The Issue This proceeding concerns Lakepointe project, a development of regional impact (DRI) which was approved, with conditions, by Orange County. The developer contests certain of the conditions imposed by the County in its approvals of the DRI and the related rezoning. More specifically, the Petitioner has alleged that the County acted in an arbitrary and capricious manner, and contrary to the essential requirements of law by: eliminating free-standing commercial uses from the project and requiring that all commercial activities be internalized within office buildings and included within the office square footage; imposing a 10,000 square feet per acre limitation on all office development and reducing the total square footage from 805,000 to 756,000 square feet; limiting structures to 35 feet in height; requiring that all office buildings within the project be designed with "residential scale and character"; reducing the residential density and limiting the residential development to single family detached units on the north portion of the project in lieu of the multi-family, attached units proposed by Petitioner; and imposing uplands buffer requirements that reduce the amount of acreage available for development. Petitioner seeks to have the Florida Land and Water Adjudicatory Commission enter a modified development order eliminating these conditions. Orange County and the City of Maitland contend that the challenged conditions are reasonable, given the facts and circumstances surrounding the project, and that they are consistent with the requirements of law. Certain ancillary issues raised by the parties were eliminated through rulings of the hearing officer during the proceeding. Petitioner sought to present extensive evidence that the process by which the County arrived at its conditions of approval was improper as it relied unduly on the demands of the City of Maitland whose jurisdictional boundaries abut the project. Petitioner claims that the City and County reached an agreement on the project which was illegal as it did not comply with the provisions of section 163.3171, F.S. Although some evidence was permitted, and the issue is addressed in this recommended order, the issue is deemed irrelevant. As more fully explained in the conclusions of law, the de novo nature of this proceeding cures the procedural defects claimed by Petitioner. For a similar reason, the hearing officer denied a joint motion in limine by Orange County and the City of Maitland that would have precluded Petitioner from presenting any evidence related to conditions to which it did not expressly object at the December 14, 1987, public hearing conducted by the County.
Findings Of Fact The Parties Battaglia Properties, Ltd. (BPL) is a Florida limited partnership whose mailing address is Post Office Box 770398, Winter Garden, Florida 32787. BPL is owner and developer of the property that is the subject of this proceeding. As such, BPL has standing to initiate this appeal pursuant to section 380.07, F.S. (APS, statement of admitted facts, paragraph 3). Orange County (County) is a charter county and political subdivision of the State of Florida, authorized to issue "development orders", as that term is defined in section 380.031(3), F.S. and section 163.3164(6), F.S. (APS, statement of admitted facts, paragraph 4). The City of Maitland, Florida (City, or Maitland) is a municipal corporation which has properly intervened in this proceeding. (APS, statement of admitted facts, paragraph 5.) The Site and its Environs The property that is the subject of this appeal comprises 120.6 acres located north and south of Maitland Boulevard in unincorporated Orange County. The south portion consists of 33.3 gross acres and the north portion is 87.3 gross acres. The City of Maitland surrounds the property on three sides: east, south and west. An adjacent parcel owned by Petitioner, east of the property, lies within the incorporated city limits of Maitland. Together, the parcels constitute a development of regional impact (DRI) located within more than one local government jurisdiction, referred to as the "Lakepointe Project" or "Lakepointe DRI/PD". This appeal, and thus this order, address only that portion of the project located in unincorporated Orange County. Maitland Boulevard is currently constructed as a four-lane divided, limited access, principal arterial with interchanges at Interstate 4 on the west, and US 17-92 (Maitland Avenue) on the east. The Battaglia family has owned the property for approximately thirty- five years and has used it for citrus groves. At the time that the property was purchased by the Battaglias, the area was largely rural. Maitland Avenue (US 17-92) was a two-lane road, and Maitland Boulevard was a dirt road. I-4, approximately 1/4 mile to the west was constructed in the 1960's. Subdivisions and a school were constructed south of Sandspur Road, the southern boundary of the property, in the 1960's and 1970's. Around that time other residences were constructed north of the lakes on the northern boundary of the property. In the early 1970's, an office building was built to the east of the property, on the southside of Maitland Boulevard; and Lake Faith Villas, a multi-family residential development, was built on the northside of Maitland Boulevard. A large Jewish Community Center was developed across from Lake Faith Villas, on the south of Maitland Boulevard. West of the Battaglia parcel, and north of Maitland Boulevard, the property is vacant and has been the subject of various development proposals. West of the Battaglia property, but south of Maitland Boulevard, is a large church complex, Orangewood Presbyterian. On the westside of I-4, north and south of Maitland Boulevard is a 230 acre office development, Maitland Center, zoned in the 1970's and developed in the 1980's. When Orange County first adopted zoning, in 1957, the Battaglia parcel was zoned R-1AA, allowing single-family detached units, not to exceed 4.4 units per acre (du/acre). When the County adopted its comprehensive plan in 1980, the parcel north of Maitland Boulevard was designated for low-medium density residential use (4.4 to 7.5 du/acre). The south parcel was designated for low density residential use (1.01-4.4 du/acre). These designations are reflected on Orange County's 1986 Future Land Use Policy Guide Map, included in the County's comprehensive plan, the 1986 Growth Management Policy (GMP). The City of Maitland Comprehensive Development Plan (CDP) also addresses the property for planning and informational purposes. Figure 7-1 of the Land Use District Map of the 1986 CDP designates the area as an "undeveloped district" (UD), with the north parcel designated UD 2, permitting single family residential, multi-family, and limited non-residential uses. The south parcel is within a UD 1 district, permitting single family residential and related uses. (Joint Exhibit #10, pp 7-26 to 7-30) When the Florida Department of Transportation acquired the right of way for Maitland Boulevard, it acquired all access rights, except at specific limited locations where shared access between adjoining properties is necessary. The right of way includes anticipated expansion of Maitland Boulevard to six lanes. Access points to the north parcel of the Battaglia property are at both ends, east and west. Access to the south parcel is at the west only, with a "stubbed-out" road that dead-ends before reaching Sandspur Road, on the southern boundary of the south parcel. Construction of I-4, Maitland Boulevard, and Maitland Avenue (US 17- 92) has substantially changed the area from its rural character to one of mixed uses. Although the areas north and south of the property are well-established residential neighborhoods with homes selling between $100,000 and $200,000, the corridor along Maitland Boulevard is not residential in character. No single- family residential subdivision has direct access to Maitland Boulevard. The subdivisions south of the property access Sandspur Road; and those to the north, on the north side of Lakes Faith, Hope and Charity, access small neighborhood streets. Other events occurred which directly impacted the Battaglia family's use of its property. During the decade of the 1980's, five major freezes occurred: January 1981, January 1982, December 1983, January 1985, and December 1989. A substantial portion of the grove, particularly on the south parcel, was destroyed or severely damaged. Some of the trees also passed the upper limits of their twelve to thirty year productive life span. The Development Plan In the mid-1980's the owners came to believe that citrus was probably not the best investment they could make on this property any longer, given the grove damage and the development that was occurring in the area. A planning firm was consulted, and a master development plan was created for the property north and south of Maitland Boulevard. [See Appendix B, attached] The mixed use development, called Lakepointe, was divided into six parcels, as follows, with parcels one and two to be developed in the relatively narrow portion south of Maitland Boulevard, and four through six on the deeper and larger northern portion: Parcel Land Use Acreage Units 1 office 28.3 240,000 (gsf) gross square feet 2 multi-family 5.0 50 du (10 du/a) 3 office/ 3.3 35.000 gsf commercial 6.000 gsf 4 commercial 4.0 12,000 gsf 5 office 35.0 530.000 gsf 6 multi-family 12.0 100 du (8.3 du/a) greenbelt 2.8 entrance road 1.1 lakes 29.1 120.6 ac 805.000 gsf office 18,000 gsf commercial 150 du Under the plan, commercial use in parcel 3 was limited to financial institutions, and in parcel 4 was proposed to be a "quality restaurant". (Joint Exhibit #7; Battaglia Exhibit #2 (a), p. 12-2; APS, p. 6.) The narrative description accompanying the master development plan proposed a height limitation of 35 feet for those structures to be located south of Maitland Boulevard and for the structures to be located on parcel 6. A 55- foot height limitation was proposed by Petitioner for the office and commercial structures on parcels 3, 4, and 5, north of Maitland Boulevard. The Petitioner also proposed a 50-foot wide uplands greenbelt buffer, located landward of Lake Hope and its adjoining conservation areas, along the northern boundary of parcel 5, to provide additional open space and buffering for the 55-foot buildings that were proposed (APS, pp. 6-7). The offices to be located on parcel 1 were proposed to be of "residential scale", due to the limited depth of the parcel and to minimize detrimental impacts on nearby residential uses. (Battaglia Exhibit #2 (a) p. 12-6) A 25-foot buffer was proposed around the multi-family residential use proposed for parcel 6. (transcript, pp. 1173-4) Parcel 6, located in the far northwest portion of the property, is also called "Pine Island" for its unique vegetation. Its approximate 12 acres have never been cultivated in groves, but rather have been allowed to flourish in dense pine and oak trees. It protrudes, like the thumb of a mitten, into the area between Lakes Hope and Charity, and is separated from the subdivision to the north by a drainage divide densely vegetated with grasses, reeds and other plants associated with the presence of a high water table. (transcript, p. 1173) Petitioner's plan for parcel 6 considered the unique character of this portion of the property and proposed attached, multi-family units which would allow maximum flexibility in designing roads and parking and in preserving open space. The Application Process Due to the more extensive grove damage on the south property, Petitioner initially elected to proceed with development there first, and to continue cultivating its citrus on the north. Over the objection of the residential neighbors across Sandspur Road, on October 28, 1985, the Orange County Board of County Commissioners approved Battaglia's request to rezone the south parcel from R-1AA to Planned Development (PD) with office buildings and some multi-family units. The office park was permitted access limited to Maitland Boulevard, and the residential parcel was permitted access to Sandspur Road, with no access between the two parcels. The project was called Sandspur Grove PD. The City of Maitland area homeowners challenged the rezoning and prevailed in Circuit Court. However, the rezoning was reinstated when the Circuit Court was reversed on appeal. See Battaglia Fruit Co. v. City of Maitland, 530 So.2d 940 (Fla. 5th DCA 1988). In the meantime, the owners determined to pursue the entire development, and in April 1986, filed an application to rezone the north parcel from R-1AA to PD, and an application for Development Approval/Development of Regional Impact (ADA/DRI). On June 11, 1987, Petitioner filed its application to amend the Future Land Use Policy Guide Map contained in Orange County's comprehensive plan to a classification appropriate for the land uses proposed in the Lakepointe DRI/PD, as shown on the Master Development Plan (APS, p. 5). A detailed traffic study in support of the proposed Lakepointe Master Plan was included in the DRI application. Orange County and Maitland reviewed and approved in advance the methodologies and assumptions used in the traffic study. The study included traffic growth applicable to all vacant properties in the traffic impact area, including projected trips from 65,000 square feet of commercial retail. On March 29, 1987, the East Central Florida Regional Planning Council (ECFRPC) issued its final recommendation on the Lakepointe DRI. It recommended approval with conditions, eight of which address traffic, including the recommendation that phase III not proceed until Maitland Boulevard is six-laned, unless monitoring concludes the improvement is not necessary. (Joint Exhibit #8) The ECFRPC also noted in "issues of local concern" that the project is virtually surrounded by the City of Maitland and would have a significant impact on the City and its citizens, and that the project appears to be inconsistent with the Maitland Comprehensive Plan. The ECFRPC recommended that full review of the project be made at a joint public hearing conducted by the City and County. (Joint Exhibit #8, pp. 47-48) The Petitioner did not request such a joint hearing on its application, as provided in Section 380.06, F.S. On April 9, 1987, the Orange County Development Review Committee (DRC) conducted a technical review of the proposed development. Representatives of the Lakepointe project were present and participated. The DRC is comprised of Orange County staff who review a project for compliance with Orange County regulations and make recommendations to the County's Planning and Zoning Commission. On the basis of the staff's technical review, such recommendations will ameliorate the impacts of the proposed development. (APS, p. 8) The approved Minutes of the April 9, 1987, DRC meeting reflect a staff recommendation of approval of the Lakepointe project with the following recommended modifications: Extending the 50-foot wide greenbelt area around the entire northerly perimeter of the PD and ending at the Department of Transportation drainage easement (Parcels 5 and 6). Prohibiting free-standing commercial uses on Parcels 3 and 4, and requiring the commercial uses to be located internally within office buildings. Limiting building height in Parcels 3, 4, and 6 to three stories (forty feet). Limiting building height on Parcel 5 within 100 feet of adjacent property zoned residential to one story and a maximum of 35 feet, while recommending a 4-story, 50-foot maximum height on the balance of Parcel 5. The approved DRC Minutes of April 9, 1987 recommended approval of 805,000 square feet of office uses, plus an additional 18,000 square feet of commercial uses (internalized within offices), and 150 multi-family dwelling units at the densities requested by Battaglia (10 du/a on Parcel 2 and 8.3 du/a on Parcel 6. (APS, pp. 8-9). On August 10, 1987, a joint work session was conducted between the Orange County Board of County Commissioners and the Maitland City Council. Representatives from the Petitioner and other citizens were present, but their participation was limited to occasional unsolicited comments. The purpose of the work session was to consider proposals for a joint agreement that would allow municipal jurisdiction over adjacent unincorporated areas for planning purposes pursuant to section 163.3171, F.S. As reflected in the litigation with regard to the Battaglia property, relations between the local governments were strained. The Lakepointe project was specifically discussed, and the group of council and board members appeared to reach some consensus on certain restrictions on the development: that any development on the property could not exceed 35 feet in height. that the attached multi-family units in parcel 6 be replaced with single family detached units at a density of 7.5 units per acre; and that all residential uses be deleted from the south parcel and replaced with residential scale offices. (Joint Exhibit #17, pp. 17, 23, 27, 28-30, 34-35). Even though votes were taken at the work session, the outcome was not binding on the board. Resolution of the various issues amounted to policy determinations which provide guidance to the staff. Nonetheless, the session concluded with some self-congratulation that the two bodies had been able to sit down amicably and work out tough problems. (Joint Exhibit #17, pp. 62-63). Edward Williams, Orange County's Planning Director and a member of the DRC, sent a memo to the DRC on November 11, 1987 outlining the conditions agreed at the August 10, 1987 work session and stating that certain conditions approved by the DRC should be modified and other conditions added. These included: No free standing commercial and the internal commercial use limited to 18,000 sq. ft. would not exceed 50% of any building. Maximum heights would be 35 feet. The residential uses north of Maitland Boulevard would be single family detached, at 7.5 du/a. Multi-family residential uses south of Maitland Boulevard would be eliminated and redesignated as offices. Building coverage would be no more than 10,000 sq. ft. per acre. The 33.3 acre office tract south of Maitland Boulevard would be limited to 333,000 sq. ft. and the 42.3 acre office tract on the north would be limited to 423,000 square feet. (Battaglia Exhibit #9) The DRC adopted Williams' changes. The Orange County Planning and Zoning Commission (P&ZC), an advisory body to the Board and appointed by the Board, considered the Lakepointe comprehensive plan land use map amendment and the DRI/PD application at two consecutive public hearings on November 19, 1987. The P&ZC accepted the 7.5 du/a single family residence restriction for Parcel 6, but recommended deleting the "detached" requirement, in favor of giving the developer additional flexibility. It also recommended computing the 10,000 square feet per acre office use on a gross basis both on the north and south parcels, rather than on a gross basis on the south and net on the north as the county staff had done. The change in computation resulted in an additional 39,000 square feet for offices on the north parcel when the 2.8 acre green belt and 1.1 acre entrance road are included. Other than these, the conditions urged by Edward Williams from the joint work session were adopted. (Joint Exhibit #18, pp. 106-109; Joint Exhibit #19) The Orange County Board of County Commissioners considered the Lakepointe comprehensive plan amendment, DRI application and PD zoning application at duly noticed and advertised public hearings on December 14, 1987. Representatives of the Petitioner and members of the public were present and participated. (Joint Exhibits #22 and 23; APS, p.4) Accepting