of the Chevrolet dealership. In other words, to provide a buffer, logically it would be necessary that the town homes be placed between the commercial areas and the single-family homes. The residential property to the north and south (which purportedly would be buffered) is already located adjacent to, and directly east of, the commercial development along U.S. Highway 19, and the town homes would simply increase the density of the property between the two residential areas by 100 percent. For the same reasons, the construction of town homes would not provide a transition or step down in the intensity of development from west to east since they would not be built between the existing homes and U.S. Highway 19. Based on the foregoing facts, it is found that the proposed amendment will adversely affect the character of the neighborhood (and impact the adjoining County land) and is therefore inconsistent with Section 5.3.5.6 of the Countywide Rules.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of County Commissioners of Pinellas County, sitting as the Countywide Planning Authority, enter a final order determining that the plan amendment is inconsistent with Section 5.3.5.6 and that the amendment should be denied. DONE AND ENTERED this 8th day of September, 2003, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of September, 2003.
Findings Of Fact Petitioner Edward L. Allen, Sr., is the owner of a parcel of land, 10.32 acres in area, located in Marathon, Monroe County, Florida. The property is located between the Atlantic Ocean and U.S. 1, across from the Marathon Airport. The property is undeveloped. The Allen property is presently designated DR (designation resort). Prior to the adoption of the current land use plan in 1986, the property was zoned for condominiums and apartments. Allen purchased his property in 1976. He expended $500 in early 1986 for an architectural drawing that was presented to the Monroe County Board of County Commissioners to support his request that the property be designated DR. He also paid his attorney "a lot of money" for services in obtaining the DR designation. He has neither applied for nor received any development permits for his parcel. He has no plans to develop his parcel, and he is holding his property as an investment. Petitioner Wigwam, Inc., is a Pennsylvania corporation authorized to do business in Florida. Wigwam has a beneficial interest in a 4.8 acre parcel located in Marathon, Monroe County, Florida, by virtue of a contract to purchase entered into on May 24, 1986. Wigwam's property is also located between the Atlantic Ocean and U.S. 1, across from the Marathon Airport. At present, the portion of Wigwam's property from U.S. 1 running approximately 300 feet toward the ocean is designated SR (suburban residential) and the remainder is designated DR. The SR designation of the approximately one-half acre fronting on U.S. 1 is alleged by Wigwam to be a map error not reflected in the actual rezoning application and approval. The correction of this map error is the subject of an administrative proceeding between Wigwam and the Department of Community Affairs styled Residence Inn Ocean Resort v. Department of Community Affairs, DOAH Case No. 88-3469RGM, pending before the Division of Administrative Hearings. Prior to the adoption of the present land use plan in 1986, Wigwam's property was designated SC (suburban commercial) and prior to that it was zoned for apartments and condominiums. Wigwam has not yet acquired title to its property under the Contract For Sale and Purchase. The Contract contemplates that Wigwam will develop the property by construction of a 96-room hotel. One condition that must be met before the buyer is obligated to close the transaction is: "Approval of the applicable zoning, fire control, planning commission and/or other public agencies and authorities exercising jurisdiction over the intended use of the Property to permit such intended use and/or development of the Property." If this condition is not met, Wigwam may terminate the Contract, and all deposits will be refunded to Wigwam. Wigwam applied for and received a development order from Monroe County that would authorize the construction of a 96-unit motel. The County's development approval was appealed to the Florida Land and Water Adjudicatory Commission by the Department of Community Affairs, acting as the State Land Planning Agency pursuant to Chapter 380, Florida Statutes, and that appeal is currently pending before the Division of Administrative Hearings as DOAH Case No. 88-3450. Wigwam has expended $852,490 in pursuit of approval for the proposed 96-room hotel. Of that sum, $133,868 represents accrued interest, and $72,000 has been spent for transferrable development rights (TDRs). From the face of the Contract for Sale and Purchase, only $15,000 of Wigwam's expenditures to date have been for the land. The remainder has been spent for architects, engineers, attorneys, and other expenses to obtain the development order approving construction of its proposed 96-room hotel. On February 28, 1986, Monroe County enacted Resolution No. 049-1986, which adopted the Monroe County Comprehensive Plan and Land Development Regulations. Resolution No. 049-1986 was approved, with amendments, by the Department of Community Affairs and the Administration Commission, effective September 15, 1986. As part of the Comprehensive Plan, the entire County was re-designated or rezoned, including the properties owned by Petitioners. The properties owned by both Allen and Wigwam were designated DR in the Monroe County Comprehensive Plan and Land Development Regulations. The rules challenged in this proceeding propose to change the designation on Allen's and Wigwam's properties from DR (designation resort) to SR (suburban residential). Allen may build up to 15 hotel units per acre (155 units) on his land under its present DR designation but may only build one residential dwelling unit per acre (10 units) if it is designated SR. Similarly, the 96-room hotel approved by the Monroe County Board of County Commissioners for Wigwam's property will no longer be permitted under the proposed rules, and Wigwam would only be permitted to build one residential dwelling unit per acre (4 units) under the proposed rules. Immediately after the passage of the Monroe County Comprehensive Plan and Land Development Regulations, the Department of Community Affairs contracted with Monroe County to have Monroe County conduct a study of all properties located in Monroe County designated as DR. After the submittal of the DR report by Monroe County to the Department, several employees of the Department of Community Affairs and several employees of Monroe County reviewed the 22 properties designated as DR in Monroe County. They developed four criteria and applied the four criteria to each parcel. Based upon "balancing" those criteria, they decided which parcels should retain the DR designation and which parcels should receive a different designation. They selected 13 parcels for which the DR designation should be removed. The Allen and the Wigwam properties were among the 13. The Secretary of the Department of Community Affairs determined that he wished to amend the Monroe County Comprehensive Plan and Land Development Regulations in several different ways. One of those ways involved reducing the number of DR designations in Monroe County. He instructed his staff to draft proposed rules to be presented to the Administration Commission to accomplish those purposes. Between approximately July and September, 1988, Monroe County's Planning Director, Donald Craig, and two other County employees met with Department employees on several occasions to assist in drafting the proposed rules. On September 30, 1988, the Area of Critical State Concern Administrator for the Department of Community Affairs directed a letter to the Planning Director of Monroe County advising him that the Department had prepared amendments to the Monroe County Comprehensive Plan and Land Development Regulations, advising him that the Department was required by statute to consult with Monroe County regarding changes the Department wished to have made in the Monroe County Comprehensive Plan and Land Development Regulations, and enclosing a copy of the rules drafted by the Department and County staff which are challenged in this proceeding. On October 18, 1988, the Board of County Commissioners of Monroe County passed a resolution reciting that the Department of Community Affairs was proposing to change, by rule, certain portions of the Monroe County Comprehensive Plan and Land Development Regulations and providing, inter alia, as follows: "The Board shall provide one of its members in attendance at such workshops and meetings as shall be scheduled by the Department of Community Affairs in order that the requirements of consultation as provided by statute shall be satisfied." On November 4, 1988, the Administration Commission published in the Florida Administrative Weekly, Vol. 14, No. 44, notice of its proposed Rules Nos. 28-20.019, 28-20.022, and 28- 20.023. That notice indicated that workshops would be conducted on November 14, 15, and 16, 1988, at various locations within Monroe County and further advised that a public hearing on the proposed rules would be conducted on November 29, 1988. Although the notice published in the Florida Administrative Weekly purports to contain the full text of the proposed rules, only the full text of proposed Rule 28-20.019 is included. Rules 28-20.022 and 28-20.023, the two rules which substantially amend the Monroe County Comprehensive Plan and Land Development Regulations and which are challenged in this proceeding, were not set forth, nor was there a short and plain explanation of the purpose and effect of the proposed rules. Instead, the notice only advised that the Comprehensive Plan and Land Development Regulations were being amended and that all interested persons could obtain a copy of the proposed rules by contacting the Executive Office of the Governor in Tallahassee, Florida. The notice of the workshops and public hearing on the proposed rules published in the Monroe County newspapers by the Department of Community Affairs contained no explanation of the purpose and effect of the proposed changes but merely stated that changes were proposed to the following items: (1) contiguous lots, (2) designation resorts, (3) affordable and employee housing, and (4) land areas designated for commercial fishing. The newspaper notice advised interested persons that they could obtain a copy of the proposed changes at the Monroe County libraries and at the Monroe County planning offices. A review of the text of the proposed rules filed by the Administration Commission indicates that the proposed rules themselves fail to identify the specific changes being proposed. The proposed rules also amend Chapters 9J-14 and 20-20 of the Florida Administrative Code but only refer to the chapters in the Florida Administrative Code and the three-volume Monroe County Comprehensive Plan and Land Development Regulations being amended without setting forth the specific language of those administrative rules and of the Comprehensive Plan being amended so that the reader can ascertain the purpose and effect of the proposed rules. In other words, the administrative rules and the Monroe County Comprehensive Plan, which were being extensively amended, were simply incorporated by reference in the proposed rules. The Summary of the Estimate of Economic Impact of the Rule published in the Florida Administrative Weekly reads, in its entirety, as follows: The cost to the Governor's Office will be limited to the cost of adopting the rule. There will be an economic impact on property owners in Monroe County if 1) they own areas presently designated as destination resort, 2) they construct projects which require employee housing, 3) they own areas presently affected by the contiguous lot provision, or 4) they own areas presently designated as one of the three commercial fishing districts. Monroe County will benefit due to an increase in property tax revenue. There will be no significant impact on competition, the open market for labor or small businesses. At the time the notice of the proposed rules appeared in the Florida Administrative Weekly, there was, beyond the aforementioned summary, no economic impact statement in existence. By the time of the workshops on the proposed rules conducted on November 14-16, 1988, the Department of Community Affairs had prepared for distribution its Estimate of Revised Economic Impacts on All Affected Persons. That economic impact statement fails to set forth the economic impact on the persons affected by the proposed rules. It merely contains general statements admitting that there will be an economic impact. As to the economic impact on persons affected such as Allen and Wigwam, the economic impact statement contains such language as the following: There is expected to be some economic impact.... Changes that affect owners of areas zoned as Destination Resort Districts include: a reduction in the maximum permitable [sic] density, a requirement for employee housing, the explicit statement of many of the requirements which such resorts would have to meet in order to be allowed to develop, and the rezoning of some properties. The reduction in allowable densities for hotel rooms in destination resorts, and other districts, may be expected to reduce somewhat the value of such properties, but this short term negative impact should be offset by benefits to all Monroe County property owners... The costs of providing employee housing are largely offset by the benefits derived from having employee housing.... Explicit requirements for destination resorts benefit the property owners and developers by reducing uncertainly [sic] and preventing investment of resources into impractical proposals. Similarly, the rezoning of imporperly [sic] zoned Destination Resort sites may reduce the speculative value of the property but will benefit the owners by giving them realistic expectations. [Emphasis added.] Contrary to the vague statements of economic impact contained within the economic impact statement, proposed Rule 28-20.023(5), Florida Administrative Code, would reduce allocated and maximum net densities for hotel units by 33-1/3 percent in all districts, including DRs. Proposed Rule 28- 20.023 (6)(A) and (B) would completely redefine the uses allowed in DR districts. The current uses include hotels of less than 50 rooms as a minor conditional use, and 50 rooms or more as a major conditional use. The minor conditional use has been eliminated entirely in the proposed rule, and all DR hotels under the proposed rule must have at least 150 rooms. The proposed rule would also add the following additional requirements to the at least 150 room hotel: Rule 28-20.023(6)(B)(1)(a): an on-site or adjacent restaurant that can seat 1/3 of all hotel guests, at maximum capacity, at a single seating; Rule 28-20.023(6)(B)(1)(b): at least 2 satellite eating and drinking facilities, each with at least 25 seats; Rule 28-20.023(6)(B)(1)(c): a separate banquet hall capable of seating 1/3 of all hotel guests, at maximum capacity, and functioning as a meeting/conference and entertainment area; Rule 28-20.023(6)(B)(1)(d): a lobby with 24-hour telephone and reservation service; Rule 28-20.023(6)(B)(1)(e): at least 6 tennis or racquetball courts (1 per 25 rooms), or a 500 sq. ft. spa/exercise room, and 2 "active" recreation facilities (list provided) and 1 "passive" recreational facility (nature trail, game room, or garden area); Rule 28-20.023(6)(B)(1)(f): water-oriented recreation facilities, including at least a 1,050 sq. ft. pool (7 sq. ft./room) or 150 linear feet of beach (1'/room); Rule 28-20.023(6)(B)(1)(h): a shuttle transport service to major tourist attractions accommodating 10 percent of the local trip requirements of employees and guests; Rule 28-20.023(6)(B)(1)(i): on-site employee housing area equal to 10 percent of the floor area in guest rooms; Rule 28-20.023(6)(B)(1)(j): at least 200 sq. ft. of convenience retail, food sales, and gifts, plus 1.3 sq. ft. of commercial retail space per room for each room over 150, and other retail or services provided that there is no signage advertising on-site retail or services to the public. These proposals go beyond "reducing uncertainty" as the Department maintains in its 3-page statement. As to the data and methods utilized by the Department of Community Affairs in assessing the economic impact on persons affected by the proposed rules, the economic impact statement only states as follows: Agency experience with implementing Chapter 380, Florida Statutes, indicates that the economic impact of most of the provisions of the proposed rule will not be significant, since the development regulations are adopted and enforced by the local government. The other costs and benefit are based on estimates provided by Monroe County. [Emphasis added.] The statement that the regulations are adopted by the local government is not accurate. These proposed rules are not being adopted by Monroe County; rather, they are proposed rules to be adopted by the Administration Commission upon the recommendation of the Department of Community Affairs The text of the proposed rules filed by the Administration Commission and challenged herein is 28 pages long. On page 13, proposed Rule 28-20.023(7) reads as follows: "The Land Use District Maps are hereby altered as indicated on the maps incorporated by reference and attached to this rule as DR-1 through DR-13." Attached to the rule are 22 aerial photos and Land Use District Maps. None of them are numbered, and there are, therefore, no Land Use District Maps DR-1 through DR-13. That reference on page 13 of the proposed rule and the unmarked Land Use District Maps attached to the 24-page text are the only notice to Petitioners Allen and Wigwam that the designation DR currently applicable to their properties is being amended to SR. Although the Department of Community Affairs knew that it was proposing to the Administration Commission that the land use designation on the Allen and Wigwam properties be changed, (especially as to the Wigwam property since the Department of Community Affairs had appealed to the Florida Land and Water Adjudicatory Commission the development order that Wigwam obtained from Monroe County), the Department of Community Affairs did not advise either Allen or Wigwam that the designation of their properties was being changed. Further, the Department of Community Affairs did not contact either Allen or Wigwam to determine the economic impact on those persons affected by the proposed rules, nor did it contact any other persons affected by the many changes made by the proposed rules or undertake any independent study. Monroe County Commissioner Lytton, then also Mayor of Monroe County, attended each of the three workshops conducted on November 14-16, 1988, as part of the presentation panel. Two other county commissioners each attended one of the three workshops. Additionally, the County Administrator and the County Planning Director appeared before the Administration Commission on behalf of Monroe County to urge adoption of the proposed rules. The Estimate of Revised Economic Impacts on All Affected Persons was filed with the Joint Administrative Procedures Committee by the time of the final hearing in this cause. Petitioners timely filed this Petition for administrative determination of the validity of the proposed rules on November 23, 1988.
Conclusions An Administrative Law Judge of the Division of Administrative Hearings has entered an Order Closing File in this proceeding. A copy of the Order is attached to this Final Order as Exhibit A.
