The Issue Whether an amendment to the Broward County Comprehensive Plan, PC-92-20, which was adopted by ordinance number 92-50 rendered the Broward County Comprehensive Plan not "in compliance", within the meaning of Section 163.3184(1)(b), Florida Statutes?
Findings Of Fact The Parties. The Petitioner, the Florida Department of Community Affairs (hereinafter referred to as the "Department"), is a state agency. The Department is charged pursuant to the Local Government Comprehensive Planning and Land Development Regulation Act, Part II of Chapter 163, Florida Statutes (hereinafter referred to as the "Act"), with responsibility for, among other things, the review of comprehensive growth management plans and amendments thereto. The Respondent, Broward County (hereinafter referred to as the "County"), is a political subdivision of the State of Florida. The County is the local government charged with the responsibility pursuant to the Act for developing a comprehensive plan for future development in the unincorporated areas of the County and the approval of amendments to the County's comprehensive plan. The Intervenor, Susan Edn, is a resident of, and owns real property located in, Broward County, Florida. Ms. Edn submitted written and oral comments to the County concerning the plan amendment at issue in this proceeding. General Description of the County. The County is a generally rectangular-shaped area located on the southeastern coast of Florida. The County is bounded on the north by Palm Beach County, on the south by Dade County, on the east by the Atlantic Ocean and on the west by Collier and Hendry Counties. The County's Comprehensive Plan. The County adopted a comprehensive plan as required by the Act on March 1, 1989 (hereinafter referred to as the "County Plan"). Volume 1 of the County Plan includes the Broward County Land Use Plan, which applies to, and governs, future land use throughout the County, including the unincorporated areas of the County. The Future Land Use Element. The County Plan includes a Future Unincorporated Area Land Use Element dealing with future land use in the unincorporated areas of the County. See Volume 2 of the County Plan, Edn exhibit 15. The Future Land Use Element of the County Plan required by the Act consists of the Broward County Land Use Plan and the Future Unincorporated Area Land Use Element. The Future Land Use Element identifies a number of land-use categories, including a "residential" category. Densities of development on land designated "residential" are also established. There are eight designated residential future land uses identified and defined in the Future Land Use Element of the County Plan. Those designations and densities are as follows: Estate (1) Residential: up to 1 dwelling unit per gross acre. Low (2) Residential: up to 2 dwelling units per gross acre. Low (3) Residential: up to 3 dwelling units per gross acre. Low (5) Residential: up to 5 dwelling units per gross acre. Low-Medium (10) Residential: up to 10 dwelling units per gross acre. Medium (16) Residential: up to 16 dwelling units per gross acre. Medium-High (25) Residential: up to 25 dwelling units per gross acre. High (50) Residential: up to 50 dwelling units per gross acre. The density of development for the Rural Estate category is up to 1 dwelling unit per gross acre. The density for the Rural Ranch category is up to 1 dwelling unit per 2.5 gross acres or up to 1 dwelling unit per 2 net acres. The County Plan includes Goal 08.00.00, titled Public Facilities and Phased Growth, and Objective 08.01.00, which provide: GOAL 08.00.00 PHASE GROWTH CONSISTENT WITH THE PROVISION OF ADEQUATE REGIONAL AND COMMUNITY SERVICES AND FACILITIES. OBJECTIVE 08.01.00 COORDINATE FUTURE LAND USES WITH AVAILABLE REGIONAL AND COMMUNITY FACILITIES AND SERVICES Coordinate future land uses with the availability of regional and community facilities and services sufficient to meet the current and future needs of Broward County's population and economy without endangering its environmental resources. The following policies related to Goal 08.00.00 and Objective 08.01.00 are included in the County Plan: POLICY 08.01.04 In order to protect the health, safety, and welfare of Broward County's residents, development should not be permitted in those portions of Broward County with inadequate potable water and wastewater treatment facilities. . . . . POLICY 08.01.09 Private septic tanks and wells in Broward County should be phased out and replaced with centralized water and wastewater systems, where necessary, to protect the health, safety, and welfare of Broward County's residents. POLICY 08.01.10 Local government entities shall require existing development on septic tanks and private wells to hook up to centralized sewer and water facilities as they become available. The evidence failed to prove that the amendment which is the subject of this proceeding is inconsistent with the policies quoted in finding of fact 14 or any other goal, objective or policy of the County Plan. The Subject Amendment: PC-92-20. The Board of County Commissioners of the County adopted Ordinance 92- 50 on December 9, 1992. Ordinance 92-50 included nineteen amendments to the County Plan, including amendment PC-92-20. PC-92-20 (hereinafter referred to as the "Challenged Amendment"), is the amendment to the County Plan challenged in this proceeding by Ms. Edn. The Challenged Amendment amends the land use designation of approximately 2,453 acres of land. Of the 2,453 total acres, the designation of 2,272 acres is changed from Estate (1) Residential to Rural Ranch and the designation of the remaining 180.7 acres of land is changed to Rural Estate. Pursuant to the Challenged Amendment the change in designation also results in a change in density from one dwelling unit per acre to a density of one dwelling unit per two and one-half acres for the Rural Ranch and a density of one dwelling unit per two net acres for the Rural Estate. The Subject Property. The 2,453 acres of land which are the subject of the Challenged Amendment are located in the unincorporated area of the County, east of Southwest 148th Avenue, south of Griffin Road, west of Flamingo Road and north of Sheridan Street. Dwellings currently exist on approximately 85 percent to 90 percent of the subject property. Existing dwellings are served by septic tanks and wells. Pursuant to the County Plan, without the Challenged Amendment, the 10 percent to 15 percent of the subject property not yet developed may be developed at a higher density using septic tanks and individual wells. The subject property is not currently serviced by a sewer service provider or a water service provider. The County Plan recognizes and accepts the foregoing existing conditions. See Map 12-1 of the County Plan Map Series titled "Existing and Proposed Sanitary Sewer Service Area", and Map 14-1 of the County Plan Map Series, titled "Existing and Proposed Potable Water Service Area." The Challenged Amendment does not modify the existing conditions of the subject property except to decrease the density of development allowed on the property. The subject property is not located within a public wellfield zone of influence. See County Plan Land Use Plan Natural Resource Map Series, titled "Existing and Planned Waterwells & Zones of Influence." The Department's Review of the Challenged Amendment. The Department reviewed the Challenged Amendment as originated by the Act. After review of the Challenged Amendment, the Department raised no objections. As part of the Department's initial review of the Challenged Amendment pursuant to Section 163.3184(6), Florida Statutes (1992 Supp.), the Department considered comments of various entities, including the Florida Department of Environmental Protection, the South Florida Regional Planning Council, the South Florida Water Management District and others concerning the Challenged Amendment. Some of those comments were critical. The critical comments concerning the Challenged Amendment pertain to the use of wells for potable water and the use of septic tanks in the effected area. Those concerns were considered by the Department and ultimately determined to be insufficient to find the Challenged Amendment not "in compliance." The Department's conclusion was based, in part, upon the fact that the Challenged Amendment will reduce the demand on sewer by 477,400 gallons per day and the demand on water by 380,800 gallons per day. The Department's conclusion was also based upon the fact that the majority of the area effected has already been built-out. Ms. Edn offered the critical comments of various governmental entities who provided comments to the Department pursuant to Section 163.3184, Florida Statutes (1992 Supp.), into evidence. Evidently, Ms. Edn believes that those comments were not adequately considered by the Department or that they prove that the Challenged Amendment is not "in compliance." The evidence failed to prove either suggestion. The evidence failed to prove that the Department's consideration of critical comments about the Challenged Amendment was not adequate or that the Department's conclusions concerning those comments were not reasonable and proper. On the contrary, the evidence proved that the Department did consider all comments and decided that the Challenged Amendment was "in compliance" despite the critical comments. The evidence also proved that the Department's rationale for still finding the Challenged Amendment in compliance was reasonable. Additionally, Ms. Edn failed to present evidence to support a finding that the entities that made critical comments concerning the Challenged Amendment during the initial review of the Challenged Amendment still believe those comments are valid. Therefore, the evidence failed to prove that the critical comments concerning the Challenged Amendment were still valid as of the date of the final hearing of this matter. Data and Analysis-Sewer and Potable Water Services. The evidence failed to prove that the County did not provide data and analysis concerning the impact of the Challenged Amendment on sewer and potable water services. Facility and service capacity data and analyses concerning the impact of the Challenged Amendment on the availability of, and the demand for, sewer and potable water services was provided to the Department by the County. Based upon the data and analysis provided, the Challenged Amendment will tend to reduce the demand on sewer and potable water services. The evidence failed to prove that the data and analysis provided was inadequate. Data and Analysis-Soil Suitability. The evidence failed to prove that the County did not provide data and analysis concerning soil suitability. The County submitted data and analysis concerning the impact of the Challenged Amendment on soil and natural resources, including waterwells and zones of influence, to the Department. The County concluded that the Challenged Amendment would preserve the natural function of soils in the area and Ms. Edn failed to prove the inaccuracy of the County's conclusion. See the County Land Use Plan Natural Resource Map Services titled "Soils." Data and Analysis-Wellfield Protection. The evidence failed to prove that the County did not provide data and analysis concerning the impact of the Challenged Amendment on wellfield protection. The County relied upon the County Land Use Plan natural Resource Map Series titled "Existing and Planned Waterwells and Zones of Influence" and concluded that the area impacted by the Challenged Amendment is not located within a public wellfield zone of influence. The evidence failed to prove the inaccuracy of the County's conclusion. Data and Analysis-Biscayne Aquifer. The evidence failed to prove that the County did not provide data and analysis concerning the impact of the Challenged Amendment on the Biscayne Aquifer. The South Florida Water Management District has not designated the area of the County impacted by the Challenged Amendment to be a "prime groundwater recharge area" for the Biscayne Aquifer. Proliferation of Urban Sprawl. Pursuant to Section 163.3177(6)(a), Florida Statutes, (1992 Supp.) and Rule 9J-5.006(3)(b)7, Florida Administrative Code, comprehensive plans are required to discourage the proliferation of "urban sprawl". The Department has provided a definition of "urban sprawl" in a November 1989 Technical Memorandum: . . . scattered, untimely, poorly planned urban development that occurs in urban fringe and rural areas and frequently invades lands important for environmental and natural resource protection. Urban sprawl typically manifests itself in one or more of the following patterns: (1) leapfrog development; (2) ribbon or strip development; and (3) large expanses of low-density single- dimensional development. The evidence failed to prove that the foregoing definition or any other pronouncement in the Technical Memorandum constitutes policy of the Department. The evidence also failed to prove that the reduced densities allowed by the Challenged Amendment constitute "urban sprawl." The State Comprehensive Plan. The State Comprehensive Plan is contained in Chapter 187, Florida Statutes. Goals and Policies of the State Comprehensive Plan are contained in Section 187.201, Florida Statutes. The evidence failed to prove that the Challenged Amendment is inconsistent with any provision of the State Comprehensive Plan. The Regional Comprehensive Policy Plan. The South Florida Planning Council has adopted the Regional Plan for South Florida (hereinafter referred to as the "Regional Plan"). The Regional Plan was adopted pursuant to Chapter 186, Florida Statutes, to provide regional planning objectives for the County, Dade County and Monroe County. In the petition filed in this case, Ms. Edn alleged that the Challenged Amendment is inconsistent with Goal 13.4.10 of the Regional Plan. Goal 13.4.10 of the Regional Plan provides the following: Within the study area of the Southwest Broward/Northwest Dade Subregional Study, any existing or new user of on-site disposal systems in Broward County and within the Dade County urban development boundary should be required to hook up to a centralized wastewater collection when available. The evidence failed to prove that centralized wastewater collection is "available" to require existing or new users of on-site disposal systems in the area of the Challenged Amendment to hook up to. The evidence failed to prove that the Challenged Amendment is inconsistent with the Regional Plan.
Findings Of Fact The Resource Recovery Facility The purpose of the Applicants' proposed resource recovery facility (RRF), a solid waste-fired electrical power plant, is to dispose of municipal solid waste and recover energy. This "waste to energy" facility will initially dispose of up to 2,200 tons of refuse each day, and generate up to 55.5 megawatts of electrical power. The ultimate disposal capacity of the proposed facility is 3,300 tons of refuse each day, and a generating capacity of 83.25 megawatts. The proposed RRF complex will include an administrative building, scalehouse/weigh station, receiving and handling building, furnace boilers, turbine generators, ash disposal area, and electrical substation. The site development plans for the project contemplate that solid waste will be delivered by truck to the enclosed refuse receiving and handling building. All waste will be stored and processed inside the main facility. The Site The site for the proposed RRF is an undeveloped 25-acre parcel of land situated on the south side of Northwest 45th Street (Hilton Road), midway between the Florida Turnpike and Powerline Road; an unincorporated area of Broward County. The uses surrounding the site are predominantly industrial. On the south side of Hilton Road, between the Florida Turnpike, which lies to the west, and Powerline Road, which lies to the east, are welding shops, engine repair shops, and automobile salvage yards. Located north of Hilton Road is an industrial zoned area which includes an asphalt batching plant. Immediately south and east of the project site is a newly permitted landfill area which will function as an expansion of the existing landfill located immediately south and west of the site's boundaries. Consistency of the site with local land use plans and zoning ordinances Broward County has adopted a Comprehensive Plan, pursuant to Chapter 163 Florida Statutes, which establishes guidelines and policies to promote orderly and balanced economic, social, physical, environmental and fiscal development of the area. Pertinent to this proceeding are the Broward bounty Land Use Plan-map and the Unincorporated Area Land Use Plan (the land use plan element of the comprehensive plan), and Broward County's zoning ordinances. The proposed site is designated industrial under the Broward County Land Use Plan-map and the Unincorporated Area Land Use Plan. The proposed RRF is a utility for solid waste disposal and, as such, an allowable use under the industrial designation of both plans, and satisfies the goals, policies, and objectives of the Broward County Comprehensive Plan. On April 22, 1986, the Board of County Commissioners of Broward County approved the rezoning of the site to Planned Unit Development (PUD) Special Complex District, and approved the RRF conceptual site plan. The proposed RRF is a Planned Special Complex under Broward County's PUD zoning ordinances and, as such, a permitted non-residential use. 1/ The Department of Community Affairs, Department of Environmental Regulation, and South Florida Water Management District concur that the proposed RRF is consistent and in compliance with existing land use plans and zoning ordinances. The Public Service Commission did not participate in this land use portion of the power plant siting process. Notice of the land use hearing was published in the Fort Lauderdale News/Sun-Sentinel on April 21, 1986, and in the Florida Administrative Weekly on April 18, 1986.
Recommendation Based on 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 granting certification for the location, construction and operation of the proposed facility, subject to the conditions of the certification attached to this Recommended Order as Appendix II. DONE AND ORDERED this 9th day of January 1987, in Tallahassee, Florida. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 9th day of January 1987.