the staff recommendations, but deleting the P&ZC recommended changes, the Board adopted an ordinance amending the Orange County Comprehensive Plan to accommodate the land uses associated with the Lakepointe project. It also approved the project as a DRI, and approved rezoning the north portion of the property from R-1AA to PD. (Joint Exhibits #2, 22 and 23) On February 22, 1988, Orange County issued a Development Order, pursuant to Section 380.06(14), F.S. memorializing the conditions of development approved by the Orange County Board of County Commissioners on December 14, 1987, for the Lakepointe DRI/PD. (Joint Exhibit #3) On June 12, 1989, the City of Maitland issued a Development Order pursuant to Section 380.06(14), F.S. for that portion of the Lakepointe project located entirely within the City of Maitland. This order relates only to the access road at the northeast of the project. (Joint Exhibit #4) The Orange County Board of County Commissioners and the Maitland City Council formally adopted an interlocal agreement at a duly noticed and advertised joint public hearing held on July 10, 1989. (APS, p. 10) The Development Order The Development Order for Lakepointe DRI consists of approximately 16 pages, plus the legal descriptions of the tracts. Although the order references a 120.3 acre project, the parties have stipulated, and the evidence reflects, that the project is 120.6 acres. (APS, p. 5) The preamble to the conditions of approval includes this language, which the County argues controls the ultimate disposition of this appeal: * * * * NOW, THEREFORE, BE IT HEREBY ORDERED by the County Commission of Orange County, Florida, that, subject to each of the following terms and conditions <<(each of which the County Commission found was necessary for inclusion for the County Commission to approve the Lakepointe DRI/PD project, and none of which could have been omitted or modified if the Developer expected the County Commission to approve the Lakepointe DRI/PD project),>> the Lakepointe Development of Regional Impact is APPROVED pursuant to Section 380.06, Florida Statutes (Supp. 1986), and the Land Use Plan for the zoning change on the northern portion of the Property from R-1AA to PD is approved: * * * (Joint Exhibit #3, p.3, emphasis added) * Note: In the above quotation, language added to the statute is within the <<>>; deleted language is within the [[]]. The order adopts the conditions of approval recommended by the ECFRPC, including the conditions regarding traffic impacts and monitoring/modeling. (Joint Exhibit #3, pp. 9-11) The order requires development in accordance with the DRI/ADA, and supplemental information, except as modified by the specific conditions of approval. (Joint Exhibit #3, p. 7) The relevant specific conditions (those contested in this proceeding) provide as follows: * * * II. CONDITIONS OF APPROVAL FOR THE REZONING TO PLANNED DEVELOPMENT, AND FOR THE DEVELOPMENT OF REGIONAL IMPACT, AS ADOPTED BY THE COUNTY COMMISSION (A) CONDITIONS OF APPROVAL AS RECOMMENDED BY THE ORANGE COUNTY DEVELOPMENT REVIEW COMMITTEE AND THE ORANGE COUNTY PLANNING AND ZONING COMMISSION, AS AMENDED. * * * * 2. The greenbelt (minimum 50-feet wide) shall be continued around the northerly perimeter of the PD, <<particularly along the northwestern boundary of Parcel 6 extending to Lake Charity and ending at the Department of Transportation ("D.O.T.") drainage right-of-way area.>> The greenbelt shall be located outside of designated conservation areas. A minimum 25-foot wide landscape buffer shall be provided around the balance of the perimeter of the PD (<<i.e.>> southerly perimeter of the PD situated immediately north of Maitland Boulevard). A reduction in the 25-foot buffer along Maitland Boulevard may be considered by Orange County staff at the development plan submittal stage (<<e.g.>>, reduced buffer width with wall screening). Specific landscape material for the entire buffer area shall be provided on the development plan submittal for County approval. 3. <<Free-standing commercial structure(s) shall be prohibited.>> The accessory or support commercial shall be located within the office buildings(s). The commercial uses are intended to serve the employees of the office development. The total professional office square footage shall include the square footage for any commercial uses, and the commercial use shall not exceed 18,000 square feet and no more than fifty percent (50%) for two (2)-story structures. * * * 7. <<Maximum height of the office buildings for the project shall be thirty-five (35) feet. Design of the office buildings shall be of a residential scale and character, and include the appropriate landscaping elements.>> Development within one hundred (100) feet of adjacent property zoned residential shall be limited to one story in height (and [35] feet maximum). * * * 14. Residential construction shall be started prior to completion of twenty-five (25%) of the office space. The residential development shall be completed before fifty percent (50%) of the office completion. These square footages relate to the portion of the PD located north of Maitland Boulevard. <<This residential development shall be low-medium density with a cap of 7.5 single family detached units per acre.>> (Development of the portion of Lakepointe south of Maitland Boulevard is controlled by the Sandspur Office Park PD litigation.) * * * <<Building coverage for office on the northern portion of the Property shall not be more than 10,000 square feet per net acre. The 33.3 acre office tract located south of Maitland Boulevard shall be limited to 275,000 square feet, while the 42.3 acre tract located north of Maitland Boulevard shall be limited to 481,000 square feet, for an aggregate total of 756,000 square feet.>> * * * (Joint Exhibit #3, pp. 3-7, emphasis added.) Note: In the above quotation, language added to the statute is within the <<>>; deleted language is within the [[]]. The Conditions in Controversy Buffering the Northern Perimeter In its application Petitioner proposes a height of 55 feet for office buildings on the north parcel and a 50 foot uplands buffer landward of all conservation areas adjoining the offices on the northern boundary of parcel 5. The DRC reduced the height to 50 feet, for parcel 5, except within 100 feet of property zoned residential. Along the northern perimeter of parcel 6 (the residential use) Petitioner proposed a 25-foot natural buffer. The DRC originally had no problem with the residential density, but recommended extending the 50-foot upland buffer proposed for Parcel 5 around the northern perimeter of parcel 6. Petitioner contends that the 50 foot buffer is unnecessary if the office height and residential density are reduced. Buffers are required on any developer's land. In both Orange County and the City of Maitland, buffers are negotiated in PD's, based on existing factors and circumstances. The lakes along the northern perimeter of the property are between 1,000 to 2,000 feet across and are not effective light or noise buffers. The residential parcel (parcel 6) is separated from the existing subdivision by only a drainage canal and low vegetation. The 50-foot buffer between parcel 6 and Druid Hills (the existing subdivision) is not unusual. Buffer widths in PD's in the county range between 5 and 100 feet. In another case, the County required Buckingham at Lakeville to include a 50-foot wide buffer between residential uses of differing densities. In a case cited by Petitioner, Fairbanks Office Building, on Fairbanks Avenue in unincorporated Orange County, the developer, was required to provide only a 10-foot landscape buffer with a 6-foot wall, separating 46 foot high offices from an existing residential development. The wall, however, and the fact that the office park developer negotiated with the adjacent property owner to provide water and sewer service made that case unique and distinguishable from Lakepointe. (Transcript, p. 1132) No 50-foot buffer is required by the county for the southern boundary of the south parcel as the office uses on that parcel are separated from the single family residences by Sandspur Road and by Petitioner's proposed wall, berming and landscaping. Different requirements for the north and south perimeter are justified and appropriate. Prohibition of Free-Standing Commercial Structures Although there are well-established single family neighborhoods north and south of Maitland Boulevard between I-4 and Maitland Avenue (U.S. 17-92), those neighborhoods are separated from the Maitland Boulevard corridor by the lakes on the north and Sandspur Road on the south. The corridor itself is not residential in character. No single family residential subdivisions directly access Maitland Boulevard. From the beginning of the County's review of the project, however, the free-standing commercial uses proposed by the developer have been eliminated as inconsistent with the character of the portion of Maitland Boulevard east of I-4 and west of Maitland Avenue. The planning and zoning staff have sought to prevent strip commercial development of the type that has proliferated along other principal arterial roads, notably State Road 436, U.S. 17-92 and State Road 434. Free-standing commercial on parcels 3 and 4 would be the only uses of that type in this area of the Maitland Boulevard corridor, setting a precedent for other similar uses on adjacent properties, a trend vigorously opposed by the residential groups and by the City and County officials and their staff. Appropriate locations for free-standing commercial in the vicinity would be at U.S. 17-92, in downtown Maitland or west of I-4 (designated as one of the county's five "activity centers" in the GMP to concentrate high intensity uses and avoid encroachment into residential areas). Relevant policies from Orange County's GMP provide, as follows: COMMERCIAL POLICIES (Policies outlined in Sections 1.0 through 4.0 are applicable to all types of commercial activities within Orange County) GENERAL The County will encourage the concentration of expanded commercial facilities in centers suitably located to provide their market areas with accessibility and to discourage inappropriate roadway strip commercial uses. Uses generally considered as a suitable replacement for strip commercial activities include all types of residential uses, institutional development, or recreation areas and green belts. * * * 11.0 OFFICES AND PROFESSIONAL COMMERCIAL POLICIES Offices and professional commercial developments are those which provide office space for the furnishing of professional services. Such uses may be located individually or in planned centers, such as office parks. * * * 11.1.3 Office parks should be encouraged to include corollary uses such as office supply stores, banks, restaurants, conference centers and other compatible business and commercial uses. * * * (Joint Exhibit #9, pp VI-21, VI-30) Prohibiting free-standing commercial, but permitting commercial corollary uses as described above, within the office buildings, appropriately effectuates those policies. The County has required other mixed-use PD's besides Lakepointe to incorporate commercial within office buildings. For example, since the early 1960's and '70s, planning studies for the area around the University of Central Florida have discouraged free-standing commercial uses to maintain a campus-like atmosphere and to avoid adverse impacts on the University. Some unspecified commercial use has been permitted in recent years. (Transcript, pp 397-398) Where free-standing commercial developments are permitted in DRI/PDs, the projects are generally much larger than Lakepointe (for example, Southchase with 3,000 acres and Lake Nona with approximately 7,000 acres), or are in an activity center (for example, Maitland Summit). (Transcript, pp. 1188, 1191) In approving or rejecting free-standing commercial uses the County considers each location as it relates to the road network, the relationship to other uses, compatibility with surrounding land uses in the area and the character of the area. (Transcript, p. 398) Maximum Height & "Residential Scale and Character" A 35-foot height limit for office buildings is mandated by the County's "straight" Professional-Office (P-O) zoning district requirement. (Joint Exhibit #11, Article XXXI, Section 6, paragraph 7) A special exception is permitted to increase the height, after consideration of the character of the neighborhood, the effect of the proposed use on the value of surrounding lands, and the area of the site. (Id., Section 5) The project in issue is a Planned Development (PD), however, allowing mixed uses and a greater degree of flexibility than available under straight zoning. The developer is required to submit a plan for approval, which plan identifies, among other details, the proposed building heights. (Joint Exhibit #11, Article XXXIX, Sections 1 and 6) For guidance, the County and developer look to performance standards in the straight zoning, although these are clearly not binding in PD zoning. The Petitioner voluntarily committed to a 35-foot height restriction on the south portion of the property. It also committed to a "residential scale and character" office development on the 28.3 acres that comprise Parcel 1 on the south. As part of the rezoning process the Petitioner showed photographs of residential scale office developments. In making those commitments, Petitioner considered the narrow depth of the south parcel and its proximity to residential uses (across Sandspur Road). It proposed 55-foot heights and a "campus-style" development for the offices on the larger northern parcels, to allow more open space, more landscaping and an opportunity for flexible design. Orange County's codes do not define the term "residential scale and character" and no guidelines or standards have been adopted to apply meaning to the term. Nor does the County have an architectural review board charged with making design decisions on development proposals. It is plain that both parties have some notion of what it means, as both have used the term throughout the plan approval process. For example, Orange County's Planning Director, Edward Williams, when asked by the Board for a definition at its final public hearing, suggested that "residential scale" projects include a roof type and architectural features compatible with what is found in a "typical residential area". Size, for example, a limitation of 5,000 square feet per building, is not necessarily appropriate in all residential scale projects. (Joint Exhibit #22, p. 75) "Residential scale and character" could include one to five very large buildings on the north parcel rather than multiple small buildings as envisioned on the south, according to Mr. Williams. (Transcript, p. 475) As recognized by the Petitioner, "residential scale and character" buildings are appropriate adjacent to existing residential areas. Petitioner also acknowledges that a 35-foot height requirement is appropriate on parcels abutting or close to existing residential areas. Parcel 5, however, is different. Its 35 acres is the largest, and by far, the deepest parcel in the plan. It is buffered from existing residential areas by the greenbelt, by the lakes, and by the proposed residential use on parcel 6, "Pine Island". The height restriction of 35 feet does not make sense in that parcel, and inhibits the creative use of open or green space and landscaping. In his presentation to the local government officials at the August 10, 1987 work session, Mr. Williams articulated County planning policy in the past as trying to "...go up with developments rather than covering the entire site with impervious surfaces. We prefer to have more open space." (Joint exhibit #17, p. 10) Petitioner seeks to target a different market for the offices on the south parcel than for those on Parcel 5 on the north. On the south, there are proposed approximately 18 office buildings averaging 15,000 square feet in size. On the north parcel, the proposal suggests larger buildings, with more open space. If the height is unreasonably limited, the open space is sacrificed. "Residential Scale and Character" is not limited to single-family residential scale, but can also be multifamily. A large building can be made to look residential. Several large office buildings on the north parcel can be designed to have a "campus" feel with a quadrangle or semi-circle configuration. Size alone does not create or negate "residential scale and character". 7.5 Single Family Detached Units Per Acre Petitioner has proposed attached, multi-family units at a density of 8.3 du/acre for the unique, heavily wooded parcel 6. This density is at the lower end of the "medium density" range, "over 7.5 to, and including 14.9 Du/acre" described in the County's GMP. (Joint Exhibit #9, p. VI-8.) The GMP promotes the use of this density to buffer low and low-medium density development from more intensive uses. The plan also encourages medium density residential subdivisions to "provide recreation and open space areas through the clustering of dwelling units". (Joint Exhibit #9, p. VI-11) The housing element of the GMP states these relevant goals: Socio-Economic Encourage development patterns which do not physically isolate low and moderate income and special needs groups from other sectors of society, especially in low density areas of the County. Recognize the need for and encourage the development of affordable housing for service employees working in Orange County. Examine the feasibility of creating new financial incentives for the development of low cost, affordable housing in Orange County. (Joint Exhibit #9, p. V-3) Petitioner's proposal is consistent with these policies. It seeks to buffer the low-density existing residential areas from the more intensive office uses in Lakepointe. It also seeks to preserve as much of the vegetation as possible, yet derive a benefit from the use of this parcel. It recognizes that residences accessible only through an office park may have a limited market. Its proposal is consistent with the County's goal of providing "affordable housing", and provides a convenient residential choice for persons who may be employed in the office park. The residential neighbors and City of Maitland sought the lower density and detached single family units precisely to avoid lower-income residents and more affordable units. (transcript, pp. 955, 958-59, 1003-04, 1046-47) In order to justify its accommodation of the interests of the local citizens, the County argues that a residential project, perhaps a condominium, could be designed with detached units, clustered together, or with zero lot lines. Visually, there is little difference between the attached units proposed by Petitioner and the County's suggestions for creative design. The latter suggestions do not satisfy the neighbors' desire to have units which are similar to their own, but they impose an unreasonable restriction on the Petitioner's flexibility. The Petitioner's proposal is consistent with Lake Faith Villas, an attached multifamily residential project to the immediate east of Petitioner's property on Maitland Boulevard, within the City of Maitland. Lake Faith Villas has a density of 10 du/acre. Office use limited to 10,000 square feet per acre Although the County's PD regulations do not specifically establish a 10,000 square foot per acre limit for offices, they allow the County to set reasonable, maximum amounts for different projects. The 10,000 square foot per acre limitation was derived from what Edward Williams claims is an average figure for professional office parcels in the county, and is more than the density sought and obtained by Petitioner for the south parcel