Other Judicial Opinions REVIEW OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030 (b) (1) (C) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT’S AGENCY CLERK, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. FINAL ORDER NO. DCA 09-GM-262 CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Community Affairs, and that true and correct copies have been furnished by U.S. Mail to each of the persons listed below on this [b- day of Tn y) , 2009. Aauled ’ 7 va Paula Ford Agency Clerk By U.S. Mail The Honorable J. Lawrence Johnston Administrative Law Judge Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 John D. Cassels, Jr., Esquire 400 NW Second Street PO Box 968 Okeechobee, Florida 34973 - 0968 By Hand Delivery Lynette Norr Assistant General Counsel Department of Community Affairs
The Issue The issue is whether the plan amendments adopted by the City of St. Pete Beach (City) by Ordinance No. 2008-15 on August 26, 2008, are in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: The Parties The City is a municipality in southwestern Pinellas County. Following an Evaluation and Appraisal Report (EAR) process, the City adopted its current Plan in 1998 (also known as the 2010 Plan), which has been found to be in compliance. Since 2007, municipalities within Pinellas County have participated in the Pilot Program for adoption of comprehensive plan amendments. The statutory process is described in Section 163.32465, Florida Statutes. Under the Pilot Program, municipalities have "reduced state oversight of local comprehensive planning," and plan amendments may be enacted in "an alternative, expedited plan amendment adoption and review process." Id. Although the City must send a transmittal package to the Department (and other designated agencies and entities) for its preliminary review, the Department does not issue an Objections, Recommendations, and Comments Report or a notice of intent. Instead, the Department "may provide comments regarding the amendment or amendments to the local government." Id. It may also initiate an administrative proceeding to challenge whether such amendments are in compliance, but it chose not to do so here. The amendments in dispute were adopted under the Pilot Program. Petitioner is a resident of, and owns property in, the City, and he submitted oral and written comments and objections concerning the proposed amendments. As such, he is an affected person and has standing to participate in this proceeding. The parties have stipulated that Lorraine Huhn and Deborah Nicklaus reside and own property within the City, and that both individuals submitted comments to the City during the transmittal public hearing on June 16, 2008, and/or the adoption public hearing on August 26, 2008. Therefore, they are affected persons and have standing to participate. According to the parties' Pre-Hearing Stipulation, SOLV is a Florida non-profit corporation with a principal address of 6370 Gulf Boulevard, St. Pete Beach, Florida. The parties have also stipulated that SOLV operates a business within the City. Whether it submitted comments to the City between the transmittal hearing on June 24, 2008, and the adoption hearing on August 26, 2008, is in dispute. SOLV's President, Lorraine Huhn, presented comments at the City's adoption hearing on August 26, 2008. See Petitioner's Exhibit 15, pages 63-64. During her brief oral presentation to the City Commission in support of the amendments, she did not state that she was speaking on behalf of SOLV, and at no time did she refer to that organization. However, on August 2, 2008, Ms. Huhn sent an email on behalf of SOLV to the City Clerk, which arguably can be interpreted as written support for the Ordinance being challenged. See Intervenors' Exhibit 9. Also, an email authored by the City Manager on August 1, 2008, indicates that SOLV representatives met with City representatives on July 31, 2008, to discuss the proposed amendments. See Intervenors' Exhibit 10. Since these written and oral comments were submitted between the transmittal and adoption hearings, SOLV meets the definition of an affected person and has standing to participate in this proceeding. Background By way of background, the City was initially incorporated in 1957 as St. Petersburg Beach by consolidating the towns of Pass-a-Grille, Don CeSar, Belle Vista, St. Petersburg Beach, and certain unincorporated areas of Pinellas County. It occupies a six-mile long barrier island (known as Long Key), which lies between the Gulf of Mexico and Boca Ciega Bay, with a maximum width of three-quarters of a mile and an area of approximately 2.25 square miles or 1,286.14 acres. The name was shortened to St. Pete Beach in 1994 to lessen the confusion with the City of St. Petersburg, which lies to the east. The City has about 4.5 miles of beaches and is very densely populated. Most of the City has been developed with only 13.40 acres, or around one percent of the land, vacant and undeveloped. The entire City is within the flood plain, and much of the City is within the Coastal High Hazard Area (CHHA). The current population is around 10,000. To place the current dispute in proper perspective, a history of events that began in 2002 is necessary. With the assistance of a consulting firm, beginning in April 2002 the City initiated redevelopment planning efforts for various areas within the City including Corey Avenue/Blind Pass Road, Pass-a- Grille, Gulf Boulevard, and residential neighborhoods. The intention of this effort was to define the starting point for subsequent master planning efforts by the City. A Final Report (also known as the Visioning Statement or Plan) was issued by the consulting firm in July 2002. See Respondent's Exhibit 1. This was followed by a master planning process by another consulting firm, which was intended, among other things, to develop a strategy for dealing with the redevelopment of older and outdated properties within the resort area of the City (along the Gulf of Mexico), rather than having them converted into residential condominiums because of existing regulatory restrictions. The final Master Plan was presented to the City Commission in August 2003. See Respondent's Exhibit 3. In response to the Master Plan, on June 28, 2005, the City enacted Ordinance 2004-24, known as the City's Community Redevelopment Plan (Redevelopment Plan), which implemented many of the recommendations in the Master Plan. See Respondent's Exhibit 8. Among other things, the Redevelopment Plan created a new land use category, the Community Redevelopment District, which included two sub-districts, the Gulf Boulevard Redevelopment District, depicted on Map 10 of Exhibit 8, and the Downtown Redevelopment District, depicted on Map 11 of the same exhibit. The amendment was intended to establish standards for redevelopment in the so-called "resort" area of the City, which runs north-south along Gulf Boulevard adjacent to the beach on the western side of Long Key, while the same thing was intended for the core downtown area. Although Petitioner is correct that Ordinance No. 2008-15 differs from Ordinance No. 2004-24 in some respects, there are many similarities between the two, including the creation of the two Redevelopment Districts, additional character districts within the two main Districts, and the maps of the Districts. Also, both Ordinances have many of the same Goals, Objectives, and Policies, and both include unnumbered narrative text setting out allowable uses as density and intensity standards. On August 19, 2005, Petitioner and a non-profit association filed a challenge to Ordinance No. 2004-24 under Section 163.3184, Florida Statutes. See Citizens for Responsible Growth and William C. Pyle v. Department of Community Affairs and City of St. Pete Beach, DOAH Case No. 05- 3159GM. The challengers later voluntarily dismissed their petition, the case was closed on October 17, 2005, and the Department found the amendments to be in compliance. Under the City's Charter, however, citizens may petition to require reconsideration by the City Commission of any adopted ordinance and, if the City Commission fails to repeal an ordinance so reconsidered, to approve or reject it at a City election. See Petitioner's Exhibit 26; § 7.02, City Charter. (Ten percent of the qualified registered voters in the City must sign a petition in order to have an ordinance placed on the ballot for approval or disapproval.) Petitioners in DOAH Case No. 05-3159GM were instrumental, at least in part, in securing the necessary number of voters to sign a petition, and a majority of the registered voters in the City later voted to repeal the Ordinance in 2006. Pursuant to that vote, the City Commission repealed Ordinance No. 2004-24 and it never took effect. In 2008, six ordinances (Ordinance Nos. 2008-09 through 2008-14) were proposed as citizen initiatives. After the City refused to act on the six initiatives, SOLV and others filed suit against City officials seeking a vote on the six ordinances. See Save Our Little Village, Inc., et al. v. Commissioner Linda Chaney, et al., Case No. 08-2408-CI-8 (6th Circuit, Pinellas County). On March 31, 2008, the City adopted Resolution 2008-09 approving a Settlement Agreement in the law suit. See Joint Exhibit 1, Appendix C. The Settlement Agreement required the City to transmit and adopt the Ordinance being challenged here subject to various conditions and limitations, if the voters approved Ordinance No. 2008-10, which was a Petition by SOVL proposing an ordinance to amend the Countywide Future Land Use Plan. (The City is required by the Countywide Plan Rules to transmit the countywide plan map amendment to the Pinellas County Planning Council for its review in order to adopt the City plan amendment. This process is described in Petitioner's Exhibit 33.) Notably, the City's staff did not prepare the text or the accompanying supporting data for Ordinance No. 2008-15; rather, the text and all supporting data were prepared by SOLV. The voters approved Ordinance No. 2008-10 on June 3, 2008, which provided for the review and approval of the amendments being challenged here. Pursuant to the results of the referendum, on June 16, 2008, the City approved Ordinance Nos. 2008-15, 2008-24, and 2008-25. Only the first Ordinance is in issue here; the other two are not contested. As required by Section 163.32465(4)(a), Florida Statutes, the amendments were then transmitted to the Department, Department of Environmental Protection, Department of Education, Department of State, Department of Transportation District Seven, Tampa Bay Regional Planning Council, Southwest Florida Water Management District, and Pinellas County Planning Department for their review and comment, if any. Comments on the amendments were offered by the Department on August 1, 2008, and by the Department of Transportation, Department of Education, and Tampa Bay Regional Planning Council. On August 26, 2008, the City adopted Ordinance No. 2008-15. Petitioner's challenge was then timely filed with the Division of Administrative Hearings on September 24, 2008. See § 163.32465(6)(a), Fla. Stat. ("[a]ny 'affected person' as defined in s. 163.3184(1)(a) may file a petition with the Division of Administrative Hearings . . . within 30 days after the local government adopts the amendment"). The Ordinance Ordinance No. 2008-15 establishes a new land use category, the Community Redevelopment District, which includes the Downtown and Gulf Boulevard Redevelopment Districts comprised of eleven character districts, and implements that change by amending the FLUM and certain text provisions within the FLUE and HE. The two new Districts comprise approximately twenty percent of the total land area of the City, or around 248.25 acres. The amendments are found in Attachment A, consisting of 115 pages, which is attached to the Ordinance. Attachment A includes six maps found on page 40 (Map 1 - Community Redevelopment Districts Location); page 41 (Map 2 - Gulf Boulevard Redevelopment Character Districts); page 42 (Map 3 - Downtown Community Redevelopment District 1); page 110 (Map 10 - Future Land Use Map - Gulf Boulevard Redevelopment District, Proposed Future Land Use); page 111 (Map 11 - Future Land Use Map - Downtown Redevelopment District, Proposed Future Land Use); and page 112 (Map 12 - Coastal High Hazard Area - Storm Surge for Category 1 (2007), St. Pete Beach, FL). Pages 1 through 6 are introductory material outlining the need for redevelopment. Pages 7 through 112 pertain to the Future Land Use Element, while pages 113 through 115 relate to the Housing Element. Because SOLV (rather than the City) prepared Attachment A, this is probably the reason why some parts of the lengthy Attachment A have been drafted in narrative style. Besides Attachment A, support documentation for the amendments is attached to the Ordinance and includes the legal notices published in a local newspaper; Citizen Courtesy Information Lists; Commission and Planning Board Agendas; excerpts from Division 31 of the City's Land Development Code; copies of various Ordinances; and a 127-page Special Area Plan submitted to the Pinellas Planning Council and Countywide Planning Authority in support of the amendment that was necessary in order for the City to adopt the Ordinance. In addition, the data and analyses used for the adoption of Ordinance No. 2004-24 were relied upon to support the amendments, including the Visioning Plan and the Master Plan. Petitioner's Objections In paragraphs 9 through 25 of his Petition, which are in the section entitled "Disputed Issues of Material Fact And/or Mixed Disputes [sic] Issues of Fact and Law," Dr. Pyle contends that the amendments adopted by the Ordinance are not in compliance for numerous reasons. The parties' Pre-Hearing Stipulation also states that "the Disputed Issues of Material Fact and/or Mixed Questions of Fact or Law set forth in the Petition for Administrative Hearing in this matter remain disputed issues for the purposes of the final hearing." In his Proposed Recommended Order, however, Petitioner states in a more concise fashion that the amendments are not in compliance because they: are not clearly based upon appropriate data, including data required for the FLUE; [are not] based upon and supported by an appropriate analysis of the best available data; did not demonstrate "need"; [are] inconsistent with the State Comprehensive Plan; [are] not "financially feasible"; [do] not meet format requirements; [do] not contain two planning periods; establish a mixed-use FLUM designation of CRD [Community Redevelopment District] that [does] not meet the statutory and rule requirements; [are] internally inconsistent; and [do] not meet the minimum procedural and notice requirements. These objections will be considered below, although not in the order listed above. Procedural Irregularities Petitioner contends that the City failed to follow certain notice requirements and therefore he was unduly prejudiced by these irregularities. Specifically, he claims that the notices published by the City in the St. Petersburg Times on June 8 and August 20, 2008, did not advise the public of all amendments, particularly one relating to the Resort Facilities Overlay District; did not include a map showing areas subject to the FLUM amendments in relation to major streets; did not advise that the City was amending the coastal construction control line (CCCL) definition in the Preservation land use category; and the actual changes being made "did not comport with the title of the adopted Ordinance." Copies of the published notices, albeit in very small and sometimes illegible print, are found in Joint Exhibit 2. Assuming all of these notice deficiencies are true, Petitioner did not establish that he was prejudiced by any irregularities. Besides being intimately involved in this controversy since its inception in 2002, the evidence shows that he attended both the transmittal and adoption hearings of Ordinance No. 2008-15; that he addressed the City Commission at both meetings; that he was provided copies of all pertinent documents; that through counsel he filed a Petition requesting a formal evidentiary hearing, which raises a litany of compliance issues; that he was allowed to conduct discovery; and that he was given an opportunity to fully litigate each issue in his Petition. The contention that he was prejudiced by procedural irregularities is hereby rejected. Planning Time Frames Petitioner alleges that the Plan, as amended, does not set forth either a short-term planning time frame for the five- year period following adoption, or a long-term planning timeframe for at least a ten-year period following adoption. He contends that this is inconsistent with Florida Administrative Code Rule 9J-5.005(4), which requires that "[e]ach local government comprehensive plan shall include at least two planning periods: one for at least the first five year period subsequent to the plan's adoption and one for at least an overall 10-year period." See also § 163.3177(3)(a)5., Fla. Stat. The existing Plan includes at least two planning periods, a Capital Improvements Plan (CIP) covering the first five years after the adoption of the Plan in 1998, and the School Board's Five-Year Work Program for fiscal year 2007-08 through 2011-2012. Although the CIP was first adopted in 1998, the statutory deadline for all local governments to transmit an updated CIP was December 1, 2008, or after the amendment was adopted. Also, the existing Plan utilized a population estimate from the Bureau of Economic and Business Research (BEBR) to project population for the City for the upcoming ten-year period. Besides the above time frames, the new amendment contains two other planning time frames for implementation of the redevelopment incentives in the Plan. First, it contains a Residential Unit Reserve section for the new District, holding specific numbers of residential units in reserve in three of the character districts (Downtown Core Residential District, Commercial Corridor Blind Pass Road District, and Commercial Corridor Gulf Boulevard District) for the first five years after adoption of the plan amendments. See Joint Exhibit 2, pages 106-107. This allows the City to evaluate the effectiveness of the redevelopment incentives in the amendment without releasing all residential density otherwise authorized. Second, the amendment contains a General Residential Unit Density Pool Reserve of 195 residential units in the Large Resort District which cannot be released in the first ten years after adoption of the amendment. See Joint Exhibit 2, page 108. Like the other provision, this planning tool allows the City to reevaluate the effectiveness of the redevelopment incentives in the amendment prior to authorizing additional density. Petitioner's own planner agreed that these time frames were part of