The Issue Whether the Miami-Dade County Comprehensive Plan Amendment adopted by Ordinance 2018-109 on September 27, 2018 (the “Plan Amendment”), is “in compliance,” as that term is defined in section 163.3184(1)(b), Florida Statutes (2018).1
Findings Of Fact The Parties and Standing Respondent, Miami-Dade County (“the County”), is a political subdivision of the State of Florida with the duty and authority to adopt and amend a local government comprehensive plan, pursuant to section 163.3167, Florida Statutes. The Limonar Petitioners are limited liability companies under the laws of the State of Florida whose principal places of business are in Florida. The Limonar Petitioners own property within the area affected by the Plan Amendment. Petitioner, Michelle Garcia, resides and owns property in the County near the area affected by the Plan Amendment. Petitioner, Tropical Audubon Society (“Tropical”), is an environmental organization in South Florida dedicated to conserving and restoring South Florida ecosystems, focusing on birds and other wildlife, as well as their habitats. Tropical owns property in the County. Each of the Petitioners submitted oral or written comments, recommendations, or objections concerning the Plan Amendment to the County during the time period beginning with the Plan Amendment adoption hearing and ending with the Plan Amendment transmittal hearing. The parties stipulated that Ms. Garcia’s substantial interests will be adversely affected by the Plan Amendment given that her property is located in the County near the area affected by the Plan Amendment. The Plan Amendment The Plan Amendment amends the Plan to allow an extension of State Road 835 (also known as the Dolphin Expressway) from its current terminus at Northwest (NW) 137th Avenue and NW 12th Street to the West Kendall suburban area of the County. The approximate 13-mile extension is planned as a six-lane expressway from its current terminus to Southwest (SW) 8th Street and SW 167th Avenue, then continuing as a four-lane expressway to connect with SW 136th Street in Kendall. The proposed extension is referred to herein as the “new corridor.” The Plan Amendment incorporates the new corridor on the County’s Future Land Use Map (“FLUM”), as well as the Transportation Element map series, including both the traffic circulation and Mass Transit subelements. Additionally, the Plan Amendment changes some existing, and adds several new, policies in the Land Use, Transportation (including Traffic Circulation and Mass Transit subelements), Open Space, and Intergovernmental Coordination Elements. The new corridor was first envisioned in 2012, when the Miami-Dade Metropolitan Planning Organization (“MPO”), since renamed the Transportation Planning Organization (“TPO”), added the southwest extension of SR-836/Dolphin Expressway to its Long-Range Transportation Plan (“LRTP”) as a “partially funded project.” “Partially funded” means that the TPO authorized the project to move forward for study—in the case of the new corridor, to undertake a Project Development and Environment (“PD&E”) Study—but that the project is not yet approved for construction funding. The LRTP describes the purpose and need for the new corridor as follows: The new extension will address existing highway congestion and enhance mobility in the fastest growing area of the county. The purpose of the SR- 836 (Dolphin) SW Extension is to: Improve system connectivity, Improve access to and from the area to major employment centers such as the MIA, the MIC, the Port of Miami, Downtown Miami, Doral, as well as educational and commercial centers within the study area, Provide north south expressway access to serve existing and future travel demand, Improve hurricane/emergency evacuation routes and travel times, Evaluate multimodal transportation opportunities to improve connectivity to the fast growing southwest area of Miami-Dade County, Evaluate the best alternative for the SR-836 (Dolphin) SW Extension that is technically sound, environmentally sensitive and publicly acceptable. The new corridor is to be funded by the Miami-Dade Expressway Authority (“MDX”).3 UDB and UEA The entirety of the new corridor will be located outside of the County’s urban development boundary (“UDB”). Some portions of the new corridor lie within the area known as the urban expansion area (“UEA”), but the majority of the new corridor lies outside the UEA. The UDB is a defining feature of the Plan, which distinguishes the area where urban development may occur through the year 2020 from areas where it should not occur. The County’s plan accommodates urban development within the UDB by increasing development densities and intensities inside the UDB. The UDB was originally established in 1975 and comprised 233,000 acres. The UDB boundary was significantly amended in 1988, following enactment of Florida’s Growth Management Act, by the addition of 16,000 acres. Between 1990 and 2012, only about 2,400 acres have been added to the UDB, most of which was added by a 2006 amendment to the Plan. At least in part, the UDB operates to limit development pressure on the County’s agricultural lands located to the west of the UDB between the urbanized area and the Everglades National Park. A 2012 Environmental 3 MDX was dissolved by chapter 2019-169, Laws of Florida. The legislation has been challenged and a current appeal is pending before the First District Court of Appeal. See Fla. Dep’t of Transp. v. MDX, Case No. 19-3625 (Fla. 1st DCA 2019). Protection Agency study noted, “the dwindling supply of agricultural land is an especially urgent issue.” The study characterized the County as “dangerously close” to losing its “critical mass” of land in active agriculture usage. The Plan provides for expansion of the UDB to provide additional countywide development capacity “when the need for such change is determined to be necessary through the Plan review and amendment process.” The UEA was established in 1993 and is the area currently projected to be needed to accommodate development in the area between the 2020 UDB boundary and 2030 UEA boundary. Until this area is brought into the UDB through an amendment to the Plan, development within the UEA is limited to uses consistent with “Agriculture” and “Open Land” areas, as defined in the Plan. Residential development outside the UDB is limited to one dwelling unit per five acres (1du/5acres). New Corridor Path The new corridor is planned to pass through lands that are protected by a variety of regulations and development limitations. Figure 1 depicts the location of the new corridor on the Plan Land Use Map, identified as the solid black line beginning at the western end of NW 12th Street and following a winding path west and southwest to its termination at SW 136th Street. [Remainder of page intentionally blank] Figure 1 From its connection with the existing SR 836 corridor, the new corridor will first traverse an area designated “Open Land,” which, according to the Plan is “set aside for uses other than urban development.” It is more than “simply surplus undeveloped land,” and is intended to serve resource- based functions like agriculture or development of potable water supply. According to the Plan, “Open Land areas primarily consist of wetlands.” The only use definitively allowed in this subarea is rural residential. The Plan provides that all other proposed uses will be reviewed on a case-by-case basis. More particularly, the new corridor will traverse the County’s Open Land Subarea 3, which contains the Tamiami-Bird Canal Basins and the eastern portion of the North Trail and Bird Drive Everglades Basins. The basins are recharge areas for the Biscayne Aquifer, the primary source of the County’s drinking water. The Plan provides that the following land uses may be considered for approval in this subarea: [R]ural residences at one dwelling unit per 5 acres (“1 du/5”), compatible institutional uses, public facilities, utility and communications facilities, seasonal agricultural use, recreational use, or limestone quarrying and ancillary uses. Uses that could compromise groundwater quality shall not occur in this area. Any land alteration and development in the Bird Drive or North Trail basins shall conform to the wetland basin plans adopted for those basins pursuant to policies of [the Plan]. The new corridor will traverse a portion of the Bird Drive Basin outside the UDB. Existing development in that area is limited to agriculture and the C-4 detention basin. The detention basin is utilized by the South Florida Water Management District (“District”) to hold water drained from the C-4 canal prior to storm events in order to prevent flooding of the Sweetwater residential community lying to the north. A majority of the new corridor will be located within the County’s West Wellfield protection area, and a portion will run through the 30-day and 100- day travel-time contours. The contours represent the time it takes for a substance released at the contour line to travel to a production well.4 A short segment of the new corridor, approximately three-quarters of a mile, will traverse the Pennsuco wetlands, characteristically high-quality swamps and wet prairies not suited for agriculture or urban development. It is a restored wetland area that has been used as a mitigation project for developers and rock miners over the last 20 to 30 years (i.e., a “mitigation bank”). The mitigation project is under the jurisdiction of the District and other environmental agencies, and is almost complete. The Pennsuco wetlands are also designated as critical habitat for endangered species, including the wood stork, the Florida bonneted bat, the Everglades snail kite, and the Florida Panther. The Pennsuco wetlands are designated on the FLUM as Environmental Protection (“EP”). According to the Plan, the EP designation applies to those areas in the County “most environmentally significant, most susceptible to environmental degradation, and where such degradation would adversely affect the supply of potable fresh water or environmental systems of County, regional, State, or national importance.” The final stretch of the new corridor will traverse Agriculturally- designated lands, mostly within the UEA. Land with this designation “contains the best agricultural land remaining in [the County].” The Plan provides that protection of viable agriculture is a priority of the County. Principle uses allowed in this category “should be” agriculture and uses ancillary to,5 and directly supportive of, agriculture and farm residences. Notably, the Plan provides that, in order to protect the 4 The times are calculated based on a non-reactive substance, i.e., water. Chemicals and other contaminants may have different actual travel times. 5 Uses ancillary to agriculture are those related to preserving, processing packaging, or selling agricultural products; farm supplies; and sale and service of farm machinery and implements. agricultural industry, “uses and facilities that support or encourage urban development are not allowed in this area.” The Comprehensive Everglades Restoration Plan The Comprehensive Everglades Restoration Plan (“CERP”) is an extensive environmental restoration project primarily aimed at restoring as much natural Everglades wetland habitat as possible and re-establishing healthy freshwater flows to parts of the Everglades which have suffered from historic alteration of its hydrology, a result of fragmentation of the ecosystem for urban development and agriculture. CERP is a multi-decade, inter-agency process implemented primarily by the District and the U.S. Army Corps of Engineers (“the Corps”). CERP includes approximately 68 individual projects, approved by a formal process set out in federal law. The projects are compiled in a “yellow book,” originally produced in 1999 and delivered to Congress for approval. Some projects are set forth in great detail, while others are conceptual, but each project identifies a set of hydrologic or ecologic objectives that it is proposed to meet. Restoring surface water flows to the Everglades is a balancing act. While the Everglades is in need of more fresh water, allowing unregulated flows to the Everglades means flooding urban and agricultural properties which were once part of the Everglades system. On the other hand, the urban and agricultural areas depend on surface water flows for water supply, directly or indirectly through groundwater recharge (to prevent saltwater intrusion), for drinking water and agricultural production. CERP regulates the free flow of surface water to provide needed water for urban and agricultural uses, and avoid flooding those areas, while providing as much fresh water to the Everglades as possible. Large portions of the four-square mile Bird Drive Basin have been acquired by the District and the Department of the Interior (“DOI”) to implement a CERP project known as Component U. Component U has several major objectives, including goundwater recharge, reducing seepage from the Everglades National Park buffer areas, enhancing and maintaining wetland viability within the basin, flood attenuation, water treatment of outflows from west Dade wastewater treatment plant, and supplying water to meet demands of the downstream conveyance systems. The state conservation lands north and east of the basin, particularly conservation area 3A, are, at times, inundated with so much water that the wetland literally drowns. CERP projects, including the L31 canal (adjacent to Krome Avenue) and the small canal associated with the Dade/Broward levee, were designed to “shuttle” collected water from the conservation areas and store it for proportionate distribution to both urban areas and the Everglades National Park. Component U is envisioned as both a surface water storage and treatment area, to assist in regulation of water flowing to both the Everglades and the urban areas from the conservation areas to the north and north east. It is related to a larger project to reroute water flowing through the L31 canal, west of Krome Avenue, to the east side of the Bird Drive Basin and eventually into the Bird Drive Canal, utilizing the large, undeveloped basin for storage and treatment, as well as flood control. Additionally, Component U would provide an aquifer recharge function while storing excess water, which would benefit the West Wellfield lying due south. Because of its location relative to several other CERP projects, the Bird Drive Basin plays a critical strategic role in the overall plan for restoration of the southern Everglades. The water quality, conveyance, and storage objectives it is required to meet, along with its flood-attenuation objectives, are relied upon as part of the planning and operation of the other CERP projects in the region to restore the hydrology of the state-owned Water Conservation Areas, Everglades National Park and Florida Bay, and Biscayne Bay. The Bird Drive Basin project is a necessary flow way for restored water levels along the eastern edge of the Everglades, necessary to prevent the flow of too much water through the more central portions of the Everglades, which results in drowning out native plant and animal species. Among the goals of the project is to recharge groundwater and drinking water supplies, and to buffer developed areas in the County from flooding that would result from the higher restored water levels into Everglades National Park. The Bird Drive Recharge project is important to the County as a seepage management project to ensure that restoration of water levels does not affect County landowners and to provide the County with water supply to nearby wellfields. These wetlands are a hydrological buffer between the high water table of Everglades National Park and the much lower water table of the developed areas east of Krome Avenue. This buffer reduces the hydrological gradient of the area, thereby reducing groundwater seepage from the park. Challenges to the Plan Amendment Petitioners allege (as stipulated by the parties) that the Plan Amendment: (1) creates internal inconsistencies with numerous existing Plan goals, objectives and policies, in contravention of section 163.3177(2); (2) fails to discourage the proliferation of urban sprawl, as required by section 163.3177(6)(a)9.; (3) violates the requirement in section 163.3177(6)(d)2.k., that the Plan maintain a conservation element that directs incompatible “future land uses” away from wetlands; (4) violates the requirements in section 163.3177(6)(b)2.a., e., and 3.a., that the Plan maintain a transportation element “to plan for a multimodal transportation system,” address “[a]ll alternative modes of travel,” “identif[y] . . . land use densities, building intensities, and transportation management programs to promote public transportation systems in designated public transportation corridors,” and address “provision of efficient public transit services” and the requirement in section 163.3177(6)(b)1. that the element reflect certain “data, analysis, and associated principles and strategies”; (5) fails to be “based upon relevant and appropriate data and analysis,” as required by section 163.3177(1)(f); (6) fails to “be based upon surveys, studies, and data regarding the area, as applicable, including the character of undeveloped land,” as required by section 163.3177(6)(a)2., and to be based on an “analysis of the suitability of the plan amendment for its proposed use considering the character of the undeveloped land, soils, topography, natural resources, and historic resources on site,” as required by section 163.3177(6)(a)8.; and (7) violates the requirement of section 163.3177(1) that the Plan “maintain[] meaningful and predictable standards for the use and development of land and provide[] meaningful guidelines for the content of more detailed land developments and use regulations.” Petitioners’ umbrella contention is that the Plan Amendment is contrary to the Plan as a whole—which limits urban services and development to within the UDB, prioritizes implementation of CERP, seeks to preserve remaining agricultural areas and a viable agriculture industry, and is completely dependent on a sensitive aquifer for drinking water—by allowing a four- and six-lane expressway outside of the UDB, through an area identified for a CERP project, bisecting agricultural areas, through a wetland preservation area, and within the West Wellfield. Petitioners’ arguments can be categorized generally as concerns with land use, environment, CERP, agriculture, and transportation. UDB and Land Development Issues Petitioners contend that constructing the new corridor outside of the UDB is inconsistent with the purpose of the UDB, and with the overarching construct of the Plan to achieve the desired development form while protecting both sensitive natural resources and agriculture. The Plan provides that the UDB distinguishes “the area where urban development may occur through the year 2020 from areas where it should not occur.” Translating this concept to infrastructure investment, the Plan provides that “public expenditures for urban service and infrastructure improvements shall be focused on the area within the UDB, and urban infrastructure is discouraged outside the UDB.” (emphasis added). The Plan further provides, “Critical in achieving the desired pattern of development is adherence to the 2020 UDB and 2030 UEA boundary,” and that “since its inception [the Plan] has provided that the UDB serve as an envelope within which public expenditures for urban infrastructure will be confined.” Petitioners’ expert planning witness, Mr. Hawkins, explained that “this regulatory line is not one that just says we are going to have urban land uses on one side and not on the other. We are also going to limit the provision of urban services across the line.” The County offered little response to this allegation. In a series of leading questions on direct examination, Mr. Woerner was asked whether the Plan Amendment is inconsistent with policy language that begins, “Given the fundamental influences of infrastructure and service availability on land markets and development activities …” Mr. Woerner gave a conclusory “no” answer, to which Mr. Kerbel asked, “And is that for the reasons you’ve already addressed?” Mr. Woerner agreed. However, none of the prior questions addressed anything regarding public expenditures for urban infrastructure. The Plan Amendment proposes development of urban infrastructure outside the UDB, and thus, outside of the envelope within which the Plan dictates public expenditures for urban infrastructure “will be confined,” in contravention of the Plan’s direction that adherence with the UDB/UEA construct is “critical” to achieve the desired pattern of development for the County. The County contends that the new corridor is not “development,” a position which is untenable and is addressed in the Conclusions of Law. Petitioners proved the Plan Amendment is inconsistent with the unnumbered policy statements in paragraph 46 appearing on pages I-60, I-61, and I-74 of the Plan.6 Petitioners further allege the Plan Amendment is inconsistent with Plan policies that discourage urban sprawl, “emphasize[] concentration and intensification of development around centers of activity” and “high intensity, well-designed urban centers,” and “seek to prevent discontinuous, scattered development at the urban fringe,” such that “[u]rban services and facilities which support or encourage urban development in Agriculture and Open Land areas shall be avoided . . . [and] [a]reas designated Environmental Protection shall be particularly avoided.” Petitioners identify the following goals, objectives, and policies in support of these objections: Land Use Element Objective LU-1 and Policies LU-1B and LU-1O; Objective LU-2 and Policy LU-2B; Policy LU-8G; Policy LU-10A; Transportation Policy TC-6A; and Capital Improvement Element Objective CIE-5 and Policy CIE-5A. Petitioners’ arguments that the Plan Amendment fails to discourage urban sprawl are based on many of the same Plan policies. Petitioners contend that the mere existence of the new corridor will increase development pressure, and induce sprawl development, outside of the UDB contrary to Plan policies promoting compact, high-intensity developments in urban centers. This argument is not novel and can be summarized as, “If you build it, they will come.” Petitioners are not wrong, and the expert County planning staff raised the same concern during review of the Plan Amendment application, stating: While roadways facilitate long-distance and local travel and provide access to real property, they also 6 Provisions such as these, which are referred to as “interpretive text,” are contained in the Land Use Element section titled, “Interpretation of the Land Use Plan Map: Policy of the Land Use Element.” Although not among the element’s numbered goals, objectives, and policies, the interpretive text is expressly “adopted as County policy.” Furthermore, LU-5C requires “planning activities pertaining to development or redevelopment and the provision of public services and facilities in [the County] shall be consistent with … the locations and extent of future land uses as identified by the [FLUM] map and its interpretive text.” significantly affect the use and development of land in their immediate vicinity. In high growth areas such as [the County], any reduction in travel time between centers of population and commerce directly increases competition in the land market between urban uses, including residential and commercial uses. This could generate increased demand for development of land adjacent to the proposed expressway corridor. Because the proposed alignment is generally adjacent to but outside the UDB, the [new corridor] could have the unintended consequence of increasing development pressure on land outside the UDB, including current agricultural lands, if the proposed amendment only addressed the future construction of the roadway. In response to this concern, staff recommended adoption of, and the Plan Amendment was adopted with, the following new Policy: Traffic Circulation Subelement Policy TC-1M. [The County] approves the [new corridor] only to the extent necessary to relieve existing traffic congestion in the southwestern part of the County and to provide a reliable, robust, and faster connection to Downtown Miami and other major trip attractors across the County. To discourage urban sprawl within the Area of Impact of [the new corridor] … the County’s Concurrency Management System shall be amended to remove the additional LOS/capacity that the roadways in the Area of Impact would experience due to the diversion of trips resulting from the construction of [the new corridor] could not be used to demonstrate concurrency. The purpose of this policy is to assure that the additional capacity attributable to the [new corridor] cannot be used to support further development in the Area of Impact. In other words, “If you build it, they cannot come.” Petitioners raised many arguments to demonstrate that this language would not be effective to truly prevent urban sprawl outside the UDB. They introduced the testimony of Walter Kulash, who exclaimed that it would “be absurd” to create excess roadway capacity that could not be used by developers, and that, as a transportation engineer, “it is not at all clear to me how the chain of computation would work here.” However, as explained by Mr. Sandanasamy, the County’s expert transportation planner, the concurrency restriction will be implemented by comparing the roadway capacity figures prior to the opening of the roadway to any future traffic counts, to determine how much those traffic counts have been reduced. He gave the following example: Assume an arterial with a capacity of 35,000 trips, and before the new corridor opened, the actual amount of traffic counted is 30,000 trips. That means the arterial had a remaining capacity of 5,000 trips before the opening of the new corridor. Assume that when traffic is counted after the opening of the new corridor, the number of vehicles on that arterial drops to 28,000 trips—a reduction of 2,000 trips attributed to the new corridor—meaning that the remaining capacity of the arterial has increased from 5,000 trips to 7,000. Policy TC-1M would require the Concurrency Management System to log the capacity of the arterial as reduced by 2,000 trips, so that future applications would be measured against a roadway capacity of 33,000 trips. Mr. Sandanasamy concluded that the policy is intended to “prevent urban sprawl [and] allow development to go on as it was, like this roadway doesn’t exist.” The parties introduced the testimony of competing expert transportation planners on this subject; but, in the end, Petitioners’ expert, Juan Mullerat, conceded the issue, as follows: Q. [Mr. Kerbel] And in the event that there is a process in which someone seeks to amend their land uses, they would have to address the fact that the road can't be used to show concurrency, right? A. [Mr. Mullerat] Correct. * * * So at the end of the day that is why I am saying it is the same. Right now you don't have infrastructure, so you can't use it for concurrency. Once you put the infrastructure, this says that you won't be able to use that as -- in order to change the land use. Q. Okay. So it is a wash? A. It is a wash. It doesn't make—it is neither harder nor easier. New Policy LU-3Q was added to further ensure the Plan Amendment did not encourage development in the agriculturally-designated lands. The policy reads as follows: Any zoning action or amendment to [the Plan] that would approve any use other than direct agricultural production, the sale of agricultural produce, and permitted residential and Bed and Breakfast uses of property, in an area designated as Agriculture, whether as a primary use or as an accessory or subordinated use to an agricultural use, or action that would liberalize standards or allowances governing such other uses on land that is a) outside the [UDB] and b) within one mile of the right-of-way line of any portions of [the new corridor], shall require an affirmative vote of not less than five members of the affected Community Zoning Appeals Board and two-thirds of the total membership of the Board of County Commissioners then in office, where the applicable board issues a decision. Petitioners claimed this policy was not based on data and analysis to demonstrate its effectiveness. To