when Sandspur Grove PD was approved. Other evidence suggests that the average square foot density for PO developments and PD developments in Orange County is closer to 12,000 (Transcript, p. 681-682), but the restriction is not so far off as to be patently unreasonable, considering Petitioner's plans for "residential scale and character" and "campus-style" projects. Computation of the total square feet for office uses was derived on a gross acreage basis on the south and a net basis on the north, ostensibly because the County was unable to ascertain from the development plan how much of the greenbelt and road should be allocated to parcel 6. (Transcript, pp. 436- 438) It is possible to compute gross acreage on the north property, using the parcels identified on Petitioner's master development plan (Joint Exhibit #7) [Appendix B] provided that the acreage allocated to parcel 6 is limited to twelve acres. It is obvious that this is what the developer intended when it derived 100 dwelling units at 8.3 du/acre, and 12 acres. (8.3 x 12 = 99.6) It is thus possible to be consistent and compute the office density allowance for both the north and south property at a gross density, just as the P&ZC did at its November 19, 1987, meeting. This results in a total of 795,000 square feet of offices, not 756,000, as reflected in the development order. As the Petitioner has agreed to limit the south property to 275,000 square feet, this leaves a total of 520,000 square feet for the north property. The County concedes that paragraph 19 of the Development Order, limiting building coverage for offices to 10,000 square feet per acre, does not preclude larger than 10,000 square foot buildings. (Proposed Finding of Fact, paragraph 115) That requirement should be amended in the interest of clarity, so long as the totals permitted for the north and south parcels are included in the order. This sentence, as it now reads, makes the condition internally inconsistent, as the second sentence permits 481,000 square feet on the 42.3 acre tract located north of Maitland Boulevard, more than 10,000 square feet per acre. (See Finding #41, paragraph 19, p. 21, of this recommended order) The Balancing Act: Weighing the Policies The process of review and approval of the Lakepointe project was one of compromise and accommodation. The Board and its staff considered comments from the applicant, the applicant's consultants, the City, the Regional Planning Council, homeowner's groups from both the County and City, and the City of Altamonte Springs. The County did not have a joint agreement with the City of Maitland, and its agreements with regard to conditions for the project were informal and non- binding. Nonetheless, the County considered the level of participation a necessary and appropriate exercise of intergovernmental coordination, as indeed it was. The applicant also exhibited willingness to accede to compromises throughout the process but never abandoned its original plan as it relates to the issues raised in this proceeding. It steadfastly defended the uses and densities it proposed, and in the end, agreed only to the deletion of multifamily units on the south parcel and transfer of that acreage to office use. This was a small DRI project, but a significant one to the owners and to the neighbors. It lacks the vast array of issues usually present in DRI's. There is little or no environmental impact and any traffic issues were resolved substantially though the ECFRPC review, even as to the proposed free-standing commercial uses and the densities originally proposed by the applicant. The single overriding issue here is land use. According to Planning Director, Edward Williams, the Orange County GMP includes some 900 separate policies to guide its decisions. These sometimes divergent policies must be balanced and weighed. (Transcript, p. 382) In this regard, the ultimate decision by the County was skewed. Some of the conditions it imposed, in the legitimate interest of preserving the character of surrounding neighborhoods, unduly ignored other equally valid policy considerations. The Developmental Framework Section of the County's Growth Management Plan lists this as its first goal: 1. To promote the orderly economic development of Orange County. Orderly economic development may be defined as maximizing the use of public dollar investments in facilities and services, such as water and wastewater systems, roads, schools, transit, law enforcement, fire protection, and parks. * * * (Joint Exhibit #9, p. II-13) As noted by James A. Sellen, one of Petitioner's two expert witnesses on the topics of comprehensive planning and zoning, the development proposed is appropriate because of the substantial public investment in the controlled access road and over-sized water and sewer infrastructure. Maintenance of land use as low density single family is contrary to that investment. (Transcript, p. 233-34) Commercial Policy 1.0.11 of the Future Land Use Element provides, in pertinent part: 1.0.11 The future conversion of existing residential land uses to non-residential may be permitted under the following conditions: When the general land use character of an area has undergone significant change and will lend itself to more intensive uses; Adequate access to major streets and highways network is provided, whenever possible common access drive shall be used; The carrying capacity on the abutting road segment exceeds 8,000 average daily trips (ADT); The proposed site for conversion has close proximity to a street intersection; All other applicable policies detailed for commercial or office land use in the Future Land Use Element of the Growth Management Policy are met; and, When sufficient area is available to accommodate the conversion, together with the needed improvements including parking, stormwater retention and vehicular turnaround movements. (Joint Exhibit #9, p. VI-22) The changes in the area along Maitland Boulevard support the change in land use from the currently designated 4.4 residential du/acre to the mixed use proposed by Petitioner. The Future Land Use Element's Commercial Policy 11.0, provides: OFFICES AND PROFESSIONAL COMMERCIAL POLICIES Offices and professional commercial developments are those which provide office space for the furnishing of professional services. Such uses may be located individually or in planned centers, such as office parks. Location and Compatibility Large office uses should generally locate adjacent to arterial thoroughfares that connect to an interstate or expressway in order to lend accessibility to a wider market area. Smaller office uses should generally utilize principal or minor arterials for site access and location. Office parks should be encouraged to include corollary uses such as office supply stores, banks, restaurants, conference centers and other compatible business and commercial uses. Office uses are compatible with adjacent community and regional commercial shopping areas and may provide a buffer between these shopping areas and nearby residential areas. Professional service office parks should locate on major collectors and minor arterials. (Joint Exhibit #9, p. VI-30) As cited in Orange County Ordinance No. 88-3, amending the Future Land Use Map relating to the Lakepointe DRI, the proposed new uses are consistent with these policies of the Growth Management Plan. (Joint Exhibit #2) Concern for the existing residential uses is supported by the following residential policies within the Future Land Use Element: LOCATION AND COMPATIBILITY General Residential areas shall be buffered from major transportation arteries, and from commercial and industrial land uses which are not compatible with residential development. New commercial development will be discouraged where there would be a detrimental impact on existing residential properties due to excessive noise, pollution, traffic congestion, unsafe highway conditions or where an unacceptable physical intrusion into residential neighborhoods would be created. * * * 3.1.3 Land development controls should ensure that future development which may allow a greater intensity of use is compatible with existing development. (Joint Exhibit #9, p. VI-9) In summary, the project, as proposed by Petitioner is substantially consistent with the County's Growth Management Plan, but requires some of the modifications imposed by the County as conditions of approval. Those modifications include the deletion of free-standing commercial uses; the enhanced buffer zone along the north parcels; reduction in height of all but the offices to be located on the large parcel 5, north of Maitland Boulevard; and offices that are designed "residential in scale and character". Other conditions imposed by the County, but contested by Petitioner, i.e., restrictions on the residential development on Pine Island and the height limitations for offices on Parcel 5, violate significant policies cited above without reasonably advancing the goal of protecting the existing character of the surrounding neighborhoods, and should be deleted. The computation of office use density should be amended to provide for gross densities for the entire property.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That a Final Order be entered, granting Petitioner's appeal, in part, by amending the Development Order for Lakepointe DRI, as follows: [Deleted text of the order is struck through, and new language is underlined.] * * * * 7. The proposed development of the Lakepointe DRI/PD consists of the following: Total Acreage: Approximately [[120.3]] <<120.6>> Acres * * * 12. This Development Order also constitutes the development order approving the use of the Property pursuant to the Land Use Plan for PD for [[Low Medium]] <<Medium>> Density Residential, and Office/Commercial, as more particularly detailed in paragraph 7 of Part I of this Development Order. * * * II. CONDITIONS OF APPROVAL FOR THE REZONING TO PLANNED DEVELOPMENT, AND FOR THE DEVELOPMENT OF REGIONAL IMPACT, AS ADOPTED BY THE COUNTY COMMISSION [WITH MODIFICATIONS BY THE FLORIDA LAND AND WATER ADJUDICATORY COMMISSION.] (A) CONDITIONS OF APPROVAL AS RECOMMENDED BY THE ORANGE COUNTY DEVELOPMENT REVIEW COMMITTEE AND THE ORANGE COUNTY PLANNING AND ZONING COMMISSION, AS AMENDED. [Bracketed portion denotes new language, as the original is underlined.] 1. Development shall conform to each of the Orange County Commission conditions of approval, and to the Land Use Plan dated "Received April 3, 1986, Public Works and Development." Development based upon this approval shall comply with all other applicable federal, state, and county laws, ordinances and regulations which are incorporated herein by reference, except to the extent they are expressly waived or modified by these conditions or by formal action of Orange County. 7. <<Except for office buildings in Parcel 6>>, maximum height of the office buildings for the project shall be thirty-five (35) feet. Design of the office buildings shall be of a residential scale and character, and include the appropriate landscaping elements. <<Maximum height of the office buildings in Parcel 5 shall be fifty (50) feet, and their design shall be residential in character.>> Development within one hundred (100) feet of adjacent property zoned residential shall be limited to one story in height (and [35] feet maximum). * * * 14. Residential construction shall be started prior to completion of twenty-five (25%) of the office space. The residential development shall be completed before fifty percent (50%) of the office completion. These square footages relate to the portion of the PD located north of Maitland Boulevard. This residential development shall be [[low medium]] <<Medium>> density with a cap of [[7.5 single family detached]] <<8.3>> units per acre. [[(Development of the portion of Lakepointe south of Maitland Boulevard is controlled by the Sandspur Office Park PD litigation.)]] * * * 19. Building coverage for office[s] [[on the northern portion of the Property]] shall not be more than 10,000 square feet per [[net]] <<gross>> acre. The 33.3 acre office tract located south of Maitland Boulevard shall be limited to 275,000 square feet, while the [[42.3 acre]] tract located north of Maitland Boulevard shall be limited to [[481,000]] <<520,000>> square feet, for an aggregate total of [[756,000]] <<795,000>> square feet. Note: In the above quotation, language added to the statute is within the <<>>; deleted language is within the [[]]. Ordinance No. 88-3, amending the Future Land Use Policy Guide Map related to the Lakepoint DRI, should be amended to reflect the above. DONE AND RECOMMENDED this 28th day of March, 1991, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of March, 1991. APPENDIX TO RECOMMENDED ORDER The following constitute specific rulings on the findings of fact proposed by the parties: Petitioner's Proposed Findings of Fact Adopted in paragraphs 1 and 4. and 3. Adopted in paragraph 8. Rejected as unnecessary. Adopted in paragraphs 7 and 11. Adopted in paragraph 10. Adopted in paragraph 7. Adopted in paragraph 11. Rejected as unnecessary. Adopted in paragraphs 4 and 16. Rejected as unnecessary. Adopted in paragraph 19. Adopted in paragraph 20. Adopted in paragraph 21. Adopted in paragraph 14, otherwise rejected as unnecessary. and 17. Adopted in paragraph 14. Rejected as contrary to the weight of evidence, as to "best use", except in a very general sense; otherwise rejected as unnecessary. Adopted in paragraph 22. Rejected as unnecessary. Adopted in paragraph 22. Rejected as unnecessary. Adopted in paragraph 23. and 25. Rejected as unnecessary. Adopted in paragraph 24. Adopted in paragraph 26. Adopted in paragraph 27. Adopted in paragraph 28. Adopted in paragraph 27. and 32. Adopted in paragraph 30. 33. and 34. Adopted in summary in paragraph 33. Rejected as contrary to the evidence and unnecessary. Rejected as unnecessary. Rejected as unnecessary and unsupported by competent credible evidence (as to how limited access points would prevent strip commercial development. Such development could be supported by internal service roads.) - 45. Rejected as unnecessary. Traffic was not the reason the commercial use was deleted. 46. - 49. Adopted in summary in paragraph 65. 50. and 51. Rejected as unnecessary. Adopted in paragraph 55. Adopted in paragraph 54. Adopted by implication in paragraph 57. Rejected as unnecessary and contrary to the weight of evidence, which evidence was that "residential in scale and character" does not preclude large buildings. and 57. Rejected as unnecessary. Rejected as contrary to the evidence, which established that "campus style" office buildings are not inconsistent with "residential scale and character". Adopted in paragraph 53. Rejected as unnecessary. Adopted in paragraph 44. and 63. Adopted in paragraph 57. Adopted in paragraph 60. Adopted in paragraph 42. Rejected as cumulative and unnecessary. Adopted in paragraph 62. Rejected as cumulative and unnecessary. and 70. Adopted in paragraph 61. Rejected as contrary to the weight of evidence (as to the appropriateness of the 25-foot buffer). Rejected as unnecessary. Respondent and Intervenor's Proposed Findings 1. and 2. Adopted in paragraph 1. Adopted in paragraph 2. Adopted in paragraph 3. Adopted in paragraphs 4 and 6. - 10. Adopted in paragraph 4. 11. and 12. Adopted in paragraph 8. Adopted in paragraph 9. Adopted in paragraph 12. Adopted in paragraph 7. and 17. Adopted in paragraph 10. Adopted in paragraph 7. - 21. Adopted in summary in paragraph 11. 22. - 29. Rejected as unnecessary. Rejected as contrary to the weight of evidence. - 32. Rejected as unnecessary. Adopted in paragraph 13. and 35. Adopted in paragraph 19. Adopted in paragraph 20. Adopted in paragraph 54. Rejected as unnecessary. 39. Adopted in paragraph 54. 40. - 43. Rejected as unnecessary. 44. Adopted in paragraph 14. 45. Rejected as unnecessary. 46. and 47. Adopted in paragraph 15. 48. Adopted in paragraph 23. 49. Adopted in paragraph 24. 50. and 51. Adopted in paragraph 25. 52. and 53. Adopted in paragraph 26. 54. Rejected as unnecessary. 55. Adopted in paragraph 27. 56. Rejected as unnecessary. Adopted in paragraph 29. - 60. Adopted in paragraph 27. Adopted in paragraph 30. Rejected as unnecessary. Rejected as unnecessary. Adopted in paragraph 30. - 68. Adopted in paragraph 31. Adopted in substance in paragraph 30. - 72. Rejected as unnecessary or immaterial. 73. and 74. Adopted in paragraph 32, in part, otherwise rejected as unnecessary or immaterial. 75. and 76. Adopted in paragraph 33. Adopted in paragraph 34. Adopted in paragraph 37. Adopted in paragraph 35. Adopted in paragraph 24. - 83. Adopted in paragraph 41. Adopted in paragraph 43. Adopted in paragraph 43. Adopted in paragraph 44. Adopted in paragraph 45. and 89. Rejected as unnecessary. Adopted in paragraph 41. Adopted in substance in paragraph 47. - 94. Rejected as unnecessary substance or immaterial. Adopted in paragraph 47. Rejected as unnecessary. Adopted in paragraph 48. Adopted in paragraph 51. Rejected as immaterial. Adopted in paragraph 47. Adopted in paragraph 41. Adopted in paragraph 52. Adopted in paragraph 53. - 106. Rejected as unnecessary or immaterial. Adopted in paragraph 41. Rejected as contrary to the evidence (as to the similarly situated nature of the 2 parcels). Adopted in paragraph 55. Adopted in paragraph 54. Adopted in paragraph 53. Adopted in substance in paragraph 54. Adopted in paragraph 55. Adopted in paragraph 59. 115. Adopted in paragraph 67. 116. - 122. Rejected as unnecessary or immaterial. 123. Adopted in paragraph 41. 124. Rejected as unnecessary. 125. Adopted in paragraph 65. 126. - 128. Rejected as unnecessary. 129. and 130. Adopted in paragraph 66. 131. Adopted in paragraph 41. 132. Adopted in paragraph 16. 133. Rejected as contrary to the weight of evidence (as to being a "reasonable transition"). 134. and 135. Rejected as unnecessary. Adopted in substance in paragraph 63. and 138. Adopted in substance in paragraph 61. The higher density will even better promote the affordable and housing policy. 139. Rejected as immaterial. 140. Adopted in paragraph 68. 141. - 150. Rejected as immaterial or unnecessary. COPIES FURNISHED: Miranda F. Fitzgerald, Esquire Karen M. Chastain, Esquire Maguire, Voorhis & Wells, P.A. 2 South Orange Avenue Post Office Box 633 Orlando, FL 32802 Herbert A. Langston, Jr., Esquire 111 South Maitland Avenue Suite 200 Maitland, FL 32751 Joel Prinsell, Esquire Assistant County Attorney Orange County Legal Department Post Office Box 1393 Orlando, FL 32802-1392 Douglas M. Cook, Director Land and Water Adjudicatory Commission Planning & Budgeting Exec. Office of the Governor The Capitol, PL-05 Tallahassee, FL 32399-0001