the planning period for the proposed amendment. While Petitioner contends that the time periods are "minimum waiting periods not tied to any fixed time frame," it is reasonable to infer from the evidence that they will become operative once the Ordinance is implemented. The preponderance of the evidence shows that the Plan, as amended, complies with the requirement for two planning time frames and is not inconsistent with either the rule or statute. Mixed-Use Categories Florida Administrative Code Rule 9J-5.006(4)(c) encourages mixed use categories of land and provides that if they are used, "policies for the implementation of such mixed uses shall be included in the comprehensive plan, including the types of land uses allowed, the percentage distribution among the mix of uses, or other objective measurement, and the density and intensity of each use." Petitioner contends that FLUE Policy 2.1.1 establishes a new mixed use district (the Community Redevelopment District) but the Plan, as amended, does not contain the requirements set forth in the rule. The Community Redevelopment District is a mixed use land use category, as is each of the character districts included within the two sub-districts. The Plan identifies four character districts within the Gulf Boulevard Redevelopment District (Large Resort, Boutique Hotel/Condo, Activity Center, and Bayou Residential) and seven character districts within the Downtown Redevelopment District (Town Center Core, Town Center Corey Circle, Town Center Coquina West, Downtown Core Residential, Upham Beach Village, Commercial Corridor Blind Pass Road, and Commercial Corridor Gulf Boulevard). FLUE Policy 2.1.1 incorporates the development standards found in the "Community Redevelopment District" section of the FLUE for the two larger sub-districts and eleven smaller character districts. Therefore, it provides the policies required for the implementation of the new land use category. These policies govern the distribution, location, and extent of uses and densities and intensities of uses within the sub-districts. They also establish the boundaries, uses, densities, and intensities of use for the eleven character districts. The types of land uses allowed in each character district are clearly listed in a section of the text amendment corresponding to each character district titled "Permitted Uses and Standards." See Joint Exhibit 2, Attachment A, pages 75, 79, 82, 84, 91, 93, 98, 100, 102, and 105. For example, in the Large Resort District, primary uses are hotel, motel, resort condominium, and medium density multi-family residential. Id. at page 75. The density and intensity standards for each type of use allowed within each character district are also listed in the same sections of the Attachment. For example, the maximum density of residential development in the Boutique Hotel/Condo District is eighteen units per acre. Id. at page 75. Finally, the policies for each character district provide objective criteria governing the actual mix of uses permitted on any redevelopment site within the Community Redevelopment District. The location of each allowable use will be distributed throughout each district. For example, the Downtown Redevelopment District creates a traditional downtown core area with traditional downtown core services surrounded by residential neighborhoods buffered from commercial intrusion. See Joint Exhibit 2, Attachment A, page 36. On the other hand, the Gulf Boulevard Redevelopment District is a core resort and shopping destination for residents and visitors. Id. The Community Redevelopment District does not use a percentage distribution among the mix of uses since the City is essentially built out and already has a mix of uses within the newly-created districts. Therefore, the plan amendment accomplishes a distribution of mix of land through location of uses in multi- story buildings, rather than a percentage distribution of mix. By doing so, it satisfies the requirement of the rule. See, e.g., The University Park Neighborhood Association, Inc. v. Department of Community Affairs, et al., DOAH Case No. 92- 0691GM, 1993 Fla. ENV LEXIS 19 (DOAH Nov. 2, 1992, DCA Feb. 24, 2003). Therefore, it is found that Petitioner failed to demonstrate by a preponderance of the evidence that the amendment is inconsistent with the rule. Preservation District The plan amendment is based upon the City's Visioning Plan and Master Plan. See Respondent's Exhibits 1 and 3. Neither document contains any recommendation that the City's Preservation Land Use District be revised in any way. In the existing 2010 Plan, the Preservation District is defined in FLUE Policy 1.1.1 as those beaches seaward of the CCCL, Fuller Island, and other environmentally significant natural resource areas. No development is allowed in the Preservation District except dune walkovers. Ordinance No. 2008-15 renumbers Policy 1.1.1 as 2.1.1 and makes a one-word change (underscored below) in the definition of the Preservation District so that it now reads as follows: Preservation (P), applied to the beaches seaward of the Florida Coastal Construction Control Line, Fuller Island and other environmentally significant natural resource areas; such designated areas shall not be developed except to provide beach access dune walkovers from adjacent developed properties under the provisions of the City's Beach Management Regulations. Petitioner argues that the effect of this change is to establish a new boundary line for the Preservation District (further seaward in some instances) and to no longer use the setback line previously used by the City, which was known as the Coastal Construction and Excavation Setback Line. He further contends that the City's setback line and the Florida (State) CCCL encompass different areas along the beach. In some cases, the City's setback line is more seaward than the State, and vice versa. Petitioner contends that the data and analysis for the 2010 Plan "implies" that the location of the Preservation land use category should be based upon the more restrictive of the City setback line or State CCCL, that is, whichever is less seaward. It is fair to infer from the evidence that the underlying reason for raising this claim is that an old Travelodge motel sits just south and east of Petitioner's condominium building and is scheduled to be redeveloped as a new high-rise condominium. Petitioner is concerned that if the State CCCL (rather than the City setback line) is used, it will allow the new building to be constructed closer to the Gulf of Mexico, presumably reducing his view and beach access. The City's witness Holly established that the City does not have a CCCL. Rather, it has an excavation and setback line. He further established that the City has consistently enforced the Preservation District geographically as the area seaward of the State CCCL. Also, the City's land development regulations implementing the existing Plan define the Preservation District as the property seaward of the State CCCL. The Countywide Plan also uses the State CCCL. The amendment is clarifying in nature and is intended to make the text in the City's Plan consistent with the Countywide Plan and existing enforcement practices. As explained by Mr. Holly, the City's setback line predates the establishment of the State CCCL, and functions much in the same manner as the State CCCL "in that it precludes structural development seaward of that line without specific application for approval of variance for those standards." See Transcript, page 415. Petitioner has failed to establish by a preponderance of the evidence that this clarifying change in the definition of the Preservation District in FLUE Policy 2.1.1 is not supported by adequate data and analysis. Format of Plan Amendment Petitioner next contends that the plan amendment is inconsistent with Florida Administrative Code Rule 9J-5.005(1), which contains general format requirements for comprehensive plans. For example, he points out that there are lengthy unnumbered narrative sections in Attachment A that apparently supplement the numbered sections, that the references to the land development regulations do not identify the specific land development regulation adopted by reference, that the series of maps are not labeled properly, and that the maps do not include north-south arrows or a scale. The amendment contains specific goals, objectives, and policies for the Community Redevelopment District. See Joint Exhibit 2, pages 43-48. It also contains goals, objectives, and policies for the two redevelopment districts, numbered policies for each character district, as well as unnumbered text setting forth permitted uses and standards for each character district. See Joint Exhibit 2, pages 67-70, 71-77, 78-80, 83-85, 86-90, 90-92, 92-94, 94-97, 97-98, 99-101, 101-103, and 104-106. The deposition testimony of Michael McDaniel, Chief of the Department's Office of Comprehensive Planning, established that while they are not typically used, the narrative sections of Attachment A are permissible to explain the goals, policies, and objectives. He further stated that nothing in the governing statutes or rules requires that all material adopted as part of a plan be labeled as, or be in the form of, a goal, policy, or objective, that many variations of format are found in plans adopted by local governments throughout the State, and that the Plan, as amended, is not inconsistent with any requirement. As to the makeup of the maps, Mr. McDaniel stated that while the Department prefers that maps be labeled as future land use maps, and that they contain the detail suggested by Petitioner, a failure to do so does not render the plan amendment not in compliance. Finally, he stated that the Department staff had no difficulty in understanding the maps or map series when they were reviewed by the Department in July 2008. Notably, the Department did not address any of these format issues when it prepared comments to the proposed amendment on August 1, 2008. Petitioner has failed to show by a preponderance of the evidence that the plan amendment is inconsistent with the requirements of Florida Administrative Code Rule 9J-5.005(1). Data and Analyses Petitioner alleges that the City failed to rely upon the best available data sources to support the amendment, that a proper analysis of the data was not made, and that the City did not react to the data in an appropriate way, as required by Florida Administrative Code Rule 9J-5.005(2). Petitioner presented no expert testimony or other evidence supporting the claim that the plan amendment lacked supporting data and analysis. Although he introduced into evidence various documents on the theory that this information constituted better data than that used by the City, the evidence does not support this allegation. For example, various documents concerning hurricane evacuation times were submitted, including the Tampa Bay Regional Hurricane Evacuation Study Update 2006, the Pinellas County Local Mitigation Strategy (LMS), and the 2008 Statewide Emergency Shelter Plan. See Petitioner's Exhibits 4, 16, and Since the plan amendment does not increase density, however, it does not conflict with established hurricane evacuation times. Also, the City is not increasing population to be evacuated to other zones; therefore, the Statewide Emergency Shelter Plan is irrelevant. Finally, the amendment is not contrary to any mitigation strategies in the LMS. Population estimates for the year 2006 prepared by the BEBR were introduced by Petitioner, presumably for the purpose of showing that more current population data should have been used, rather than the 2000 Census data relied upon by the City. See Petitioner's Exhibit 21. However, there is no requirement that the City update its population estimates and projections each time it adopts an amendment. According to Mr. McDaniel, this is normally done every seven years at the time of the EAR. In any event, the BEBR estimates an increase in population in the City of only 48 persons during the six-year period from 2000 to 2006 (from 10,002 to 10,050). Petitioner also introduced a list of claims for flood losses within the last ten years in the City for the purpose of demonstrating that the City failed to consider the location of these properties in adopting the amendment. However, the evidence shows that redevelopment policies in the amendment would bring existing older structures up to National Flood Insurance Protection standards. A list of Licensed Dwelling Units was also introduced to show that the list relied upon by the City was incomplete and failed to include a motel in close proximity to Petitioner's condominium. Assuming that this is true, the error was minor and did not affect the overall validity of the City's data. The plan amendment is supported by the City's visioning project, economic analysis, master planning project, and evaluation of infrastructure capacity and availability of services. It is also supported by data submitted by SOLV to the County in support of the amendment to the Countywide Future Land Use Plan, which includes the Special Area Plan. The more persuasive evidence supports a finding that there is relevant and appropriate data supporting the amendment, that the data was properly analyzed, and that the City reacted in an appropriate manner. Internal Inconsistency Petitioner further alleges that the plan amendment is internally inconsistent with Intergovernmental Element Policy 1.5.3, which requires that the City coordinate with the Pinellas County Emergency Management Department when adopting map amendments resulting in an increase in population within the CHHA. Under the existing definition of the CHHA in the 2010 Plan, the entire City is within the CHHA. The amendment implements a new definition, as required by Section 163.3178(2), Florida Statutes, which removes some parts of the City from the CHHA. Because the new amendment does not relate to either hurricane shelters or evacuation routes, and does not increase the residential density in the CHHA, compliance with the cited policy was not required. Petitioner further alleged that FLUE Policy 4.1.1 is internally inconsistent with Goals 2 and 3 of the Conservation and Coastal Element as well as the implementing objectives for those Goals. However, no testimony or other credible evidence was offered on this issue and the claim must fail. The preponderance of the evidence supports a finding that the Plan, as amended, in not internally inconsistent with other Plan provisions. Need Petitioner contends that the City did not prepare an analysis of need for future land uses authorized by the Ordinance, that it did not prepare an updated existing land use map series, that no tabular form of the approximate acreage and general range of density and intensity of each existing land use was prepared, and no population projections were presented, as required by Florida Administrative Code Rule 9J-5.006(1)(a), (b), (c), and (g). Therefore, he argues that the plan amendment is not supported by a demonstration of need for the new land use category to accommodate the anticipated growth. The supporting documentation for the plan amendment demonstrates the need for redevelopment of the City's lodging establishments, the need for additional height for tourist lodging uses in order to prevent conversion of those uses to condominium uses, and the need for aesthetic and other design changes to the City's building facades, streetscapes, and public areas with the redevelopment area. See Joint Exhibit 2, Attachment A, pages 1-3. The plan amendment does not propose new density to accommodate new populations. In fact, it reduces the overall residential density in the City, and the total amount of dwelling units, temporary lodging units, and non-residential (commercial) floor area ratio will also be reduced. Because the plan amendment does not increase the total amount of development, but is simply a plan for redevelopment of existing uses, there is no requirement that a need analysis be prepared. Financial Feasibility Petitioner also contends that the Plan, as amended, has not been shown to be financially feasible and does not include an updated five-year CIP. See § 163.3177(3)(a)5., Fla. Stat. ("the comprehensive plan shall contain a capital improvements element [which] set[s] forth: . . . [a] schedule of capital improvements . . . "). The statutory requirement for a CIP applies to projects necessary to ensure that adopted levels of service (LOS) standards are achieved and maintained. It applies to all public facilities and services for which an LOS standard is adopted pursuant to Section 163.3180, Florida Statutes. This was confirmed by the testimony of Mr. McDaniel. The evidence shows that all relevant City infrastructure facilities are operating at or above the adopted LOS. Therefore, there are no deficiencies which need correction in order to implement the redevelopment plan. As further confirmed by Mr. McDaniel, if a plan has been found to be in compliance, and the local government proposes changes that do not create a need for capital improvements, the plan amendment does not need to include an amendment to its CIP. In this case, the amendment does not increase the total permissible amount of residential density or non-residential use within the Community Redevelopment District, and no additional infrastructure capacity is needed. Petitioner's expert identified certain infrastructure projects for which he contended an updated CIP is needed, such as sidewalks, street lighting, and bike lanes. While these types of projects are all integral to the proposed redevelopment plan, they are not subject to concurrency or the financial feasibility standard. Even if they were, Petitioner's expert agreed such improvements could be accomplished through private investment when permits for projects are issued. Because Petitioner failed to show that the plan amendment would require the construction of any new or expanded public facilities to provide additional capacity to serve the development, his contention that the plan is not financially feasible must necessarily fail. Other Contentions All other contentions not discussed herein have been considered and rejected because no evidence on the issues was presented or the more credible and persuasive evidence supports a finding that the contentions are without merit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining that the plan amendments adopted by Ordinance No. 2008-15 are in compliance. DONE AND ENTERED this 4th day of May, 2009, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of May, 2009.
The Issue The issue in this case is whether the Hardee Power Station and its associated facilities, including the corridors for the directly associated transmission lines and the natural gas pipeline, should receive certification.