the contrary, the language of new Policy LU-3Q was modeled on language utilized when the County adopted the Plan to allow widening of Krome Avenue, which lies outside the UDB, farther west than the new corridor. Even a cursory review of the FLUM reveals that the land uses adjacent to Krome Avenue remain agriculture. The County’s experience with development surrounding Krome Avenue is data that has been available to, and was relied upon by, the County in adopting the subject Plan Amendment. Petitioners did not prove that the Plan Amendment would induce additional urban development outside the UDB and in environmentally sensitive areas. Thus, Petitioners did not prove the Plan Amendment is inconsistent with Objective LU-1, which requires “the location and configuration of [the County’s] urban growth through the year 2030 shall emphasize concentration and intensification of development around centers of activity”; Policy LU-1O, which requires the County to “seek to prevent discontinuous, scattered development at the urban fringe in the Agricultural Areas outside the UDB”; Objective LU-2, which provides that “[d]ecisions regarding … urban expansion … shall be based on the physical and financial feasibility of providing, by the year 2020, all urbanized areas with services at levels of service (LOS) which meet or exceed the minimum standards” in the CIE; Policies LU-2B, TC-4C, and CIE-5A, which provide that urban services and facilities, including roadways, which support or encourage “urban development in Agriculture and Open Land areas shall be avoided”; Policy LU-10A, which requires the County to “facilitate contiguous urban development, infill [and] redevelopment”; and TC-6A, which mandates that the County “shall avoid transportation improvements which encourage or subsidize increased development in … environmentally sensitive areas.” The remaining policies implicated by Petitioners are irrelevant to the Plan Amendment: Policy LU-1B, which provides that “major centers of activity” and “other concentrations of significant employment … shall be sited on the basis or metropolitan scale considerations at locations with good countywide, multi-modal accessibility”; Policy LU-1S, which requires the County Strategic Plan to be consistent with the Plan; Objective LU-5 and Policy LU-5B, which pertain to the consistency of development orders with the Plan; and LU-8G, governing considerations for adding land areas to the UDB. Environmental Considerations Wellfields Petitioners allege the Plan Amendment is inconsistent with the following objectives and policies of the Conservation Element relating to protection of wellfields: CON-3, 3A, 3B; and CON-5F. CON-3, 3A, and 3B provide, in relevant part, as follows: Objective CON-3. Regulations governing approved wellfield protection areas shall be strictly enforced …. CON-3A. No new facilities that use, handle, generate, transport or dispose of hazardous wastes shall be permitted within wellfield protection areas[.] CON-3B. The water management systems that recharge regional wellfields shall be protected and enhanced. The Plan Amendment does not adversely affect the County’s ability to enforce its approved wellfield regulations. The new corridor is not a facility that uses, handles, generates, or disposes of hazardous wastes. Petitioners introduced testimony regarding the threat to the West Wellfield posed by trucks, carrying hazardous substances via the new corridor, potentially (and speculatively) spilling chemicals in an accident. Nevertheless, the greater weight of the evidence supports a finding that the new corridor is not a “facility” that transports hazardous wastes as contemplated by the policy. The meaning of “water management systems” used in Policy CON-3B, was disputed by the parties. Petitioners introduced the testimony of Dr. McVoy, who testified that he considered the wetlands of the Bird Drive Basin as the water management system that recharges the regional wellfield. Respondent introduced the testimony of Wilbur Mayorga, chief of the County’s environmental monitoring and restoration division, who is responsible for the wellfield protection areas and the boundaries thereof, and who was admitted as an expert in wellfield protection and contamination. Mr. Mayorga gave a broader, more general definition, which is ultimately not in conflict with Dr. McVoy’s definition. The Bird Drive Basin is one part of the larger system managing and conveying freshwater from Lake Okeechobee through various natural and man-made components that store, treat, and deliver water to the urban and agricultural uses, as well as the Everglades. Respondent’s hydrogeology expert, Dr. Virginia Walsh, confirmed that the Bird Drive Basin wetlands serve to recharge the County’s production wells. Dr. McVoy’s opinion was hedging—“I find it hard to see how [the system] would be enhanced and I find it hard to see how [the system] would be protected … I can’t see any way that I, as a scientist, can say that by putting a roadway on [the system] it is going to increase protection ….” Mr. Mayorga was asked directly, “In your professional opinion, would the plan amendment pose any threat to these water management systems?” Mr. Mayorga answered, “That I’m not familiar with.” His answer was puzzling and unhelpful. Significantly, both Dr. McVoy and Mr. Mayorga preferred to answer the question based on the degree of risk created. Dr. McVoy testified that building the tollway certainly increases risk of contamination to the system. Mr. Mayorga opined that removing all uses within the wellfield is the only way to achieve zero risk. He further opined that any roadway carries an inherent risk of contamination, which can be attenuated by the location of uses at the higher contour lines. As Mr. Mayorga explained, “The closer you are to the production wells, the [fewer] alternatives you have in how you manage stormwater.” In an effort to demonstrate compliance with the requirement to “protect the water management systems that recharge” the regional wellfield, Respondent points to new policy LU-1W, which requires that alignment of the new corridor remain “outside and to the east of the boundary of the 10- day travel time contour” of the West Wellfield area. In the end, Respondent’s expert witness confirmed that building the new corridor will neither protect nor enhance the water management systems that recharge the West Wellfield. Petitioners did not prove the Plan Amendment is contrary to Objective CON-3 or Policy CON-3A. However, they did prove the Plan Amendment is inconsistent with Policy CON-3B. 7 Policy CON-3F requires the County to implement cut and fill criteria for land in the North Trail and Bird Drive basins, among others. The County has already implemented those criteria and the Plan Amendment does not implicate that policy in any way. The remainder of Petitioners “wellfield” allegations overlap with alleged wetland impacts and are addressed in the following section. Wetlands Petitioners next contend the Plan Amendment is inconsistent with the following objectives and policies related to wetlands and wetland functions: CON-4 and 4A, and CON-7, 7A, and 7J, which read, in pertinent part, as follows: Objective CON-4. The aquifer recharge and water storage capacity of the presently undeveloped areas in the western and southern Miami-Dade County shall be maintained or increased. 7 In addition, to the extent Petitioners challenged the Plan Amendment as inconsistent with the interpretive text in the Land Use Element relating to Open Land Subarea 3 (North Trail and Bird Drive Basins), which reads, “Uses that could compromise groundwater quality shall not occur in this area,” that allegation was proven as well. Mr. Mayorga’s testimony that “any roadway carries an inherent risk of contamination” conceded the point that the Plan Amendment creates a risk of contamination to the wellfields. Policy CON-4A. The aquifer-recharge values of undeveloped land and the water storage values of wetland areas shall be maintained and, where feasible, enhanced or restored. Objective CON-7. [The County] shall protect and preserve the biological and hydrological functions of Future Wetlands identified in the Land Use Element. Future impacts to the biological functions of publicly and privately owned wetlands shall be mitigated.… Publicly acquired wetlands shall be restored and managed for their natural resource, habitat, and hydrologic values. Policy CON-7A. The degradation or destruction of wetlands shall be limited to activities that 1) are necessary to prevent or eliminate a threat to public health, safety or welfare; 2) are water dependent, clearly in the public interest and no other reasonable alternative exists; 3) are carried out in accordance with a basin management plan; or 4) are in areas that have been highly disturbed or degraded and where restoration of a wetland with an equal or greater value in accordance with federal, State, and local regulations if feasible. Habitats critical to endangered or threatened species shall not be degraded or destroyed. CON-7J. In evaluating applications that will result in alterations or adverse impacts to wetlands, [the County] shall consider the application’s consistency with [CERP] objectives. Wetlands play an important part in recharging the Biscayne Aquifer. They filter stormwater to remove pollutants and nutrients prior to the water’s eventual entry into the aquifer. As discussed above, wetlands can also perform the important function of storing stormwater to prevent flooding of adjacent properties, and for use in dryer seasons, if they have a confining clay (or other soil) layer above the aquifer. The new corridor is expected to destroy over 300 acres of wetlands in the Bird Drive and North Trail basins, although the exact number is unknown. Petitioners contend that violates Policy CON-7A because the project does not meet any of the four criteria. The County introduced evidence that the wetland impacts will be carried out in accordance with Bird Drive Basin management plan, thus meeting criteria three of Policy CON-7A. The final sentence of Policy CON-7A prohibits destruction of wetlands in habitats critical to threatened or endangered species. The Pennsuco wetlands are designated critical habitat to several endangered species, but the Plan Amendment implicates wetland impacts in that area. The County maintains that it has addressed this issue through an interlocal agreement with MDX, which requires that the entire span of the new corridor traversing the Pennsuco wetlands be elevated. However, the interlocal agreement is not incorporated into or adopted by reference in the Plan Amendment; thus, is not enforceable through the Plan. To the contrary, the interlocal agreement may be modified or amended upon mutual agreement of the parties.8 Petitioners proved the Plan Amendment is inconsistent with Policy CON-7. Because the new corridor will traverse the Pennsuco wetlands, an area designated as critical habitat for threatened and endangered species, the Plan Amendment violates this policy. Petitioners did not prove the Plan Amendment is inconsistent with this part of CON-7J. As discussed in the Findings of Fact 104 and 107, the County did consider the impact of the new corridor on CERP. Petitioners’ allegations of inconsistency with Objective CON-4, Policy CON-4A, and Objective CON-7, all relate to the impact of the new corridor on aquifer recharge and storage capacity of wetlands in the path of the new corridor. 8 Even if the interlocal agreement were incorporated into the Plan Amendment, this inconsistency would not be completely resolved because the interlocal agreement allows pilings or other support structures for the elevated section to be located in the Pennsuco wetlands. Dr. McVoy opined that the aquifer recharge capacities of the Bird Drive Basin, the West Wellfield, and the Pennsuco Wetlands will not be increased as a result of the Plan Amendment, but he did not testify that the Plan Amendment would inherently decrease those capacities, nor did he testify that the Plan Amendment would prevent those capacities from being maintained. Again, County staff recognized the inherent conflict between wetland functions and development of the roadway corridor, and recommended the Plan Amendment include the following new policies, which read, in pertinent part, as follows: LU-1W. [P]rior to the construction of the roadway, or any phase thereof, MDX shall prepare a surface water sheet flow analysis to demonstrate that the wetlands hydrology in this area shall be adequately retained. LU-3T. The [new corridor] is planned to traverse and impact wetlands within the Bird Drive Basins and elsewhere along its alignment and will require environmental approval and wetland mitigation. To the maximum extent feasible, mitigation for the [new corridor] shall be accomplished through acquisition, preservation, and restoration of wetlands within the Bird Drive and North Trail Basins outside the [UDB]. At a minimum, preservation of wetlands within the Bird Drive Basin shall be included as a component of the wetlands mitigation for this project. The mitigation shall also include a plan to preserve the hydrological connection and surface water flow of the wetlands remaining in these basins through the use of culverts or bridges. (emphasis added). Petitioners have two objections to this language. First, Petitioners argue the only way to preserve the hydrologic connection of the wetlands severed by construction is by bridging, rather than use of culverts. Dr. McVoy expressed the opinion that, if a wetland has water storage capacity, the roadway will need to be elevated to prevent flooding of the roadway. If the County only uses culverts, the road will still be subject to flooding in the areas where it is not culverted. Moreover, the hydrologic function of the wetlands will not be maintained because the wetlands will be disconnected in those areas. The County’s wetland expert explained that while some wetland vegetation is removed for a culverting project, the culvert allows wetland hydrology to be maintained. He gave examples of other roadways, notably Krome Avenue, where culverts have been used to maintain the hydrologic connection of wetlands severed by the roadway. Both Dr. McVoy and Mr. Spinelli have expertise in wetlands and wetland hydrology and hold different opinions on the issue. Neither witness’s testimony was more compelling than the other. Second, Petitioners attack the use of the phrase, “to the maximum extent feasible” to modify the requirement that mitigation of wetland impacts be accomplished within the Bird Drive and North Trail basins. Petitioners contend that this phrase does not provide a meaningful and predictable standard. But this is a common phrase that has been used throughout comprehensive plans that have been found in compliance, including ones prepared by Petitioners’ planning expert, Mr. Iler, and as acknowledged by Mr. Hawkins. Moreover, Mr. Woerner noted that at least three other policies in the Plan use the phrase “to the maximum extent feasible,” and he emphasized that this language provides some flexibility as to how an otherwise mandatory directive can be accomplished. As Mr. Spinelli and Mr. Woerner explained, the phrase “to the maximum extent feasible” in new Policy LU-3T is appropriate because it provides some flexibility as to the location of wetland mitigation, because, as the County’s wetland mitigation estimates showed, there were limits on the amount of available land within the Bird Drive and North Trail Basins to address the entire amount of mitigation that would likely be required. Mr. Hawkins further opined that the standard “is so deferential to the opinions stated by whoever the applicant or the developer might be in the future as to not provide a real standard that we can use today to anticipate whether we can measure compliance of this policy in the future.” However, nothing in Policy LU-3T vests discretion in, or suggests deference to, a permit applicant with respect to the issue of feasibility. It is plain that, as with other policies in the CDMP, the County would ultimately determine feasibility. In summary, the Plan does not prohibit destruction of all wetlands in environmentally-sensitive areas. Rather, it limits damage to projects meeting certain criteria, at least one of which is met by this project. The Plan anticipates mitigation of wetland acreages lost due to development, and requires the water storage, recharge capacity, and hydrology of wetlands be maintained or increased. Finally, the Plan requires restoration of publicly- acquired wetlands “managed for their natural resource, habitat, and hydrologic values.” The Plan Amendment will disturb and destroy wetlands, which will be undertaken in accordance with the basin management plans for the Bird Drive and North Trail basins. The Plan Amendment requires MDX to demonstrate that the wetland hydrology can be maintained by submitting sheet flow analysis prior to construction. Mitigation of wetlands acquired can increase storage capacity by removal of melaleuca and restoration of the confining layer. Petitioners did not prove that the Plan Amendment violates any of the cited Conservation Element policies, with the exception of CON-7A, because it allows destruction of portions of the Pennsuco wetlands. CERP Protection of the Everglades is one of the highest priorities of the Plan. The Land Use Element provides that the County’s “growth policy includes … that the intensification of physical development and expansion of the urban area should be managed … in recognition of the County’s physical limitations to horizontal expansion due to the location of the Everglades National Parks[.]” Land Use Policy LU-3S states that “[The County] continues to support the [CERP] and related regional and local habitat restoration and preservation initiatives through its … long-range land planning initiatives.” Future Land Use Element Figure 14 clearly depicts the Bird Drive Basin as “Future Wetlands and CERP Water Management Areas.” The Conservation Element “builds upon past and present initiatives such as … planning for the Bird Drive-Everglades [and other] basins.” Petitioners contend the Plan Amendment is contrary to Policy CON-7J, which provides, as follows: In evaluating applications that will result in alterations or adverse impacts to wetlands[,] [the County] shall consider the applications’ [sic] consistency with [CERP] objectives. Applications that are found to be inconsistent with CERP objectives, projects or features shall be denied. (emphasis added). Petitioners maintain the Plan Amendment will adversely impact wetlands in the Bird Drive Basin, which is designated as CERP Component U, and should be denied as inconsistent with that CERP project and its related objectives. 9 All parties agreed that only the District has authority to determine whether the Plan Amendment is consistent with CERP. As part of the required review of the Plan Amendment, the District commented on the proposed Plan Amendment. In its comment letter, the District noted that “[a] portion of the lands within the proposed study area for the expressway extension have been identified as having potential use with regard to Everglades restoration projects.” The District advised that the 9 The County introduced evidence, all of which constituted hearsay, to prove that the District has determined Component U to be infeasible and has instead moved toward a conveyance concept for the Bird Drive Basin, which, ostensibly requires less property. The issue is a red herring. No matter the size or scale of the CERP project, the District remains the agency with authority to determine whether the Plan Amendment interferes with the project. County had not supplied enough information “that would help the District evaluate the proposed project’s compatibility with the CERP [project],” and directed that County staff “coordinate with appropriate District staff to provide sufficient information.”10 The County did not provide additional information to the District and did not receive any determination from the District regarding the Plan Amendment’s consistency with CERP. Petitioners did not prove that the Plan Amendment is inconsistent with CERP, or that the County failed to consider consistency with CERP, thus, they did not prove the Plan Amendment is internally inconsistent with Policy CON-7J. However, Petitioners did prove the Plan Amendment is not supported by data and analysis on this point. Rather than providing the District with the additional information it requested to determine consistency with CERP, the County replied that it would continue to work with the District during the permitting process and “may be able to include features … that provide benefits that are both compatible and consistent with the intent of the CERP.” While only the District has the authority to determine consistency of the Plan Amendment with CERP, the County, not the District, has the duty and authority to determine consistency with its own Plan, including Policy CON-7J. 10 The District’s letter constitutes hearsay evidence for which there is no applicable exception in section 90.803, Florida Statutes. See Ehrhardt’s Florida Evidence § 803.8 (“A third kind of public record is admissible under [the Federal Evidence Code], but was intentionally omitted from section 90.803(8)”—“records and reports by a public official when the official is required to interpret and evaluate facts and information supplied by persons outside the agency.”). If the letter addressed the material disputed fact of whether the Plan Amendment was inconsistent with CERP, those statements would be inadmissible. However, the undersigned determined that statements regarding the need for more information on the issue are admissible, because they do not go to a material disputed fact. The County introduced the testimony of expert planning witness, Mark Woerner, in an attempt to prove that the County need not have a final determination of consistency with CERP prior to adopting a plan amendment. Mr. Woerner testified that the Plan merely requires the County to be aware of particular CERP projects when staff reviews plan amendments.11 Mr. Woerner’s testimony is contrary to the plain language of the policy, which requires the denial of a plan amendment that is found to be inconsistent with a CERP project or objective. Notwithstanding the previous finding that Petitioners did not prove that the Plan Amendment was inconsistent with CERP, because the Plan Amendment was adopted absent a determination of consistency with CERP, the Plan Amendment is not based upon adequate data or analysis. To be “based upon data” means “to react to it in an appropriate way and to the extent necessary[.]” § 163.3177(f), Fla. Stat. The County did not react appropriately to the data and analysis available—that the District needed more information in order to determine consistency—by adopting the Plan Amendment without such needed information. Agriculture Next, Petitioners contend that the Plan Amendment is inconsistent with policies specifically addressing the preservation of agriculture. The Plan provides the following with respect to lands in the Agriculture category: The area designated as “Agriculture” contains the best agriculture land remaining in [the County]. As 11 Mr. Woerner’s testimony was hedging, at best: “I believe that you can still provide an analysis and address the issues that may be surrounding a particular CERP project or a CERP issue. But I don’t think you need to have to finally finalize that. You have to—the comp plan—the policies that we put in the comp plan regarding CERP were to ensure that in the planning process, the County’s aware of the importance of CERP in its projects and that we have to be aware of that as we review different plan amendments or other permitting issues that might arise for the County.” stated in the [County’s] strategic plan, approved by the Board of County Commissioners, protection of viable agriculture is a priority. The principle uses in this area should be agriculture, uses ancillary to and directly supportive of agriculture and farm residences.[12] The Plan continues, “In order to protect the agricultural industry, uses incompatible with agriculture, and uses and facilities that support or encourage urban development are not allowed within [the Agriculture land use category].” The mandate to protect agriculture is reiterated in the section on Concepts and Limitations of the Land Use Plan Map, which provides, “Among the long-standing concepts embodied in the [County’s Plan] are … encourage agriculture as a viable economic use of suitable lands.” In addition to the foregoing Plan provisions, Petitioners cite the following goals, objectives, and policies with which the Plan Amendment conflicts: the Land Use Goal, which calls for “preserv[ing] Miami-Dade County’s unique agricultural lands” and Land Use Policies LU-1R, LU-1S, LU-8C, and LU-8E. Policy LU-8C requires the County to “continue to protect and promote agriculture as a viable economic use of land[.]” The Plan Amendment will displace approximately 300 acres of Agriculturally-designated land which is in active agricultural use. The amount of land that is needed to maintain a viable agricultural industry is approximately 50,000 acres. According to the Environmental Protection Agency’s December 2012 report titled “Growing for a Sustainable Future: Miami-Dade County Urban Development Boundary Assessment,” approximately 67,000 acres outside the UDB are in active agricultural use. 12 Uses ancillary to agriculture are those related to preserving, processing packaging, or selling agricultural products; farm supplies; and sale and service of farm machinery and implements. The Plan Amendment will not reduce the amount of agriculture land to below the threshold required for a viable agriculture industry. Therefore, Petitioners did not prove the Plan Amendment is inconsistent with either the Concepts and Limitations interpretive text or LU-8C. Policy LU-8E provides, in pertinent part, as follows: Applications requesting amendments to [the Plan] Land Use map shall be evaluated for consistency with the Goals, Objectives, and Policies of all Elements, other timely issues, and in particular the extent to which the proposal, if approved, would: Satisfy a deficiency in the Plan map to accommodate projected population or economic growth of the County; Enhance or impeded provision of services at or above adopted LOS standards; Be compatible with abutting and nearby land uses and protect the character of established neighborhoods, and; Enhance of degrade environmental or historical resources, feature, or systems of County significance[.] There is ample evidence that the Plan Amendment was evaluated for consistency with every aspect of the Plan. As it pertains to Agriculture, County staff specifically recognized potential conflict with the Plan’s directives to protect agricultural land. To address that concern, staff recommended that “MDX be required to preserve agricultural lands that are currently being used for agricultural production, commensurate with the amount of such lands that would be impacted by the roadway extension.” Staff recommended addition of, and the Plan Amendment was adopted with, the following new future land use policies: Policy LU-1U. Notwithstanding the designation of the [new corridor] as an Expressway on the [Plan] Land Use Plan map … no construction associated with the [new corridor] shall occur that would restrict farm vehicle and equipment access to agricultural properties adjacent to the [new corridor]. Moreover, to minimize the impacts of the [new corridor], the design and construction shall be conducted in a manner that does not cause drainage or the spillage of lighting from the [new corridor] onto adjacent agricultural lands. Policy LU-1V. To mitigate the impacts of the [new corridor] on the agricultural area, [MDX] shall preserve agricultural lands outside the UDB commensurate to impacts to agricultural lands that would be taken out of production by the project. Said preservation may be through participation in the County’s Purchase Development Rights program or other mechanism acceptable to the [County] Department of Regulatory and Economic Resources (or successor Department). The Plan Amendment addresses both the direct and indirect impacts the new corridor may have on agriculture. Policy LU-1V mitigates the loss of directly impacted