Findings Of Fact Certificate of Need No. 1645 was issued to Respondent on July 27, 1981, for construction of a 120-bed nursing home at a cost of $1,830,000 in the city of Safety Harbor, Pinellas County, Florida. Termination date of the certificate was originally July 25, 1982, but was subsequently extended for a period of six months at the request of Respondent. The expiration date of the certificate, as extended, was January 25, 1983. At the time the six-month extension was granted, Petitioner advised Respondent that the project was required to be ". . . under physical and continuous construction prior to the new termination date to have a valid and continuing Certificate of Need." Subsequent to the issuance of the certificate, Respondent retained and engaged personnel and organizations to assist in pursuing the project. The architectural firm of Wilson and Associates ("the architect") was engaged in August of 1981. Additionally, Respondent engaged the Kissell Company to secure financing, and the Hermanson Construction Company ("Hermanson") as the general contractor for the project. Respondent obtained preliminary approval of its site plan for the project from the City of Safety Harbor ("the City"). Additionally, the City created a zoning ordinance specifically for the project to permit a health care facility to be constructed at the proposed site. On September 21, 1981, the architect met with representatives of the HRS Office of Licensure and Certification, Jacksonville, Florida, to submit and review schematic plans for the project. HRS gave preliminary approval to the schematic plans on that same date. The HRS plan review process consists of three stages. The first stage consists of the submission of schematic plans; the second stage is the submission of preliminary plans; and, the third stage consists of submission of construction documents together with the required fee for final plan review. On November 13, 1981, the architect submitted additional schematics to HRS to complete the first stage of the plan submission process. In addition, the architect provided additional information previously requested by HRS on that same date. On December 14, 1981, the architect submitted the second stage documents to HRS. The HRS Office of Licensure and Certification, however, never responded to or commented on the submissions made by the architect in November and December of 1981. In early January, 1982, Respondent closed the purchase of the project site in Safety Harbor. Respondent paid a total of $165,000 for the site. In April, 1982, Respondent met with representatives of the City to discuss the issuance of industrial revenue bonds by the City to finance the project. Further, on April 19, 1982, Respondent purchased a corporate office in Safety Harbor at a cost of $80,000. After meetings between representatives of the City and Respondent, the City agreed to consider the issuance of industrial revenue bonds. Respondent paid $10,000 to the City in June, 1982, to offset any costs that the City would incur in considering the bond issue proposal. In addition, Respondent paid $4,000 to the City to resolve a dispute between the City and the previous owner of the property on which the project was to be located. On June 1, 1982, Respondent entered into a construction contract with Hermanson to construct the proposed nursing home project. A copy of the contract was furnished to the HRS Office of Community Medical Facilities. In August of 1982 Hermanson commenced its activities under the contract. These activities included obtaining proposals from subcontractors for materials and services to be used in the project, and hiring engineers to survey the site, conduct soil borings, and to conduct a tree survey required by local governmental authorities. Respondent secured financing for the project in September, 1982. On September 20, 1982, the City passed a Resolution of Inducement agreeing to issue revenue bonds to finance acquisition, construction, equipping, and furnishing the project. On September 20, 1982, Respondent and the City also entered into a Memorandum of Agreement regarding issuance of revenue bonds. In the latter part of 1982, Respondent was required to obtain approval of the project from numerous other local governmental entities. Specifically, Respondent obtained approval of the Site Development Plan and an amendment to the Land Use Plan from the City's Planning and Zoning Board, the City Commission, and Pinellas County. As part of the Site Development Plan approval, the City required Respondent to agree to make a number of offsite improvements, including the dedication of a 25-foot right-of-way, the paving of an adjacent roadway at Respondent's expense, and the construction of sidewalks. Respondent agreed to the conditions and the City and Pinellas County approved the Site Development Plan and the amendment to the Land Use Plan. Because of the City's requirement that Respondent dedicate a 25-foot right-of-way, Respondent was required to obtain a setback variance from the City because the proposed building location did not meet the City's property line setback limitations. On November 5, 1982, the architect submitted the third stage construction documents and plan review fees to HRS to complete the plan review process. On that same date, the architect spoke with representatives of the HRS Office of Licensure and Certification about obtaining HRS permission for an early construction start on the foundation work for the project. The architect was advised that an early start could not be granted until the third stage submissions had been reviewed. Throughout 1982, Respondent made numerous submissions to the Federal Housing Authority (FHA) and the Department of Housing and Urban Development (HUD) to obtain an FHA commitment to insure project financing. On November 26, 1982, Respondent obtained a conditional commitment from HUD for that purpose. Subsequently, on January 21, 1983, Respondent obtained FHA approval for an early start of project construction. The early start permitted construction costs to be covered by the insurance guarantee, prior to the issuance of the firm commitment. On January 25, 1983, Respondent obtained a firm commitment from HUD to insure project financing. The firm commitment insured both the construction and permanent financing. The FHA and HUD commitments and guarantees were still valid and effective at the time of final hearing in this cause, although a month-to-month extension had to be obtained by Respondent. Prior to January 25, 1983, Respondent had also obtained the following permits or approvals: an exemption from the Florida Department of Environmental Regulation from stormwater discharge permitting requirements; water and sewer service availability from the City; a City occupational license; a building permit from the City; a tree removal permit from Pinellas County; and business licenses from both the City and Pinellas County. Prior to January 25, 1983, the following work had been performed on the project site: a construction trailer was placed on the site; a fence removed and utilities, with the exception of water, were installed; a large lake and related storm sewer system had been relocated on the site; a survey had been performed and the site cleared and trees removed; the site was cut to subgrade and a pad prepared for the building foundation; and the building site had been roughed out and finished floor elevations had been set. As a result, the site is now ready for the placement of footers and foundations. Although the footers and foundation work have not been constructed, the record in this cause establishes that they could be in place within two weeks from the time approval is given for such work. At the time of final hearing in this cause, HRS had not given its approval for construction of the building foundation. Approximately $130,000 has been spent by Respondent on construction work at the site, which includes money paid to subcontractors for work and services provided. When contacted by the architect on January 24, 1983, one day prior to the expiration date of the certificate, the HRS Office of Licensure and Certification advised the architect that the third stage plan review process was at that time only 60 to 75 percent complete. On February 8, 1983, the HRS Office of Licensure and Certification first responded to Respondent's third stage construction documents which had been submitted by the architect on November 5, 1982. HRS advised the architect that it could not approve the project plans and submitted a number of comments and revisions to be incorporated into the plans. On February 17, 1983, the architect submitted the changes and corrections to HRS to comply with the February 8, 1983, HRS letter. On or about February 17, 1983, the architect again spoke with HRS representatives about obtaining permission for an early construction start but, again, permission was not granted. In the first week of March, 1983, Respondent contacted HRS to inquire about the status of his certificate. Respondent was concerned that HRS had not responded to his letter of January 14, 1983, in which he advised HRS that the project was under construction. HRS representatives advised Respondent in the first week of March, 1983, that an investigation of the matter would be made and that HRS would respond at a later date. In late March, 1983, after having received no notification from HRS, Respondent again contacted HRS representatives about the status of the certificate, and was advised that the certificate was considered to be null and void. Subsequently, on April 5, 1983, HRS sent a letter to Respondent advising him that the certificate was null and void since ". . . the project was not under physical continuous construction beyond site preparation by January 25, 1983." Effective June 5, 1979, HRS promulgated Rule 10-5.02(21), Florida Administrative Code, which defined the term "construction" to mean: . . . the commencement of and continuous activities beyond site preparation normally associated with erecting, altering or modifying a health care facility pursuant to construction plans and specifications approved by the department (Emphasis added.) That rule was challenged and ultimately invalidated by a DOAH Hearing Officer by Final Order entered April 18, 1980. The order of the Hearing Officer was subsequently upheld by the First District Court of Appeal in Westchester General Hospital v. State of Florida, Department of Health and Rehabilitative Services, 417 So.2d 261 (Fla. 1st DCA 1982). As a result, on January 25, 1983, the date of expiration of the Certificate of Need at issue in this proceeding, HRS had no "rule" that defined the terms "construction" or "commencement of construction." It is, however, clear from the record in this proceeding that the definition of "construction" contained in the invalidated rule is more restrictive than that generally utilized in the construction industry. In fact, the record in this cause establishes that "construction," as that term is used in the industry, "commences with the execution of a construction contract. Other factors indicative of "commencement of construction" would include the ordering of building materials, the solicitation and signing of contracts with subcontractors, the acquisition of required permits from various governmental entities, the preparation of drawings associated with the project, and the like. All of these activities necessarily precede "site preparation" and the pouring of footers and foundations and the placement of steel. It is undisputed that Respondent had not placed any concrete, steel, or footings on the project site prior to January 25, 1983. However, it is equally clear that those activities outlined above which Respondent had, in fact, accomplished prior to January 25, 1983, conformed to the definition of "commencement of construction" generally accepted by professionals in the construction industry. Conversely, there is no competent or persuasive evidence of record to "elucidate," "explicate," or otherwise support the purported HRS policy of requiring the placement of foundations, footings, concrete, or steel on the job site prior to the expiration date of a certificate of need. Neither is there any evidence of record in this cause to establish that HRS at any time advised Respondent of its policy requiring the placement of footers, foundations, or steel in order to comply with HRS's purported policy.
The Issue The issues to be determined in this appeal are whether the Appellants have standing to bring this appeal, and (2) whether the development plan application met the applicable criteria for approval under Section 30-3.46 of the City's LDC in light of the standard of review outlined in Section 30-3.57 of the City's LDC.
Findings Of Fact The Property The property consists of approximately 0.50 acres located at 422 Northwest Third Avenue, Gainesville, Florida (the Property). The Property currently has a Residential Low- Density (RL) future land use (FLU) category under the City's Comprehensive Plan. The RL FLU category includes five implementing zoning districts, and the Property is in the Residential Conservation (RC) zoning district. The Property is not located within the boundaries of the Pleasant Street Historic District. Blackwater owns the Property and submitted a minor development plan application, identified as AD-17-00143, for three buildings with six dwelling units and associated parking, stormwater facilities, and utility improvements. The three buildings have two dwelling units each, which is a use allowed by right in the RC zoning district. The use is described in Section 30-4.16 of the City's LDC as "Multi-family, small scale (2-4 units per building)." The Property was conveyed to Blackwater by a warranty deed recorded January 15, 2014. The warranty deed describes parcel 14518-002-000 as the east one-half of lot 7 and all of lots 8 and 9 in the south half of block 27 of "Brush's Addition to Gainesville," according to the Plat recorded in "Plat Book 'A,' Page 88 of the Public Records of Alachua County, Florida." Issues on Appeal The Appellants raised and argued four issues in this appeal. Whether the Property is a parcel or lot that can be developed under the City's LDC. The Appellants argue that the Property is not a "parcel" and also not a "lot" under the City's LDC. The LDC definitions are found in Section 30-2.1 of the City's LDC, which states: Parcel means a unit of land within legally established property lines. Legally established property lines means those lines created by a recorded plat, minor plat or lot split, those units of land recognized as lots formed prior to 1961 as recorded on a map kept by the building division, and those lots recognized by the county code enforcement department at the time of any annexation. Lot means a parcel of land contained within property lines of a specific area, including land within easements and building setback lines of the area, but excluding any land within street right-of-way. The Appellants contend that the Plat of Brush's Addition to Gainesville (the Plat) legally established property lines. The Appellants further contend the definitions mean that only the lots created by the Plat are parcels. In other words, the "unit of land within legally established lines" cannot consist of more than one of the originally platted lots. This is not the City's interpretation of its own LDC. The Property, as described by the warranty deed, is a parcel within the property lines first established on the Plat. As argued by the City and Blackwater during oral argument, the Appellants' interpretation is not reasonable and "could stop all multifamily development in the [C]ity." The City's interpretation of its own LDC is not clearly erroneous and has foundation in reason. Also, approval of the development plan was not an ultra vires act since the City was required to make a decision on the development plan application in accordance with the provisions of its LDC. Whether the Property meets minimum lot width standards under the City's LDC. The Appellants' second argument is that the development plan fails to meet the required minimum lot width standard under Section 30-4.17 of the City's LDC. The Appellants argue that since Lots 8 and 9 on the Plat are each 50 feet wide, then the permitted use should be "single-family," which has a minimum lot width of 35 feet. Based on the above finding, the Property is a parcel or lot that may be developed under the City's LDC. The Property's lot width is 125 feet, which meets the minimum width standard for the proposed "multi-family, small scale (2-4 units per building)" use. Whether the requirements for a masonry wall and Type B landscape buffer apply to the Property and the development plan. Section 30-4.8.D.2.e of the City's LDC provides: A decorative masonry wall (or equivalent material in noise attenuation and visual screening) with a minimum height of six feet and a maximum height of eight feet plus a Type B landscape buffer shall separate multi- family residential development from properties designated single-family residential. The Appellants argue that the development plan should be required to meet this buffer standard because the RC zoning district is residential, and the Property abuts single-family dwellings. Under the LDC provision, the buffer is required to separate multi-family developments from properties "designated single-family residential." The City argues that designations refer to a property's FLU category as designated in the City's Comprehensive Plan. The Appellants argue that "designated single-family residential" simply refers to a single-family dwelling. Policy 4.1.1 of the City's Comprehensive Plan describes certain FLU categories such as Single-Family (SF). Policy 4.1.4 of the City's Comprehensive Plan provides that the City can amend land use "designations" under certain circumstances. Policy 4.2.1 of the City's Comprehensive Plan provides that the City shall adopt regulations that separate uses with performance measures, such as "buffering of adjacent uses by landscape." Based on the language of the City's Comprehensive Plan, it is a reasonable interpretation that use of the term "designated" refers to the FLU category. The Property and the abutting single-family dwellings have the same FLU category designation of RL. Thus, the masonry wall and Type B buffer requirements of Section 30-4.8 of the City's LDC do not apply to this development plan. Whether the Property's development plan meets applicable parking standards under the City's LDC. The Appellants argue that the development plan must provide 13 parking spaces, and it only provides nine parking spaces, which does not meet the parking standards of Sections 30- 7.2 and 30-7.5 of the City's LDC. In addition, the Appellants argue that the parking must be paved because the City's LDC only allows gravel parking areas with ten or fewer parking spaces. Under Section 30-7.5 of the City's LDC, the development plan must provide 13 parking spaces. The development plan provides nine parking spaces on the Property and four on-street spaces approved by the City, for a total of 13 parking spaces. The nine parking spaces on the Property satisfy the requirement of allowing gravel parking areas with ten or fewer parking spaces. Standing Appellants Vanessa Burt and Suzi Rumsey are the only residents who own property within 400 feet of the Property. Appellants Jason Atkins-Tuffs and Lauren Atkins are recent new home buyers in the Pleasant Street Neighborhood. Mr. Atkins-Tuffs is concerned that the development plan would not be a "good fit for our growing historic downtown family neighborhood." Appellant Dotty Faibisy is an almost 20-year resident and is concerned that the development plan "is a poor fit for the Historic Pleasant Street Neighborhood." Appellants John Rehfuss and Caroline Rehfuss are residents since 2013 in the Pleasant Street Historic District and are concerned that the development plan "is going to be a poor fit, both aesthetically and functionally, for our neighborhood." Appellant Tan Silva is a 23-year resident, who lives outside of but "on the edge" of the Pleasant Street Historic District and feels that compatible development should be maintained. Appellant Furman Wallace is an 84-year resident of the Pleasant Street Neighborhood. He is concerned with the character and type of buildings in the Pleasant Street Neighborhood. Appellant Thomas Hawkins was a 12-year resident of the Pleasant Street Neighborhood and is currently building a new home in the neighborhood. Mr. Hawkins is concerned that the development plan does "not compliment the neighborhood's historic architecture" and is not consistent with the City's LDC requirements.