Findings Of Fact Ultimate Site Capacity for Hardee Power Station Project The site for the proposed Hardee Power Station electric generating equipment is a 1,300 acre site located at the Polk and Hardee County lines approximately 9 miles northwest of the City of Wauchula in Hardee County. The Hardee Power Station electrical generating structures will be located primarily in Hardee County; a major portion of the 570 acre cooling reservoir is located in Polk County. Co-applicants have proposed in their Site Certification Application an ultimate nominal capacity of 660 megawatts, and certification of the electric generating equipment, associated cooling reservoir, associated natural gas pipeline, and three associated transmission lines, described in paragraphs 2 through 7 above. In March of 1989, the Florida Public Service Commission issued an initial need order based on SECI's application for a need determination for construction of two 220 megawatt combined cycle facilities. The PSC order confirmed the following: 1) SECI's need for 450 megawatts of back-up generation capacity; 2) the three interconnection points for the three 230 kV transmission lines; and 3) that a combined cycle plant was SECI's least costly alternative to constructing this electric generation capacity. Thereafter, SECI contracted with Teco Power Services Corporation for, among other things, the construction of the combined cycling units. In December of 1989, the PSC issued a final need order. Hardee Power Station Project Co-applicants propose to construct and operate a combined cycle power plant and associated transmission lines and natural gas pipeline facilities. The Hardee Power Station project will consist of combined cycle electric generating facilities with an ultimate nominal capacity of 660 megawatts to be constructed in two phases. In phase 1-A, one 220 megawatt (nominal) combined cycle unit will be built along with one 75 megawatt (nominal) combustion turbine, resulting in a total of 295 megawatts (nominal), to begin commercial operation in January of 1993. In phase 1-B of the project, an additional 75 megawatt (nominal) combustion turbine and a 70 megawatt (nominal) heat recovery steam generator will be added to the facility resulting in an additional 145 (nominal) megawatt combined cycle facility, the capacity of which is scheduled to be on line in January of 2003. Phase 2 of the project is the addition of a third 220 megawatt (nominal) combined cycle facility at an unspecified future date. Associated with the Hardee Power Station electrical generating plant will be a cooling reservoir to cool the steam in the heat recovery steam generator so that water can be reused in the system. The cooling water will be returned to the reservoir which is designed to discharge water in excess of the 10-year, 24-hour storm event. The Hardee Power Station will also have associated oil storage and handling facilities, water treatment facilities, a control building and warehouse, and an administrative building. Power generated from the Hardee Power Plant will be distributed to the Pebbledale, Vandolah and Lee County substations via three 230 kV transmission lines. One line, owned by Tampa Electric Company, heads north from the plant site and terminates at the Pebbledale substation. A preferred corridor and an alternate corridor have been proposed for this line. The other two transmission lines, owned by SECI, will head south from the Hardee Power Station facility and follow their respective corridors, one terminating at the Vandolah substation and the other at the Lee County substation. The corridors running north from the plant site to the Pebbledale substation are approximately 16 miles in length with a corridor width of approximately 1/2 mile but varying in sections from 1/4 of a mile to 1 mile. The transmission line heading south from the plant site to the Vandoloah substation will be approximately 8 miles in length and generally 1/2 mile in width with variations from 1/2 mile to 3/4 of a mile. The transmission line running south from the plant site to the Lee County substation will be approximately 78 miles in length with a width generally of 1/2 mile with variations from 150 feet to approximately 1 mile. The transmission line structures will encompass only the rights-of-way within the corridors. The right-of-way for a typical H frame structure ranges from 100 to 150 feet while the right-of-way for a single pole structure ranges from 75 feet to 100 feet. The H-frame structures consist of two vertical poles having a typical out-of-ground height of approximately 65 feet with cross-arm assemblies holding porcelain insulators. The single pole structure consists of a single vertical structure with a typical out-of-ground height of 95 feet with insulator sets holding the conductors in place. Construction and maintenance activities with respect to these structures will require the construction of access roads. The proposed power plant facility will include a natural gas pipeline which will connect into the existing Florida Gas Transmission pipeline system north of Polk City. The pipeline will route south past Polk City, Auburndale, and Bartow to State Road 60. The pipeline will then continue past Pierce and Bradley Junction until it meets County Road 630 where the pipeline heads east until it reaches County Road 663 where it turns south to the plant site. The natural gas pipeline will be an 18-inch diameter pipe which will be buried three feet underground with a length of approximately 49 miles. The purpose of the pipeline is to transport natural gas, the primary fuel for the facility, to the plant site. The DER published notices of the March 6, 1990 land use hearing in the Herald-Advocate (Hardee County) on January 18, 1990 in the Tampa Tribune, the Mulberry Press (Polk County), and the Ledger (Polk County) on January 15, 1990; and in the DeSoto County Times on January 17, 1990. Notice of the March 6, 1990 hearing was also published in the Florida Administrative Weekly on January 19, 1990. Co-applicants published notice of the May 3, 1990 continuance of the March 6, 1990 land use hearing in the April 18, 1990 editions of the Lakeland Ledger, the Tampa Tribune, the DeSoto County Times, the Ft. Myers News-Press (Lee County), the Cape Coral Daily Breeze, the Bradenton Herald, and the Charlotte Sun/Herald-News. On April 18, 1990, the Hearing Officer reviewed Co- applicants' Notice of Resumption of Land Use and Zoning Hearing and found it sufficient to provide notice to all parties and the public of the continuation of the land use hearing. Polk County Aspects of the power plant and associated facilities, including preferred and alternative corridors, to be located in Polk County include: (a) a portion of the cooling reservoir; (b) a 230 kV transmission line extending from the plant to the Pebbledale substation; (c) a natural gas pipeline extending from the plant to Florida Gas Transmission Company's main gas line north of Polk City; and (d) miscellaneous appurtenances and accessories, including access roads. The land use plan that governs the Hardee Power Station and associated linear facilities located in Polk County is the Polk County Comprehensive Plan as adopted by the Board of County Commissioners on June 26, 1979. The applicable zoning regulation is the 1983 Polk County zoning ordinance. Polk County has not adopted a land-use plan map and thus there are no land use plan designations encompassed by the site or its associated facilities in Polk County. With respect to Polk County's Comprehensive Plan, the Polk County Chief of Current Planning, ron Borchers, on January 20, 1989, confirmed that the cooling reservoir, transmission line, and natural gas pipeline complied with Polk County's Comprehensive Plan. Expert testimony also demonstrated that the proposed project is consistent and in compliance with the zoning ordinance and land use plan of Polk County. The Polk County Zoning category for the Hardee Power Station generating facility site and the cooling reservoir site is RC (rural conservation). The transmission line corridor crosses four zoning categories in Polk County: RC (rural conservation district); GI (general industrial district); R3 (rural residential district); and R2 (rural residential district). The gas pipeline corridor crosses the following zoning categories within Polk County: R1, R2, and R3 (residence districts); RE1 and RE2 (rural estates districts); SF1 (single family district); SF1M (single family district); RC and RC2 (rural conservation districts); C2 (commercial district for a multi- neighborhood commercial); C3 (commercial district for regional commercial; C4 (commercial district for heavy commercial; GI (general industrial district; and PUD (planned unit development district. In Polk County gas pipelines are classified as Class I essential services and are permitted in all zoning districts. By letter dated January 24, 1989, Zoning Administrator Gerald Martin confirmed that the plant site and associated facilities are in compliance with the Polk County Zoning Ordinance, stating: Specifically, transmission lines and gas pipelines are Class I essential services; and the power plant's cooling reservoir is a Class II essential service. Class I essential services are permitted in all zoning districts. The site of the proposed cooling reservoir in Polk County is zoned Rural Conservation (RC) which permits Class II essential services. Therefore, these proposed facilities are in compliance with the Polk County Zoning Ordinance. Expert testimony also demonstrated that the power plant site and associated linear facilities are in compliance and consistent with Polk County's Zoning Ordinance. Co-applicants have entered into a stipulation with Polk County in which the County confirms that the site of the power plant and associated facilities, including preferred and alternative corridors, to be located in Polk County are consistent and in compliance with Polk County's existing Land Use Plan and Zoning Ordinance. Hardee County Aspects of the power plant and associated facilities, including preferred and alternative corridors, to be located in hardee County include: (a) the power plant facility; (b) a portion of the cooling reservoir; (c) a portion of the 230 kV transmission line extending from the plant to the Pebbledale substation in Polk County; (d) a 230 kV transmission line from the plant to the Vandolah substation in Hardee County; (e) a 230 kV transmissionline extending from the power plant to the Lee County substation; (f) a portion of the natural gas pipeline extending to Florida Gas Transmission Company's main gas line north of the power plant in Polk County; and (g) miscellaneous appurtenances and accessories including access roads. The land use plan that governs the Hardee Power Station in Hardee County for purposes of this hearing is the future land use plan element of the Hardee County Comprehensive Plan. The applicable zoning regulation is Hardee County Zoning Ordinance No. 82-2 as codified in the Hardee County Land Development Code T. The zoning category for the site of the Hardee Power Station generating facility located within Hardee County is I-1 (light industrial). The light industrial district, as described in the Hardee County zoning ordinance, includes "public and semi-public plants" in an enumeration of authorized "principle uses and structures", and authorizes the proposed power plant. The Hardee County Board of Commissioners rezoned the planned location of the plant site to I-1 on May 11, 1989 to authorize construction of the plant. The transmission line corridors cross the following zoning categories in Hardee County: I-1 (light industrial); A-1 (agricultural); C-2 (general commercial); FR (farm residential); and C-1 (neighborhood commercial). These linear facilities are authorized uses in all districts pursuant to 2.3G of the hardee County zoning ordinance, which states that "local public utility distributing and collecting structures such as pipes and transmission lines" are "permitted in all zoning districts." Hardee County has not adopted a land use plan map and thus there are no land-use plan designations affected by the site or associated facilities. The Hardee County Building and Zoning Department staff report on the April 17, 1989 rezoning application confirms that the proposed power plant is in compliance with Hardee County's Comprehensive Plan. Expert testimony was presented demonstrating that the proposed Hardee Power Station is consistent and in compliance with Hardee County's land use plan and zoning ordinance. On November 2, 1989, co-applicants and Hardee County entered into a stipulation in which the County confirmed that the proposed site of the power plant and associated facilities, including preferred and alternate corridors, are consistent and in compliance with Hardee County's existing land use plan and zoning ordinance. This stipulation was authorized by the Hardee County Board of County Commissioners on September 21, 1989. DeSoto County The associated linear facility located in DeSoto County is an approximately 23 mile portion of a 230 kV transmission line, including miscellaneous appurtenances and accessories, extending from the plant to an existing substation in Lee County. The land use plan that governs the proposed linear facility is the DeSoto County Ordinance No. 81-3 adopted on June 25, 1981. The applicable zoning regulations are contained in the DeSoto County Zoning Ordinance No. 81- 10. DeSoto County has not adopted a land-use plan map and thus there are no land use categories crossed by the transmission line corridor in DeSoto County. Expert testimony demonstrated that the proposed transmission line corridor associated with the Hardee Power Station does not contravene the policies or objectives of the DeSoto County Comprehensive Plan. The transmission line corridor crosses the following zoning categories in DeSoto County: A-5 (rural agriculture); A-10 (agriculture district); E (estate district); IL (industrial light district); CG (commercial general district); RSF-3 (residential signle family district); COS (conservation open space district); TTRVC (travel trailer recreational vehicle and campground district); MHC (mobile home conventional district); and RMF-6 (residential multifamily district). Section 8-8 of the DeSoto County zoning ordinance provides that "electric cables" are "permitted uses" and "allowed as a matter of right" in all zoning districts; thus, the proposed transmission line corridor does not contravene the DeSoto County Ordinance. On November 2, 1989, a stipulation was entered into between DeSoto County and the Co-applicants confirming that the zoning officials of DeSoto County have reviewed the Co-applicants' site certification application, are familiar with the proposed site of the associated linear facility, and that the proposed facility is consistent and in compliance with DeSoto County's existing land use plan and zoning ordinance. This stipulation was authorized by the DeSoto County Board of Commissioners on September 12, 1989. Charlotte County The associated linear facility located in Charlotte County includes approximately 22 miles of a 230 kV transmission line, including miscellaneous appurtenances and accessories, extending from the plant to an existing substation in Lee County. The land use plan that governs the associated linear facility to be located in Charlotte County is the future land use element of the December 16, 1988 Charlotte County/City of Punta Gorda Comprehensive Plan. The applicable zoning regulations are contained in the Charlotte County zoning regulations adopted by the Board of County Commissioners on December 8, 1981, including the June 30, 1989 amendments to the Charlotte County zoning regulations enacted pursuant to Ordinance No. 89-34. In Charlotte County, the transmission line corridor crosses the following land use plan categories: agriculture 1 and 2; agriculture conservation; preservation; public; semi-public; commercial; residential estates; mobile home; and low density residential. The transmission line corridor also crosses two overlay districts which include surface water protection districts for Alligator Creek, Prairie Creek, and Shell Creek. The Charlotte County land use plan does not specifically address placement of electric transmission lines. The Charlotte County Comprehensive Plan includes objectives that contemplate ensuring the availability of suitable land for utilities facilities necessary to support development; that the County, in conjunction with private utility franchises, coordinate efforts in identifying appropriately located environmentally suitable land to meet those needs; and that land suitable for utility facilities necessary to support future development be acquired by either the County or the private utility. The land use plan provides that development is permissible in preservation areas "as may be provided within the land development regulations'. Thus, to the extent that such development is permitted within preservation areas under the zoning ordinance, it similarly is authorized under the land use plan. In Charlotte County, the transmission line corridor crosses the following zoning categories: AE (agriculture estate); AG (agriculture general); CG (commercial general); CI (commercial intensive); ES (environmentally sensitive); MHC (mobile home conventional); MHP (mobile home park); PD (planned evelopment); RE-5 (residential estate); RMF-10 (residential multi-family); RSF- 3.5 (residential single family); and RE-1 (residential estate). The Charlotte County zoning ordinance traditionally has been applied as authorizing transmission lines without the requirement of obtaining a special exception permit. Unrebutted expert testimony confirmed that this interpretation comports with the language of the zoning ordinance. Charlotte County has entered into a stipulation in this proceeding confirming that the proposed site of the associated linear facility is consistent and in compliance with Charlotte County's existing land use plan and zoning ordinance. This stipulation was authorized by the Charlotte County Board of Commissioners on September 26, 1989. Lee County The associated linear facility located in un-incorporated Lee County is a five mile length of a 230 kV transmission line, including miscellaneous appurtenances and accessories, extending from the plant to an existing substation in Lee County. The land use plan that governs the linear facility to be located in Lee County is section A of the Lee County Comprehensive Plan (entitled "the Lee Plan") adopted by the lee County Board of County Commissioners on January 31, 1989. The applicable zoning regulations are Lee County's official Zoning Ordinance (Ordinance 86-17) and amendments thereto. In Lee County, the transmission line corridor crosses four land-use plan categories which include open lands, resource protection transition zones, rural, and central urban. Expert testimony demonstrated that the associated linear facility does not contravene any of the policies or objectives contained in the Lee County Land Use Plan. The transmission line corridor corsses the following zoning categories in Lee County: AG-2 (agricultural district); C-2 (commercial district); MH-1 (residential uses); and MH-2 (residential uses). The associated linear facility is an "essential service facility" under Sections 1001.13 and 202.12 of the Lee County zoning ordinance and is permitted in all zoning districts within Lee County. Lee County has entered into a stipulation in this proceeding confirming that the proposed site of the associated linear facility is consistent and in compliance with Lee County's land use plan and zoning ordinance. This stipulation was authorized by the Lee County Board of Commissioners on February 7, 1990. City of Cape Coral The associated linear facility located in the City of Cape Coral is approximately a 3.2 mile portion of a 230 kV transmission line, including miscellaneous appurtenances and accessories, extending from the plant to an existing substation in Lee County, located east of the City of Cape Coral. The land use plan that governs the proposed linear facilities in Cape Coral is the February 13, 1989 City of Cape Coral Comprehensive Plan. The applicable zoning regulations are the City of Cape Coral Land Development Regulations, as amended February 1990 by Ordinance No. 7-90. The transmission line corridor crosses three land-use plan categories: mixed use; parks and recreation; and single family. There are no references to transmission line corridors in the Cape Coral land use plan; however, expert testimony was presented that the proposed transmission line corridor does not contravene the City of Cape Coral's land use plan. The transmission line corridor primarily crosses the agricultural (AG) zoning category in the City of Cape Coral; moreover, the outer fringes of the corridor briefly intersect with a portion of land zoned R1 (single family residential district) where it enters the City of Cape Coral. On February 12, 1990, the City of Cape Coral amended its zoning ordinance to provide, among other things, that the transmission was a permitted use in areas zoned "Agricultural". To the extent a transmission line structure intersects with the R-1 district, it would be authorized under section 2.7.1 of the zoning ordinance. Expert testimony demonstrated that the proposed transmission line is an authorized use under the City of Cape Coral's zoning ordinance. On February 16, 1990, Co-applicants and the City of Cape Coral entered into a stipulation in which the County confirmed that the Co-applicants' proposed transmission line corridor traverses through an area of the City of Cape Coral that is zoned Agricultural and that, therefore, the transmission line is an authorized use under the City of Cape Coral zoning ordinance. Furthermore, the County stipulated that the proposed site of the transmission line is consistent and in compliance with the City of Cape Coral's land use plan. City of Auburndale The associated linear facility to be located in the City of Auburndale is a portion of a natural gas pipeline that extends from approximately one mile north of Polk City where it interconnects with the existing Florida Gas Transmission 18 inch St. Petersburg lateral and continues south to the Hardee Power Station. The land use plan that governs the proposed corridor of the natural gas pipeline through the City of Auburndale is the June 1977 City of Auburndale Comprehensive Plan. The applicable zoning regulation is the City of Auburndale's zoning ordinance codified in Chapter 25 of the City of Auburndale Code. In Auburndale, there are two future land use maps for the City of Auburndale contained in its comprehensive plan. One of these land use plan maps covers an area where the pipeline corridor crosses three land use plan categories: agricultural; medium-density residential; and low-density residential. The City of Auburndale Comprehensive Plan does not mention gas pipelines. Expert testimony demonstrated that the proposed pepeline corridor does not contravene the land use plan of the City of Auburndale. Within the City of Auburndale, the proposed gas pipeline corridor crosses the zoning category CH (commercial highway). The City of Auburndale's zoning ordinance defines essential services to include gas facilities and indicates they can be located in any zoning district after review and approval by the City Commission. That review and approval occurred on April 2, 1990 as reflected in the City Commission resolution. On May 3, 1990, the City of Auburndale entered into a stipulation with Co-applicants wherein the County confirmed that the proposed natural gas pipeline corridor is consistent and in compliance with the City of Auburndale's existing land use plan and zoning ordinance. City of Bartow The associated linear facility located in the City of Bartow is a portion of a natural gas pipeline that extends from approximately one mile north of Polk City where it interconnects with the existing Florida Gas Transmission 18 inch St. Petersburg lateral and continues south to the Hardee Power Station. The land use plan that governs the proposed natural gas pipeline associated with the Hardee Power Station is the 1979 City of Bartow Comprehensive Plan. The applicable zoning regulations are the City of Bartow's zoning ordinance, Ordinance No. 981-A. The City of Bartow has not adopted a land use plan map so there are no land use plan categories crossed by the pipeline corridor in the City of Bartow. The City of Bartow's comprehensive plan does not mention gas pipelines. Expert testimony demonstrated that the proposed natural gas pipeline will be consistent and in compliance with the City of Bartow's land use plan. In the City of Bartow, the proposed pipeline crosses the following zoning categories: R1 and R1A (residential districts); C3 (highway commercial); P1 (professional office); and I-1 and I-2 (industrial districts). The City of Bartow's zoning ordinance defines gas pipelines as public service structures which are permitted in all zoning districts after review by the Zoning Commission. That review occurred on March 22, 1990 where the Zoning Commission recommended approval of the proposed gas pipeline. The recommendation was subsequently adopted by the City Commission. On May 3, 1990, the City of Bartow and the Co-applicants entered into a stipulation in which the City confirmed that the proposed natural gas pipeline corridor is consistent and in compliance with the City of Bartow's existing land use plan and zoning ordinance (Ordinance No. 981-A, as amended). City of Polk City The associated linear facility to be located in Polk City is a portion of a natural gas pipeline that extends from approximately one mile north of Polk City where it interconnects with the existing Florida Gas Transmission 18 inch St. Petersburg lateral and continues south to the Hardee Power Station. The land use plan that governs the proposed natural gas pipeline associated with the hardee Power Station is the Town of Polk City Comprehensive Plan adopted by the City Commission on September 4, 1980. The applicable zoning regulations are contained in Polk City Ordinance 89-11. In Polk City, the pipeline crosses two land-use categories, commercial and agricultural. The Polk City Comprehensive Plan does not mention natural gas pipelines. Expert testimony demonstrated that the natural gas pipeline corridor will be consistent and in compliance with the City of Polk City's land use plan. Within Polk City, the proposed natural gas pipeline corridor crosses one zoning category, C1 (commercial restricted). The Polk City zoning ordinance is silent on the matter of gas pipelines. However, the City Commission in Polk City, pursuant to a request by the Co-applicants, approved the proposed natural gas pipeline as an allowable use under the City's zoning ordinance. On May 3, 1990, Co-applicants and Polk City entered into a stipulation wherein the City confirmed that the proposed natural gas pipeline corridor is consistent and in compliance with Polk City's existing land use plan and zoning ordinance (Ordinance No. 89-11, as amended).