acreage by requiring preservation of land for agricultural land outside the UDB through a purchase of development rights program on an acre-for-acre basis. Under the Plan Amendment, all direct impacts to agricultural lands will require preservation of a commensurate amount of agricultural land outside the UDB. Approximately 188 acres of the impacted agricultural acres are located within the UEA, which are already projected to be removed from agricultural production in the future. Policy LU-1V will, arguably, increase the amount of land available for agriculture following the eventual development of the UEA for urban development. Policy LU-1U addresses the indirect impacts to agriculture, by requiring the expressway to be designed in a manner that protects farm vehicle and equipment access and that does not cause drainage or lighting spillage onto agricultural lands. With the addition of the cited policies, it is at least arguable that the Plan Amendment is not inconsistent with Plan directives to protect agricultural lands or Policy LU-8E. At first blush, Policy LU-1R appears to be relevant because it begins by mandating the County to “reserve the amount of land necessary to maintain an economically viable agricultural industry.” However, the remainder of the policy mandates the County to adopt a transfer of development rights (“TDR”) program and provides more detail on how TDR will be implemented. The policy must be construed as a whole. The Plan Amendment included no provisions regarding the development, adoption, or implementation of the TDR program. Thus, the Plan Amendment is inconsistent with this policy. LU-1S is inapplicable, again, because it addresses the consistency of the County’s Strategic Plan, rather than plan amendments, with the Plan. The Plan Amendment is not inconsistent with the interpretive text describing the Agriculture land use category because, as detailed in Findings of Fact 59 through 62, the Plan Amendment does not support or encourage urban development in the Agriculture land use category. Finally, Petitioners argue that the Plan Amendment is not supported by data and analysis, specifically regarding the amount of agricultural land impacted by the new corridor and the amount of land needed to maintain a viable agriculture industry. Mr. Hawkins opined that the County did not identify the impacts, which is not a professionally acceptable planning practice. However, the evidence adduced at the final hearing revealed that data was available to, and was considered by, the County, and which supports the Plan Amendment. Petitioners did not prove this aspect of the Plan Amendment was not supported by appropriate data and analysis. Transportation The PD&E Study In 2013, following TPO approval, MDX commenced the PD&E process for the new corridor. MDX engaged consultants, overseen by the project manager, Albert Sosa, on behalf of general engineering consulting firm HNTB, to undertake the PD&E process for what was referred to as “MDX Project 836-18.” The PD&E process is the State of Florida’s process by which infrastructure projects demonstrate compliance with federal and state environmental and other regulatory standards. A PD&E study involves roadway engineering, structural work, stormwater drainage work, traffic engineering, transportation engineering, and analysis of the project’s impacts on both the natural and the built environment and on the people in the affected community. Mr. Sosa personally supervised the development of, and reviewed and approved, all methodologies for collection and analysis of data, reviewed the results of the collection and analysis for conformance with the approved methodologies, and reviewed and approved all reports produced as part of the overall PD&E Study for MDX Project 836-18. The first step in the PD&E Study was to develop an evaluation methodology, which, in this case, was the Alternative Corridor Evaluation (“ACE”), whereby several alternative corridors were analyzed and compared based on their relative impacts and benefits to the natural and built environment and to the transportation needs of the affected community, among other criteria. The ACE for MDX Project 836-18 ultimately considered 10 corridor alignments. The analysis began by measuring existing traffic conditions in 2014 to identify existing operational deficiencies along critical roadway facilities. From there, the analysis projected traffic impacts out to the year 2050. The 2050 projections used as a baseline a “no-build” model that incorporated highway, transit, roadway, and other transportation improvements programmed in the LRTP “Cost Feasible Plan” to be constructed by 2050, as well as updated population and other socio-economic projections. The alternative corridor alignments for the proposed expressway were compared against the “no-build” model in the year 2050, to determine whether the existing traffic conditions observed in 2014 remained or worsened even after accounting for future planned transportation improvements; and if so, whether the proposed expressway improved the projected conditions. The ACE analyzed traffic impacts over a broader study area than it used for impacts to the natural and built environment. The traffic study area is based on a model that incorporates the different corridors, and turns those corridors on and off to see where significant impacts to traffic stop appearing. That model is known as the Southeast Regional Planning Model (“SERPM”), which is owned by the TPO and includes: planned transportation projects, existing and future land use designations, existing and future population projections, and existing and future employment projections for different areas of the County. It is, therefore, used to analyze every transportation project in the County for impacts to both the existing and future planned environment. The traffic study area for the SR-836 southwest extension project was established as a 75-square-mile area bounded on the north by NW 12th Street, on the east by SW 97th Avenue, on the south by SW 152 Street/Coral Reef Drive, and on the west by SW 177 Avenue/Krome Avenue (see Figure 2). [Remainder of page intentionally blank] Figure 2 Of the original 10 ACE corridors, the closest to the final adopted alignment was Corridor 6. Between NW 12th Street and SW 88th Street, Corridor 6 matches the alignment presented in the Plan Amendment. The main difference is that the southern portion of ACE Corridor 6 lies further west of the UDB and further away from the residential development in West Kendall south of SW 104th Street than the Application alignment did. Petitioners challenged the PD&E study, and the ACE Report specifically, as insufficient data to support the Plan Amendment because the final adopted alignment of the new corridor differed from any of the 10 the alignments studied. The undersigned finds the PD&E study, including the ACE Report, provides significant data compiled by a professionally-accepted methodology and taken from professionally accepted sources.13 Thus, while none of the 10 ACE corridors exactly matched the final adopted alignment, the PD&E Study ultimately analyzed all of the variations that the County considered, and as of the Plan Amendment’s adoption, the PD&E Study had obtained data for the final adopted alignment. Mobility Approximately 600,000 people live in the West Kendall area (including areas between the UDB and SW 177th Avenue/Krome Avenue), and each weekday, 150,000 of those people commute to work in other areas of the County. The need for increased mobility in West Kendall is well documented by the PD&E Study. In general, the peak travel direction through the study area is eastbound/northbound in the morning peak period, or rush hour (6:00 am to 9:00 am), and southbound/westbound during the evening rush hour (4:00 pm to 7:00 pm). Travel speeds within the study area were found to be lower in the morning rush hour compared to the evening rush hour. Travel speeds lower than 18 mile per hour (“mph”) were documented on Bird Road, Kendall Drive, Coral Reef Drive, SW 137th Avenue, and SW 107th Avenue, during the evening rush hour. The capacity of a roadway is identified by the level of service (“LOS”) standards. The County has adopted LOS D for roadways within the UDB, 13 The ACE Report was originally published in February 2017, but the data and analysis was updated beginning in the summer of 2017 and throughout the Plan Amendment process. and LOS C for roadways outside of the UDB. The roadways listed above are operating at LOS E and F, indicating the level of congestion in the area. In addition to measuring average travel speeds, which incorporate delays at intersections, another planning-level measurement of surface streets is their volume over capacity (V/C) ratio, where volume (V) is the number of vehicles and capacity (C) is the maximum number of vehicles that can pass a point on a roadway in a given amount of time under normal conditions. A roadway is considered to be failing if it has a V/C ratio of 1.0 or more, and it is near failure if it has a V/C ratio between 0.9 and 1.0. During the morning rush hour, 20 roadway segments within the study area had V/C ratios over 1.0, and 15 segments were approaching failure. During the afternoon rush hour, 13 segments had a V/C ratio greater than 1.0, and another 16 were approaching failure. In sum, during the morning rush hour today, roughly 50 percent of the roadway segments operate at substandard speeds, and 33 percent are either already over capacity or near capacity. Additional transportation capacity is needed to accommodate the current residential development in West Kendall, as the existing roadway network cannot effectively serve the area’s current transportation demands, and that population is only expected to increase based on current land use and zoning designations. Petitioners’ overarching challenge relating to transportation is that the Plan Amendment is not supported by the data and analysis from the PD&E study, which demonstrates construction of the new corridor will result in minimal mobility increases in the study area and actually reduce the LOS on some roadway segments. The purpose of the Plan Amendment is two-fold: to improve mobility in West Kendall; and to decrease the commute times to downtown and other employment centers. 14 While the study does reveal significant reduced congestion on certain roadway segments in the West Kendall area during morning and evening rush hours, overall the study supports a finding of minimally increased mobility in the study area. For example, analysis of the alignment most closely approximating the new corridor, scenario 2.1D, results in a reduction of 6,988 vehicles on SW 8th Street, and reduction of 6,264 vehicles on SW 88th Street. But, the impact on daily traffic volumes is minor. The total reduction in vehicle hours traveled (“VHT”) for morning rush hour is four percent, and for evening rush hour is five percent. The average annual daily reduction in VHT is just over three percent (a reduction from 226,033 to 218,803), and an average daily increase in travel speed from 27.72 mph to 29.34 mph. The data also shows the greatest reduction in vehicle miles travelled (“VMT”) is six percent. Notably, the new corridor would result in an improvement of the LOS for less than half of the roadways within the study area. 8th Street, east of 157th Avenue, would improve from LOS D to C; Bird Road would improve from LOS E to D; 120th Street would improve from LOS D to C; and 157th Avenue, north of 136th Street, would improve from LOS F to C. The remaining seven segments studied would remain at their existing LOS, 14 The LRTP identifies “[i]mprove[ment] [of] access to and from the area to major employment centers such as the MIA, the MIC, the Port of Miami, Downtown Miami, Doral, as well as educational and commercial centers within the study area,” as one of the primary purposes of the project, in addition to improving mobility in the Kendall area. The Plan Amendment includes new Policy TC-1M, which provides that the County approves the new corridor “only to the extent necessary to relieve existing traffic congestion in the [West Kendall] area of the County and to provide a reliable, robust, and faster connection to Downtown Miami and other major trip attractors across the County.” including 137th Avenue, south of the new corridor, which would continue to operate at LOS F. Not only does the data reveal that the improvements in West Kendall congestion would be, as Petitioner’s expert described, “meager,” but also they provide no support for a finding that the Plan Amendment will accomplish its second objective—improving the commute time to downtown and other employment centers. The County relies upon the PD&E study, the goal of which is to identify an appropriate corridor for the southwest extension of the Dolphin Expressway, which does not include downtown, the airport, or other employment centers, within either the study area or the impact area. Mr. Mullerat, Petitioner’s expert transportation planner, described the problem as follows: [I]f the intent of this project is to solve in part the commuter issues for commuters, the whole path of the commuter should have been looked at … [the study] doesn’t look at some of the destinations—not just downtown and to the east, but also to the north. … And both origin and destination should have been looked at. Mr. Mullerat testified, credibly, that it was not an acceptable planning practice to have ignored origin and destination trips. The majority of the commuters who utilize the new corridor will be traveling beyond this three-mile stretch on to downtown, the hospitals, the airport, and other major trip attractors, yet the study contains no information about impact on commute times to those destinations. The data is silent on whether the time to those destinations will increase, decrease, or stay the same. Furthermore, the existing segment of the Dolphin Expressway operates at a LOS C, at least for the first three miles traveling east from its current termination point. The data shows that, after the new corridor is built, the LOS drops to D in that three-mile stretch. So, commuters will drive 13 miles, outside of the UDB, through active agricultural lands, through environmentally-sensitive lands, and through the West Wellfield, only to connect with the existing expressway operating at an LOS lower than it operates at today.15 Relating to transportation issues, Petitioners allege the Plan Amendment is inconsistent with the following goals, objectives, and policies in the Plan: TC-1A; TC-4A and F; and TC-6 and 6B. TC-1A requires the County to update and readopt the LRTP to achieve the objective of TC-1, which requires the County to operate its roadways at the adopted LOS, and strive to achieve a better LOS, in a manner consistent with the other objectives of the Plan. It requires the County to prepare proposals to enhance the Traffic Circulation and Mass Transit subelements following each LRTP update. The Plan Amendment is not inconsistent with this policy. The Plan Amendment will assist in achievement of the adopted LOS D on at least some roadway segments within the study area, and achieve a better LOS on others. While it will not improve the LOS on all segments, including at least one that is operating at LOS F, it is at least fairly debatable that the Plan Amendment is consistent with this policy. Policy TC-6A requires the County to “avoid transportation improvements which encourage or subsidize increased development in … environmentally sensitive areas[.]” For the reasons discussed in Findings of Fact 59 through 62, the Plan Amendment does not “encourage increased development” and is not inconsistent with this policy. TC-6B requires that land access interchanges “shall not be placed or constructed in a manner that would provide access to environmental 15 A project to widen the existing segment of the Dolphin Espressway from four to six lanes is expected to re-establish the higher functioning LOS C. However, no evidence was introduced at final hearing to establish the timeframe for that project. protection areas or other areas to be conserved” in order to prevent undue pressure for development in those areas. There is no evidence that the interchanges proposed for the new corridor to connect with existing roads in West Kendall would provide “land access.” Further, the Plan Amendment is not inconsistent with the policy for the same reasons it is not inconsistent with TC-6A. TC-4C provides, “Areas designated Environmental Protection shall be particularly avoided” when the County prioritizes construction of roadways, and allocation of financial resources for said construction.16 At first, it appears the Plan Amendment may be inconsistent with this policy because it allows construction of the new corridor in the Pennsuco wetlands. However, the Plan must be construed as a whole. This policy must be read in conjunction with Policy TC-6C, which provides that “[i]f no feasible alternative exists,” roadways may traverse environmental protection or conservation areas, “however such access should be limited and design techniques should be used to minimize the negative impact upon the natural systems.” Petitioners argue that alternatives to the new corridor exist which would accomplish the objective of relieving congestion in West Kendall. Mr. Kulash opined that congestion could be relieved by lane widening, extending turn lanes, and other roadway improvements; alternately, he expressed an opinion that congestion could be relieved by mass transit improvements. The County experts demonstrated that the alternatives proposed by Petitioners were not feasible, due to costs of land acquisition in the urban area, and the limitations of transit service. 16 The same language is expressed in CIE-6A. For the reasons stated herein, the Plan Amendment is not inconsistent with that policy. Petitioners did not carry their burden of proof with regard to Policy TC-4C. Petitioners must have done more than suggest alternatives exist, they must have proven the feasibility of those alternatives. Petitioners also raised concerns with the energy inefficiency of a new expressway and increased emissions and greenhouse gases. They identified Intergovernmental Coordination Element (”ICE”) policies ICE-5F and 5G as policies with which the Plan Amendment conflicts. ICE-5F requires the County to participate in the Southeast Florida Regional Climate Change Compact and to coordinate with other agencies in developing initiatives to address climate change mitigation and adaption. Policy ICE-5G requires County departmental master plans to “include and prioritize climate change mitigation and adaptation strategies.” The Plan Amendment has no impact on the County’s ability to implement either of those policies. Mass Transit The County has adopted the Strategic Miami Area Rapid Transit (SMART) Plan (see Figure 3). [Remainder of page intentionally blank] Figure 3 The SMART plan includes two east/west corridors, including the Kendall Corridor, which will connect residents in West Kendall from 167th Avenue east to existing lines serving downtown, and two planned north and northeast corridors. Transportation Element Policy TE-3C states, “It is the policy of [the County] to develop all the transportation facilities identified in the MPO’s [LRTP] … as soon as feasible, in accordance with the LRTP phasing program.” The Goal of the Mass Transit Subelement is to “[m]aintain, operate, and develop a mass transit system in [the County] that provides efficient, convenient, accessible, and affordable service to all residents and visitors,” and it adopts the corridors identified by the SMART plan as Figure 2 in the element’s map series. Policy TE-1A provides that “the County shall promote mass transit alternatives to personal automobile.” The overarching Goal of the Traffic Circulation Element includes developing and operating a traffic circulation that “supports the usage of transit,” among other broad goals. Petitioners challenge the Plan Amendment as inconsistent with several existing Plan provisions regarding mass transit service and prioritizing alternatives to private vehicle travel. Primary among them are Transportation Element TC-1A and Traffic Circulation Subelement TC-4F. Based on the same arguments, Petitioners also contend that the Plan Amendment is inconsistent with section 163.3177(6)(b), which requires a transportation element “to plan for a multimodal transportation system that places emphasis on public transportation systems, where feasible” and to “provide for a safe, convenient multimodal transportation system, coordinated with the future land use map . . . and designed to support all elements of the comprehensive plan,” as well as section 163.3177(6)(b)2.a, which requires that a transportation element address “[a]ll alternative modes of travel, such as public transportation, pedestrian, and bicycle travel.” Policy TC-4F provides, as follows: The County shall consistently improve strategies to facilitate a Countywide shift in travel modes from personal automobile use to pedestrian, bicycle and transit modes. The priority for transportation infrastructure expenditures shall be to insure that pedestrian, bicycle, and transit features are incorporated into roadway design. (emphasis added). Policy TE-1A provides, as follows: As provided in this section and the Mass Transit Subelement, the County shall promote mass transit alternatives to the personal automobile, such as rapid transit, (i.e. heavy rail, light rail, and bus rapid transit, premium transit (enhanced and/or express bus)), local route bus and paratransit services. (emphasis added). Petitioners’ experts testified that the new corridor will accomplish the opposite of what is required by the Plan—it will incentivize the use of personal vehicles by residents of West Kendall, who will take the expressway to escape the congestion of the roadways within the UDB. Respondent countered that the Plan Amendment is consistent with the Plan’s emphasis on alternative mass transit because it requires the new corridor to be built as a multi-modal facility, and will provide connections between the planned new east/west corridors. The Plan Amendment includes the following new policies in the Mass Transit Subelement of the Transportation Element: Mass Transit Subelement Policy MT-4D. Pursuant to Traffic Circulation Subelement Policy TC-4F, [MDX] (or successor agency) shall provide for mass transit service in the [new corridor], to be funded by MDX. The mass transit service shall incorporate lanes having technologies that facilitate the safe travel of automated vehicles, including mass transit vehicles, at high rates of speed for a connection with the transit service being implemented as part of the current SR 836 reconstruction generally east of the Turnpike. MDX shall coordinate the mass transit service with [the County] through the Department of Transportation and Public Works (or successor department). Said coordination shall occur prior to the earlier of the issuance of the first permit for construction of the expressway extension or prior to the commencement of any construction of the expressway extension. Mass Transit Subelement Policy MT-4E. In coordination with [the County] Parks, Recreation and Open Space Department and [the County TPO], [MDX] shall design a multi-use recreational trail within the corridor of the [new corridor]. Additionally, to the maximum extent feasible, the multi-use recreational trail shall be designed to provide for seamless connections to the County’s existing and planned trails and greenways network proximate to the corridor. Said coordination shall occur prior to the earlier of the issuance of the first permit for construction of the expressway extension or prior to the commencement of any construction of the expressway extension. These policies satisfy the requirements in Policies TC-3D to “design new roadways in a way that … incorporates planned rapid transit corridors,” and TC-4F to “insure that … transit features are incorporated into roadway design.” The question is whether the Plan Amendment satisfies the Plan requirement to “promote mass transit use.” Petitioner’s expert planners maintained it will not. Mr. Hawkins explained: The expressway is located outside of the Urban Development Boundary to the west of the urbanized area. For folks to use a transit corridor or a transit route that runs along the expressway corridor, they would have to travel by automobile outside the UDB to the west, to access a park-and-ride facility, and then get on a transit facility—a transit vehicle that operates in that corridor. It would not be back in an urbanized area until it is in the area of Northwest 12th Street and back in the UDB. If you were going to plan a corridor for a transit facility, you would have a much more direct line. You would run a transit facility through the developed area. Why? One is so that people can get to it more quickly. And two, so that all of the stops along its way are functional. When you are running through an agricultural area, you can't have any functional stops until you are all the way back in the UDB. It is just—the suggestion that this is a functional transit corridor or that this was designed with transit in mind is—I will use the word farcical. Respondent’s own planning expert, Mr. Woerner, agreed that the Plan Amendment “does not shift the travel mode from single occupancy vehicle to mass transit,” and “does not reduce dependence on the use of personal vehicles.” The County introduced no data on ridership for the transit lanes or other data to support that the mass transit option incorporated in the Plan Amendment would actually promote use of that option. Mr. Woerner seemed to recall some figures on ridership from the PD&E study, which evaluated a mass transit alternative to the new corridor. The figure Mr. Woerner referenced was an estimated 2,772 transit boardings from the alternative corridor analysis conducted during the PD&E study. However, that study was a mass-transit-only alternative to the new corridor. That ridership number is an estimate of the number of West Kendall residents who would choose to take mass transit if that were the only option in the new corridor. It does not reflect the number of users who, given an option between driving their personal vehicle along the new corridor or boarding a bus along that corridor, would choose the bus. In response, Mr. Woerner responded that, in his opinion, the most important data the County needed was the corridor connections. (See Figure 3 depiction of the approximate location of the new corridor, hand drawn in red, in relation to the planned east/west SMART corridors). In this case, Mr. Woerner considered the connections with Kendall Drive and Tamiami Trail bus lines to be important connections for users. But, when asked directly whether the County needed ridership information to support new Policy MT-4D, Mr. Woerner said, “No. I don’t believe we needed it, but it certainly was helpful to know that there had been a projection made.” Mr. Woerner’s testimony was not credible. As discussed above, the projection Mr. Woerner referred to was never made. There is no data to determine whether the County’s directive to another agency to fund and build 13 miles of mass transit service along the expressway route, will actually “promote mass transit use,” as required by the Plan. The burden was on Petitioners to prove that the Plan Amendment is inconsistent with the cited goals and policies. Petitioners did prove that the Plan Amendment is inconsistent with Policy TC-4F, because all the experts agreed that the Plan Amendment does not “shift the travel mode” in this part of the County “from single occupancy vehicle to mass transit.” However, Petitioners did not prove the Plan Amendment is inconsistent with the Plan’s provisions to: “promote mass transit use,” as required by Policy TE-1A; “support[] use of transit,” as required by the Transportation Element Goal; “significantly enhance public transit services and implement transportation system management programs … to provide feasible alternatives to private automobile use,” as required by CON-1B; or maintain an “efficient” mass transit system, as required by the Goal of the Mass Transit Subelement. Petitioners did prove that the Plan Amendment is not supported by data and analysis to determine whether it is internally consistent with the cited goals and policies.