Findings Of Fact Petitioner, William Burke, is the developer of the Countryside Retirement Resort, a proposed development of regional impact, (DRI), located in DeSoto County, Florida. Sunrise Farms, a Florida general partnership, is the owner in fee simple of the site, but is not a party in this matter. Respondent, DeSoto County Board of County Commissioners, is a local government with jurisdiction over the proposed project site. It is responsible for the administration of the DeSoto County Comprehensive Plan, land development regulations, and zoning code. On August, 15, 1990, after a duly-noticed public hearing, the Board of Commissioners of DeSoto County denied Burke's Application for Development Approval and Request for Rezoning. On April 23, 1991, the Board of Commissioners of DeSoto County, pursuant to Chapter 163, Florida Statutes (1989), and the rules promulgated thereunder, adopted its current comprehensive plan. Intervenor, Department of Community Affairs, is the state land planning agency with the power and duty to enforce and administer Chapter 380, Florida Statutes, and the rules and regulations promulgated thereunder. The Department is also authorized to appeal DRI development orders issued by local governments pursuant to Section 380.07, Florida Statutes, and has demonstrated a substantial interest in the outcome of this proceeding. Intervenors, M. Lewis Hall, Jr., M. Lewis Hall, III, Don T. Hall, Frank D. Hall and Steven V. Hall, are landowners near the subject site, and are substantially effected persons. The proposed site of the project is located on Highway 31, approximately ten miles from the City of Arcadia, at the SW 1/4 and W 1/2 of the SE 1/4 of Section 1, Township 39 South, Range 25 East, DeSoto County Florida The project has been named Countryside Retirement Resort (Countryside), and is a proposed PUD intended as an Adult Residential Community which is designed to contain, at build-out, a maximum of 1440 park model residential homesites and 60 transient RV spaces on approximately 239.71 acres. The 1440 permanent park model resort homes are to be offered as a "turn-key" package to insure architectural control and adherence to project design. Park model homes are prefab, factory-built units, which are not susceptible to being moved again. The units in each phase will have a single bedroom, and the estimated price for all phases is $55,000, including the lot and lot preparation. Gross density for the project is 6.0 and 6.25 units per acre, based upon 1440 (park model homes) and 1500 (including 60 RV spaces) units, respectively. The development is privately funded and includes all streets, utility systems, public safety services, community buildings, recreational facilities, and general community amenities. The project area is currently zoned A-5 or improved pasture agricultural, with one dwelling unit per five acres permitted. To the north, the property is zoned A-10, citrus grove agricultural. To the south, the property is zoned improved pasture-agricultural, A-5. The Petitioner proposes to dedicate the 40 feet along the South side of the property to DeSoto County for street purposes. Adjacent to the public dedication will be a 40 foot project buffer for fencing, landscaping, and stormwater containment. The main entrance is to be located at State Road 31, approximately 1,000 feet North of Pine Island Street. Turn lanes are to be provided to minimize any potential detriment to the flow of traffic on the state roadway. As requested by County staff, forty feet of additional right-of-way has been set aside for the future widening of Pine Island Street. In addition to the 40 foot right-of-way for Pine Island Street (approximately 3.66 acres), access and improvements at all intersecting streets will be made. The additional traffic, sewer and potable water impacts will be provided for by the developer. A secondary access from Pine Island Street runs east from SR 31 approximately two miles, and dead ends at the Hall Ranch. The adjoining 40 foot buffer strip features, in addition to security fencing, a perimeter drainage swale and earthen mounds with landscaping that will screen the community from the public roadway. The buffer strip is not intended for future road purposes. The 40 foot buffer will be placed around the perimeter of the site. The buffer will consist of earthen berms and landscaping to protect the community from the outside, and the outside from the community, to make it as self-supporting and self-contained as possible. A 6.5 acre tract in the southwestern corner of the site has been reserved to provide for the commercial institutional needs of the residential community. Anticipated commercial uses include a general store (providing food, hardware, and dry goods), personal service shops, professional office space, and a motel (58 units) with a restaurant. Institutional uses include an arts and crafts building, a volunteer fire station equipped with a "quick response" vehicle, and office space for use by the sheriff's office, a second floor residence apartment for the community manager, the project's water treatment plant, and a helipad for emergency medical services. A general utility area, including maintenance building, the wastewater treatment plant, and a dry storage area for boats and RV's will be located in the Southeast corner of the property, buffered from adjoining properties and from the internal community. The project will also feature an 18 hole executive golf course with a pro shop and aquatic driving range, a multi-use clubhouse, four lighted tennis courts, six neighborhood swimming pools, and a series of mini-parks. The Petitioner's intent is to design the resort to function as a relatively self-contained and readily identifiable neighborhood of the County. The project calls for an on-site sewage treatment plant with tertiary filtration attached to the plant. At build-out, the plans call for the plant to treat approximately 315,000 gallons of sewage per day. A total of 8.99 acres of both man-made and natural wetlands were identified on the site. The project complies with applicable regulations with respect to preservation of wetlands. Approximately 27.75 acres of wetlands are to be created, and approximately 22.95 acres of proposed lakes will exist at completion. The project conforms with applicable regulations with respect to water use. The project's drinking and irrigation water will be served from on-site wells. An on-site water treatment plant will also be built. Adequate provisions are made for hurricane shelters and evacuations measures. The project conforms with applicable regulations with respect to air emissions. The project conforms with applicable regulations with respect to vegetation and wildlife. The entire site is cleared of natural vegetation and managed as improved pasture. The project site as well as adjoining land is not unique agricultural land. The project will not significantly deplete the agricultural community adjacent to the project or in the general neighborhood. Estimates from 1982 indicate that 236,722 total acres of pasture exist in DeSoto County. Removal of the project site from cattle production represents a total of .097% of the total pasture acreage in the County. Approximately 96% (230 acres) of the existing site is improved pasture land for cattle grazing while 6.9 acres or less than 3% of the project's site covers wet prairie. No natural wildlife corridors exist between the subject parcel and any surrounding natural lands. There are no significant historical or archeological sites or corridors considered likely to be present within the project area. Approval of the project would add to the tax revenue base of DeSoto County. The DeSoto County landfill is designed to meet the needs of the County until the year 2000 based on its projected increase of population. The proposed project at buildout, prior to the year 2000, falls below the projected increases of population. The projected increase in population by the year 2000 ranges from 4300 to 5800 with the proposed project generating a theoretical maximum increase in population of 3,000 persons if all units were occupied on a year round basis. The landfill will have adequate capacity to meet the demand from the project. No unusual or industrial or hazardous wastes will originate on-site. A 1.75 acre site has been reserved for the sewage treatment plant in the Southeast corner of the subject property. Sludge is scheduled to be disposed of by a licensed hauler. A tertiary wastewater treatment plant is to be provided in all phases of development. The wastewater is to be filtered and highly disinfected to provide treatment effluent for irrigation purposes. The plant will be situated on approximately 3/4 of an acre including surrounding open space and buffer areas. The utility site is of sufficient size to provide treatment of waste water for the entire development. All on-site facilities (collection treatment) are to be operated and maintained by the homeowner's association in accordance with the Florida Department of Environmental Regulation operating permits. On-site treatment and disposal facilities are being proposed that will be capable of serving the entire development. The proposed drainage system for the project is consistent with applicable regulations. The water supply system proposed for the development complies with applicable regulations. Florida Power and Light Company has sufficient capacity to provide electrical service to the project. While the project will contribute property taxes to the educational system, the development will not have a negative impact on the DeSoto County District School System, since this project will be an adult community, and no school-age children are contemplated. 94.18 acres, or almost 40% of the development site, are to be devoted to recreation uses and open space. A helipad will be constructed to enhance MedVac emergency services to the project and the surrounding area. DeSoto Memorial Hospital is licensed for 82 beds, and provides emergency services. DeSoto Memorial Hospital is a community not-for-profit facility, serving the DeSoto County area and located in Arcadia, Florida. Health Care and medical services are available at the Hospital and the Arcadia area to meet the needs of the Countryside residents. The county operated ambulance (EMS and ALS certified) offers 15 to 20 minute response time from its headquarters station on State Road 70, a distance of 7 miles, via SR 31. Fire protection services for the project are to be provided by the public safety department of DeSoto County. The nearest fire station is located at State Road 70 and Airport Road about seven miles north of the property. Under normal traffic conditions, response time is estimated to be approximately 10 to 12 minutes. The county's fire protection services are to be enhanced by the construction of an auxiliary fire station on-site. The Petitioner proposes to develop a volunteer fire department from among the residents of the project with emphasis on fire, emergency medical, quick response fire truck and a building for sheltering in the event of a disaster or potential emergency (portable electric, water, restrooms, kitchen and proper square footage to accommodate the residents of the development) would serve as a benefit to the County on SR 31. On April 23, 1991, the Board of County Commissioners for DeSoto County adopted Ordinance 91-03, a new comprehensive plan for the County. Included are goals, objectives and policies in the Future Land Use Element of the Plan. The Future Land Use Element, Goal L. Objective L2 of the DeSoto County Comprehensive Plan, provides that: Development orders and/or permits for future development and redevelopment activities shall be issued only if public facilities necessary to meet level of service standards, adopted as part of the Capital Improvements Element of this Plan, are available concurrent with the impacts of development. The Future Land Use Element, Policy L2.5 of the DeSoto County Comprehensive Plan, provides that: No local development order or permit will be issued unless the County determines that the appropriate level of service standards can be met for: drainage; potable water; recreation and open space; solid waste disposal; traffic circulation; and waste water treatment. Traffic Circulation Element, Goal T of the DeSoto Comprehensive Plan, provides that the goal of the traffic element of the Plan will be to "provide for a safe, efficient and economical traffic circulation system." To implement Goal T, Objective T1 provides that, "DeSoto County shall provide a safe and efficient transportation system, and shall establish minimum criteria and standards to ensure the effective functioning of all public roadways within its jurisdiction." The proposed development site accesses State Road 31, a north/south, two-lane minor arterial roadway connecting the City of Arcadia with the City of Fort Myers. SR 31 is currently at a Level of Service (LOS) of B, or better. The DeSoto County Comprehensive Plan, Policy T1.1, has established a peak season/peak hour level of service standard of D or better for SR 31. The Five- Year Schedule of Capital Improvements in the DeSoto County Comprehensive Plan does not provide for the improvement of SR 31. The average daily traffic maximum volumes established by the Department of Transportation for a LOS D on a minor arterial, such as State Road 31, is 15,000 trips per day. Four separate traffic studies were performed regarding the potential impacts of the proposed development on State Road 31. The first two studies were performed by Mr. Gordon Meyers of Ink Engineering, Inc., the third by Mr. Richard Doyle of Tampa Bay Engineering, Inc., and the fourth by Ms. Nanette Hall of Florida Transportation Engineering, Inc. The study area included segments of SR 31 and the intersection of SR 31 and SR 70, as well as, SR 31 and SR 760-A. SR 70 runs east-west and expands from a two lane roadway to a four lane major arterial at the intersection of SR 70 and SR 31. CR 760-A is a two-lane rural major collector extending westerly from SR 31, just north of the G. Pierce Wood Memorial Hospital, to US 17, which provides access to the Punta Gorda area and Interstate 75. The Department of Transportation has three traffic counting stations on State Road 31 from which reliable traffic data has been collected since 1984. The location of these traffic counting stations are as follows: Station #26, is located just south of the intersection between State Road 31 and State Road 70; Station #4, is located approximately halfway between the site of the proposed development and State Road 70, north of the intersection between State Road 31 and County Road 760A; Station #31, is located south of the intersection between State Road 31 and County Road 760A, and north of the proposed site of the proposed development. All four studies made projections as to the anticipated increase in traffic volume at these stations should the proposed development be approved. The four traffic studies obtained the following projections for the anticipated traffic volumes and corresponding LOS's that would exist at the traffic counting stations upon build out of the proposed development summarized in the table below: LOCATION FIRST STUDY SECOND STUDY THIRD STUDY FOURTH STUDY (MEYER) (MEYER) (DOYLE) (HALL) Station #31 12,474/LOS D 7,610/LOS C 12,474/LOS D 13,466/LOS D Station #4 13,557/LOS D 9,250/LOS C 10,080/LOS D 15,384/LOS E Station #26 15,172/LOS E 9,380/LOS C 10,341/LOS D 17,111/LOS E Of the four traffic studies performed, the projections of the fourth (Hall) study were the most reliable. It was the only study to use historic data available on State Road 31 in the Calculation of a growth rate for background traffic volume, and did not suffer from the methodological flaws that existed in the other studies. The fourth (Hall) traffic study indicated that the proposed development at build out would cause large sections of State Road 31 to exceed its level of service established by the DeSoto County Comprehensive Plan, and reduce the level of service below D. The fourth (Hall) study also projected the traffic impacts of the proposed development if developed in two phases, the results (expressed in average daily traffic and peak hour/peak season impacts) of which are summarized in the table below: LOCATION PEAK HOUR/PEAK SEASON AVERAGE DAILY TRAFFIC PHASE I PHASE II PHASE I PHASE II Station #31 892/LOS C 1,394/LOS D 9,062/LOS C 13,466/LOS D Station #4 1,033/LOS D 1,544/LOS E 10,732/LOS D 15,384/LOS E Station #26 1,183/LOS D 10,341/LOS D 12,397/LOS D 17,111/LOS E Countryside has never requested phased approval for the project. The fourth (Hall) traffic study indicated that even if approval were given for "Phase I" alone, a major portion of the LOS D capacity of the roadway (approximately 80% to 85% of the capacity) would be used up, reducing the possibilities for further development of those sections of State Road 31 between the proposed development and State Road 70. The proposed development will not meet the appropriate level of service for traffic circulation. Land Use Element Policy L6.8 of the DeSoto County Comprehensive Plan provides that: Residential development in a Rural/Agricultural area shall not exceed a maximum density of one dwelling unit per ten gross acres. In a Rural/Agricultural area, the lowest order of commercial goods and services which serve the daily needs of nearby residents may be permitted only on arterial or collector roadways. Commercial areas in a Rural/ Agricultural area shall be appropriately buffered, shall not exceed 3 acres in size, shall not exceed impervious surface lot coverage of 70 per cent, and shall be no less than 2 miles from other commercial development in a Rural/Agricultural area or in other future land use categories. Industrial uses within a Rural/Agricultural area may be permitted only when such activity is related to the extraction or processing of minerals; or when related to agriculture; or is of a scale and nature that would not be acceptable in Town Center. Other industrial uses, such a power plants or manufactured or processing facilities may be permitted, and shall have access to a collector or arterial roadway, shall meet all local regulations, and shall be appropriately buffered from surrounding land uses, including agricultural uses. Within a Rural/Agricultural area, the approval of residential development shall acknowledge that the protection of agricultural lands is a primary function of a Rural/Agricultural area, and that land management activities associated with agricultural uses may be incompatible with residential development. However, such management activities are considered to be an essential element of the protection of successful operations on agricultural lands and the continuation of such activities shall take precedence. Future Land Use Element, Goal L. - Objective L3 of the DeSoto County Comprehensive Plan, provides that "DeSoto County shall promote compatible future land use patterns." The current DeSoto County Comprehensive Plant, Future Land and Use Element, Objective L6, provides: Objective L6: As a part of this plan, DeSoto County's Future Land Use Map series shall be applied only in conjunction with the policies of this element and other elements of the DeSoto County Comprehensive Plan, and shall generally illustrate and coordinate the appropriate distribution of residential, commercial, industrial, agricultural, preservation, public and utility facility land uses to effectively manage the projected population growth of the County. The Future Land Use Map (FLUM) and the Plan's policies are used to effectively manage the projected population growth of the County. The Countryside project is not depicted, in terms of an appropriate land use category, on the FLUM. The Future Land Use Map indicates that the project site is located in an R/A (Rural/Agricultural) land use designation with a maximum allowable density of one residential unit per ten acres. The density of the proposed project is in excess of six dwelling units per acre. The 1991 DeSoto Comprehensive Plan, data and analysis section, indicates that there are 2,765 approved, unconstructed recreational vehicle (RV) sites in nine undeveloped, but approved RV parks, covering 448 acres. The Plan indicates that these approved RV sites will meet the anticipate need through the year 2000. The 1991 Plan estimates that 427 seasonal residents (usually retirees), will be added to the seasonal population of the County between 1990- 2000. Based on two persons per dwelling unit and six dwelling units per acre, only 214 units of new RV residential development will be needed between 1990 and 2000. The existing approved, but unconstructed RV sites, exceed the projected need almost thirteen times. The proposed DRI would add an additional 1500 units, resulting in 4,051 more units than the projected need. Policy L3.3 of the DeSoto County Comprehensive Plan provides that: Land uses which are potentially incompatible either due to type of use or intensity of use, shall be buffered from one another through the provision of open space, landscaping, berms, alternative site design or other suitable means. Land development regulations shall establish criteria for appropriate buffering between adjacent land uses. Policy L3.4 of the DeSoto County Comprehensive Plan provides that, "where the application of such measures as identified in Policy L3.3 cannot mitigate the incompatibility between proposed and existing land uses, the proposed land use shall be disapproved." The proposed development is not functionally related to the surrounding agricultural activities and numerous incompatibilities between the land uses shall arise as adjacent landowners conduct agricultural activities such as application of pesticides and fertilizers and other activities which produce smells, sprays, dust, noises and other externalities incompatible with residential use. The incompatibility of this project with existing land uses cannot be eliminated under the proposed buffers of berms, landscaping, and fencing proposed in the ADA. To implement Goal L. Objective L4 of the DeSoto County Comprehensive Plan, Policy L4.1 provides that: The DeSoto County Comprehensive Plan and implementing land development regulations, to be adopted by August 1, 1991, shall include provisions that permit or require a variety of land development techniques that discourage sprawl while protecting natural resources including: Establishment of mixed use future land use categories in the DeSoto County Comprehensive Plan to provide residential, commercial and employment opportunities in close proximity; Clustering of development to protect natural resources, open space and agricultural uses, provide for access management to arterial or collector roadways, provide for appropriate buffering, and make efficient use of public facilities and services; Establishment of guidelines or incentives to encourage infill development in the Town Center, Mixed Use Corridor and Suburban Residential areas, which may include . . . There is a clear intent in the DeSoto County Comprehensive Plan to discourage urban sprawl. "Urban sprawl" is defined in the plan as "scattered, untimely, poorly planned urban development that occurs in urban fringe and rural areas and frequently invades lands important for environmental, agricultural and natural resource protection. Urban sprawl typically manifests itself in one or more of the following ways: 1) leapfrog development; 2) ribbon or strip development; and 3) large expanses of low-density, single-dimensional development." The proposed development is an example of the leapfrog development type of urban sprawl. It provides for residential development far beyond the projected needs of the surrounding area. It is located far from the nearest urban centers and is surrounded by rural land uses. The proposed development would create an urban level of density and intensity of use within a rural area. It is not a well balanced mixed use development. It is not compatible with, nor functionally related to, the surrounding uses, and is designed to be cutoff and separated from those uses. The proposed development cannot be considered a "rural village." It does not support surrounding agricultural activities, but is, in fact, incompatible with surrounding land uses. Because of its location and lack of multiple uses, this development will encourage lengthy commuting, contrary to the policies of the state comprehensive plan to continue to reduce per capita energy consumption, Section 187.201(12), Florida Statutes. The proposed project is not an efficient development because of its location away from existing facilities and services, shopping and employment, contrary to the policies of the state comprehensive plan to encourage efficient development and direct development toward areas which will have the capacity to service new population and commerce, Section 187.201(21), Florida Statutes. The State Comprehensive Plan, Section 18, "Public Facilities," provides that Florida shall protect the substantial investments in existing public facilities. This project conflicts with this policy, as investments in existing public facilities are best protected by directing growth to nearby locations to efficiently use those facilities, Section 187.201(18), Florida Statutes. The proposed project also conflicts with the state comprehensive plan policy related to governmental efficiency, which encourages the replacement of small scale economically inefficient local public facilities with more economical regional facilities. The project proposes to establish small facilities, rather than efficiently utilize larger facilities, Section 187.201(21), Florida Statutes. Section 380.08(3), Florida Statutes provides: (3) If any governmental agency denies a development permit under this chapter, it shall specify its reasons in writing and indicate in writing any changes in the development proposal that would make it eligible to receive the permit. The Board of Commissioners, in issuing its denial of the Countryside Retirement Resort specified its reasons for denial and identified changes which would make it eligible for approval as follows: The proposed development known as "Countryside Retirement Resort" is not consistent with the DeSoto County Comprehensive Plan, nor the DeSoto County Land Use Regulations. The proposed development does not make adequate provision for public facilities needed to accommodate the impact of the proposed development. There are no known changes that would make the proposed development eligible to receive approval due to the inappropriateness of the requested zoning. The DeSoto County Zoning Ordinance, Section 14.5(a), provides that among factors to be considered in a rezoning is "whether the proposed change would be contrary, and would have an adverse effect on the Comprehensive Plan." The DeSoto County Zoning Ordinance, Section 14.5(b), provides that among the factors to be considered in a rezoning is "the existing land use pattern." The existing land use pattern in the area is agricultural. The proposed development would create a medium density residential enclave within the existing land use pattern of agricultural use. The DeSoto County Zoning Ordinance, Section 14.5(c), provides that among the factors to be considered in a rezoning is "the possible creation of an isolated district unrelated to adjacent and nearby districts." The proposed development would be an isolated district of high intensity residential land use surrounded by agricultural and low intensity residential land uses. The DeSoto County Zoning Ordinance, Section 14.5(d), provides that among the factors to be considered in a rezoning is "the population such as schools, utilities, street, etc." The existing allowable density in this area of DeSoto County is 1 unit per 10 acres. The proposed development would increase this to 6 units per acre. Response time for police, fire, and rescue services would be poor if provided by existing facilities and personnel. Persons needing essential services that could only be provided in the City of Arcadia would have at least a twenty minute round trip. The County would experience a greater burden in providing services to the proposed development than it would if the development were located closer to the City of Arcadia. The DeSoto County Zoning Ordinance, Section 14.5(f), provides that among the factors to be considered in a rezoning is "whether changed or changing conditions make the passage of the proposed amendment necessary." There are no changed or changing conditions in the area which would make it necessary to amend the zoning or the Comprehensive Plant. The DeSoto County Zoning Ordinance, Section 14.5(g), provides that among the factors to be considered in a rezoning is "whether the proposed change will adversely influence living conditions of the neighborhood." The proposed development would create a high density residential development, urban type land use in an area of DeSoto County which heretofore enjoyed a rural character. The DeSoto County Zoning Ordinance, Section 14.5(h), provides that among the factors to be considered in a rezoning is "whether the proposed change will create or excessively increase traffic congestion or otherwise affect public safety." The proposed development would create traffic congestion, and would adversely affect public safety. The DeSoto County Zoning Ordinance, Section 14.5(l), provides that among the factors to be considered in a rezoning is "whether the proposed change will be a deterrent to the improvement or development of adjacent property in accordance with existing regulations." The proposed development would have an adverse impact on adjacent properties as property owners attempt to develop their properties. This development would drastically reduce the reserve capacity of State Road 31, and adjacent property owners would find it increasingly difficult and expensive to meet the Levels of Service required by the Comprehensive Plan. The DeSoto County Zoning Ordinance, Section 14.5(m), provides that among the factors to be considered in a rezoning is "whether the proposed change will constitute a grant of a special privilege to an individual owner as contrasting with the public welfare." The proposed development would not constitute the grant of a special privilege if approved, since the developer is seeking approval of a PUD. The DeSoto County Zoning Ordinance, Section 14.5(n), provides that among the factors to be considered in a rezoning is "whether there are substantial reasons why the property cannot be used in accordance with existing zoning." There is no reason why the property on which the proposed development is to be located could not be used for what it zones, agricultural usage. The DeSoto County Zoning Ordinance, Section 14.5(o), provides that among the factors to be considered in a rezoning is "whether the change suggested is out of scale with the needs of the neighborhood or the County." The proposed development is out of the scale with the needs of the County and the immediate neighborhood. The neighborhood is designated at a maximum density of 1 unit per 10 acres. This development would be at a density of 6 units per acre. The DeSoto County Zoning Ordinance, Section 14.5(p), provides that among the factors to be considered in a rezoning is "whether it is impossible to find other adequate sites in the County for the proposed uses in districts already permitting such use." There was no showing that other sites in DeSoto County could not be developed at this time. The DeSoto County Zoning Ordinance, Section 9.3, Planned Unit Development Districts (PUD), provides in part that it is the intent of the PUD Ordinance "to provide an optional alternative zoning procedure so that planned developments may be instituted at appropriate locations in the County in accord with the planning and development objectives of the County." The proposed development is not in an appropriate location, nor is it in accord with the planning and development objectives of the County.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is therefore, RECOMMENDED that a Final Order be entered by the Florida Land and Water Adjudicatory Commission denying of the application for development approval of Petitioner, and upholding the decision of the DeSoto County Board of County Commissioners to deny the request for rezoning for the Countryside Retirement Resort. DONE AND ENTERED this 27th day of January, 1992, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of January, 1992. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's proposed findings of fact. Accepted in substance: paragraphs - 1(in part),2,3,6(in part),7(in part),16,17,18,19,20(in part),21,22(in part),23,24,26,27(in part),28,29(in part),30, 31,32,33,36(in part),37,38,39,40,41,42,43,44,46(in part),49 (in part),50,51,52,53,54,55,56,57,58,59,60,61 (in part),62,63,64,65,66,67,68,69 (in part),71,72 (in part),73,74,75(in part),76,81,92,95(in part),96(in part),98,99,100,101,105,106(in part),108,109(in part),112(in part) Rejected as against the greater weight of evidence: paragraphs - 4,5,6(in part),(in part),8,15,47,48,72(in part),77,78,79,80,82,83,84,88,89,102,104,106(in part),107,109(in part),110,111,112(in part),113,114 Rejected as irrelevant, immaterial, or subsumed: paragraphs - 9,10,11,12,13,14,20(inpart),22(in part),25,27(in part),29(in part),34,35,36(in part),45,46(in part),49(in part),61(in part),69(in part),70,73,75(in part),85,86,87,90,91,97,103 Rejected as argument or conclusions of law: paragraphs - 93,94,95(in part),96(in part) Respondent's proposed findings of fact. Accepted in substance: paragraphs - 1,2,3,4,5,6,7,8,9,10,11,12,13,14,15,16,17,18 (in part),19(in part),26,27,28,29,30,32(in part),36,37,38,39,40, 41,42,43,44,45,46,47,48,49,50,51,52,53,54,58,59,60,61,62,63,64,65,66,67,68,69,70 ,71,72,74,75,76(in part),77(in part),78,79,80,81, 82,84,85,86,87 Rejected as against the greater weight of evidence: paragraph - 83 Rejected as irrelevant, immaterial, or subsumed: paragraphs - 18(in part),19(in part),20,21,22,23,24,25,37 (in part),55(in part),56(in part),57(in part),73 Rejected as argument or conclusions of law: paragraphs - 14,31,32(in part),33,34,35,55(in part),56(in part),57(in part),76(in part),77(in part) Intervenor Department of Community Affairs' proposed findings of fact Accepted in substance: paragraphs - 1,2,3,4,5,6,7(in part),8,9,10,11,12,13,15,16,17,18,19,20,21(in part),22(in part),23(in part),24,25,26,27,28,29 Rejected as against the greater weight of evidence: paragraphs - 7(in part) Rejected as argument or conclusion of law: paragraphs - 14,21(in part),22(in part),23(in part) Intervenors Halls' proposed findings of fact. Intervenors Halls did not submit separate proposed findings, but adopted the proposals submitted by the Respondent. COPIES FURNISHED: Charlie Stampelos, Esquire William Wiley, Esquire MCFARLAIN, STERNSTEIN, WILEY & CASSEDY, P.A. 600 First Florida Bank Building Tallahassee, Florida 32301 Gary Vorbeck, Esquire Fred Bechtold, Esquire VORBEC, & VORBECK 207 East Magnolia Avenue Arcadia, Florida 33821 Kathryn Funchess Asst. General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399 Lewis Hall, Jr., Esquire HALL & HEDRICK Republic National Bank Building 150 Southeast Second Avenue Suite 1400 Miami, Florida 33131 William E. Sadowski Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399 G. Steven Pfeiffer, Esquire General Counsel, Dept. of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399 Douglas M. Cook, Director Planning & Budgeting Exec. Office of the Governor The Capitol, PL-05 Tallahassee, Florida 32399-0001
The Issue Whether the Large Scale Comprehensive Plan Map and Text Amendment No. 04-2 (Plan Amendment) to the City of Cocoa's (City) Comprehensive Plan (Plan), adopted by Ordinance No. 39- 2004, is "in compliance" as that term is defined in Section 163.3184(1)(b), Florida Statutes.1
Findings Of Fact The Parties and Standing The Hunters own and reside on property located on Friday Road in the unincorporated area of the County. Their property abuts on two sides of the northeastern portion of the subject property. FSNE 47 at "H." The Kellgrens own and reside on property located on the northwest corner of the intersection of Friday and James Road in the unincorporated area of the County, abutting the southeast corner of the south Plan Amendment parcel. FSNE 47 at "KR." The Kellgrens also own and operate two businesses on Cox Road located on property they own which is located within the boundaries of the City. FSNE 47 at "KB." The County is a political subdivision of the State of Florida. The City is a municipality located within the County. The DCA is the state land planning agency charged with responsibility for reviewing comprehensive plans and plan amendments under Chapter 163, Part II, Florida Statutes. FSN and Hagen-Nicholson are Florida limited liability companies and are the owners of the subject property voluntarily annexed by the City pursuant to Ordinance No. 31-2004 and is subject to the Plan Amendment adopted by Ordinance No. 39-2004. All Petitioners submitted oral or written comments, recommendations, or objections to the City during the period of time beginning with the transmittal hearing for the Plan Amendment on August 24, 2004, and ending with the adoption of the Plan Amendment on December 14, 2004. At the final hearing, the parties stipulated that the Petitioners are "affected persons" within the meaning of Section 163.3184(1)(a), Florida Statutes, with standing to participate as parties in this administrative proceeding.3 See Endnote 17. The Challenges Petitioners allege that the Plan Amendment is not "in compliance" on several grounds: lack of need, urban sprawl, inadequate data and analysis relative to traffic and land use need, violation of the intergovernmental coordination element of the City's Plan, incompatibility, internal inconsistencies, inconsistencies with the Regional and State Plans, and failure to provide for adequate public participation during the transmittal hearing. The Plan Amendment Ordinance No. 39-2004 makes two changes to the Plan. First, the text of the Future Land Use Element (FLUE) of the Plan was amended to establish a new future land use category called "very low density residential areas." 