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that the Governor and cabinet, sitting as the Siting Board, enter a Final Order finding that the site of the Hardee Power Station electric generating facilities and cooling reservoir, the site of the associated natural gas pipeline; and the site of the corridors for the directly associated transmissionlines, as proposed in the Site Certification Application, are consistent and in compliance with existing land use plans and zoning ordinances. DONE AND ENTERED this 6th day of June, 1990 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 6th day of June, 1990. Copies Furnished to all persons shown in Appendix A APPENDIX A APPEARANCES Hamilton S. Oven, Jr., P.E. Administrator, Siting Coordination Section Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Richard Donelan, Esquire Gary C. Smallridge, Esquire Dept. of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 G. Stephen Pfeiffer, Esquire Steve Hall, Esquire Dept. of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 Edward B. Helvenston, Esquire Catherine D'Andrea, Esquire Southwest Florida Water Management District 2379 Broad Street Brooksville, FL 34609-6899 Sarah Nall, Esquire South Florida Water Management District P. O. Box 24680 West Palm Beach, FL 33416-4680 Susan P. Clark, Esquire Suzanne S. Brownless, Esquire Florida Public Service Commission 101 East Gaines Street Fletcher Building, Suite 212 Tallahassee, FL 32399-0863 Lawrence N. Curtin, Esquire Samuel J. Morley, Esquire P. O. Drawer 810 Tallahassee, FL 32302 William H. Green, Esquire James S. Alves, Esquire P. O. Box 6526 Tallahassee, FL 32314 Eugene E. McClellan, Jr., Esquire Dept. of Natural Resources 3900 Commonwealth Blvd. Tallahassee, FL 32399-3000 William Powell, Esquire City of Cape Coral Attorney P. O. Box 150027 Cape Coral, FL 33915-0027 Gary Vorbeck, Esquire DeSoto and Hardee County Attorney 207 East Magnolia Street Arcadia, FL 33821 Sandra Augustine, Esquire Beth A. Sullivan Esquire Charlotte County Attorney 18500 Murdock Circle Port Charlotte, FL 33948-1094 Mark F. Carpanini, Esquire Polk County Attorney P. O. Box 60 Bartow, FL 33830 H. Hamilton Rice, Jr., Esquire Jeffrey N. Steinsnyder, Esquire Manatee County Attorney 1112 Manatee Avenue West, Suite 969 P. O. Box 1000 Bradenton, FL 34205 James V. Antista, Esquire Kenneth McLaughlin, Esquire Florida Game and Fresh Water Fish Commission 620 South Meridian Street Tallahassee, FL 32399-1600 Rivers H. Buford, Jr., Esquire Dept. of Transportation 605 Suwannee Street, M.S.-58 Tallahassee, FL 32399-0458 Alton Roane, Director Lee County Division of Planning P. O. Box 398 Ft. Myers, FL 33902-0398 David Emerson Bruner, Esquire Southwest Florida Regional Planning Council 1114-B North Collier Boulevard Marco Island, FL 33937 David C. Holoman, Esquire City of Arcadia Attorney P. O. Drawer 592 Arcadia, FL 33821 James Q. Duane, Executive Director Ralph Artigliere, Esquire Central Florida Regional Planning Council P. O. Box 3 Lakeland, FL 33802-0003 Thomas W. Reese, Esquire Manasota-88 123 Eighth Street, North St. Petersburg, FL 33701 Michael P. Haymans, Esquire P. O. Box 2159 Port Charlotte, FL 33952 APPENDIX B RULINGS ON PROPOSED FINDINGS OF FACT (DOAH Case No. 89-3560) The proposed findings of fact contained in the Joint Proposed Recommended Order filed on behalf of the Co-Applicants and the Department have been substantially adopted in Findings 1-93. The following rulings are made on proposed findings of fact contained in the Proposed Recommended Order filed on behalf of the Florida Game and Fresh Water Fish Commission: 1-2. Adopted in Finding 70. Adopted in Finding 71. Adopted in Findings 72, 73. Adopted in Finding 76. Adopted in Finding 77. Adopted in Finding 78. Adopted in Finding 79. Adopted in Finding 80. Adopted in Finding 81. Adopted in Finding 82. Adopted in Finding 83. The following rulings are made on proposed findings of fact contained in the Proposed Recommended Order filed on behalf of Intervenors Slack and Katzen: 1-2. Adopted in Finding 1. 3-6. Rejected as unnecessary since this is not in dispute. 7. Adopted in Finding 46. 8-10. Adopted in Finding 12, but otherwise Rejected as not based on competent substantial evidence. Adopted and Rejected in Findings 71-73. Adopted in Finding 90. 13-14. Rejected as not based on competent substantial evidence 15-16. Adopted in Finding 45. Adopted in Finding 48. Adopted in Findings 64, 65. Adopted in Findings 46, 71. Adopted and Rejected in Findings 46, 75. 21-26. Rejected in Findings 75-83, and as not based on competent substantial evidence. 27. Rejected in Findings 76, 80, 83, and as not based on competent substantial evidence. 28-30. Adopted in Finding 12, but otherwise Rejected as immaterial and unnecessary. Rejected in Finding 84, and otherwise as not based on competent substantial evidence. Adopted in Finding 84. Adopted in Finding 85. Rejected as not based on competent substantial evidence and immaterial. Adopted in Finding 46. 36-37. Rejected in Findings 71-73. Adopted in Findings 53, 54. Rejected in Finding 53, and otherwise as not based on competent substantial evidence. Adopted in Finding 53. 41-42. Rejected as immaterial and irrelevant. 43-44. Adopted in Finding 70. Adopted in Findings 75-83. Rejected as a conclusion of law and not a proposed finding of fact. 47-48. Rejected as unnecessary and cumulative. 49. Adopted and Rejected in Finding 79. 50-53. Rejected as unnecessary, immaterial and irrelevant. 54-55. Rejected in Finding 84 and otherwise as not based on competent substantial evidence. 56-57. Adopted in Finding 70. 58. Rejected as speculative, irrelevant, and as not based on competent substantial evidence. 59-60. Adopted in Finding 70. Rejected in Finding 84 and otherwise as not based on competent substantial evidence. Adopted and Rejected in Finding 78. 63-64. Adopted and Rejected in Findings 76-80. 65. Rejected as not based on competent substantial evidence 66-71. Adopted in Findings 74, 76 and 79, but otherwise Rejected in Finding 80 and as unnecessary. Rejected as unnecessary. Rejected as not based on competent substantial evidence Rejected in Findings 73, 75. Rejected as unnecessary. Rejected in Finding 77. 77-78. Rejected as irrelevant and immaterial. APPENDIX C * CONDITIONS OF CERTIFICATION * NOTE: THE REMAINING APPENDIX CONTAIN MAPS AND OTHER UNSCANABLE MATERIAL WHICH ARE AVAILABLE FOR REVIEW IN THE DIVISION'S CLERK'S OFFICE.
The Issue The issue in these cases is whether amendments to the City of Stuart's comprehensive plan, designated amendments 97-S1, 97-1, 98-R1, and 98-ER1 by the Department of Community Affairs, are "in compliance" as defined in Section 163.3184(1)(b), Florida Statutes.
Findings Of Fact The Parties. Petitioner, Board of County Commissioners of Martin County (hereinafter referred to as "Martin County"), is a political subdivision of the State of Florida. Petitioner, 1000 Friends of Florida, Inc. (hereinafter referred to as "1000 Friends"), is a Florida not-for-profit corporation. The corporate purpose of 1000 Friends includes monitoring and ensuring the proper implementation of the State's growth management laws. Respondent, City of Stuart (hereinafter referred to as the "City"), is a municipal corporation located within Martin County. Respondent/Intervenor, the Department of Community Affairs (hereinafter referred to as the "Department"), is an agency of the State of Florida. The Department is charged with responsibility for, among other things, the review of local government comprehensive plans and amendments thereto pursuant to Part II, Chapter 163, Florida Statutes (hereinafter referred to as the "Act"). No evidence concerning Intervenor, Hospice Foundation of Martin & St. Lucie, Inc., was presented. Standing. Martin County owns real property located within the jurisdiction of the City. Although Martin County is also an "adjoining local government," the evidence failed to prove that the amendments at issue in these cases will produce "substantial impacts" on the increased need for publicly funded infrastructure or substantial impacts on areas designated for protection or special treatment within Martin County's jurisdiction. There has been a negative impact on Martin County's ad valorem tax base by the annexation of properties formerly under its jurisdiction. Those impacts, however, were caused by the annexation of the properties and not by the amendments at issue in this case. Additionally, those impacts did not cause any need for "publicly funded infrastructure." There may also be some impact as a result in the change in land use designations for some of the annexed property. Martin County's conclusion about the extent of the increase in commercial uses, however, was not supported by the evidence. The evidence also failed to prove that any of the text amendments at issue in these cases will have a negative impact on Martin County's need to provide publicly funded infrastructure. The evidence also failed to prove that the reduction of land subject to Martin County's municipal service taxing district and any resulting decrease in taxable values with the district will cause Martin County to provide additional publicly funded infrastructure. Finally, the evidence failed to prove that Martin County has designated any areas "for protection or special treatment within their jurisdiction" or that there will any "substantial impact" on such areas. Martin County made oral and written comments to the City during the adoption of the amendments at issue in these cases. 1000 Friends, since its formation, has had approximately 6,000 members in Florida. Members from Martin County and the City have totaled approximately 835 and 235 persons, respectively. Martin County and City members constitute a substantial percentage of 1000 Friends' total membership. 1000 Friends' corporate purposes include the representation of its members in legal and administrative proceedings involving the Act. 1000 Friends' litigation committee specifically authorized its participation in these proceedings. The type of relief sought by 1000 Friends in these cases is the type of relief 1000 Friends is authorized to seek on behalf of its members. 1000 Friends made written comments to the City during the adoption of certain large scale amendments to the Future Land Use Map of the City's comprehensive plan and amendments to the City's comprehensive plan adopted as a result of the City's Evaluation and Appraisal Report. Martin County and 1000 Friends are "affected persons" as defined in Section 163.3184(1)(a), Florida Statutes. 1000 Friends' standing is limited, however, to standing to challenge certain large scale amendments to the Future Land Use Map of the City's comprehensive plan and text amendments to the City's comprehensive plan adopted as a result of the City's Evaluation and Appraisal Report. Intervenor, Hospice Foundation of Martin & St. Lucie, Inc., failed to prove its has standing to participate in this proceeding. General Information About Martin County and the City. Martin County is a relatively small county located in the central southeast portion of Florida. Martin County is abutted on the north by St. Lucie County, on the west by Lake Okeechobee and a small portion of Okeechobee and Glades Counties, on the south by Palm Beach County, and on the east by the Atlantic Ocean. Martin County has a population of approximately 118,000 permanent residents. The population increases by 32 to 34 percent during the fall and winter. Martin County has the third highest per capita income in Florida. There are four municipalities in Martin County, including the City. The City is located on the Atlantic Ocean at the mouth of the St. Lucie River, which divides the City into two land masses. Most of the City is located south and east of the St. Lucie River. A small part of the City is located just to the north of the St. Lucie River. The north and south portions of the City are connected by the Roosevelt Bridge. The City is connected to Palm City to the west by the Palm City Bridge. The City has a population of approximately 14,000. During the day the population of the City increases significantly to an estimated population of between 25,000 and 30,000. Because of the City's relatively small population and the large influx of persons traveling to the City during the day, the City has a need for a significant amount of ad valorem taxes. More than half of the City's ad valorem property taxes comes from commercial property located in the City. In November 1996 commercial land use in the City accounted for approximately 24 percent of the City's land area. The City is the only full-service incorporated municipality in Martin County. It is the county seat for Martin County and serves as the center of legal, medical, social, commercial, and governmental activities in Martin County. The City has recently characterized itself as follows: For most of its history the character of Stuart was one of low to moderate intensity development in a waterfront community, with a small town feel. A four-story height limit and 10-unit density limit for most residential building were the two main forces that continue this character. In addition, Stuart has long been a hub for Martin County, home to many public and private institutions and businesses. As a result, the percentage of commercial, institutional, and public land in the City was higher than it would be in a city that did not serve as a hub. This role was evident in 1991, and a balance between the residential needs of the citizens of Stuart and the sometimes competing, sometimes complementary needs of those hub-related land uses seemed to drive the 1991 Future Land Use Element. It was recognized at Plan adoption that Stuart was near build-out, and barring further major annexations, would have limited vacant land remaining for new development. City's Evaluation and Appraisal Report, Martin County Exhibit 11 at page 33. Prior to 1997, approximately 2,800 acres of land were located within the jurisdiction of the City. Compared to the rest of Martin County, the City is relatively modest economically. Per capita income in the City is approximately 80 percent of the Martin County-wide average per capita income. Housing in the City consists of approximately 6,300 units. Two-thirds of the City's housing stock is multi-family. Approximately 92 percent of the multi-family housing stock is valued at less than $70,000.00. Approximately 69 percent of the other third of the City's housing stock, which consists of single-family housing, is valued at less than $70,000.00. The median value of owner-occupied housing in the City has been growing at a much slower rate than Martin County, neighboring counties, and the State as a whole. Between 1980 and 1990, the median value of owner-occupied housing in the City increased 56 percent while in Martin County the median value increased 112 percent, in Indian River County 69 percent, in Palm Beach County 77 percent, in St. Lucie County 66 percent, and in the State of Florida 68 percent. Because of the relatively low value of the City's housing stock, ad valorem taxes generated from housing is relatively low. The U.S. 1 Corridor. One of the main thoroughfares in Martin County is United States Highway 1, "Southeast Federal Highway" (hereinafter referred to as "U.S. 1"). U.S. 1 runs north-south through the City. It crosses the St. Lucie River via the Roosevelt Bridge. Land located within unincorporated Martin County along U.S. 1 north of the Roosevelt Bridge almost to the St. Lucie County line is mostly developed or approved for development. Development includes major retail stores such as Target, Sports Authority, Barnes & Noble Bookstore, Office Max, Marshall's, Service Merchandise, PetSmart, Home Depot, Lowe's Home Improvement Center, and grocery stores. There are also many smaller retailers located in strip commercial shopping centers. Most of the development has been permitted during the past five to six years by Martin County. The area to the west and northwest of property annexed by the City north of the Roosevelt Bridge during 1997 and 1998 includes Treasure Coast Mall, strip shopping centers, offices, restaurants, and single-family housing at a density of four to five units per acre. The area to the east and northeast of the property annexed by the City north of the Roosevelt Bridge includes single-family housing at a density of four units per acre, multi- family housing, and commercial and industrial property. The area to the north of the property annexed by the City north of the Roosevelt Bridge includes a development of regional impact known as "West Jensen." West Jensen runs from Jensen Beach Boulevard north to the St. Lucie County line. By 2003, when the project is projected to be fully developed, West Jensen will include 260,000 square feet of limited industrial space, 729,000 square feet of general commercial space, 23,000 square feet of limited commercial space, 235,000 square feet of office space, 200 hotel rooms, 931 residential units, and four golf courses. The area to the immediate south of the City is fully developed. Along U.S. 1 there are large shopping centers, restaurants, car dealerships, strip shopping centers, single-family housing of four to five units per acre, and condominiums. The Martin County Airport abuts U.S. 1 on the east. The area to the west of the City, Palm City, is fully developed. Growth of the City Through Annexation. To the extent that the City grew during the 1970's, it did so through annexation. Subsequent to the 1970's, however, the City turned from annexation and focused on redevelopment of the City's downtown area and the eastern part of the City. Between 1988 and November 1996, the City only annexed 298 acres in 30 annexations. This amounted to an increase of only 18 percent in the geographic size of the City. Subsequent to late 1995, the City shifted its policy back to annexation as a means of growth. Of the 30 annexations the City was involved in between 1988 and November 1996, 19 took place in October 1995. In approximately 1996, the City performed an analysis of its projected revenues and expenditures through the year 2003. The City projected that its revenues would be less than its expenditures. Based upon more recent projections, which take into account recent City annexations, the City has projected that its revenues and expenditures should be about the same for the next eight to nine years. The City has projected that its revenues will increase as a result of ad valorem and sales taxes and other revenues which should be generated from the newly annexed properties. During the Spring of 1997, the City received a number of requests for voluntary annexation pursuant to Chapter 171, Florida Statutes. These requests were accepted by the City and the first 16 parcels were annexed in the Spring of 1997. During 1998, another 27 parcels were annexed through voluntary annexation. Between the spring of 1997, and the end of 1998 the City annexed a total of almost 1,200 acres, increasing the geographic area of the city by 48 percent. The City annexed 254.8 acres in 1997 and 934 acres in 1998. The first requests for voluntary annexations began shortly after Martin County determined that certain roads had no more capacity to sustain further growth. As a consequence of this determination, Martin County imposed a moratorium on new development that would impact U.S. 1 north of the Roosevelt Bridge and the area west of the City on the other side of the Palm City Bridge. Some of the parcels annexed by the City in 1997 and 1998, could not be developed because of the transportation concurrency problem Martin County determined it had. Although there was no direct testimony from owners of parcels annexed by the City during 1997 and 1998, as to the reason they sought voluntary annexation of their property by the City, it is clear that at least some of the voluntary annexations were influenced by Martin County's moratorium and the hope of property owners that the City would take sufficient actions to resolve the transportation concurrency problem on U.S. 1 to allow owners to develop their property. More significantly, the annexations were probably influenced by a perception of property owners that obtaining approval for development from Martin County was a more difficult process generally than obtaining approval through the City. During 1997, the level of service (hereinafter referred to as "LOS") standard selected by Martin County for roads under its jurisdiction was a LOS D. While the City ultimately modified its LOS for roads impacted by development of some of the parcels annexed during 1997 and 1998, the evidence failed to prove that the City's modifications were not based upon reasonable planning principles. The 1997 Small Scale Amendments. The City did not determine specifically how the 16 parcels it annexed during 1997 would impact the City of Stuart's Comprehensive Plan (hereinafter referred to as the "City's Plan") before it accepted the voluntary annexations. Pursuant to Section 171.062(2), Florida Statutes, the 16 parcels the City annexed in 1997 remained subject