Conclusions For Petitioners, Limonar Development, LLC; Wonderly Holdings, LLC; and Mills Family, LLC: John C. Lukacs, Esquire John C. Lukacs, P.A., Trial Lawyers 75 Valencia Avenue, Suite 600 Coral Gables, Florida 33134 Francisco J. Pines, Esquire Francisco J. Pines, P.A. 3301 Ponce de Leon Boulevard, Suite 220 Coral Gables, Florida 33134 For Petitioners, Tropical Audubon Society and Michelle Garcia: Paul J. Schwiep, Esquire Coffey Burlington, P.L. 2601 South Bayshore Drive, Penthouse 1 Miami, Florida 33133 Richard J. Grosso, Esquire Richard Grosso, P.A. 6511 Nova Drive, Mail Box 300 Davie, Florida 33317 For Respondent, Miami-Dade County: Dennis Alexander Kerbel, Esquire Christopher J. Wahl, Esquire Miami-Dade County Attorney’s Office 111 Northwest First Street, Suite 2810 Miami, Florida 33128
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order determining that the Miami-Dade County Comprehensive Plan Amendment adopted by Ordinance 2018-109 on September 27, 2018, is not “in compliance,” as that term is defined in section 163.3184(1)(b). DONE AND ENTERED this 30th day of March, 2020, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 30th day of March, 2020. COPIES FURNISHED: Carlos A. Gimenez, Mayor Miami-Dade County Stephen P. Clark Center, 29th Floor 111 Northwest First Street Miami, Florida 33128 Dennis Alexander Kerbel, Esquire Miami-Dade County Suite 2810 111 Northwest First Street Miami, Florida 33128 (eServed) John C. Lukacs, Esquire John C. Lukacs, P.A., Trial Lawyers Suite 600 75 Valencia Avenue Coral Gables, Florida 33134 (eServed) Francisco J. Pines, Esquire Francisco J. Pines, P.A. Suite 220 3301 Ponce de Leon Boulevard Coral Gables, Florida 33134 (eServed) Christopher J. Wahl, Esquire Miami-Dade County Attorney's Office Suite 2810 111 Northwest First Street Miami, Florida 33128 (eServed) James Michael Porter, Esquire James M. Porter, P.A. 10th Floor 9350 South Dixie Highway Miami, Florida 33156 (eServed) Paul J. Schwiep, Esquire Coffey Burlington, P.L. Penthouse 1 2601 South Bayshore Drive Miami, Florida 33133 (eServed) Richard J. Grosso, Esquire Richard Grosso P.A. Mail Box 300 6511 Nova Drive Davie, Florida 33317 (eServed) William Chorba, General Counsel Department of Economic Opportunity Caldwell Building, MSC 110 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed) Ken Lawson, Executive Director Department of Economic Opportunity Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed) Janay Lovett, Agency Clerk Department of Economic Opportunity Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed) James Uthmeier, Esquire Office of the General Counsel Executive Office of the Governor Suite 209, The Capitol 400 South Monroe Street Tallahassee, Florida 32399-001 (eServed) Barbara Leighty, Clerk Transportation and Economic Development Policy Unit Room 1802, The Capitol Tallahassee, Florida 32399-0001 (eServed)
The Issue Whether the Plan Amendments to the St. Johns County Comprehensive Plan, adopted by Ordinance Number 2001-18, are "in compliance" as defined in Chapter 163, Part II, Florida Statutes, or are not "in compliance" as alleged in the petitions of The Sierra Club (Sierra) and Ellen A. Whitmer (Whitmer).
Findings Of Fact The Parties The Sierra Club. Sierra alleged in its Petition that it "does business in St. Johns County and has a substantial number of members who reside in and own property in St. Johns County." Sierra is registered as a California corporation and maintains offices in St. Petersburg and West Palm Beach, Florida. The National Organization of Sierra publishes Sierra Magazine, which members receive in the County. Sierra's basic mission is to provide an opportunity for its members to explore, enjoy, and protect the outdoors and natural systems, including those which exist in the County. The Florida Chapter of The Sierra Club (Florida Chapter) is subdivided into 10-12 "groups," including the approximately 1,400-member Northeast Florida Group, serving Duval, St. Johns, and Clay Counties, with approximately 325 members living in St. Johns County. There are approximately 24,000 Sierra members in the State of Florida. Sierra holds monthly meetings in the County. Speakers discuss various educational subjects with members attending the monthly meetings. Sierra members hike in the County, and canoe and kayak on, for example, the Tolomato and Guana Rivers. These activities can be expected to be enhanced if the Plan Amendments are approved and the approximately 1,630-acre preserve area dedicated as planned. Sierra has held fundraisers in the County for the benefit of the three-county Northeast Group. The Northeast Florida Group sends out monthly newsletters, published in and mailed from Duval County, and publishes the Sierra Sentry: Standing Watch on Northeast Florida. Sierra does not maintain a business address or bank account in the County; nor does Sierra own or lease real property, offices or buildings in the County. The Plan Amendments are not reasonably expected to constrain, inhibit, or prevent activities of Sierra's members, including their educational and permitting activities, although a Sierra member testified that the Plan Amendments would potentially "be adverse to [Sierra's] mission in terms of experiencing outdoors and the wildlife associated with the outdoors " Sierra submitted timely oral and written comments to the St. Johns County Commission between the time the County transmitted the Plan Amendment for review and the time the County adopted the Plan Amendment. Sierra made a presentation at the public hearing related to the Plan Amendments. Ellen A. Whitmer. Whitmer resides and owns property within the County and submitted timely oral and written comments to the County regarding the Plan Amendments. The parties agreed Whitmer has standing. Intervenors. SONOC owns the property which is the subject of the future land use map (FLUM) Plan Amendment being challenged in these proceedings. SONOC submitted oral and/or written comments to the County regarding the Plan Amendments. SONOC has expended approximately $3.5 million in the approval process. The PARC Group is the agent of SONOC, and is the applicant/developer of the Nocatee development, which is the subject of the Plan Amendments. The PARC Group submitted oral and/or written comments to the County regarding the Plan Amendments. St. Johns County. The County is a political subdivision of the State of Florida. Pursuant to Section 163.3191, Florida Statutes, the County prepared an evaluation and appraisal of the Plan and an Evaluation and Appraisal Report (the "EAR") in January 1998. The EAR process allows local government to periodically assess the success or failure of their comprehensive plan. The EAR is subjected to a sufficiency review by the Department. In May 2000, the County adopted the EAR-Based Comprehensive Plan Amendment (EAR-Based Plan Amendment), with supporting data and analysis, which the Department found to be "in compliance." This included the data and analysis for the future land use element (FLUE), which was adopted as part of the Plan. (Joint Exhibit 7-A). This is part of the data and analysis used to support the Plan Amendments at issue in this proceeding. The Department's "in compliance" review became final agency action without challenge. St. Johns County is located in the northeast portion of the State of Florida, south of Duval County and Jacksonville. The St. Johns River separates the County from Clay and Putnam Counties to the west. Flagler County borders the County to the south. There are three (3) incorporated municipalities located within the County, i.e., St. Augustine, St. Augustine Beach, and the Town of Hastings. The County comprises approximately 423,580 acres. St. Augustine is the largest municipality in the County. Agriculture and silviculture are the leading industries in the County. The County has a large portion of silviculture lands and there are more than 2.5 million acres in Northeast Florida. The intensive agriculture areas of the County are located in the southern part of the County. The Plan Amendments will not adversely affect the economic viability of agriculture or silviculture in the County. A barrier island runs the length of the County, from the Flagler County line to Duval County. Interstate 95 runs north and south through the County and is west of St. Augustine. U.S. Highway 1 also runs north and south and east of Interstate 95 and runs parallel to Interstate 95. The Tolomato and Matanzas Rivers form the majority of the Intercoastal Waterway on the eastern portion of the County and separate the barrier island from the mainland portion of the County. The Guana River State Park and Guana River State Wildlife Management Area form a significant part of the barrier island adjacent to the Tolomato River. The Department. As the state land planning agency, the Department reviewed the Plan Amendments and timely filed a Notice of Intent to find the Plan Amendments "in compliance." The Challenges While Petitioners cite to numerous statutory and rule provisions in their petitions, the principle allegations, that the Plan Amendments are not "in compliance," may be placed into three general categories: "need" and urban sprawl; natural resource protection; and economic feasibility. Under each of these general subject headings, Petitioners raise allegations that the Plan Amendments are inconsistent with Rule 9J-5, Florida Administrative Code, and Chapters 163 and 187, Florida Statutes, and that they are internally inconsistent with the St. Johns County Comprehensive Plan. The Nocatee Plan Amendments On February 23, 2001, the County amended its Comprehensive Plan by Ordinance No. 2001-18. The Ordinance contains four changes to the Plan. First, the Ordinance creates a new FLUE category known as "New Town Development" (Text Amendment). Second, the Ordinance changes the FLUM designation of approximately 11,332 acres of land from Rural/Silviculture to New Town (Map Amendment). Third, the Ordinance changes the FLUM designation for approximately 1,630 acres of land from Rural/Silviculture to Conservation (Preserve Amendment). (Petitioners are not challenging the designation of the Nocatee Preserve as "Conservation.") Fourth, the Ordinance adds text (Policy H.1.6.6) to the Plan authorizing the Nocatee DRI "to utilize the standards and guidelines set forth in [Section 163.3180(12), Florida Statutes] to satisfy the County's transportation concurrency requirements by payment of a proportionate share contribution is [sic] as stated in the Nocatee [DRI] Order, Special Condition 25, entitled Transportation Resource Impacts." (This latter provision allows the use of "pipelining" and is referred to herein as the Transportation Amendment.) These Plan Amendments are related to a proposed development known as "Nocatee." The New Town category was crafted to provide criteria and guidelines for large projects such as Nocatee. The acreage designated New Town by the Map Amendment is the proposed site of the Nocatee development. The acreage designated Conservation by the Preserve Amendment is for the purpose of establishing the "Nocatee Preserve." The Nocatee development will utilize the Transportation Amendment to address anticipated development impacts on the roadway system. These amendments and the Nocatee development are discussed in more detail below. Ordinance No. 2001-18 provides that "[t]he data and analysis supporting [these Plan Amendments] includes, but is not limited to, the Nocatee Application for Development Approval, Sufficiency Responses, and Nocatee Development of Regional Impact Development Order adopted concurrently with this Ordinance, application materials submitted by the Applicant and reports generated by the County Growth Management Department." Pursuant to Section 380.06, Florida Statutes, and Rule 9J-2, Florida Administrative Code, projects which must undergo Development of Regional Impact (DRI) review are subject to a multi-agency, multi-issue review of the proposed development's impacts and a process for mitigating those impacts. A DRI is a development order issued by a local government. It pertains to approval for a specific type of development for a particular site. A comprehensive plan is a different type of document, which considers long-term planning for an entire jurisdiction, taking into account the cumulative effect of many developments, including consideration of projected supply and demand in the future. DRIs are subject to the requirements of Chapter 380, Florida Statutes. One of the requirements for a DRI is that it be consistent with the requirements of the local government's comprehensive plan, a determination that is separate from that undertaken here. On the other hand, comprehensive plans and amendments, as here, must comply with Section 163.3184(1)(b), Florida Statutes, which defines "in compliance" as being consistent with Sections 163.3177, 163.3178, and 163.3191, Florida Statutes, the state comprehensive plan, regional policy plan, and Chapter 9J-5, Florida Administrative Code. A plan amendment does not have to be consistent with Chapter 380, Florida Statutes, to be "in compliance." A DRI development order does not guarantee that the site will be developed or developed as approved. For example, the development order may be amended through the substantial deviation process, or a development order may expire. Applications for DRI approval are prepared and submitted to the appropriate regional planning council by the developer. These applications are submitted in response to a set of criteria that differ from those applicable to a plan or plan amendment. Some of the information provided by a developer in support of a DRI request may be relevant to the review of a plan amendment, as here. However, a DRI development order, in general, and the Nocatee DRI Development Order specifically, are not subject to an "in compliance" review in this administrative proceeding conducted pursuant to Section 163.3184(1)(b), Florida Statutes. At the conclusion of the DRI process, if project approval is attained, the local government issues a development order. Section 380.06(15), Florida Statutes. The development order must include, among numerous other information, a detailed listing of each land use by acreage and magnitude. Rule 9J-2.025(3)(b)(5), Florida Administrative Code. This land use information from the DRI development order is incorporated into the County Plan for any approved New Town. See Finding of Fact 33. In this case, the Nocatee DRI Application for Development Approval (ADA) was reviewed by the Northeast Florida Regional Planning Council as required by Section 380.06, Florida Statutes, (and by other agencies), and the Council recommended that the ADA be approved, with conditions. It was stipulated that "[i]n considering comprehensive plan amendments, there is no requirement that favorable consideration be provided to a proposed amendment solely because it is a DRI." See generally Section 163.3187, Florida Statutes. The Nocatee DRI "is a proposed mixed use development on approximately 13,323 acres, of which approximately 11,332 acres are located in northeastern St. Johns County . . . and approximately 1,991 acres are located in southeastern Jacksonville, Florida." On February 22 and 23, 2001, concurrent with its consideration of the Plan Amendments, the St. Johns County Board of County Commissioners considered the merits of the Nocatee DRI ADA and approved same through Resolution No. 2001- 30. Accordingly, while Ordinance No. 2001-18, adopting the Plan Amendments, expressly relies on, in part, the data and analysis in the Nocatee DRI ADA and related documents, including the Nocatee DRI Development Order, and Policy A.1.19.15 expressly refers to the Nocatee DRI and incorporates the "allowable uses and mix of uses within the Nocatee" DRI,1 the Nocatee DRI is not subject to "in compliance" review in this administrative proceeding. See 1000 Friends of Florida and Robert Jenks v. City of Daytona Beach and Department of Community Affairs, et al., 16 F.A.L.R. 2428 (DCA June 16, 1994). See also Pinecrest Lakes, Inc. v. Shidel, 795 So. 2d 191 (Fla. 4th DCA 2001)(discussing the scope of Section 163.3215, Florida Statutes). The Text Amendment The Text Amendment adds Objective A.1.19, "New Town Development," to the Plan, which is a new future land use category. The purpose of this new land use category is described as follows: The New Town Future Land Use category shall guide development into a series of clearly identified and distinct villages that together form a larger New Town. Within the New Town there is a clear hierarchy of development types utilizing neighborhoods as the basic development unit. Several neighborhoods and one or two village centers combine to form a village, and several villages form a New Town. A central village functions as the Town Center Village, and includes the main employment[,] shopping, and cultural activities for the New Town. Villages shall have central focal points of higher densities and intensities that create an identity and a sense of place. The planned mix of uses of New Towns shall help to provide a positive fiscal impact for the County. New Towns shall offer a wide range of housing choices, including affordable housing. The New Town Future Land Use category may be requested for any Development of Regional Impact that meets the policies set forth herein. The Board of County Commissioners may approve or deny any New Town on a project-by-project basis, after the New Town review. The Text Amendment is proposed to be included in the County's Plan as FLUE Objective A.1.19 – which is quoted in full immediately above – and fifteen (15) implementing policies (Policies A.1.19.1 through A.1.19.15). Unlike many of the other land use categories in the Plan, which are defined only by the statutorily-required minimum list of allowable uses and standards, the New Town land use category contains detail on a wide spectrum of issues ranging from fiscal impact analysis, affordable housing, to the "[i]nterconnectivity of pedestrian and vehicular routes through the [New] Town to encourage multi-modal circulation." The detail contained in the Text Amendment is necessary to ensure that a specific form of development occurs on land bearing the New Town future land use designation. The land use pattern of this category is a tool to combat urban sprawl, as further explained below, and was crafted with guidance from the following Rule definition. "New town" means a new urban activity center and community designated on the future land use map and located within a rural area or at the rural-urban fringe, clearly functionally distinct from existing urban areas and other new towns. A new town shall be of sufficient size, population and land use composition to support a variety of economic and social activities consistent with an urban designation. New towns shall include basic economic activities; all major land use categories, with the possible exception of agricultural and industrial; and a centrally provided full range of public facilities and services. A new town shall be based on a master development plan, and shall be bordered by land use designations which provide a clear distinction between the new town and surrounding land uses. Rule 9J-5.003(80), Florida Administrative Code. The New Town category in the Text Amendment is consistent with and furthers the concept embodied in this definition, i.e., the creation of an efficient urban level of mixed-use development in a rural area. The Text Amendment sets 2,500 acres as the minimum size for any parcel to be eligible for designation as a New Town. The Text Amendment then establishes general land use standards applicable to the overall New Town parcel, which are embellished by more specific controls for the different components of the New Town. "At least 35% of lands within a New Town development shall be reserved for Open Space/Conservation and shall preserve a connected system of environmentally sensitive and passive recreation areas that will form a greenway system," and shall be provided for public uses. "The greenway system will serve the additional goal of surrounding and defining villages and the Town Center Village." ("Greenways, wetlands, and similar natural areas are open space/conservation. Open space/conservation does not include parks, golf courses, and other designated recreational lands.") At least 40 percent of the net developable acreage of a New Town must be residential units and, of the total residential units, at least 20 percent must be multi-family, and at least 50 percent must be residential single-family. Workplace land uses, i.e., retail, service, office, and industrial, must comprise at least five percent of the net developable acreage. This proportion of mix of uses is further refined in Policy A.1.19.9, where square footage requirements for each of the non-residential land uses are linked to the number of approved dwelling units, e.g., a minimum of 50 square feet of retail space for each dwelling unit and 30 square feet of civic space per dwelling unit in a Town Center Village and five square feet per dwelling unit for each Village. Other "specific use standards" are provided. New Towns are also required to provide land for libraries, fire stations, local government annexes, school sites and similar public uses and shall provide minimum park acreage equivalent to Comprehensive Plan LOS [level of service] requirements. In addition to this overall guidance, the Text Amendment directs a specific community form by assembling the several mixed uses into components which together will form the New Town. The "neighborhood" is designed to be the "basic development unit" within the New Town. Neighborhoods are to be compact residential areas with a mix of housing types. "Several neighborhoods and one or two village centers combine to form a village, and several villages form a New Town." Village Centers are areas designed to provide civic, service, limited retail, and elementary school uses for the surrounding neighborhoods. "A village shall contain distinct neighborhoods that will each have a central neighborhood park, which shall be called the neighborhood commons." At least 10 percent of each village must be retained in open space/conservation areas. While residential uses (at least 10 percent of net developable acreage) are also allowed in village centers, at least 45 percent of net developable acreage of the uses must be non-residential. Villages composed of these centers and neighborhoods are to be surrounded by greenways, golf courses, and natural features, and linked to the remainder of the New Town through interconnected roads and a pedestrian/bikeway system. Also, within villages, low density residential must have an overall net residential density between 1-2 units per acre. Medium density residential development must have an overall net density between 2-6 units per acre. Traditional neighborhoods must have an overall net density of 4-6 units per acre. In addition to the villages, each New Town is to contain a "Town Center Village," which "is intended to serve as the cultural, shopping, employment and civic center for the New Town, and shall include office uses, light industrial areas, and higher density residential uses surrounding a mixed-use core." In addition to some single-family residential and retail, the Town Center Village must contain at least 30 percent multi-family residential (percentage of units) and 45 percent (percentage of square feet) office use in order that "[t]he mixed-core shall have the characteristics of a downtown." The most intense of these uses are to be concentrated in the "Town Center Village Mixed-Use Core," which is to be the "pedestrian-oriented 'Main Street' area of retail, service, office, residential, and