4 Second, the FLUM was amended to change the designated future land use from "Residential 1 and Neighborhood Commercial (County)" to "Very- Low Density Residential (City)." FSNE 52 at Section 5. The Plan Amendment covers approximately 605.16 acres, although the City annexed approximately 766.27 acres, which included "both real property and rights-of-way." Id. at page 1 of 4; PE 8.f. at page 3 of 18. See also DCAE 2. The Subject Property The subject property consists of a rectangular parcel adjacent to and north of State Road (SR) 528, bounded by Interstate 95 (I-95) on the west; a triangular parcel adjacent to and southeast of the north rectangular parcel and similarly bounded on the south by SR 528; and a second rectangular parcel, due south of the north parcel and adjacent to and south of SR 528 and bounded by I-95 on the west and James Road on the south and a portion of Friday Road on the east. PE 17. There is no direct access from the subject property to I-95 and SR 528. The future land uses north of the subject property include Residential 1:2.5 (County); Residential 1 (County) to the south; Residential 1:2.5 (County) to the east of the north parcel; Residential 1 (County) to the east of south parcel; and Planned Industrial Park (County) and Industrial (City) further to the east; and Residential 1:2.5 (County) to the west of I-95. PE 80. The existing land uses to the north and south are single-family residential and vacant land; to the east, vacant land, heavy and light industrial uses; and to the west, I-95, single-family residential, and vacant land. Prior to being annexed by the City in August 2004, the subject property was located in the unincorporated portion of the County. The two rectangular portions (approximately 560.95 acres) were designated as "Residential 1" on the County FLUM, allowing one unit per acre. The approximate eastern half of the triangular portion (44.21 of acres) was designated as "Neighborhood Commercial." PE 80. There is an existing borrow pit (approximately 19-20 acres) located on the eastern one-third of the triangular portion. PE 17. Approximately 145.35 acres of wetlands, now designated Conservation, permeate the subject property. PE 8.F., page 4 of 18 and Exhibits 3 and 4; FSNE 52. There are approximately 459.81 acres (605.16 total acres - 145.35 acres of wetlands) of developable upland on the subject property. See DCAE 2. The Plan Amendment proposes a maximum development potential of approximately 1,839 dwelling units (459.81 acres X 4 dwelling units).5 There is a conflict in the evidence regarding the potential maximum development of the subject property under the County Plan. The City suggested approximately 2,358 dwelling units. See PE 8.f. at pages 4-6 of 18. The City's analysis yielded a maximum of 701 dwelling units for the portion of the subject property designated as Residential 1 and 1,657 dwelling units (including application of the density bonus) for that portion of the subject property designated "Neighborhood Commercial." The City assumed there could be 37.5 units per acre (which included a density bonus) developed on the 44.21 acre tract designated "Neighborhood Commercial." Id. Petitioners suggested a maximum of approximately 817 dwelling units could have been built on the subject property if the subject property were developed with the "density bonus" under the County's Plan. See Petitioners' Joint Proposed Recommended Order at 21, paragraph 25 and n.5. There is also a conflict in the evidence regarding the potential development of commercial uses (under the County's Plan) on the portion of the triangular parcel designated as "Neighborhood Commercial." Id. Based upon conflicting evidence, it is resolved that the maximum potential number of dwelling units which could have been developed on the subject property under the County's Plan is overstated. However, this finding does not alter the ultimate findings made herein regarding whether the Plan Amendment is "in compliance." Need 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 which provides that "[t]he comprehensive plan shall be based on resident and seasonal population estimates and projections." Fla. Admin. Code R. 9J- 5.005(2)(e). Florida Administrative Code Rule 9J-5.006(2)(c) requires "[a]n analysis of the amount of land needed to accommodate the projected population, including: [t]he categories of land use and their densities or intensities of use; [t]he estimated gross acreage needed by category; and [a] description of the methodology used." Also, "need" is one of the factors to be considered in any urban sprawl analysis. See Fla. Admin. Code R. 9J-5.006(5)(g)1. On December 14, 2004, the City adopted the Plan Amendment and responded to the objections raised in the DCA's Objections, Recommendations, and Comments (ORC) Report.6 During the plan amendment review process, the proposed residential land use density for the subject property was reduced from up to seven dwelling units per acre as originally proposed to "four units per acre with a Planned Unit Development (PUD) bonus of up to five units per acre," and, ultimately as adopted by the City Council, to "[a] maximum density of 4 units per acre." FSNE 52, Exhibit A; T II 631-632. The City has two needs -- a need for vacant developable land, and a need for middle-income housing. The City differs from many other municipalities in the County because the City's population declined almost 7.4 percent from the period of 1990 to 2000.7 Every city in the County, with the exception of the City of Cocoa and one other city, has experienced population growth. The City's Director of Community Development testified that the City had become hyper-inelastic -- it had stopped growing, and started shrinking. In response to this problem, the City adopted goals in 2002 which included annexation, housing, and residential development. Because of the goals that had been adopted and implemented, from 2002 to the time of the administrative hearing, the City's population rose approximately 7.25 percent. With the Plan Amendment, the City could capture increasing populations in the surrounding areas. In the summer of 2003, the City held a housing task force with private developers. The private developers explained that they were not developing in the City because even though there was vacant land, there were environmental constraints on the land. The vacant land consisted of large amounts of wetlands, with some of the wetlands located in flood plains. In the comprehensive plan adoption package sent to the DCA, the City included a map indicating the vacant land and a map indicating the extensive wetlands located on the vacant land. (The vacant land analysis identified the amount of land potentially available for development, without stating the specific number of available acres. Based upon the testimony at final hearing, excluding the subject property, there are approximately 223-230 acres of developable land within the City limits.) Furthermore, the City provided the DCA with population figures based on BEBR. Rule 9J-5 does not provide a specific requirement as to how a local government must demonstrate how much vacant land is located within its boundaries. Rather, Rule 9J-5 permits a local government to demonstrate how much vacant land is located within it boundaries in several ways, i.e., textually, raw data, or graphically. The DCA used the maps submitted by the City as well as the information submitted that the City's population was declining to make a determination that the City had demonstrated a need for the property. A needs analysis typically consists of an examination of the projected population over the planning time period, the land uses that exist within the local government, the amounts of the land uses, and then a determination of whether the local government has enough land to meet the projected population. However, a quantitative analysis is not the only way to perform a needs analysis. A city's plan for its future and the way it wants to grow is also considered. The City's use of population figures based on BEBR estimates and a map which demonstrated the vacant land was professionally acceptable. In other words, by using BEBR estimates and a map, the City did not use a "methodology" without approval by the DCA. If a plan amendment area had been surrounded by vacant land, then the issue of need is more prevalent. Hagen-Nicholson's planning expert performed a needs analysis. The calculation of the need is done with supply and demand. Supply is land, and demand is population growth. At the time the City began the plan amendment process, the City had approximately 223-230 acres of low-density residential land available. For demand, he determined that over the past three years, there were 113 building permits issued for new homes. The mathematical computation provides for the vacant land to be fully utilized within 5.9 years at an allocation of 1:1. Using the 1:1 ratio is not necessarily a practical ratio because there may be property that is not on the market for sale. When applying a vacant-land multiplier that is used in Orange County -- 2.4, the City would only have a three-year supply of vacant land. When dealing with a comprehensive plan, there should be a 10- to 20-year supply of land. The City's housing element provides that the City is required to provide housing for all current residents as well as anticipated future residents. As of 2002, 94 percent of its housing stock was valued at $100,000 or less, and 47 percent was valued at $50,000 or less. Accordingly, the City does not have adequate available middle-income housing and the Plan Amendment may meet this need. Urban Sprawl The Petitioners contend that the Plan Amendment constitutes urban sprawl. This contention is primarily based upon the assertion that the Plan Amendment is located in a rural area, and the assertion that the Plan Amendment triggers several of the 13 indicators of urban sprawl in Florida Administrative Code Rule 9J-5.006. Florida Administrative Code Rule 9J-5.003(111) defines "rural areas" as "low density areas characterized by social, economic and institutional activities which may be largely based on agricultural uses or the extraction of natural resources in unprocessed form, or areas containing large proportions of undeveloped, unimproved, or low density property." As noted herein, the subject property is vacant and, prior to the adoption of the Plan Amendment, was designated as "Residential 1" (and a portion as "Neighborhood Commercial") under the County's Plan. It is surrounded by developed residential lands and infrastructure such as water, sewer, and roads. The surrounding areas are not undeveloped or unimproved. The area is a low density, but it is an urban low density, not a rural low density. FSN's expert planner, Gerald Langston, performed a study of the surrounding land uses in the vicinity of the Plan Amendment site (study area), including the unincorporated area of the County. Although the lands immediately to the north and south of the parcels are designated one unit per 2.5 acres and one unit per one acre, respectively, under the County's Plan, approximately 49 percent of the parcels in the study area are between one and 1.25 acres in size and approximately 30 percent are a little less than an acre. Three percent are over five acres. In other words, approximately 80 percent of the parcels are less than 1.25 acres in size. T III 819-820. Mr. Langston also studied census data and determined that the demographics of the area are not rural. It is a very rapidly growing area, with an urban development pattern that is basically built-out. (Within the study area, after deducting the 605 acres of the subject property, approximately 21 percent of the acreage is vacant or undeveloped. Stated otherwise, approximately 80 percent is developed. T III 827.) One of the County's experts, Edward Williams, did a general analysis of the lot sizes in the area. He testified that the area is rural with lot sizes of one unit per 2.5 acres. He reviewed photographs of the area and pointed out the lack of sidewalks, curbs and gutters, and lack of quarter-acre lots. However, he did not obtain any census data specific to the Plan Amendment property or to the surrounding area, and could not describe the percent distribution of lot sizes in the surrounding area. He believed that the area is agricultural and rural, but did not analyze the social and economic characteristics of the area surrounding the subject property.8 According to the County's Plan, the subject property is located in an area where the County is planning to provide future water and sewer. Additionally, a map in the County's Plan suggests that the area is actually not suitable for well and septic tanks. The subject property is within the City's water and sewer area and the City has adequate water and sewer capacity to service the subject property. The area surrounding the subject property is not rural under Florida Administrative Code Rule 9J-5.003(111), but rather consists of urban low-density residential development. Rule 9J-5.006(5)(g)1. Indicator 1 is not implicated. The subject property is surrounded by developed residential land and is not a substantial area of the City. The subject property will have a single use, but the introduction of another land use or mixed- use development would be incompatible with the surrounding area and not appropriate. Rule 9J-5.006(5)(g)2. Indicator 2 is not implicated, as the area is urban, and the Plan Amendment is not leaping over undeveloped lands. Rule 9J-5.006(5)(g)3. Indicator 3 is not present. The subject property is an area of vacant land surrounded by developed lands. The subject property is infill development. The Plan Amendment does not promote, allow or designate urban development in radial, strip, isolated or ribbon patterns emanating from existing urban developments. Rule 9J-5.006(5)(g)4. Indicator 4 is not present. The subject property is not a rural area with agricultural uses, and the wetlands on site are designated as Conservation and thus are protected. The Plan Amendment is not premature or poorly planned, as the surrounding area is already developed and the property is infill. The subject property is surrounded by infrastructure including water and sewer, and roads. The City has the capacity to provide water and sewer to the site. Rule 9J-5.006(5)(g)6. Indicator 6 is not present, as water, sanitary sewer, and reclaimed water lines have already been extended to the area. The Plan Amendment will add customers to facilities that have the capacity to handle them. By increasing the number of users in the system, the operational efficiency is increased. Therefore, the Plan Amendment maximizes the use of existing public facilities and services. Rule 9J-5.006(5)(g)7. The Plan Amendment does not fail to maximize the use of future public facilities and services. The facilities that exist in the area were built for future growth, and not connecting to them would be a failure to maximize the public investment that has already been made. Rule 9J-5.006(5)(g)8. Extending existing facilities and services to the property covered by the Plan Amendment will increase costs, but not disproportionately so. Water and sewer are close to the subject area, and the roads have capacity. Extending water and sewer at one unit per acre would be more costly and less efficient than for four units per acre. With respect to law enforcement, fire and emergency response services, this indicator is present to some extent. Rule 9J-5.006(5)(g)9. Indicator 9 does not apply, as there are no rural or agricultural uses in the area. Rule 9J-5.006(5)(g)10. The City has adopted a community redevelopment plan in the downtown neighborhood. The City can promote middle income housing with the Plan Amendment while at the same time pursue redevelopment in the downtown area. The two are not mutually exclusive. Rule 9J-5.006(5)(g)11. The Plan Amendment provides for a single residential use and does not encourage an attractive and functional mix of uses. However, putting commercial or industrial uses on the subject property does not make good planning sense as the area is not appropriate for a mix of uses. In summary, the Plan Amendment does not meet the definition of "urban sprawl." See Fla. Admin. Code R. 9J- 5.003(134). The Plan Amendment is not in a rural area; it is surrounded by residential development. Public facilities are very close, and the Plan Amendment is within the City's service area. The Plan Amendment does not "leapfrog" since there are no large tracts of undeveloped land between the City and the Plan Amendment property. It is not scattered development; it is infill. While it is true that it is a low density use and a single use, the area is not appropriate for mixed-use, retail, commercial or an extremely high residential density. Florida Administrative Code Rule 9J-5 requires a consideration of the context in which the plan amendment is being proposed. Land use types within the jurisdiction and in proximate areas outside the jurisdiction will be evaluated. Local conditions, including the existing pattern of development and extra-jurisdictional and regional growth characteristics, should be considered as well. The consideration of the parcels surrounding the Plan Amendment was important. The City considered the fact that other cities and the County as a whole are experiencing population growth. In considering how the City has grown in the past and its development pattern, how the area around the City has grown and its development pattern and population projections, the Plan Amendment is not urban sprawl. Transportation Facilities The City submitted data and analysis relative to traffic impacts in a study prepared by Traffic Planning and Design, Inc. (TPD). PE 83. The TPD traffic study was accomplished in accordance with the County's concurrency management procedures and based on adopted Levels of Service (LOS). After the City's re-submittal to the DCA, the Florida Department of Transportation (FDOT) had no comments or concerns about transportation impacts. DCAE 2, FDOT analysis. Although the Plan Amendment would allow for more traffic to be generated, increased traffic does not necessarily render a plan amendment not in compliance. A broad brush approach is taken at the comprehensive planning stage. A compliance determination does not consider details such as the design of the roads, or whether roads have guardrails. The issue is whether there is enough capacity to maintain the adopted LOS. Adequate Capacity There is adequate capacity on the surrounding roads to accommodate the trips generated by the Plan Amendment. The TPD traffic study forecasted traffic demands and the impact on available capacity along roadways affected by the subject property and concluded that "all road segments will operate within their adopted LOS with excess traffic capacity available for future development" and "there will be adequate capacity to accommodate the trip generation" contemplated by the Plan Amendment. PE 83. The projected traffic generated by the subject property between now and the year 2010 will not cause any of the roadways to exceed capacity. Based on the TPD traffic study, the County agreed that the anticipated trips generated would not exceed the adopted LOS and that there is available capacity on the road segments affected by the project. Although Petitioners raised multiple traffic issues in their respective amended petitions, Petitioners mainly presented testimony that anticipated development of the subject property will cause increased traffic on County roads which will lead to increased safety concerns. Safety Concerns on James Road The County presented evidence regarding existing and potential safety concerns on several road segments including James Road, which may result from anticipated development of the subject property. The County's main safety concern (with development of the south parcel) is the segment of James Road between Friday Road and Cox Road because of a steep canal that runs along mainly the north side of James Road for approximately one mile. The County's safety concerns relating to James Road only apply to the southern property; thus any increase in traffic on the northern property, including the triangular portion, does not impact safety on James Road. The safety problems relating to James Road exist currently and existed in 2004. Mr. Denninghoff testified that the anticipated increased traffic as a result of the Plan Amendment will expose additional traffic to the existing hazardous conditions on James Road beyond what was planned. The safety concerns with James Road could be resolved by installation of a guardrail, improved and additional street lights, and rumble strips on the road before the stop signs. The County has not added guardrails to James Road. These safety improvements are needed now. Maintenance Costs for County Roads Besides safety, another issue raised by the County during the hearing regarding transportation issues was the anticipated increase in wear and tear on the County roads resulting in increased costs to the County. Residents of the subject property will pay impact fees, which may be utilized for improvements to capacity, operational improvements at intersections, including the safety improvements mentioned above, for new facilities, or expansion of