to the Martin County Comprehensive Plan (hereinafter referred to as the "County Plan") and Martin County's land development regulations until the City amended the City's Plan to incorporate the parcels into the City. In particular, the parcels remained subject to the County Plan until the City amended the City's Plan to assign appropriate land uses to the annexed parcels. Therefore, as the parcels were annexed, the City undertook efforts to amend the City's Plan to assign appropriate land use designations to the parcels. The first nine of the 16 parcels annexed by the City during 1997 took place on September 8, 1997. The parcels were annexed pursuant to the voluntary annexation procedure of Section 171.044, Florida Statutes. Each of the nine parcels consisted of less than ten acres of land. Simultaneously with the annexation of the parcels, the City adopted ten small scale amendments to the Future Land Use Map (hereinafter referred to as the "FLUM") of the City's Plan assigning land use designations under the City's Plan to the parcels. The small scale amendments adopted by the City on September 8, 1997 (hereinafter referred to as "1997 Small Scale Amendments"), were designated Amendments 97S-1 by the Department. The Department did not, however, review the amendments because they constituted small scale amendments exempt from review by the Department pursuant to Section 163.3187, Florida Statutes. On October 8, 1997, Martin County filed a Petition for Formal Administrative Hearing with the Division of Administrative Hearings contending that nine of the 1997 Small Scale Amendments were not "in compliance" as those terms are defined in Section 163.3184(1)(b), Florida Statutes. The Petition was designated Case No. 97-4582GM. 1000 Friends did not challenge the 1997 Small Scale Amendments or intervene in Case No. 97-4582GM. Martin County alleged that the 1997 Small Scale Amendments were not "in compliance" because: They are not supported by data and analysis; They were adopted without adequate intergovernmental coordination; They are internally inconsistent with the City's Plan; They do not discourage urban sprawl; They do not adequately protect natural resources; They cannot be accommodated by existing and planned infrastructure; They are inconsistent with Sections 163.3187(c)(1)(c) [sic] and 163.3187(c)(3)(c) [sic], Florida Statutes; They are inconsistent with the State Comprehensive Plan, Chapter 187, Florida Statutes; They are inconsistent with the Strategic Regional Policy Plan for the Treasure Coast; and They are inconsistent Chapter 9J-5, Florida Administrative Code. The land use designations assigned to the parcels to which the 1997 Small Scale Amendments apply were determined by the City based upon a consideration of the existing uses of the properties, existing and future land use designations of surrounding properties, natural resources on the properties, development trends in the area, analysis of infrastructure availability, and land use designation of Martin County for the properties. In two instances, the Kornbluh and Luce properties, the City's land use designations were virtually the same as Martin County's. Modifications to Martin County's land use designations for the properties were based upon consideration of existing non-conforming land uses of the properties and existing patterns of development in the area. Modifications in Martin County land use designations were based upon sound planning principles. The following findings of fact (with paragraph numbers, footnotes, and citations omitted) were recommended by the City in its Proposed Order. These findings accurately describe the parcels to which the 1997 Small Scale Amendments relate and the rationale for the land use designations assigned to the parcels by the City: Kornbluh property (Parcel 1) This parcel consists of 1.4 acres. In the County, approximately half of the parcel was designated commercial/residential (COR), and the other half commercial. The parcel is surrounded by commercial land use to the north, south, east and west, and a portion of the western boundary abuts existing developed low density residential. The City has given it a land use designation of commercial pursuant to Ordinance No. 1482-97. There is no substantive difference between the County's land use designation for the Kornbluh property and the City's land use designation. The same types of uses are permitted in both, such as gas stations, restaurants, bars, professional offices, veterinary offices, and other retail and commercial uses. 1st Christian Church property This parcel consists of approximately 2.8 acres and has an existing church on the property. In the County, the land use designation was low density residential. The property abuts some commercial property, some vacant property that was low density residential in the County but which has been changed to neighborhood special district in the City, a mobile home park, and some vacant land designated a medium density residential. Because the land has an existing church on the property, the City determined that institutional was a more appropriate land use designation. Thus, the City adopted an ordinance giving the property a land use designation of institutional pursuant to Ordinance No. 1494-97. City Cemetery property (Parcel 7) This parcel consists of 2.06 acres. Part of the property is used as a cemetery and the other part is vacant. In the County, the land use designation was commercial general. The City has given that part of the property that is used as a cemetery a land use designation of institutional pursuant to Ordinance No. 1501.97 and the vacant part a designation of commercial pursuant to Ordinance No. 1502.97. The City Cemetery property is at the intersection of Colorado Avenue and Monterey Road which is one of the most developed intersections in all of Martin County. The property is surrounded by commercial development and also a mobile home park. Luce property (Parcel 8) This parcel consists of approximately 4 acres. In the County, the land use designation was commercial. The City has given it a land use designation of commercial pursuant to Ordinance No. 1506-97. There is no difference between the City's and County's land use designation. The City considered a commercial land use designation as appropriate for the Luce property based on the existing use of the property and the surrounding land uses. Specifically, half of the property is currently used as a produce market and the property abuts commercial land use to the north and to the west. To the east, it abuts the old City landfill which is currently closed and to the south it abuts the Martin County jail. Mush property (Parcel 9A) This parcel consists of approximately 3 acres and is fully developed. In the County, the land use designation was industrial. The City has given it a land use designation of commercial pursuant to Ordinance No. 1509-97. The City considered the commercial land use designation as appropriate for the Mush property because it is fully developed as a contractor's showcase office. In addition, the surrounding land uses are commercial to the north and west and industrial to the south and east. The City's land use designation of commercial is more restrictive than the County's land use designation of industrial. The County's industrial designation allows both industrial types of uses and commercial uses, such as a gas stations, professional offices, retail buildings, etc. The City's land use designation of commercial does not allow industrial uses. Treasure Coast Auction House property (Parcel 9B) This parcel consists of approximately 5½ acres and is fully developed. In the County, the land use designation was industrial. The City has given it a land use designation of commercial pursuant to Ordinance No. 1512-97. The City considered the commercial land use designation as appropriate for the Treasure Coast Auction House property because it is fully developed as a Scotty's store. In addition, the surrounding land uses are commercial to the north and west and industrial to the south and east. As explained above in the findings of fact regarding the Mush property (9-A), the City's land use designation of commercial is more restrictive than the County's land use designation of industrial. Hospice property (Parcel 10) This parcel consists of approximately 10 acres. In the County, the land use designation was half low density residential and half commercial. The City has given it a land use designation of institutional pursuant to Ordinance No. 1515-97. The Hospice property is developed as a hospice facility and the owners have plans to expand the facility. The property abuts Indian Street, which is an existing two-lane facility which will become a four-lane facility. Indian Street is considered a major collector in the County's comprehensive plan and it links U.S. 1 and State Road 76. Bailey property (Parcel 11) This parcel consists of approximately 10 acres and is currently vacant. In the County, the land use designations was half low density residential and half commercial limited. The City has given it a land use designation of commercial pursuant to Ordinance No. 1519-97. The Bailey property abuts Indian Street, which is an existing two-lane road which will become a four-lane road. Indian Street is considered a major collector in the County's comprehensive plan and it links U.S. 1 and State Road 76. Since it is a commercial corridor, the City considered the commercial designation on the property to be more appropriate than low density residential. Armellini property (Parcel 12) This parcel consists of approximately 1.2 acres. In the County, the land use designation was industrial and the City has given it a land use designation of commercial pursuant to Ordinance No. 1522-97. The Armellini property is on the corner of U.S. 1 and Indian Street and is in close proximity to other commercial development. The types of uses permitted by the City's commercial category is similar to the types of uses allowed by the County's industrial category, such as gas stations, office buildings, restaurants, and bars. The 1997 Large Scale Amendments and the Future Land Use Element Amendment. On December 7, 1997, the City adopted an amendment to the text of the Future Land Use Element (hereinafter referred to as the "FLUE") of the City's Plan. This amendment added a new land use designation to the City's Plan: "Neighborhood/Special District." The amendment also added goals, objectives, and policies concerning the new land use category. The newly created Neighborhood/Special District allows mixed land uses, including neighborhood commercial, office, residential, and recreational. Mixed residential and non- residential uses either in the same building or on the same site are required for a Neighborhood/Special District. A Neighborhood/Special District must have at least 30 percent residential uses and at least ten percent non-residential (excluding recreational) uses. Parking must be clustered in separate pockets rather than located in one expanse, and pedestrian interconnections must be used. On December 8, 1997, the City annexed seven parcels of property by voluntary annexation. On the same date the City adopted nine FLUM amendments assigning land use designations to the annexed property consistent with the City's Plan. Each of the parcels to which the FLUM amendments applied consisted of more than ten acres of land and, therefore, were not considered small scale amendments exempt from Department review. The nine large scale amendments to the FLUM and the FLUE amendment adopted by the City in December 1997 (hereinafter referred to as "1997 Large Scale Amendments and the "FLUE Amendment," respectively), were designated Amendment 97-1 by the Department. The Department reviewed the 1997 Large Scale Amendments and the FLUE Amendment. In a Statement of Intent issued February 9, 1998, the Department found the 1997 Large Scale Amendments and the FLUE Amendment were not "in compliance." The Department's determination was based upon its conclusion that the new land use category and existing non-residential land use categories applied in the 1997 Large Scale Amendments lacked a density/intensity standard. On February 17, 1998, the Department filed a Petition of the Department of Community Affairs with the Division of Administrative Hearings. The Petition was designated Case No. 98-0794GM. Martin County was granted leave to intervene in Case No. 98-0794GM by Order Granting Intervention entered March 11, 1998. Martin County challenged the FLUE Amendment and the 1997 Large Scale Amendments. Martin County alleged that the 1997 Large Scale Amendments and the FLUE Amendment were not "in compliance" because: They are not supported by data and analysis; They were adopted without adequate intergovernmental coordination; They are internally inconsistent with the City's Plan; They do not discourage urban sprawl; They can not be reasonably implemented; They cannot be accommodated by existing and planned infrastructure; They fail to establish intensities of use; They are inconsistent with the State Comprehensive Plan of Chapter 187, Florida Statutes; and They are inconsistent with the Strategic Regional Policy Plan for the Treasure Coast. 1000 Friends did not challenge the 1997 Large Scale Amendments or the FLUE Amendment. Nor did 1000 Friends intervene in Case No. 98-0794GM. The land use designations assigned to the parcels to which the 1997 Large Scale Amendments apply were determined by the City based upon a consideration of the existing uses of the properties, existing and future land use designations of surrounding properties, natural resources on the properties, development trends in the area, analysis of infrastructure availability, and land use designation of Martin County for the properties. Modifications to Martin County's land use designations for the properties were based upon consideration of existing non-conforming land uses of the properties and existing patterns of development in the area. Modifications in Martin County land use designations were based upon sound planning principles. The following findings of fact (with paragraph numbers, footnotes, and citations omitted) were recommended by the City in its Proposed Order. These findings accurately describe the parcels to which the 1997 Large Scale Amendments relate and the rationale for the land use designations assigned to the properties by the City: Hendry property (Parcel 3) This parcel consists of approximately 7½ acres. The property contains an existing fully developed office warehouse, and in the County the land use designation was commercial general. The parcel abuts commercial property to the north, south, and west, and to the east it abuts a mobile home park as well as a conservation easement within a walled, gated residential development. Because the existing use was a warehouse, the City determined that a more appropriate land use designation would be industrial and suggested this land use to the owner. The City adopted the industrial land use designation pursuant to Ordinance No. 1488-97. With regard to the Hendry property, there is no difference between the County's land use designation of commercial and the City's land use designation of industrial. The existing office warehouse on the property is permitted both in the County's commercial designation. Millenium property (Parcel 4) This parcel consists of approximately 24½ acres and is vacant. In the County, the land use designation was commercial. The City has given it a land use designation of commercial pursuant to Ordinance No. 1491-97. There is no difference between the County's commercial land use designation and the City's commercial land use designation. Wacha property (Parcel 6) This parcel consists of approximately 47 acres. In the County, the land use designation was part mobile home, part low density, part medium density, and part industrial. The owner of the property approached the City with the idea of building a mixed use village on the property. The City was supportive of this idea and worked with the Treasure Coast Regional Council to develop a new land use category, neighborhood special district, as well as refine the site plan to create the mixed use village concept. The neighborhood special district land use category was adopted pursuant to Ordinance No. 1498-97. Part of the property that was originally designated industrial in the County was designated commercial in the City pursuant to Ordinance No. 1497-97. The neighborhood special district land use category will allow the Wacha property to be developed as a traditional neighborhood development project. The proposed development will include a town square area with shops and restaurants on the ground floor, apartments on the second floor, and parking behind the buildings to create a pedestrian-friendly thoroughfare. The development also includes a home office district where people can live and work in the same building. The development also proposes a single family residential neighborhood clustered around a common green with garages to the rear, and the building set with front porches on the street. The City and County's land use designation for the Wacha property differ significantly. The City's land use designation requires a mix of uses, with not less than 30% residential and not less than 10% commercial or non-residential development within a given property. The County's land use designations are exclusive, so that each specific property can only be used for mobile home park or light industrial or medium density residential or low density residential. The County would not permit a mixed use development on this property. The Wacha property is part of the City's Community Redevelopment Area. The City determined that the neighborhood special district land use designation would further the intent and purpose behind the Community Redevelopment Area which is to encourage redevelopment of blighted areas. Dubner North property (Parcel 13), Republic Industries property (Parcel 14), Dubner South property (Parcel 15) The Dubner North parcel consists of approximately 48 acres, the Republic Industries property consists of approximately 11½ acres, and the Dubner South property consists of approximately 56 acres. In the County, the land use designation for each of the properties was industrial. The City has given the Dubner North property a land use designation of part commercial pursuant to Ordinance No. 1525-97 and part industrial pursuant to Ordinance No. 1526-97, the Republic Industries property a land use designation of commercial pursuant to Ordinance No. 1529-97, and the Dubner South property a land use designation of commercial pursuant to Ordinance No. 1532-97. The Dubner North, Republic Industries, and the Dubner South properties are bound by the railroad tracks to the east. To the north, south, and west, the properties are surrounded by either County industrial or commercial future land uses or City commercial land uses. The Remedial Amendments. Subsequent to the opening of Case No. 98-0794GM, the Department and the City entered into a Stipulated Settlement Agreement pursuant to Section 163.3184(16), Florida Statutes. Martin County declined to enter into the Stipulated Settlement Agreement. The City agreed to adopt remedial amendments which included text descriptions of various land use categories, including the Neighborhood/Special Districts category, and a table setting for residential densities and commercial intensities for land use categories created in the City's Plan. On August 24, 1998, the City adopted remedial amendments consistent with the Stipulated Settlement Agreement (hereinafter referred to as the "Remedial Amendments"). The Remedial Amendments were adopted by Ordinance No. 1646-98. The Remedial Amendments, designated Amendment 98-R1 by the Department, were determined to be "in compliance" by the Department. Upon the adoption of the Remedial Amendments and the determination that the Remedial Amendments were "in compliance," the parties in Case No. 98-0794GM were realigned as required by Section 163.3184(16)(f)1, Florida Statutes, to reflect that Martin County was challenging the Department's conclusion that the 1997 Large Scale Amendments and the FLUE Amendment, as modified by the Remedial Amendments, were "in compliance." Martin County also filed a Petition for Formal Hearing challenging the Department's determination that the 1997 Large Scale Amendments and the FLUE Amendment, as modified by the Remedial Amendments were "in compliance." That Petition was filed with the Division of Administrative Hearings on December 17, 1998. The Petition was designated Case No. 98-5501GM. 1000 Friends did not challenge the Remedial Amendments. Nor did 1000 Friends intervene in Case No. 98-5501GM. I. The 1998 Large Scale Amendments. Between April 13, 1998, and June 22, 1998, the City annexed 16 large parcels through voluntary annexation. On August 24, 1998, the City adopted 33 FLUM amendments assigning land use designations to the newly annexed parcels consistent with the City's Plan. Eleven