civic uses." Both the Town Center Village and its Mixed-Use Core are governed by specific design standards addressing matters such as sidewalks, signs, porches, and on-street parking. Overall, the Objective and Policies contained in the New Town land use category provide meaningful and predictable detail.2 The specific Policies describe the types and uses and how these uses will relate to one another, the mix of uses, transportation issues, interconnectivity, design, and urban features of New Towns. The Map Amendment In the same Ordinance in which the Text Amendment was adopted, the County adopted a Map Amendment changing the FLUM designation of approximately 11,332 acres from Rural/Silviculture to New Town. The Map Amendment was adopted to allow development of a project known as "Nocatee." As required by the Text Amendment, Nocatee has been designated as a New Town on the FLUM, and has been reviewed and approved as a DRI. The "allowable uses and mix of uses" within the Nocatee DRI Development Order have been incorporated into the County Plan Amendments. The Nocatee project includes approximately 11,332 New Town acres in St. Johns County. ("The Nocatee site consists of approximately 15,000 acres, with approximately 2200 acres in Jacksonville and the remainder in St. Johns County. The site is generally bounded on the west by [U.S.] 1, on the east by the Intercoastal Waterway, on the south by Pine Island Road, and extends north of CR 210 approximately 1.5 miles.") However, the portion of Nocatee in the southern portion of Duval County (Jacksonville) is not subject to the instant challenges. The land uses adopted in the Nocatee DRI Development Order and incorporated into the St. Johns County Plan are as follows: 2,872,000 square feet, 336 acres of office uses; 968,000 square feet, 150 acres and 3,900 parking spaces for retail commercial uses; 250,000 square feet, 29 acres and 500 parking spaces for light industrial uses; 12,579 total dwelling units, comprising 8,811 single family units, 3,228 multi-family units (including single-family attached units), and 540 assisted living units; 54 golf course holes, 485 hotel rooms, 5,531 acres of recreation/open space (including, but not limited to, parks, the Greenway, and golf courses), churches, schools, and civic uses. The uses described above are to be developed in five phases, each anticipated to last five years, with various combinations of uses allowed in each phase. Individual phases may be extended pursuant to Section 380.06(19), Florida Statutes, or accelerated provided that all mitigation requirements have been satisfied for the particular phase to be accelerated. The Nocatee DRI includes a Town Center Village, a secondary town center, seven other villages, and up to two village centers in each village. Village centers may include limited intensity office and retail commercial uses and an elementary school. However, "[t]he specific location of all land uses will be determined through the [Planned Unit Development] PUD approval process." The Nocatee DRI Development Order contains a "conversion table" which authorizes the conversion, at a defined rate, of one type of land use to another, but prohibits the conversion of non-residential land uses to residential uses during the first two phases of development. The conversion tables cannot be used to convert the Nocatee DRI land uses below those established in the New Town land use category. The Preserve Amendment Along with the Text and Map Amendments, the County adopted the Preserve Amendment, which re-designated approximately 1,630 acres of land from Rural/Silviculture to Conservation for purposes of establishing the "Nocatee Preserve." The Nocatee Preserve is an area of over 2500 acres including close to 1800 acres of land above the mean high water line. This strategic location with over 3 miles of frontage on the Tolomato River complements the Guana State Park and the Guana Wildlife Management area directly east of the river. The Nocatee Preserve will expand preserved environmental lands to both sides of the Tolomato River. This expansion of environmental lands will provide additional protection for the northern Tolomato River Basin and will provide passive recreation opportunities for both the Nocatee community and the entire region. Additionally, the Preserve will serve as a buffer between the Tolomato River and future development within Nocatee–a buffer that is between 1 and 1 1/2 mile wide. The Preserve includes the most ecologically significant (and economically valuable) part of the [Nocatee] property. Transportation Amendment The last change to the County Plan (Policy H.1.6.6) here at issue, the Transportation Amendment, provides: The Nocatee Development of Regional Impact, a multi-use development meeting the criteria of Chapter 163.3180(12), Florida Statutes, is authorized by the County to utilize the standards and guidelines set forth in the Statute to satisfy the County's transportation concurrency requirements by payments of a proportionate share contribution is [sic] as stated in the Nocatee Development of Regional Impact Development Order, Special Condition 25, entitled Transportation Resource Impacts. Pursuant to operation of the Transportation Amendment, Nocatee "will contribute up to $99,741,366 in cash payments and funded transportation improvements to offset the impacts of the Nocatee development upon the regional transportation system " Agency Review and Notice The Department is the state land planning agency and has the authority to administer and enforce the Local Government Planning and Land Development Regulation Act (Act), Chapter 163, Part II, Florida Statutes. Among the responsibilities of the Department under the Act is the duty to review plan amendments and determine if the plan amendments are in compliance with the Act. On or about June 1, 2000, the Department received the County's proposed Plan Amendments, and copies were distributed to various state, regional, and local agencies for their review and comments. On August 10, 2000, the Department submitted its Objections, Recommendations and Comments (ORC) Report issued pursuant to Rule 9J-11.010, Florida Administrative Code. Comments from the Department of Environmental Protection and the St. Johns River Water Management District were attached to the ORC. On or about January 22, 2001, the Applicant, The PARC Group, submitted its response to the Department's ORC. On February 22 and 23, 2001, the St. Johns County Board of County Commissioners held noticed hearings on the Nocatee DRI and related Comprehensive Plan Amendments and enacted Ordinance No. 2001-18 (Comprehensive Plan Amendment 01-01D), adopting changes to the Comprehensive Plan and Future Land Use Map, and also enacted Ordinance No. 2001-30, approving the Nocatee DRI. On March 5, 2001, the County furnished the Department with a submission package including documents relating to the Plan Amendments. On April 18, 2001, the Department caused to be published its Notice of Intent to find the Text Amendment, Map Amendment, Preserve Amendment, and Transportation Amendment "in compliance" pursuant to Sections 163.3184, 163.3187, and 163.3189, Florida Statutes. Need and Urban Sprawl The nomenclature "New Town," adopted as the title of the Text Amendment, is a reference to a form of land use described in Rule 9J-5, Florida Administrative Code. By definition, a "New Town" means, in part, "a new urban activity center and community designated on the future land use map and located within a rural area or at the rural-urban fringe, clearly functionally distinct or geographically separated from existing urban areas and other new towns." In addition, a "New Town" will necessarily contain a full range of uses in order to support a variety of economic and social activities "consistent with an urban area designation." See Rule 9J- 5.003(80), Florida Administrative Code. The new town land use generally described in Rule 9J-5.003(80), is a category expressly designed to combat urban sprawl. Rule 9J-5.006(5)(l), Florida Administrative Code, recognizes new towns as one of the "innovative and flexible" manners in which comprehensive plans may discourage the proliferation of urban sprawl. The weight of the evidence demonstrated that the New Town development form contained in the Text Amendment will discourage urban sprawl. For example, Dr. Downs and Mr. Porter, both of whom are national growth management experts with decades of experience, testified that new towns in general, and specifically, the Text Amendment adopted by the County, serve to discourage urban sprawl. Mr. Pennock, the primary author of the urban sprawl rule, which is now a part of Rule 9J-5, Florida Administrative Code, testified that the types and mix of uses in the Text Amendment are appropriate for a new town and will serve to discourage urban sprawl. The designated Nocatee New Town is located on the St. Johns County/Duval County line in the Northeast Planning District, and lies east of U.S. Highway 1, and straddles County Road 210. The Nocatee New Town lies in the rural/urban fringe, within the fastest growing sector of the County, in the regional growth corridor emanating from southeast Duval County and Ponte Vedra. This is an advantageous location because it is close enough to the main employment center in the area (Jacksonville), to afford residents employment opportunities. Additionally, the Nocatee New Town is a master-planned community, unlike piecemeal fragmented development which has occurred in other parts of the County. Consistent with the Text and Map Amendments, the Nocatee New Town is planned to include preserved natural areas and greenways and villages. Each village is expected to consist of neighborhoods and a village center, which will include elementary schools, civic and retail uses, and higher density housing. The Nocatee New Town serves as a cultural center, providing for a mix of higher density residential, retail, restaurant, hotel, office, and light industrial, schools, churches, a fire station, a library, a county annex, a police complex, parks and public spaces, and as athletic complex. The Nocatee New Town is geographically separated from existing areas by U.S. Highway 1 and preserved greenways, and is a functionally distinct land use. The Nocatee New Town is functionally similar in size and land use composition to other successful new towns, and includes basic economic activities in all major land use categories. Further, the Nocatee New Town is innovative planning, especially for a rapidly urbanizing county like St. Johns. In addition, it provides for flexibility in land use mixes by designating minimum land use percentages, but not requiring fixed percentages. This flexibility is desirable to allow for market adaptation over the 25-year build-out period. The expert testimony at the final hearing was persuasive that the location chosen for the Map Amendment is appropriate for a New Town in the County. Just a short distance to the north of the Map Amendment is Jacksonville, which was accurately described as "the major economic engine for the northeast Florida area . . . ." The past two decades of economic success for Jacksonville have resulted in growth along a corridor to the southeast, i.e., directly toward the site of the Map Amendment and the proposed Nocatee New Town. From 1991 to 1996, approximately 42 percent of the growth in St. Johns County occurred in the area around the proposed Nocatee New Town. The Nocatee New Town can be expected to improve the current, incremental and piecemeal development patterns of the County. Unfortunately, the emerging development pattern in the northeast area of the County exhibits indicators of sprawl. Currently, growth is not occurring in the most compact fashion. Sprawl is often viewed as a single-use or low- density residential setting. Here, the New Town concept offers a mixture of uses and the Plan Amendments, in particular, require an overall residential density range of three to eight units per net developable residential acre, whereas most of the residential areas of the County appear to have two residential unit per acre, and the proposed density for Nocatee is higher than the existing average in the northeast portion of the County. If Nocatee is developed according to its approved plan, it will be a New Town and will be a useful tool to fight this undesirable land use pattern of current development and is an anti-urban sprawl alternative to the existing sprawl development in the County. Petitioners maintain that the Text Amendment will allow, and the Map Amendment will promote, urban sprawl for essentially two reasons; first, there is no "need" for a new land use approval; second, there are insufficient guarantees that Nocatee or any future approval will actually develop as a New Town. The "need" question is founded in Section 163.3177(6)(a), Florida Statutes, which requires that "[t]he future land use plan shall be based upon surveys, studies, and data regarding the area, including the amount of land required to accommodate anticipated growth [and] the projected population of the area . . . ." This requirement is repeated in the statute's implementing rule, i.e., Rule 9J-5.005(2)(e), Florida Administrative Code ("The comprehensive plan shall be based on resident and seasonal population estimates and projections.") Finally, the "need" issue is one of the primary factors to be considered in any urban sprawl analysis. See Rule 9J-5.006(5)(g)1, Florida Administrative Code (urban sprawl may be present where a plan designates for development "uses in excess of demonstrated need"). The calculation of how much land is needed to accommodate the projected population involves comparing what is available for development under the comprehensive plan with the projected population over the same planning time frame applicable to the plan. An "allocation ratio" to express this need can be derived by dividing the development potential by the projected population. For example, if a comprehensive plan allocated 100 residential dwelling units over the planning time frame and the jurisdiction's population was projected to increase by 100 over the same time, there would be an allocation ratio of 1:1. This ratio would express an exact match between supply and demand. A ratio of 2:1, on the other hand, would demonstrate that the jurisdiction had twice as much land as designated for use as the projected population is expected to need. There is no allocation ratio adopted by statute or rule by which all comprehensive plans are judged. The testimony in this case from the planning experts is that there is no accepted "hard and fast" allocation ratio at which a local government would be required to deny all future plan amendments. (There is testimony from Department planners that there is a recommended guideline, which set a ratio of 1.25:1 of supply over demand. This ratio has not been adopted as a rule nor has it been proven to be an accepted ratio to be applied in this case.) Rather, the allocation ratio is a planning guideline to be used for two purposes: first, ensuring a local government has enough land to accommodate future population; second, discouraging urban sprawl. The County divides St. Johns County into four Planning Districts (part of the data and analysis of the Plan) for purposes of calculating allocation ratios of the amount of land needed for particular land uses compared to an amount of land so designated. (Disaggregating allocation ratios into planning districts is professionally acceptable.) Planning districts differentiate the County into different growth scenarios, development trends, and land use patterns. County staff explained the analysis performed regarding each of the four Planning Districts. Separate ratios were developed for each Planning District. Population projections were developed based on historical growth and compared to the Bureau of Economic and Business Research (BEBR) numbers. See footnote 5. In part, the County analyzed the amount of developable land designated in the FLUM, which was converted "into a very specific GIS map, so [they] had more definitive areas . . . ." Developable and un-developable land was analyzed. The County also examined the nature of the future land use densities existing on the developable lands to derive "a potential development for those developable areas and compare[d] those to the population projections which converted into housing units." A comparison was made "between population projections or need for housing units and the amount of dwelling units that can be accommodated in this developable area on the map."3 As otherwise noted further in Joint Exhibit 7-A, page A-37, in part: These population projections are then converted into housing demand by planning district as discussed in the Housing Element. The demand for these housing units will occur in different residential densities. However, as an aggregate measure, the total housing units needed is useful for comparison to the maximum net densities allowed for the various residential land use designations. It should be pointed out that rarely are the maximum net densities achieved, particularly at the higher density lands. For instance, while the Mixed Use Districts allow up to 13 units per acre, historically these acres have developed at much lower densities. This trend has been particularly significant due to the shortage of multi-family dwelling units constructed in the County. Single-family residential developments generally cannot achieve the densities at the high density level (6-13 units per acre), and rarely exceed the threshold for low density development (less than or equal to 2 units per acre). The May 2000, County EAR-Based Plan Amendment for the FLUE, provides residential land use allocation ratios for the year 2015 ranging between 1.63:1 for the Northeast Planning District to 11.59:1 for the Southwest Planning District, and an overall County allocation ratio of 3.08:1. These ratios appear in Joint Exhibit 7A at A-41, Table A-10, and were previously approved by the Department. ("A comparison of the allocation of dwelling units from the available developable land with the projected housing demand by planning district is provided in Table A-10.") Intervenors' expert independently calculated County allocation ratios, including the Nocatee New Town Map Amendment, and arrived at a ratio of 2.33:1 for the Northeast Planning District and 2.9:1 for the entire County, using data available as of February 2001.4 It is at least fairly debatable that these allocations ratios are supported by appropriate data and analyzed in a professionally acceptable manner. Numerous witnesses testified that allocation ratios should not be used as a bright line test because there are no adopted rules or clearly defined professional standards which establish a maximum ratio above which a plan amendment may not go. In other words, use of a maximum allocation ratio as a set upper limit, without consideration of other relevant factors to establish need, would offer no concrete, professionally accepted standard. Sierra offered no independent allocation ratios. Rather, Sierra elicited testimony from County staff that, if a series of assumptions supplied by Sierra were used to calculate the allocation ratios, based on Sierra's concept of using maximum theoretical density, the allocation ratios would be as high as 4.36:1 and 6.1:1 for the Northeast Planning District of the County. In other words, Sierra sought to have the County's calculations redone using the maximum theoretical density allowed under each land use category.5 The allocation ratios offered by Sierra raise a concern that, with the Nocatee development, there is a projected over-allocation of supply to meet the projected demand in the County, and, in particular, in the Northeast Planning District of the County. However, there is no persuasive evidence that the strict maximum theoretical density methodology offered by Sierra was professionally acceptable for use in the County to project the future need in light of the Plan Amendments. In fact, the testimony was that an allocation ratio utilizing the maximum theoretical density may be appropriate if only urban lands are included in the calculation, and if appropriate restrictions on the ability to realize this density are made a part of the equation. Sierra did not so limit its inquiry. Also, the weight of the evidence indicates that the use of maximum theoretical densities, as calculated according to Sierra, is more likely than not to overstate the realistic densities that will be achieved on the land designated for residential use by the County. While not mandating that every subsequent plan amendment must be categorically denied, the presence of an over-allocation will trigger a heightened, more thorough review of the indicators of urban sprawl when considering further plan amendments. Only amendments subjected to this greater scrutiny and still found to discourage urban sprawl may be found "in compliance" in the presence of an over- allocation. On the other hand, a higher allocation ratio may be appropriate in relatively high-growth counties, like the County, to offset the difficulties inherent in forecasting growth. An allocation ratio which is set too low may tend to reduce market choice, resulting in increased housing prices and a reduced employment base. There is persuasive evidence that the Map and Text Amendments meet this heightened level of sprawl analysis. Urban sprawl involves, at its core, the spreading of low density or strip commercial development from urban areas into rural lands. The determination of whether any amendment or plan constitutes urban sprawl is undertaken pursuant to the criteria of Rule 9J-5.006(5), Florida Administrative Code. The emerging development pattern in northeast St. Johns County exhibits numerous symptoms of sprawl. There is persuasive evidence that the Text and Map Amendments can be reasonably expected to make the situation better by providing "an anti-sprawl alternative to what's there now." The rule applicable to sprawl speaks directly to this situation. If a local government has in place a comprehensive plan found in compliance, the Department shall not find a plan amendment to be not in compliance on the issue of discouraging urban sprawl solely because of preexisting indicators if the amendment does not exacerbate existing indicators of urban sprawl within the jurisdiction. Rule 9J-5.006(5)(k), Florida Administrative Code (emphasis added). Neither Petitioner offered persuasive evidence to rebut the finding that the Map and Text Amendments improve the existing development pattern in northeast St. Johns County. Sierra attempted to imply that the Text and Map Amendments allow for the proliferation of urban sprawl in the form of low-density residential development. Contrary to this argument, the evidence shows, for example, that the three to eight dwelling units per net developable residential acre contained in the Text Amendment, coupled with the text provisions directing the location of higher density residential uses, affordable housing, and the myriad of non- residential uses, provide meaningful and predictable standards for the development of an anti-sprawl New Town. The flexibility built into the Text and Map Amendments afford a reasonable ability to change and meet the market demands over a long-term build-out. Natural Resource Protection Every New Town development must adhere to the Policies in the Plan. The Plan Amendment adds additional requirements to the Plan in the environmental section, Policy A.1.19.5, "Environmental Consideration." Policy A.1.19.5 of the Text Amendment affords natural resource protection by requiring that at least 35 percent of any