of the FLUM amendments were small scale amendments pursuant to Section 163.3187, Florida Statutes (hereinafter referred to as the 1998 Small Scale Amendments). The 1998 Small Scale Amendments were not reviewed by the Department even though they were submitted to the Department with the other 22 FLUM amendments. The parcels to which the other 22 FLUM amendments related consisted of more than ten acres of land and, therefore, were not considered small scale amendments exempt from Department review. The 22 large scale amendments adopted on August 24, 1998 (hereinafter referred to as "1998 Large Scale Amendments), were designated Amendment 98-1 by the Department. The Department reviewed the 1998 Large Scale Amendments and found them "in compliance." Martin County and 1000 Friends filed separate Petitions for Formal Hearing with the Department challenging the determination that the 1998 Large Scale Amendments were "in compliance." The Petitions filed by Martin County and 1000 Friends were filed with the Division of Administrative Hearings on December 17, 1998. The Petitions were designated Case Nos. 98- 5503GM and 98-5510GM, respectively. Martin County alleged that the 1998 Large Scale Amendments were not "in compliance" because: They are not supported by data and analysis; They were adopted without adequate intergovernmental coordination; They are internally inconsistent with the City's Plan; They do not discourage urban sprawl; They do not adequately protect natural resources; They cannot be accommodated by existing and planned infrastructure; They are inconsistent with the State Comprehensive Plan of Chapter 187, Florida Statutes; They are inconsistent with the Strategic Regional Policy Plan for the Treasure Coast; and They are inconsistent Chapter 9J-5, Florida Administrative Code. 1000 Friends alleged that the 1998 Large Scale Amendments were not "in compliance" because they were adopted without intergovernmental coordination. The land use designations assigned to the parcels to which the 1998 Large Scale Amendments apply were determined by the City based upon a consideration of the existing uses of the properties, existing and future land use designations of surrounding properties, natural resources on the properties, development trends in the area, analysis of infrastructure availability, and land use designation of Martin County for the properties. Modifications to Martin County's land use designations for the properties were based upon consideration of existing non-conforming land uses of the properties and existing patterns of development in the area. Modifications in Martin County land use designations were based upon sound planning principles. The following findings of fact (with paragraph numbers, footnotes, and citations omitted) were recommended by the City in its Proposed Order. These findings accurately describe the parcels to which the 1998 Large Scale Amendments relate and the rationale for the land use designations assigned to the properties by the City: Pulte Homes property (Parcel F3), Vista A property (Parcel F5), Gibson property (Parcel F6), and Debartolo property (Parcel F24) The Pulte Homes parcel consists of approximately 312 acres. In the County, the land use designation was low density residential and high density residential. The City has given it a combination of conservation, pursuant to Ordinance No. 1549- 97, low density residential, pursuant to Ordinance No. 1550-97, and neighborhood special district, pursuant to Ordinance No. 1551-97. The Vista A parcel consists of approximately 9 acres and is vacant. In the County, the land use designation was commercial/office/residential (COR) and high density residential. The City has given it a land use designation of commercial pursuant to Ordinance No. 1546-97. The Vista B parcel consists of approximately 44 acres and is vacant. In the County, the land use designation was low density residential and the City has given it a land use designation of low density residential pursuant to Ordinance No. 1553- 97. The Gibson parcel consists of approximately 100 acres. In the County, the land use designation was low density and commercial general. That part of the property that was designated commercial in the County was given a commercial land use designation in the city pursuant to Ordinance No. 1557-97. That part of the property that was designated low density residential in the County was given a combination of low density residential and conservation (Ordinance No. 1558-97), and multi-family residential (Ordinance No. 1559-97) pursuant to Ordinance No. 1549-97, low density residential, pursuant to Ordinance No. 1550-97, and neighborhood special district, pursuant to Ordinance No. 1551-97 in the City. The Debartolo parcel originally consisted of 205.90 acres. However, a portion of the parcel has been reannexed by the City to cure the defects found by the circuit court. The County's land use designation was a mixture of low, medium and high density residential. The City has given it a combination of part neighborhood special district pursuant to Ordinance No. 1618-97, part low density residential and conservation pursuant to Ordinance No. 1620-97, and part multi-family and conservation pursuant to Ordinance No. 1622-97. These five parcels (Pulte, Vista A, Vista B, Gibson, and Debartolo) contain a series of wetlands that form a slough that drains through Arant's swamp, or Haney Creek, and into the St. Lucie River. In terms of long- range planning, the City believed it best to implement a series of greenways and flow-ways to interconnect those wetlands and preserve areas to help clean up a non-point source pollution problem that was occurring in the St. Lucie River. Thus, recommending an appropriate land use designation for these properties, the City considered the pattern of wetlands in the area that form the slough and proposed a conservation land use designation for parts of some of the properties. In addition, the City received a grant from the Florida Communities Trust to purchase 84 acres of Arant's swamp or Haney Creek. This area is south of the five properties described above. The 84 acres form a flow- way for all of the water flow that comes from north to south and ultimately into the St. Lucie River. The City is proposing to construct a greenway which would connect the wetlands in the five properties described above so that water can flow unimpeded into Arant's swamp and ultimately into the St. Lucie River. Those connections would be accomplished at site planning and connected under roadways with staged culverts so animals can travel along the sides and water can flow through the middle. Comparing the City and County's land use designations for these five parcels, the land use designations adopted by the City are more appropriate than the County's land use designations and will result in a better use of the properties. For instance, by changing some of the land uses from low density residential in the County to conservation in the City, the environmentally sensitive areas will be preserved in perpetuity. In addition, by changing the County's high density residential use for the Pulte Homes property to neighborhood special district in the City, the development will require a mix of uses including some commercial which will be interconnected in a pedestrian fashion to the existing single family home development which lies to the east. This will lessen the need for additional vehicular trips and encourage alternative forms of transportation. Stewart property (Parcel F11), Madyda property (Parcel F12), First Eastern Residential property (Parcel F13), First Eastern property (Parcel F14), and SK Partner's I property (Parcel F15) The Stewart parcel (F11) consists of approximately 15 acres of land and is vacant. In the County, the land use designation was a mix of low and medium density residential, and commercial/office/residential (COR). The City has given it a land use designations of multi-family residential pursuant to Ordinance No. 1576-97. The Madyda parcel (F12) consists of approximately 6½ acres. The County's land use designation was a mix of medium density residential and commercial/office/residential (COR). The City has given it a land use designation of commercial pursuant to Ordinance No. 1579-97. The First Eastern Residential parcel (F13) consists of 50 acres and is a fully developed low income housing project. The County's land use designation was medium density and low density residential. The City has given it a designation of multi-family pursuant to Ordinance No. 1582-97. The First Eastern parcel (F14) consists of 32.20 acres and is vacant. The County's land use designation was a mixture of Commercial pursuant to Ordinance No. 1585-97. The SK Partners I parcel (F15) consists of 18.94 acres and is vacant. The County's land use designations was commercial general. The City has given it a land use designation of commercial pursuant to Ordinance No. 1588-97. There is no difference between the City's and the County's land use designations. Sunbelt Partners/Stetson property (Parcel F17), Sunbelt Partners property (Parcel F18), SK Partners II property (Parcel F190) The Sunbelt/Stetson parcel (F17) consists of approximately 25½ acres, the Sunbelt Partners parcel (F18) consists of approximately 2.5 acres, and the SK Partners II parcel (F19) consists of approximately 38 acres. All three parcels are vacant. The City's original annexation of the Sunbelt Partners/Stetson parcels was invalidated by the circuit court. However, a portion of the parcel has been reannexed. The County's land use designation for the three parcels was primarily commercial, with a small amount of commercial/office/ residential. The City's gave all three parcels a land use designation of commercial pursuant to Ordinance Nos. 1615-97, 1612-97, and 1609-97. There is no real difference between the County's and the City's land use designations. Dubner East property (Parcel F22), Sellian property (Parcel F22), Dubner West property (Parcel F23) The Dubner East parcel consists of approximately 11.5 acres, the Sellian parcel (F22) consists of approximately 4 acres, and the Dubner West (F23) consists of approximately 10 acres. Dubner East is vacant, the Sellian property is developed as an office building and indoor assembly, and the Dubner West property is partially developed as an office building. The County's land use designation for each of the parcels was industrial. The City has given each a land use designation of commercial pursuant to Ordinance Nos. 1600-97, 1603-97, and 1606-97. The three properties abut County industrial land uses, although for the most part, the properties are developed as commercial uses. The properties also abut City commercial land uses. The City's land use designation is more restrictive than the County's because the County industrial allows both industrial and commercial uses while the City's commercial designation allows only commercial uses. The City's Evaluation and Appraisal Report Amendments. Consistent with Section 163.3191, Florida Statutes, the City conducted an Evaluation and Appraisal Report, including suggested amendments to the City's Plan. On August 24, 1998, simultaneously with the adoption of the 1998 Large Scale Amendments and the 1998 Small Scale Amendments, the City adopted amendments to all elements of the City's Plan (hereinafter collectively referred to as the "EAR Amendments") based upon the recommendations of the Evaluation and Appraisal Report. The EAR Amendments include density and intensity standards adopted as part of the Remedial Amendments to the Future Land Use Element of the City's Plan. The EAR Amendments revise the schedule for capital improvements and establish new concurrency requirements as part of the Capital Improvements Element of the City's Plan. The EAR Amendments set out the steps the City will take to coordinate the City's Plan and its implementation with other agencies and entities as part of the Intergovernmental Coordination Element of the City's Plan. The EAR Amendments revise LOS standards for transportation in the Transportation Element of the City's Plan The EAR Amendments were reviewed by the Department simultaneously with the 1998 Large Scale Amendments and found to be "in compliance." The EAR Amendments were designated Amendment 98-ER1 by the Department. The 1998 Small Scale Amendments were also submitted to the Department with the 1998 Large Scale Amendments and the EAR Amendments but were ultimately withdrawn by the City at the request of the Department. Martin County and 1000 Friends also challenged the EAR Amendments in their Petitions challenging the 1998 Large Scale Amendments filed in Case Nos. 98-5503GM and 98-5510GM, respectively. Martin County alleged that the EAR Amendments were not "in compliance" because: They are not supported by data and analysis; They were adopted without adequate intergovernmental coordination; They are internally inconsistent with the City's Plan; They do not discourage urban sprawl; They do not adequately protect natural resources; They cannot be accommodated by existing and planned infrastructure; They are inconsistent with the State Comprehensive Plan of Chapter 187, Florida Statutes; They are inconsistent with the Strategic Regional Policy Plan for the Treasure Coast; and They are inconsistent with Chapter 9J-5, Florida Administrative Code. Martin County did not allege which specific elements of the City's Plan amended by the EAR Amendments were being challenged in its Petition. It merely alleged that "Stuart's comprehensive plan amendments" are not in compliance. In the Joint Proposed Order filed by Martin County and 1000 Friends, specific portions of the Intergovernmental Coordination Element (Policies A1.13 through A1.23, Policy A2.4, Policy A7.3, Objective 8, and Policies A8.1 through A8.11), the FLUE (Policies B1.2 through B1.4), and the Capital Improvements Element (the selection of LOS E) are cited. The specific objective and policies cited in the Joint Order are hereby incorporated into this Recommended Order by reference. Additionally, the Future Annexation Map adopted as part of the EAR Amendments by the City is cited in the Joint Proposed Order. The Future Annexation Map includes 8,000 additional acres which are projected to be annexed into the City by the year 2015. 1000 Friends' challenge to the EAR Amendments is limited to a challenge to the City's Intergovernmental Coordination Element. Data and Analysis. At the time that all of the amendments at issue in this proceeding were adopted there was more than adequate data and analysis to support all of the amendments. The data and analysis relied upon by the City in adopting the 1997 Small and Large Scale Amendments, the FLUE Amendment, the Remedial Amendments, the 1998 Large Scale Amendments, and the EAR Amendments was professionally acceptable. The testimony of Martin County's expert planner concerning data and analysis was not persuasive. That testimony was not based upon a complete review of the data and analysis relied upon by the City and the Department. The evidence presented by Martin County concerning data and analysis focused largely on the fact that the property to which the 1997 Small and Large Scale Amendments and the 1998 Large Scale Amendments related had been annexed before the accumulation of all the data and analysis relied upon in support of the amendments. That evidence was irrelevant because the Act and the rules promulgated thereunder do not govern annexations; they govern plan amendments and require that the data and analysis be available at the time a plan amendment is adopted and not at the time of annexation. Data and analysis were required for the 1997 Small Scale Amendments and the 1997 and 1998 Large Scale Amendments, not to support the need for the annexed property, but to support the City's choice of land use classifications assigned to the annexed property. There were ample data and analysis to support the City's choices. Once the properties at issue in this proceeding were annexed consistent with Chapter 171, Florida Statutes, the City began the process of considering the amendments to the City's Plan necessary to accommodate the annexations and bring them under the City's Plan. While the evidence did prove that the City now has approximately 33 years of commercial property to meet the needs of the City during the 20 years of the City's Plan, there is no requirement in the Act or the implementing rules that a need for annexed property be present before annexation occurs. The commercial property located in the City as a result of the 1997 Small Scale Amendments and the 1997 and 1998 Large Scale Amendments is not significantly different from the amount of commercial property which existed prior to the amendments. Most of the annexed property was designated commercial or industrial by the County Plan. Industrial uses under the County Plan include many of the same uses of commercial property under the City Plan. Under these circumstances, the City made the most reasonable planning decision by classifying the annexed property consistent with surrounding land uses and Martin County's prior land use designation of land use for the property. The City completed a needs analysis as part of its review and revision of the City's Plan through the EAR Amendments. That analysis was based upon data available at the time of the EAR Amendments. The data was also available at the time the 1997 Small Scale Amendments, the 1997 and 1998 Large Scale Amendments, the FLUE Amendment, and the Remedial Amendments were adopted. The City's needs analysis included an allocation of land uses to the land use categories designated in the City's Plan. Although the allocation of land resulted in an allocation of more commercial land than may be required during the life of the City's Plan, the evidence failed to prove that such a surplus results in any under allocation of land to other classifications. Approximately 150 acres of the property annexed by the City during 1997 and 1998 were re-designated commercial by the City. Eighteen of those acres have already been developed, leaving an additional 132 acres of commercial land in the City. The evidence failed to prove that this increase of acreage is significant. Evidence presented by Martin County as to the increase in commercial property was not persuasive. In actuality, the increase in property designated commercial as a result of City's annexations amounts to approximately 48 acres. There were a total of 35 parcels designated commercial by the City, including the 1998 Small Scale Amendments. Most of those parcels were already developed in whole or in part with commercial, commercial-like, or industrial land uses. The uses of property classified industrial are also substantially similar to the uses allowed for commercial to result in little discernable effect on the supply of commercial property in the City. The only vacant parcels assigned a land use designation of commercial by the City that were not classified commercial or industrial by Martin County were referred to at hearing as parcels 1, 11 F4, F7, F12, and F14. Parcel 1 consisted of 1.4 acres. Approximately half of parcel 1 was designated commercial and the other half was designated commercial/office/residential. At most, this amounts to an increase of .7 acres of commercial. Parcel 11 consists of ten acres, parcel F4 consists of nine acres, parcel F7 consists of 5.06 acres, parcel F12 consists of 6.67 acres, and parcel F14 consists of 32.20 acres. Half of parcel F14 was classified as commercial by Martin County. The evidence also proved that the possible intensity of use for the property annexed by the City during 1997 and 1998, when compared with the possible intensity of use under the County Plan is less under the City's land use classifications. Martin County's expert testimony concerning increases in intensity was not credible. That testimony was based upon small scale parcels 5, 10, and 11, and large scale parcels 6, F6, and F24. Parcel 5 is already developed as 1st Christian. Parcel 10 is partially developed and the testimony concerning Martin County's land use designation for the property was incorrect. For parcel 6, the Wacha property, the testimony by the Martin County expert concerning Martin County's land use designation for part of the property was incorrect. The portion of the property designated commercial by the City was classified as industrial by Martin County. For parcel F6, the Gibson property, only a fourth of the property was designated multi-family. The rest of the property was given a land use designation that is the same or less intense then that allowed by the County. For parcel F24, the Debartolo property, Martin County's land use designation was a combination of low, medium, and high density residential and not just low density residential as testified by Martin County's expert witness. Most of the property was low density residential under the County's Plan and remained low density residential under the City's Plan. The calculations concerning the increase in intensity of use made