land designated New Town shall be "reserved for Open Space/Conservation lands and shall preserve a connected system of environmentally sensitive and passive recreation areas that will form a greenway system." "At least 15% of this open space component must be uplands." At least ten percent of a village must be retained in open space/conservation areas. According to Policy A.1.19.5, "[s]ignificant environmental characteristics" must "be incorporated into the New Town design, particularly into the greenway system." The applicant for a New Town designation is required to "provide data and analysis regarding potential environmental impacts, including, but not limited to[,] impacts to wetlands, sub- surface waters, and surface waters and the presence of plant and animal species that are listed by the U.S. Fish and Wildlife Service or the Florida Fish and Wildlife Conservation Commission as threatened, endangered, or as a species of special concern." Natural resource protection is furthered through Objective A.1.19 which states: "The New Town Future Land Use category may be requested from any [DRI] that meets the policies set forth " in the Plan Amendments. The application form for a DRI requires a detailed listing of vegetation and wildlife. Rule 9J-2.010(1)(a), Florida Administrative Code. Any flora or fauna identified as listed must be protected in accordance with the Department's "Listed Plant and Wildlife Resources Uniform Standard Rule." Rule 9J-2.041, Florida Administrative Code. Master planning, such as in a DRI, better protects natural resource than piecemeal development. Moreover, there is persuasive evidence that natural resources can be better protected under the New Town category than in the existing Rural/Silviculture land use category. Pursuant to these provisions, there are 5,531 of the 11,332 acres designated as New Town set aside for recreation/open space, "including, but not limited to, parks, the Greenway, and golf courses." This set aside is based upon data and analysis compiled through the DRI review process. The Nocatee Preserve (an example of an "environmentally significant characteristic") is the most significant environmental resource on the Nocatee site and establishes additional resource protection. (The Plan Amendments designate approximately 1,630 acres (the Nocatee Preserve) lying above the mean high water line in the "Conservation" land use category. Petitioners do not object to this designation.) This Preserve is a mosaic of uplands and wetlands and includes tidal saltwater wetlands. It includes streams, uplands, and a variety of habitats. It fronts the Outstanding Florida Waters (OFWs) of the Guana/Tolomato preserve areas. The Preserve adds protection for the aquatic preserve. The Nocatee Preserve is located between the Nocatee New Town and the Tolomato River and protects the parcel's approximately 3.5 miles of frontage on the Tolomato River (Guana-Tolomato Aquatic Preserve). It is likely to ensure the protection of wildlife habitat on both sides of the Tolomato River and a natural view for recreational boaters and others. In addition to the Nocatee Preserve, which is approximately 1 1/2 miles wide, "the greenways," comprising a minimum of 4,961 acres (at least 960 acres of uplands at build-out) in St. Johns and Duval Counties, will be preserved. Greenways will consist of wetlands and uplands. Vegetative communities currently found on site will be preserved. The County's FLUM series includes Map 9-B, entitled "Environmentally Sensitive Lands (ESL)." Within the County, the ESL designation is given to OFWs, estuaries, wetlands, essential habitat to listed species, coastal barrier resources and beach and dune systems, and other areas specifically designated by the Board of County Commissioners.6 (Policy E.2.2.5 of the Plan also requires the County to protect ESLs "through the establishment of Land Development Regulations (LDRs) which address the alternative types of protection for each type of" ESL.) The weight of the evidence indicates that Map 9-B is a generalized depiction of these ESLs. On its face, the Map contains a disclaimer that the data are provided from multiple sources, with varying degrees of accuracy. In essence, Map 9-B is used by the County for "reference only" purposes, i.e., data and analysis only, and is not intended to be used as a predicate for decision-making, for example, a determination is made as to the "exact location of a wetland jurisdictional line." Map 9-B, although part of the data and analysis, is not the best available data for site-specific analysis. Policy A.1.11.7 of the Plan Amendment states that "[i]n the event of a conflict between any of the Maps and the text of the Plan, the text of the Plan shall control." Pursuant to the Plan Amendments, see, e.g., Policy A.1.19.5, the County requires applicants for New Town plan amendments to provide the County with site-specific information, including environmental, and wildlife surveys (conducted pursuant to the Florida Fish and Wildlife Conservation Commission's (FFWCC) requirements),7 including vegetative surveys, in order for the County to determine the extent of ESLs on the property, proposed for New Town designation. See Finding of Fact 95. This information is part of the data and analysis required under the Plan Amendments and is required to be based on professionally accepted methodologies. Site visits by County personnel are also required. Sierra alleges that the protective measures mentioned above in the Plan Amendments fail to adequately address natural resources because the term "significant environmental characteristics" in the Text Amendment and the protections attendant such areas are uncertain, and the depiction of greenways, wetland impacts, and development of the "Sandy Ridge Village" as depicted in various maps attached to the Nocatee DRI Development Order, allow undue impacts. The operation of the Text Amendment as a whole, including the provision for the protection of "significant environmental characteristics," when read in conjunction with the protections required in the Plan and Plan Amendments, can be expected to afford protection of natural resources. The remainder of Sierra's allegations rest on the presumption that the maps of development areas and greenways attached to the Nocatee DRI Development Order are part of the County Plan and are subject to this compliance review. However, the only portion of the Nocatee DRI Development Order incorporated into the Plan and subject to this review is the provision that establishes the "allowable uses and mix of uses." Policy A.1.19.15. The location of those uses, as shown in the Nocatee DRI Development Order is not incorporated into the Plan. (However, Ordinance No. 2001-18, recognizes the importance of the Nocatee DRI Development Order. See Ordinance No. 2001-18, Section 2, paragraph 5). Accordingly, and as further set forth below in the Conclusions of Law, Sierra's allegations that the Plan Amendment must be found not "in compliance," e.g., because of the location of uses and their potential impact on natural resources, is beyond the scope of this proceeding. Nevertheless, the data and analysis supporting the Nocatee DRI have been considered herein in order to determine whether the Plan Amendments are "in compliance." The Nocatee site in Duval and St. Johns Counties is approximately 15,000 acres, of which "approximately 8,000 acres of uplands and wetlands will be preserved in the Greenway, the Preserve and within preserved jurisdictional wetlands in the villages and Town Center Village " Further, it was apparent that when several maps are reviewed together, up to 474 acres of wetlands may be impacted by the development, subject to further permitting. At present, it is speculative as to the precise number of wetlands which will be impacted by the development. However, there are general depictions of wetlands delineated on, for example, Maps H-1 and H-3, which are anticipated to be preserved. Ultimately, the wetlands impacts are required to be addressed on a site- specific basis in future permitting by the United States Army Corps of Engineers and the St. Johns River Water Management District.8 Sierra's expert (Mr. Hoctor) opined that the proposed greenways were, in some instances, too narrow because protected areas should be located at least 330 feet from developed areas due to "edge effect." However, Mr. Hoctor also stated that the distance of the edge effect could be less than 330 feet, although he believed that 330 feet "is a good base-line estimate of edge effects." On the other hand, the County and Intervenors' experts opined that the greenways, as designated, are sufficiently wide, and can be expected to provide adequate habitat to sustain the environmental resources on site.9 In general, on the Nocatee site, buffers of upland areas ranging from 15 to 100 feet will be preserved in their natural state adjacent to wetlands systems. In some areas, the width of the proposed buffers will exceed current County requirements. The buffers serve to push incompatible land uses away from surface waters and protect wetland functions. Further, Deep, Durbin, Smith, and Sweetwater Creeks are proposed to be protected by a minimum 100-foot buffer along the Creeks, which is twice as wide as other County requirements for these areas. (Theoretically, estuary systems, require a 50-foot buffer, whereas the Nocatee project has committed to a 100-foot buffer.) The County Land Development Code requires upland buffers adjacent to contiguous jurisdictional wetlands, and the buffer sizes vary, dependent upon the location of the wetlands. For example, a 50-foot buffer is required along the Tolomato River in areas where the high water line can be set; and in all other areas with contiguous wetlands, a 25-foot buffer and a 25-foot setback are required. As noted in the Nocatee DRI ADA, Question 16, Second Sufficiency Response: "The state-of-the-art stormwater management system proposed for Nocatee will limit the 100-year flood plain to greenways, wetlands, and stormwater management facilities. No post-development developed areas in Nocatee will be in the 100-year flood plain." This representation is adopted in the Nocatee DRI Development Order. Further, the bald eagle is a protected species and the habitat for the bald eagle is an essential habitat. The bald eagle's nest on-the Nocatee site is being protected by means of a 1,500-foot management zone (360 degrees). (The United States Fish and Wildlife Service guidelines indicate that a 1,500-foot buffer should be utilized.) Petitioners also offered evidence, by and through the testimony of Mr. Hoctor, that "only about 60 acres of both sand hill and scrub are proposed for protection out of at least 180 acres of zeric communities on site. Most of it long leaf pine sand hill and xeric oak sand hill." According to Mr. Hoctor, these areas include a 70-acre sandy hill parcel in the proposed Sandy Ridge Village, which is not expected to be preserved, and a 25-acre parcel, which will be preserved. (A 17-acre parcel of scrub-type habitat will also be preserved in the southwest corner of the site.) The experts agree that gopher tortoises live in and need sandy soils to construct their burrows. Gopher tortoises will be impacted by the Nocatee development. One of the guidelines set by the FFWCC states that a minimum size patch of 25 acres is necessary for on-site protection of gopher tortoises. The experts disagree as to whether preservation of a proposed 25-acre site (to be incorporated into a 20-mile greenway on-site) is sufficiently large enough to accommodate the gopher tortoises (and gopher frogs, indigo snakes, and other species) on the Nocatee site. The County and Intervenors provided reasonable explanations for requiring the preservation of the 25-acre site (as a significant natural communities habitat) in lieu of the 70-acre site. At the very least, reasonable minds have differed on this issue. It is also subject to reasonable debate whether gopher tortoises will remain on-site given the preserved 25-acre site. On the other hand, the 25-acre site has canopy and good ground cover vegetation for the gopher tortoise community. Also, pursuant to the Nocatee DRI Development Order, "as mitigation for impacts to gopher tortoises and their commensals, the Developer will be responsible for off-site mitigation of the equivalent of approximately 66 acres of habitat, in conjunction with the permit requirements of the [FFWCC]." "This off-site mitigation will be accomplished by the Developer by issuance of an incidental take permit or by purchase of habitat at an off-site location within the jurisdictional boundaries of the Northeast Florida Regional Planning Council." Total preservation on-site is expected to be approximately 33 percent which exceeds the ten percent Plan requirement. Sherman Fox Squirrels are a species of special concern. It appears that two fox squirrels have been sighted on the Nocatee site in the general vicinity of the St. Johns County/Duval County lines. This species is "highly mobile" and "will very likely migrate to other suitable habitat when the [Nocatee site is developed]." "[F]ox squirrel habitat will be included in the incidental take permit." The preservation of the fox squirrels has been addressed in a general way, i.e., through preservation of significant natural communities and the 8,000 acres of land which is being preserved on-site. Petitioners also presented expert testimony that the Nocatee site is an essential habitat for the Florida Black Bear, which should be protected by preserving a "large swath" of most or all of the southern portion of the Nocatee site which "would serve as a potentially functional wildlife corridor." (The Florida Black Bear is a threatened species. The minimum acreage required to sustain a viable population for the Florida Black Bear is between 500,000 and 1 million acres.) The experts disagreed whether portions of the Nocatee site are essential habitat for the Florida Black Bear population and the extent of the impacts on the Florida Black Bear if the Nocatee site is developed as proposed. (Mr. Hoctor suggested during cross-examination that the Florida Black Bear population, east of U.S. Highway 1 in the County, stood "only a fair to poor chance of being viable.")10 Part of the habitat data discussed by Mr. Hoctor indicates that bear road kills were more than 15 years ago. More recent bear kills have occurred in other parts of the County (west of the river or adjacent to the Twelve Mile Swamp property), but not east of Interstate 95 in the Nocatee area. Even if Florida Black Bears use the Nocatee site, more than one-half of the site (approximately 8,000 acres), which will be preserved for wildlife corridors, potentially may be used by Florida Black Bears for migration and foraging. It is at least fairly debatable whether the environmental components of the Plan Amendments are "in compliance." Land Use Suitability The Nocatee site plan was based upon a land use suitability analysis, considering soils, wetlands, vegetation, archeological sites, and topography. The Nocatee DRI ADA contains appropriate data and analysis, including testimony during the final hearing, related to such topics as "vegetations and wildlife," "wetlands," "soils," "floodplains," and "historical and archeological sites." The Nocatee scientists spent approximately 8,000 man hours in the field (on the Nocatee site) over a course of two and one-half years collecting detailed data related to these issues. The data was collected and analyzed in a professionally acceptable manner. Economic Feasibility In General The Capital Improvement Element (CIE) of a Comprehensive Plan identifies facilities for which local government has financial responsibility, which include roads, water, sewer, drainage, parks, and solid waste. (As noted herein, this does not include schools for which the School Board has financial responsibility.) Petitioners raise numerous issues relating to the "financial feasibility" of the Plan Amendments. The record contains detailed data and analysis of existing and future public facility needs. The data and analysis were conducted in a professionally acceptable manner. Further, the County conducted a cost benefit analysis of the Nocatee development and determined that the development can be expected to produce a positive revenue stream for capital expenditures in each year. (For example, the County's Budget Director calculated that as of build-out (twenty-five year period), Nocatee will result in a net financial gain to the County of approximately $114 million.) This study was bolstered by Intervenors' cost benefit analysis documenting a net positive cash flow. Public Schools Sierra contends that the Map Amendment runs afoul of the State's growth management laws by not providing a financially feasible development that adequately addresses its impacts on the public school system. As set forth in the Conclusions of Law, existing laws do not require local governments to address public schools as part of comprehensive planning. This link between land use and public schools is currently optional and the County has not elected to pursue the option; this election is supported by extant law. There is persuasive evidence that the County is not responsible for funding public school facilities. Rather, the St. Johns County School Board is responsible for such funding. For example, the only portion of the school facilities construction paid by the County occurs when the School Board requests the County to pay for the upgrading of a facility to provide for use as a hurricane shelter. The Nocatee developers agreed to construct at least two such shelters in accordance with the Department of Education's standards. However, the placement of hurricane shelters is a decision made by the County, not the School Board. Furthermore, the County has not adopted a Public School Facilities Element or a school concurrency funding program. (Examples of concurrency requirements for the State of Florida include transportation, potable water, sanitary sewer, parks and recreation, drainage, and solid waste.) The St. Johns County School Board is an independent taxing authority with an established budget for school construction and operation. Nevertheless, with respect to the New Town Category, elementary schools are allowed within or adjacent to village centers and the Town Center Village. The Nocatee development will require an additional eight schools in the County in order to meet the projected need. (Mr. Toner projected that over a period of 25 years, eight new schools would be needed and that during the five-year planning horizon after construction begins at Nocatee, one middle school would be needed for the projected number of students, i.e., 450 would start to materialize. Mr. Toner desires that schools be built concurrently with development, which does not appear to be required.) The Nocatee developers have agreed to donate, at no charge to the County (or the citizens of the County), land for the eight public schools and to waive a credit against the school impact fees to which the developers would otherwise be entitled. The value of the land donation credit is approximately $12 million. Additionally, by build-out (in the twenty-fifth year), according to Intervenors' data and analysis, the School Board can expect to receive annual net revenue or gain of approximately $9.6 million. It is also expected that over the life of the Nocatee development and, in particular, during the later phases of the development, revenues will "significantly exceed the costs," in light of expected commercial, industrial, and additional residential development "that's generating the student load on the system." Transportation The Plan Amendments add Policy H.1.6.6. to the County's Comprehensive Plan stating: The Nocatee Development of Regional Impact, a multi-use development meeting the criteria of Chapter 163.3180(12), Florida Statutes, is authorized by the County to utilize the standards and guidelines set forth in the Statute to satisfy the County's transportation concurrency requirements by payment of a proportionate share contribution is [sic] as stated in the Nocatee Development of Regional Impact Development Order, Special Condition No. 25 entitled Transportation Resource Impacts. (See Ordinance No. 2001-18) The "pipelining" method of mitigating transportation impacts has been selected in the Plan Amendments. This method allows the transportation mitigation funds to be used to increase the transportation capacity of some links of a regional roadway network beyond that necessary to offset projected impacts. It allows impacts on the regional roadway network to be handled on a proportionate share basis. Pipelining contemplates that various proportionate share impacts along the regional roadway network are assessed and all of the calculated dollars under the pipelining method are aggregated to create "a pot of money" which is used "to build one or more whole transportation improvements." The pipelining statute takes precedence over the conflicting concurrency requirements of the County. Here, the mitigation package is based upon a "proportionate fair share" calculation, under which Nocatee will pay $99.7 million. This amount is supported by appropriate data and analysis based upon the application of professionally accepted methods. In addition to the payment, the mitigation will include right-of-way donation and roadway construction. Petitioners do not challenge the concept of "pipelining." Rather, Petitioners question whether the transportation components of the Plan Amendments are "economically feasible." Overall, there is persuasive evidence, presented in the form of data and analysis, that with the Nocatee approval and the Plan Amendments, the County's transportation capital funds are likely to be improved both at the 25-year build-out and within the first five years. (State law requires that land use decisions and transportation facility planning be coordinated over the five- year planning time frame in order to maintain and achieve adopted levels of service. See Section 163.3177(3)(a), Florida Statutes. The persuasive evidence indicates that the Nocatee development will not cause any roadway segment to fall below its adopted level of service (LOS) standard during the five-year planning time frame.) Petitioners, largely through the testimony and exhibits offered by Mr. Feldt (a former employee with the County whose area of expertise is transportation), contend that the proportionate fair share calculation was incorrectly calculated and that the Nocatee DRI development data and analysis understates transportation impacts which are likely to arise as a result of the Nocatee development. However, while Mr. Feldt maintained that the $99.7 million allocation would not be sufficient to cover some of the improvements he deemed necessary, such as right-of way, most of his concerns regarding the transportation component of the Nocatee DRI had been satisfied during the DRI review process leading up to the County's approval of the Nocatee DRI Development Order. It is at least fairly debatable that the pipelining transportation component of the Plan Amendments is supported by appropriate data and analysis, which is professionally acceptable.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued concluding that the Plan Amendments adopted by St. Johns County in Ordinance No. 2001-18 are "in compliance" as defined in Chapter 163, Part II, Florida Statutes, and the rules promulgated thereunder. DONE AND ENTERED this 20th day of May, 2002, in Tallahassee, Leon County, Florida. _________________________________ CHARLES A. STAMPELOS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of May, 2002.
Findings Of Fact Wigwam, Inc., the developer of Residence Inn Resort, is the present equitable owner of the subject parcel and is the successor to the development authorizations for a proposed hotel and marina. The subject parcel is a tract of land located at Mile Marker 52.4, on U.S. 1, on a portion of Government Lot 2, in Section 6, Township 66 South, Range 33 East, on Key Vaca, Marathon, Monroe County, Florida. The subject parcel consists of 4.82 acres of land above water located between U.S. 1 and the Atlantic Ocean. Located within the subject parcel is a dredged harbor at least 8 feet deep below mean sea level at mean low tide. On January 23, 1986, the Monroe County Commission by resolution designated the entire subject parcel Destination Resort (hereinafter "DR"). Petitioner offered no evidence to show that the Department of Community Affairs received a copy of that resolution or that the Department was aware of that resolution. The Department did not appeal the "DR" designation on that parcel of property as a development order, pursuant to Section 380.07(2), Florida Statutes. The current Monroe County Comprehensive Plan, Land Development Regulations, and Land Use Maps were adopted by the Monroe County Commission on February 28, 1986, by Resolution No. 049-1986. Those Land Use Maps showed the land use designation for the subject parcel as "DR" along the Atlantic Ocean and "SR" (Suburban Residential) along U.S. 1. The discrepancy between the January 23, 1986, Monroe County resolution and the final Land Use Maps adopted by Resolution No. 049-1986 was the result of an error made by Monroe County staff before transmittal of the Land Use Maps to the Department of Community Affairs and the Administration Commission. Petitioner offered no evidence to show that the Department of Community Affairs knew or should have known that the Land Use Maps transmitted to the Department contained a clerical error regarding the subject property. The current Monroe County Comprehensive Plan, Land Development Regulations, and Land Use Maps were approved by the Department of Community Affairs and the Administration Commission on July 29, 1986, and became effective on September 15, 1986. Since the adoption of the current Land Use Maps, the oceanward three- quarters of the subject parcel has been designated "DR" and the landward one- quarter of the subject parcel has been designated "SR". Land Use Map Amendment No. 100, adopted by the Monroe County Board of County Commissioners on November 18, 1987, and rejected by the Department of Community Affairs, which is the subject of this rule challenge, would redesignate the entire subject parcel "DR". Proposed Rule 9J-14.006, Florida Administrative Code, contains the Department of Community Affairs' determination approving and rejecting several Monroe County ordinances which amend the Monroe County Land Use Maps as to hundreds of parcels of land and which amend other Monroe County Land Development Regulations. As part of that proposed rule, Land Use Map Amendment No. 100 is rejected by the Department of Community Affairs. The Petition filed in this cause challenges the proposed Rule only as it relates to the subject parcel. Although Land Use Map Amendment No. 100 is intended to correct Monroe County's clerical error by reflecting that the entire subject parcel is designated "DR," it presents to the Department of Community Affairs a different designation than that previously approved by the Department, i.e., it changes the "SR" designation for the landward one-quarter of the subject property which was approved by the Department of Community Affairs and the Administration Commission to a designation of "DR," which change in designation is rejected by the Department of Community Affairs as part of proposed Rule 9J-14.006, Florida Administrative Code. The Development Order under appeal in the companion case, Planning Commission Resolution No. 13-87, approves a major conditional use for the subject property utilizing the "DR" designation by allowing construction of a 96-unit hotel resort and utilization of the harbor within the subject property's boundaries as a marina. Section 380.0552, Florida Statutes, requires any amendment to the Monroe County Comprehensive Plan, Monroe County Land Development Regulations and Land Use Maps to comply with the following principles for guiding development: To strengthen local government capabilities for managing land use and development so that local government is able to achieve these objectives without the continuation of the area of critical state concern designation. To protect shoreline and marine resources, including mangroves, coral reef formations, seagrass beds, wetlands, fish and wildlife, and their habitat. * * * To protect the value, efficiency cost-effectiveness, and amortized life of existing and proposed major public investments, including: * * * 3. Solid Waste collection and disposal facilities. * * * The dredged harbor on the subject parcel is at least 8 feet deep. However, just oceanward of the project boundary, the undredged ocean bottom shoals to less than 4 feet at mean low tide. This area is more than 4 feet deep measured from mean sea level. A marina is permitted as a major conditional use in a "DR" resort district provided that, "the parcel proposed for development has access to water of at least 4 feet below mean sea level at mean low tide." Section 9- 213.B.2.a., Monroe County Land Development Regulations. The Land Development Regulations define the phrase "water of at least 4 feet below mean sea level at mean low tide" to mean locations that will not have a significant adverse impact on off-shore resources of particular importance. For the purposes of this definition, off-shore resources of particular importance shall mean . shallow water areas with natural marine communities with depths at mean low tide of less than four (4) feet ... Section 3-101.W-1., Monroe County Land Development Regulations. The shallow water area just oceanward of the project boundary is comprised of a natural marine community of seagrass beds. The dominant species is turtle grass, also known as Thallassia. The harbor within the subject parcel does not have access to water of at least 4 feet below mean sea level at mean low tide. The shallow water area between the marina and open water is covered with a natural marine community with a depth at mean low tide of less than 4 feet, and it has not been demonstrated that access to open water from the proposed marina can be achieved without significant adverse impact to that natural marine community. The "DR" designation allows, and often times contemplates, a marina within the resort. Section 9-213.B.2., Monroe County Land Development Regulations. The expansion of the "DR" designation where a marina could only be constructed in violation of the Land Development Regulations does not comply with principle for guiding development (b). Any development constructed on the subject parcel will utilize the Long Key Solid Waste Facility, which has a maximum capacity of 3 to 4 years. The increase in density between "SR" and "DR" will decrease the expected life span of the facility. The increase in density will not comply with principle for guiding development (h)3., which encourages protection of ... the value, efficiency, cost-effectiveness, and amortized life of existing and proposed major public investments, including solid waste collection and disposal facilities." As used in the Monroe County Land Development Regulations, a destination resort is a hotel complex that includes more amenities and facilities than an ordinary hotel. These amenities and facilities are so attractive that guests tend to spend more time on-site and, therefore, have less impact off-site. Because of these reduced impacts, destination resorts have the highest maximum net density of any Monroe County land use designation. The Monroe County Land Development Regulations state that the purpose of the "DR" district ... is to establish areas suitable for the development of destination resorts. Destination resorts are contemplated to be located on sites of at least 10 acres except where the location and character of the site or the development itself is such that off- site impacts will be reduced. Section 9-114, Monroe County Land Development Regulations. The subject parcel, at less than half of the normal 10 acres, is not large enough to include all the amenities that are necessary for a destination resort. In the companion Section 380.07 appeal of the development order, Wigwam, Inc., the developer of Petitioner in this case, attempted and failed to demonstrate that a proposed 96-room hotel could include enough amenities to reduce off-site impacts to the extent required by the Monroe County Land Development Regulations. Approval of the proposed map amendment would continue and expand an improper land use designation for the parcel owned by Wigwam, Inc. Even the expanded designation is not large enough to support a destination resort, and Wigwam, Inc., failed to show that off-site impacts will be reduced. This continuation of an improper land use designation would not comply with principle for guiding development (a) which seeks "[t]o strengthen local government capabilities for managing land use and development so that local government is able to achieve these objectives without continuation of the area of critical state concern designation.
The Issue The issue is whether to approve Petitioners' application for a beneficial use determination (BUD) on their property in Key Largo, Florida, and if approved, to determine the type of relief that is appropriate.
Findings Of Fact Petitioners purchased their property in September 2006 for $60,000.00 (or at the peak of the Florida housing boom). The parcel is located at the corner of Meridian Avenue and Lycaloma Avenue, mile marker 94.5, on the Gulf of Mexico side of U.S. Highway 1 in Key Largo. It is also identified as Block 9, Lot 1, Section 3 of the Bay Haven Subdivision, an older, partially-developed subdivision comprised of four sections and several hundred lots. Since September 15, 1986, the subdivision, including Petitioners' lot, has been zoned Suburban Residential (SR), which allows only one residential unit per two acres. No challenge to that action was taken by any person, and no contention has been made that the County failed to follow the established procedure for adopting its LDRs. A challenge to the validity of the LDRs is now barred by the statute of limitations.1 See § 95.11(3)(p), Fla. Stat. The Bay Haven Subdivision is located in South Key Largo and was first platted after World War II. Building permits for all existing homes in the subdivision were applied for before the zoning change became effective in September 1986. Due to the SR restrictions, around 250 lots remain vacant at this time, including 99 in Section 3 where Petitioners' lot is located. Many of these vacant lots have been deeded by their owners to the County for conservation purposes in exchange for points that can be used with a Rate of Growth Ordinance (ROGO)2 allocation to develop other property in the County. Petitioners' corner lot lies at the intersection of two streets and has an irregular shape with a large radius at the intersection. It is bordered on two sides by single-family homes, measures 8,276 square feet, or around 0.19 acres, and is somewhat larger than the typical subdivision lot size of 5,000 square feet. Mr. Beauchamp, who resides in Wisconsin, testified that he purchased the property with the expectation of building a home when he retired as an air traffic controller. Before purchasing the property, he assumed that it was zoned Improved Subdivision (IS) because this was the zoning incorrectly shown on the multiple listing service sheet provided by his realtor. Neither Mr. Beauchamp nor his realtor was familiar with County zoning classifications or permissible uses for the parcel.3 Sometime in 2006 they visited a County office to secure further information. Mr. Beauchamp says they spoke with two unidentified "planners," who told them that a single-family home could be built on the property. However, nothing was confirmed in writing, and there is no record of the meeting. Other than this meeting, neither Mr. Beauchamp nor his realtor took any other steps to verify the zoning on the property and/or any development restrictions that might apply. Based solely on the oral advice given by these two unnamed County employees, the Beauchamps purchased the lot. According to Petitioners' expert, Robert Smith, before purchasing a vacant lot in the Keys, normal due diligence would require a prospective purchaser to arrange a pre-application conference with Planning Department staff and secure a written Letter of Understanding confirming the rights of the property owner. See § 110-3, M.C.C. However, Petitioners (and their realtor) did not complete appropriate due diligence; they simply checked with an unidentified County employee and without any other assurance purchased the property.4 In May 2012, Petitioners' agent, Randy Wall, a builder and former Planning Commissioner but not an attorney, met with a representative of the County Building Department to begin the process of securing approval to build a single-family residence on the property. Mr. Wall was advised that the zoning on the property was SR, which allows only one dwelling unit per two acres. This was confirmed in an email dated July 13, 2012, from the Assistant Director of Planning, which stated as follows: The parcel has a zoning designation of SR which requires Two (2) acres per residential unit. As noted by planning staff, this parcel does not have sufficient land area for the zoning and associated density. At the meeting, Mr. Wall also inquired about the possibility of changing the zoning on the property from SR to IS (which would allow construction of a single-family home), but decided not to pursue that option because he recognized the poor prospects of securing a zoning change for a single lot in a large subdivision, when scores of other lots were subject to the same restriction. He assumed, probably correctly, that this might invite a spot zoning challenge. Other than having a discussion with County representatives, Mr. Wall did nothing more. He did not file an application for a residential dwelling unit allocation under the County's ROGO process, or any other formal application for relief, such as a change in the zoning district or land use designation, a variance, or an exception. Believing that the County staff would "fix the problem" because the County had made "a mistake" in reclassifying the entire subdivision as SR, Mr. Wall prepared and filed a BUD application, which was eventually deemed to be complete on September 27, 2013. The BUD process is intended "to provide a means to resolve a landowner's claim that a [LDR] or comprehensive plan policy has had an unconstitutional effect on property in a nonjudicial forum." § 102-103(a), M.C.C. An applicant for a BUD must include a statement "describing the [LDR], comprehensive plan policy, or other final action of the county, which the applicant believes necessitates relief under this division." § 102-105(b)(5), M.C.C. The application at issue simply stated that "the adoption of the land use designation of SR for the subdivision of Bay Haven constituted a compensable taking." The application did not refer to any comprehensive plan policy or final action taken by the County. As relief, the application requested that the County take one of the two following actions: (a) change the Future Land Use Map and zoning designations to allow a residence to be built on the lot; or (b) notwithstanding the SR zoning, issue a permit for development. The BUD process requires applicants to state whether they are alleging a facial or as-applied regulatory taking as the basis for administrative relief. See § 102-104, M.C.C. Unless a landowner asserts that a LDR or comprehensive plan provision, on its face, has caused a taking of his property, relief is permitted only after "the landowner has received a final decision on development approval applications from the county, including building permit allocation system allocations, appeals, administrative relief pursuant to section 138-54, and other available relief, exceptions, or variances." Id. Mr. Wall did not formally apply for any type of development approval and received no final decision, as contemplated by the Code. However, Mr. Wall testified that he "understood" the County was waiving that requirement in this instance. He also stated in the application that "Joe Haberman contracted [sic] the Beauchamps and informed them that staff had deemed this phase unnecessary and to move directly to submitting a [BUD] application." Other than this assertion, there is no evidence to confirm this understanding, and the County's Principal Planner testified that a waiver had not been granted. She also confirmed that no development approval application had been filed, and no final decision had been made, both required by the Code in order to seek relief under an "as applied" theory. Therefore, rightly or wrongly, as plainly stated in the application, Petitioners' basis for relief is that the LDR on its face constitutes a taking of their property.5 Besides a single-family home, which is impermissible here due to size limitations of the lot, two other uses are permitted as of right in the SR district: community parks and beekeeping. See § 130-94, M.C.C. Also, a property owner may apply for a minor conditional use, subject to approval by the Planning Director. Permissible minor conditional uses include public or private community tennis courts and swimming pools; public buildings and uses; parks and community uses; institutional uses; and churches, synagogues, and houses of worship. Id. However, Mr. Beauchamp testified that he is not interested in any of these uses since he believes most, if not all, would be offensive to a residential neighborhood or simply impractical due to the size of his lot. The property can also be sold to the owners of adjacent Lot 11 to be used as a side yard, its use before being purchased by Petitioners. Finally, the Principal Planner testified that there are transferable development rights (TDRs) on the property, whose value at this time is unknown. See § 130-160, M.C.C. Therefore, the Beauchamps are not deprived of all economically beneficial use of their property. Cf. § 102-110(c), M.C.C. ("[t]he highest, common, or expected use, is not intended as an appropriate remedy, unless expressly required by applicable statute or case law"). There was no evidence from a property appraiser on the fair market value of the parcel, as encumbered by the regulation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of County Commissioners deny Petitioners' application for relief under the BUD Ordinance. DONE AND ENTERED this 10th day of July, 2014, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of July, 2014.
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.