by Martin County's expert witness were flawed and not credible, as explained in findings of fact 123 through 125. Martin County's assertion that the Remedial Amendments are not supported by data and analysis because of the increase in intensity of commercial property is rejected. In addition to the question of data and analysis to support the land use classifications assigned to the annexed property by the City, Martin County has suggested that there is insufficient data and analysis concerning how public facilities will be provided to the annexed property. The evidence failed to support this assertion. At the time of the 1997 and 1998 Small and Large Scale Amendments the City did not perform a concurrency analysis. Concurrency analyses are required at the time of site plan review or other application for another development permit. Therefore, neither the Act nor the City's Plan required a concurrency analysis. A transportation analysis involves transportation planning for an extended period of time and not planning for individual parcels. Capital facilities and available capacity for a five-year period are looked at in a transportation analysis. Concurrency analyses, on the other hand, are performed on individual parcels of property at the time of proposed development of those parcels. Neither a transportation analysis nor a concurrency analysis is required when a local government designates a general land use classification for a parcel of property. Martin County has asserted that the City's decision to adopt a LOS E and to "maintain" the actual existing LOS for two segments of U.S. 1 and State Roads 707 and 714, both of which are projected to have LOS F within the next five years in light of the moratorium it has imposed on development along U.S. 1 supports its argument that the FLUM amendments are not supported by data and analysis. They assert that evidence presented by the City's expert transportation engineer cannot be considered data and analysis because it was prepared after the FLUM amendments. This assertion is rejected. While the analysis may not have been available, the data was. More importantly, the testimony of the City's expert engineer may be relied upon to refute Martin County's assertion that there existed a transportation concurrency problem at the time the FLUM amendments were adopted. Martin County based its conclusion on an outdated Florida Department of Transportation table adopted as part of the County's Plan. That table lacked a footnote that cautioned against anything other than very general reliance on the table. Martin County's assertions concerning transportation concurrency were also refuted by the more accurate analysis performed by the City's expert engineer. Based upon his analysis, which was unrefuted by credible evidence, there is in fact no LOS deficiency not addressed by the City's Plan. The difference between the LOS adopted by the City and Martin County's LOS is not significant. The reports of the City's expert transportation engineer were sufficient data and analysis to support the EAR Amendments to the Capital Improvements and Transportation Elements. The LOS selected by the City, LOS E, is the most efficient use of the City's arterial roadways under current conditions. The evidence failed to prove that there were inadequate data and analysis to support Policy A1.1 of the FLUE. The evidence failed to prove that there were inadequate data and analysis concerning the effectiveness of existing intergovernmental coordination mechanisms. Intergovernmental Coordination. In May 1997, the City notified Martin County that it was considering a series of voluntary annexation requests it had received. The City and Martin County have entered into formal and informal agreements dealing with the provision of a number of services, including water and sewer, emergency rescue, solid waste, and law enforcement. Impact fees are dealt with by interlocal agreement pursuant to which the City collects impact fees for library services, regional parks, and county roads on behalf of the Martin County. Following the City's notification to Martin County of the voluntary annexation requests it had received, City staff and the Director of Public Works for Martin County met to discuss the provision of water and sewer service to the annexed areas. An agreement was reached between the City and Martin County as to which entity would be responsible for water and sewer services to each parcel to be annexed. Discussions between City and Martin County staff concerning responsibility for maintenance of roads were also held, including discussions at meetings of the Metropolitan Planning Organization Technical Advisory Committee. The Metropolitan Technical Advisory Committee was established to provide for intergovernmental coordination in Martin County. Issues concerning road maintenance were resolved. Beginning essentially at the time of the notice to Martin County of the voluntary annexation requests the City had received, Martin County attempted to prevent the annexations. Although Martin County cooperated to resolve some of the problems that resulted from the annexations, Martin County prepared an emergency agenda item directing staff to evaluate the annexations and seek ways of preventing the annexations. Martin County staff reports concerning the proposed annexations indicated few problems that would result from the annexations. The reports were submitted to the City by Martin County. Martin County indicated, however, that it would be conducting further analysis on potential traffic impacts. Martin subsequently reported to the City that it had further concerns and would be attending a City scheduled workshop to be held in July 1997. No one from Martin County attended the workshop held in July or the workshop held by the City in September 1997. City staff reviewed all of Martin County's comments, notified the City Commission of the comments, and took the comments into consideration in making recommendations concerning the annexations and amendments to the City's Plan to the City. On September 16, 1997, the City notified Martin County of further requests for voluntary annexation. City staff thereafter attempted to schedule meetings with Martin County staff to discuss these annexations. Additional discussions were held with Martin County concerning utilities. These discussions resulted in agreements concerning the provision of utilities to the annexed parcels. Discussions concerning stormwater were also held between the City and Martin County. Transportation issues were discussed at Metropolitan Planning Organization Technical Advisory Committee meetings. Martin County wrote letters to the City and made oral comments concerning the FLUM Amendments. Martin County raised concerns over urban sprawl, concurrency, and intergovernmental coordination. Martin County also filed challenges to the City's annexations resulting in a number of civil actions between the City and Martin County. As a result of these actions and Martin County's attempts to prevent the annexations, relations between City and Martin County staff became strained. It became increasingly difficult for staff to work together to resolve common issues. In November 1997 Martin County sent a letter to the City expressing concerns over the late 1997 annexations involving urban sprawl and transportation concurrency. These comments were considered by the City. Martin County staff attended an August 1998 meeting at which the City adopted the FLUM Amendments relating to the late 1997 annexations. These comments were considered by the City. While the City and Martin County did not come to a consensus over all issues relating to the FLUM amendments, it cannot be said that there was not sufficient intergovernmental coordination between them. Given the diametrically opposing positions of the two governments concerning the annexations which gave rise to the amendments at issue in these cases, it is doubtful that any further coordination between the City and Martin County could have resolved the issues between the City and Martin County. Prior to adopting the EAR Amendments and the 1998 Large Scale Amendments, the City's planning consultant reviewed the FLUM amendments that had already been adopted, the EAR Amendments, and the additional FLUM amendments the City was considering. The consult obtained data from Martin County concerning population and traffic. Efforts to obtain information from Martin County, however, were by this time difficult. The City even had to result to a public records request from Martin County to obtain some information. Again, while the City and Martin County did not come to a consensus over all issues relating to the EAR Amendments and the 1998 Large Scale Amendments, it cannot be said that there was not sufficient intergovernmental coordination between them. Given the state of deterioration of the relationship between the City and Martin County by the time these amendments were considered and adopted by the City, it is doubtful that any further coordination between the City and Martin County would have resulted in any improvement in the EAR Amendments or the 1998 Large Scale Amendments. In addition to the fact that the intergovernmental coordination between the City and Martin County under the circumstances of this matter was adequate, any lack of coordination did not result in any substantial issues concerning the amendments to the City's Plan not being resolved. The evidence in these cases has not supported Martin County's or 1000 Friends' alleged deficiencies with the amendments. Evidence concerning intergovernmental coordination or the lack thereof before and during annexation of the parcels to which the FLUM amendments in these case relate was irrelevant. Nothing in the Act or the rules promulgated thereunder requires intergovernmental coordination on annexations. The City adopted an Intergovernmental Coordination Element as part of the EAR Amendments. The Element includes policies which relate to procedures for dealing with coordination concerning the development of the annexed areas. Those policies are quoted in the City's Proposed Order at finding of fact 149 and are incorporated herein by reference. The Intergovernmental Coordination Element adopted by the City does not meet the requirements of Section 163.3177(6)(h), Florida Statutes. It does, however, meet the requirements of Sections 163.3177(4)(a) and (10)(b), Florida Statutes, and Rule 9J-5.015, Florida Administrative Code. The requirements of Section 163.3177(6)(h), Florida Statutes, must be met by local governments no later than December 31, 1999. Pursuant to Section 163.3177(6)(h)4., Florida Statutes, the Department adopted Rule 9J-40, Florida Administrative Code, providing, in part, that the City submit an intergovernmental coordination element in compliance with Section 163.3177(6)(h), Florida Statutes, no later than June 1, 1997, and that the element be adopted no later than December 31, 1997. In a publication of the Department called the Summer 1998 Community Planning publication, the Department informed the City to ignore Rule 9J-40, Florida Administrative Code, and submit its intergovernmental coordination element no later than December 31, 1999. The City complied with this direction from the Department. The Department did not repeal Rule 9J-40, Florida Administrative Code. Although Section 163.3177(6)(h)4., Florida Statutes, authorizes local governments to comply with Section 163.3177(6)(h), Florida Statutes, earlier than December 31, 1999, the City has not opted to do so. Internal Inconsistency. Goal A of the FLUE provides that the City will "[m]aintain and enhance its small town waterfront character." Although the City has increased its size by 48 percent, it has not increased its "waterfront." None of the amendments to the FLUM at issue in these cases involve property located on the City's waterfront. The evidence also failed to prove that a 48 percent increase in the size of the City in and of itself is contrary to the City's small town character. Finally, the impact on the City's character is a result, not of the designation of land use categories for the annexed property, but from the annexation itself. Although annexation is the catalyst for the amendments being challenged in this proceeding, the fact of the annexation cannot be the issue. Policy A.3.2 of the FLUE provides that the City should "direct development to areas already served by adequate government utilities, services and schools . . . ." While some of the roads serving many of the annexed parcels were determined to be over-utilized, that over-utilization was based upon Martin County's LOS. Based upon the City's newly established LOS E, there are adequate road services for the annexed properties. The delivery of other utilities, services, and schools to the annexed properties has been coordinated between the City and Martin County or those services are already being provided. Objective B.3 of the FLUE provides that the City will discourage urban sprawl and continuous linear development along major roadways in order to achieve a compact urban form. While the annexed parcels are located along U.S. 1, their designated land uses pursuant to the amendments at issue are essentially consistent with their present uses or designated land uses. Little change in the form of development of the annexed parcels will occur as a result of the amendments. Therefore, the FLUM amendments do not increase linear development. Rather, they recognize it. As discussed, infra, the annexed properties do not constitute urban sprawl. As amended by the EAR Amendments, Objective B.1 of the FLUE provides that the City will "[d]iscourage urban sprawl by planning for urban infill and redevelopment of lands located within Stuart." The FLUM amendments constitute urban infill and are consistent with Objective B.1 as amended by the EAR Amendments. Objective B.3 of the FLUE requires a commitment of the City to the promotion of patterns of land use that are compatible and convenient to residents, businesses, and visitors, and the avoidance of the wasteful use of land. The evidence failed to prove that the FLUM amendments are inconsistent with this objective. Again, there is little difference in the uses of the property which is the subject of the FLUM amendments before and after their annexation. Policy A.8 of the Infrastructure Element of the City's Plan requires that the City will maximize the use of existing facilities and discourage urban sprawl through its annexation policy. Policy A.3.3, Objectives A.5, A.6, A.7, and A.9, and Policy A8.1 also provide similar guidance to the City. As discussed, infra, the FLUM amendments do not fail to discourage urban sprawl. The FLUM amendments also are not inconsistent with these provisions to the extent that they require the City to maximize the use of existing services. Policy A1.1 of the Housing Element of the City's Plan provides that the City must designate adequate residential land to accommodate projected need for housing. The most up to date analysis of existing population data suggests that there is adequate housing to meet the City's need for housing through the year 2015. The evidence failed to prove that anything about the amendments at issue in these cases are inconsistent with this policy. The evidence failed to prove that the amendments at issue in these cases are inconsistent with any provision of the City's Plan. The consistency of the foregoing goals, objectives, and policies with the City's Plan were the only ones specifically addressed in the Joint Proposed Order. The City also addressed the consistency of a number of other goals, objectives, and policies with the City's Plan. Those findings of fact (182-190, 193-195, 197, and 200-204) are hereby accepted and incorporated into this Recommended Order by reference. Urban Sprawl. The areas annexed by the City, while including some vacant land, are not located in a rural or predominately rural area. Instead, the annexed parcels are all located in an area designated in the County's Plan as the "Primary Urban Service Area." An independent evaluation of the properties confirms their urban location. The indicators of urban sprawl listed in Rule 9J- 5.006(5), Florida Administrative Code, do not apply to the annexed parcels when considered "within the context of features and characteristics unique to each locality." The testimony of Martin County's witnesses concerning the "linear pattern" of development evidenced by the annexed parcels failed to take into account the character of surrounding and abutting, unincorporated properties and the location of all the parcels within the "Primary Urban Service Area" established in the County's Plan. Testimony offered by Martin County concerning urban sprawl was also not credible because Martin County's expert witness did not complete the land use analysis of Rule 9J-5.006(5)(h) through (j), Florida Administrative Code, because she failed to evaluate local conditions and development controls. Natural Resources. The evidence did not prove that any of the amendments at issue in these case fail to adequately protect natural resources. Availability of Infrastructure. As explained, supra, the City and Martin County coordinated the continued provision of most public utilities and services to the annexed parcels. Continued water, sewer, emergency rescue, law enforcement, and solid waste disposal services for the annexed parcels were all coordinated between the City and Martin County. Water and sewer services and recreational facility needs were analyzed by the City and found to be adequate. The evidence failed to prove that any necessary infrastructure is not available or will not be provided by the City. The Future Annexation Map. The City's Evaluation and Appraisal Report included a Map of Future Annexation. The Map of Future Annexation identified a small area south of the City for future annexation over the next ten years. The areas actually annexed by the City during 1997 and 1998 involve a more extensive area than that identified on the Map of Future Annexation. The areas identified on the Map of Future Annexation were areas which the City believed it would likely desire to annex and did not take into account voluntary annexation. The Map of Future Annexation was not intended to exclude such voluntary annexations. The EAR Amendments also include a Future Annexation Area Map (hereinafter referred to as the "FAA Map"). The FAA Map identifies approximately 8,000 additional acres of land which the City may consider annexing through the year 2015. The FAA Map is not, however, intended to represent an area which the City intends to pursue for annexation. It simply identifies the maximum area within which the City intends to consider annexation. It is, in effect, intended as a limitation on annexations that the City would pursue. The evidence failed to prove that the FAA Map is not a reasonable boundary for the possible expansion of the City through the year 2015 by annexation. The State and Regional Plans. The evidence failed to prove that any of the challenged amendments are inconsistent with the State Comprehensive Plan, Chapter 187, Florida Statutes. The evidence failed to prove that any of the challenged amendments are inconsistent with the Strategic Regional Policy Plan for the Treasure Coast. The Strategic Regional Policy Plan for the Treasure Coast was not offered into evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Secretary of the Department of Community Affairs enter a final order dismissing Hospice Foundation of Martin & St. Lucie, Inc., as a party. IT IS FURTHER RECOMMENDED that the Secretary of the Department of Community Affairs enter a final order finding the 1997 Small and Large Scale Amendments, the Remedial Amendments, the 1998 Large Scale Amendments, and the EAR Amendments to be "in compliance" as defined in Section 163.3184(1)(b), Florida Statutes. DONE AND ENTERED this 1st day of October, 1999, in Tallahassee, Leon County, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of October, 1999. COPIES FURNISHED: Paul R. Bradshaw, Esquire Paul R. Bradshaw, P.A. 1345 Dupont Road Havana, Florida 32333 Gary K. Oldehoff, Esquire Martin County Attorney 2401 South East Monterey Road Stuart, Florida 34996 Terrell Arline, Esquire 1000 Friends of Florida, Inc. 926 East Park Avenue Post Office Box 5948 Tallahassee, Florida 32301 Robert C. Apgar, Esquire Yeline Goin, Esquire 902-A North Gadsden Street Tallahassee, Florida 32303 Carl Coffin, Esquire City of Stuart 121 South West Flagler Avenue Stuart, Florida 34994 Shaw Stiller, Assistant General Counsel Karen A. Brodeen, Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Tim B. Wright, Esquire Louis E. Lozeau, Jr., Esquire Warner, Fox, Seeley, Dungey and Sweet, L.L.P. Post Office Drawer 6 Stuart, Florida 34995 Steven M. Seibert, Secretary Department of Community Affairs Suite 100 2555 Shummard Oak Boulevard Tallahassee, Florida 32399-2100 Cari L. Roth, General Counsel Department of Community Affairs Suite 315 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100