existing facilities, but not maintenance. The impact fee is paid directly to the County. By ordinance, the Brevard County Board of County Commissioners approves the expenditures of the impact fees collected. The County will receive approximately $2.6 million in impact fees from the development of the subject property. The impact fees collected by the County could be utilized to fund safety measures because they are related to capacity improvements. No development was approved by the Plan Amendment. Pursuant to the City's Code and Plan, traffic impacts of a development are reviewed in more detail after the plan amendment process, specifically, during the development process. Petitioners' concerns are premature. Development orders are the result of the subdivision and site plan approval process. Prior to the approval of the final PUD, or the issuance of building permits, the City will examine whether the necessary public facilities are operating within the adopted levels of service. When the developer applies for permits to develop the subject property, the City will review issues concerning traffic. The developer will submit an updated traffic study, which will be reviewed by the City and the County. The County is responsible for issuing driveway permits. Transportation Element Objective 2.3 of the City's Plan provides that "[d]evelopment shall bear the full burden of the cost of roadway improvements necessitated by impacts to the roadway network caused by traffic generated by said development through the adopted site approval process." The City's Plan also provides that new development will not be permitted unless mitigative measures are undertaken to address level of service impacts caused by development. Intergovernmental Coordination The City's Plan contains an Intergovernmental Coordination Element (ICE). The Plan Amendment does not make any changes to that element. Petitioners presented documentary evidence through Mr. Williams' report alleging that the City violated the ICE in its Plan. However, the evidence shows that the Plan Amendment is not inconsistent with any intergovernmental coordination requirements in the City's Plan. Intergovernmental coordination does not mean that one local government must acquiesce to a request from an adjacent local government. Intergovernmental coordination requires information sharing, and there are numerous objectives and policies in the City's Plan addressing the City's responsibility to coordinate with the County regarding development impacts at the appropriate time. Most of the policies and requirements for intergovernmental coordination in the City's Plan are driven by the subdivision site plan approval process. The City coordinated with the County, as the City provided a copy of its annexation report to the County in July of 2004. The City manager invited the County manager to discuss the report with City staff, but the County did not respond. The City also used the County's concurrency management procedures in analyzing traffic, and reduced the density from seven to four units per acre based in part upon the County's comments during the review process. Compatibility With Surrounding Areas Florida Administrative Code Rule 9J-5.003(23) provides: "[c]ompatibility means a condition in which land uses or conditions can coexist in relative proximity to each other in a stable fashion over time such that no use or condition is unduly negatively impacted directly or indirectly by another use or condition." The residential development contemplated by the Plan Amendment is compatible with the surrounding land uses. The subject property is surrounded by urban residential development and existing public infrastructure. The City studied the area surrounding the Plan Amendment, and determined that it was developed in an urban and suburban manner. To be compatible with the surrounding areas, the City developed the VLDR category allowing four units to the acre on the subject property. The County's future land use for the property to the north of the Plan Amendment is designated residential to be developed at one dwelling per 2.5 acres. However, Hagen- Nicholson's expert testified that it has been developed more intensely, with some lots developed at less than an acre. The County's future land use to the south of the Plan Amendment is one unit an acre. The area to the south, however, is less intensely developed -- it is developed at 1.5 units to the acre. The County allowed areas of three units to the acre and five units to the acre to be developed in the middle of the area to the south of the Plan Amendment. Hagen-Nicholson's planning expert testified that the County's planning of the area to the south of the Plan Amendment is the cause of urban sprawl. The Plan Amendment allows a hole in the donut to be filled in so that in the future, there is not pressure to develop homes in a leapfrog fashion two to three miles away. In this case, residential next to residential is compatible. The Plan Amendment is compatible with adjacent development. Internal Consistency Petitioners allege that the Plan Amendment is not internally consistent with several provisions of the adopted City Plan. Specifically, the report of Petitioners' planning expert alleges that the Plan Amendment is not consistent with the City's Policies and/or Objectives 1.1.1.2, 1.1.1.8, 1.1.2.3, 1.1.2.5, 1.1.3, 2.1.1, 2.3, 2.3.1.4, 2.4.1, 2.4.5, 2.6.2, 2.6.4, 4.2.4.4, 4.2.5.2, 4.2.6.3, 4.3.4.1, 9.4.4, 9.8, 9.8.1, and 9.8.2. The City's Director of Community Development testified that the Plan Amendment is internally consistent with the City's Plan and that Petitioners' expert was applying the site plan approval process to the Plan Amendment. The majority of the policies or objectives cited in the report of Petitioners' expert pertain to later stages of the development process, not the plan amendment process. For instance, Petitioners allege that the Plan Amendment is not consistent with Policy 4.2.6.3 because there is no mention in the development agreement concerning who is responsible for the costs of providing the extension of lines, alteration of lift station and the cost of plant capacity for providing wastewater service. The Plan Amendment is not inconsistent with Policy 4.2.6.3 because the developer's agreement for the subject property provides that the developer is required to comply with all city, local, county, state, and federal requirements. Additionally, allegations concerning Policies 1.1.2.5, 1.1.2.6, 2.4.1, and 2.4.5 are premature because they pertain to setback requirements and issues which pertain to later stages of the development process. Policies 4.2.4.4 and 4.2.5.2 pertain to septic tanks and locating waste water package plants. These Policies do not pertain to the Plan Amendment. FSN's planning expert testified that the Plan Amendment is consistent with the City's Plan and that the Plan Amendment will benefit the City as a whole. The DCA's senior planner also testified that several of the Policies which Petitioners alleged that were inconsistent with the Plan Amendment were premature because they pertain to the development stage, not to the plan amendment stage. The Plan Amendment is consistent with Policies and Objectives 1.1.1.2, 2.1.1, 2.6.2, 2.6.4, 2.9.1, 2.9.3, 4.1, 4.1.1.5, 4.1.3.1, 4.1.5, 9.4.4, 8.1.2, 8.2.1, 9.8.1, 9.8.2, and 9.8. Petitioners did not prove that the Plan Amendment is inconsistent with the provisions they cited. Regional and State Plans Section 163.3177(10)(a), Florida Statutes, provides in pertinent part: for the purpose of determining whether local comprehensive plans are consistent with the state comprehensive plan and the appropriate regional policy plan, a local plan shall be consistent with such plans if the local plan is "compatible with" and "furthers" such plans. The term "compatible with" means that the local plan is not in conflict with the state comprehensive plan or appropriate regional policy plan. The term "furthers" means to take action in the direction of realizing goals or policies of the state or regional plan. For the purposes of determining consistency of the local plan with the state comprehensive plan or the appropriate regional policy plan, the state or regional plan shall be construed as a whole and no specific goal and policy shall be construed or applied in isolation from the other goals and policies in the plans. Strategic Regional Policy Plan A determination of whether the Plan Amendment is consistent with the East Central Florida Regional Planning Council's Strategic Regional Policy Plan (SRPP) is based on an assessment of the SRPP as a whole. § 163.3177(10)(a), Fla. Stat. Petitioners did not present evidence that the Plan Amendment is inconsistent with the SRPP as a whole. Petitioners' expert opined that the Plan Amendment is inconsistent with certain provisions of the SRPP. The report only discussed several policies in an isolated fashion and did not consider the SRPP as a whole. Nevertheless, the Plan Amendment is consistent with the SRPP as a whole, and is consistent with the specific provisions with which Petitioners' report alleged inconsistencies. Specifically, the Plan Amendment is not inconsistent with the SRPP Policy 6.1 because the area is already urban. Additionally, the Plan Amendment is in an area that has existing commercial uses nearby. The Plan Amendment is consistent with SRPP Policies 6.4 and 6.5 because both of these policies pertain to rural areas. The subject property and the surrounding areas are not rural. The Plan Amendment is consistent with SRPP Policy 6.16 because it is based upon area-wide projections and forecasts. The Plan Amendment is consistent with SRPP Policy 6.17 because it does not adopt a policy providing that there shall be no informal mediation processes, or that informal mediation shall not be used. The Plan Amendment is consistent with SRPP Policy 6.19 regarding the encouragement of public participation. Overall, the City encouraged public participation. The City has the capacity and ability to develop its downtown area and to promote infill at the same time. Accordingly, the Plan Amendment is consistent with SRPP Policy 6.21. The Plan Amendment concerns the issue of deciding a future land use. SRPP Policy 5.17 1.a., which pertains to addressing transportation impacts of a development project in one jurisdiction on an adjacent jurisdiction, will be addressed at the appropriate stage of the development process. SRPP Policy 5.23 pertains to equitable cost participation guiding development approval decisions. It does not pertain to the Plan Amendment because there is no transportation capacity improvements required by the Plan Amendment. The Plan Amendment is consistent with SRPP Policy 7.3 because the area encompassing the Plan Amendment is already included in the City's approved future service area. Petitioners' report set forth an allegation that SRPP Policies 7.5, 7.9., 7.10, and 7.19 "would all be in conflict with the city of Cocoa proposed amendment." The Plan Amendment is consistent with these SRPP Policies. FSN's planning expert testified that the SRPP uses directive verbs that are intended to be suggestions and recommendations to a local government, not requirements. He provided testimony that since the subject area is urban, and not rural, the SRPP does not impact this Plan Amendment because it provides for protection of regional natural resources, and promotes intergovernmental coordination. Hagen Nicholson's expert also testified that the Plan Amendment is consistent with the SRPP. The East Central Florida Regional Planning Council did not raise any concerns to the Plan Amendment violating the SRPP. Finally, the Plan Amendment actually furthers SRPP Policies 4.23, 4.2.4, 6.1.4, 7.1, 7.4, and 7.5. State Comprehensive Plan A determination of whether the Plan Amendment is consistent with the State Comprehensive Plan (State Plan) is based on an assessment of the State Plan as a whole. Petitioners alleged in paragraphs 39, 46, 59, and 65 of the Amended Petition that the Plan Amendment is inconsistent with Sections 187.201(18)(b) and 187.201(21) of the State Plan. However, they did not present persuasive evidence that the Plan Amendment is inconsistent with the State Plan as a whole. The Plan Amendment is consistent with the State Plan as a whole, and, in particular, Sections 187.201(18)(b) and 187.201(21), Florida Statutes. Furthermore, the Plan Amendment furthers the State Plan goal to "increase the affordability and availability of housing for low-income and moderate-income persons. . . ." See § 187.201(4), Fla. Stat. It furthers the State Plan goal set forth in Section 187.201(9), Florida Statutes, because the Plan Amendment protects the wetlands by designating them as Conservation areas. Finally, it furthers the State Plan goal set forth in Section 187.201(15), Florida Statutes, because the Plan Amendment preserves environmentally sensitive areas. Public Participation9 Petitioners alleged that public participation was not provided with respect to the August 24, 2004, transmittal hearing, primarily because the City allegedly refused to allow citizens access to the hearing and the opportunity to speak during the hearing. At the administrative hearing in this matter, following denial of the DCA's motion in limine, the issue was narrowed to the question of whether the August 24, 2004, hearing was the type contemplated by Chapter 163, Part II, Florida Statutes, with the ultimate issue being whether or not that will impact whether the Plan Amendment is "in compliance." The issues identified in footnote 1 of Petitioners' Hunters and Kellgrens' Amended Petition are not at issue. Council meetings have an order of discussion. During "delegations," only City residents, employees, and water customers may speak. The City Council is authorized to set aside up to 30 minutes of each regular Council meeting limited to hearing from only residents and taxpayers of the City. After the delegations portion, the consent agenda is considered, and then the public hearings portion follows. Under the public hearings portion, any person may speak. Speaker cards are filled out, passed on to the Mayor, and the Mayor calls the names from the cards. On August 17, 2004, the City published a Notice of Future Land Use and Zoning Change in the Florida Today Newspaper. The notice stated that a public hearing would be held by the City Council in their chambers at 7:00 p.m. on August 24, 2004, on subjects including the proposed plan amendment and re-zoning of the subject property. The notice also stated that the hearing was a public hearing, that all interested persons may attend and that members of the public are encouraged to comment on the proposed ordinance at the meeting. The parties stipulated that the August 24, 2004, hearing was properly advertised and noticed.10 According to the transcript of the City Council meeting on August 24, 2004, the meeting, including the transmittal hearing portion, began at 7:15 p.m. Several hundred people showed up and were outside of the building at 6:00 p.m. The City's planner testified that he did not have any expectation that there would be that many people there. The turn-out was so large that not everyone could fit in the Council chambers. The capacity of the room is either 91 or 93 based upon fire department regulations. The first issues discussed related to the annexation of the property subject to the proposed plan amendment. There was also discussion regarding the re-zoning and the proposed plan amendment. PE 14 at 3-48. Thereafter, Mayor Parrish stated that "it would be appropriate to have a public hearing regarding these three ordinances." Id. at 48. The Mayor asked everyone to fill out speaker cards.11 The City Attorney stated that there were speaker cards about three to four inches thick; "about two hundred plus cards of people who want to speak." Id. at 49, 51. Mayor Parrish stated: I know. There is no way we can hear them in one night. Also, we have to go by the concerns and the citizens that we hear and I doubt there are this many ideas that is going to be expressed tonight. If we don't duplicate something that we have already heard, we might be able to bring them down a little bit. If we can elect representative to speak on behalf of other names that can be given possibly as a way to cut down on that. We also have heard from planning and zoning and have spoken with the members of planning and zoning. We have minutes from the meetings. We have copies of presentation that were given at that meeting and letters and phone calls and e-mails, and so, we have got a good sense of the concerns that were expressed that night and since that night. We do want to hear from everyone we possibly can. The criteria for a public hearing are basically three minutes for a speaker and representatives of recognized groups shall be limited to ten minutes. So if you have somebody that can speak on behalf of a group of people they can have ten minutes and possibly get everything expressed that maybe a larger group would take longer than the ten minutes. A total debate on a single issue is limited to 30 minutes. Since we have three issues -- Id. at 49-51. See also PE 14 at 53-54. The public hearing portion of the transmittal hearing did not get underway until approximately 8:30 p.m. Id. at 51. The City Council typically allows 30 minutes for the public hearings portion, but decided to extend the time to 90 minutes, id. at 53, and later went beyond that limit to accommodate more speakers.12 After several persons began expressing their opposition to the items, including the proposed plan amendment, id. at 58-82, the Mayor stated that the comments were "starting to get a little bit repetitive" on several issues and requested the attendees to try "to narrow it down to some other issues that maybe haven't been brought up so far." Id. at 82. Other speakers followed, id. at 82-128, when the Mayor stated that they were "going to run over with just the cards" that she had and inquired whether they wanted to extend the time. It was decided to "hear the three or ten depending upon how long." Id. at 129. Again, others spoke when a police officer said "[w]e have a few more[,] [a]re you done?" The Mayor responded: "We are past time. I'm trying to finish the ones that I have up here that are saying that they are in line." Id. at 140. Councilman Anderson wished to cut off public comment and Councilwoman Collins provided a second "because of how late it is -- 11 o'clock Mayor." Id. at 141. Without ruling on the request, Stacy Ranger, a representative of the County, spoke and focused on the annexation issue, including neighborhood compatibility. Id. at 141-146. Thereafter, Mr. Titkanich was granted permission to respond to comments. Id. at 147-157. The public portion of the hearing was then closed. Id. at 158. After some discussion, a motion to extend the meeting not more than one hour was approved. This motion was made sometime after Councilwoman Collins announced how late it was - 11 p.m. Id. at 176-177.13 Ultimately, the Council voted four to one in favor of Ordinance No. 39-2004. Id. at 181-182. Mr. Kellgren testified that he arrived at the hearing location around 6:00 p.m. There was a large crowd of several hundred people outside. He filled out a speaker's card, but could not get into the building. He waited outside and tried to observe what was going on. He left the hearing around 9:30 p.m. because he did not see the point in staying any longer; he could not get in and could not hear anything. His speaker's card was not marked "NR" or "No Response." PE 36. Although Mr. Kellgren was not able to get into the building to speak, he had retained lawyer Kimberly Rezanka to represent him and his wife at the August 24, 2004, hearing. During the hearing, Ms. Rezanka spoke to the City Council on behalf of the Kellgrens and several other individuals.14 (Mr. Kellgren attended the P&ZB hearing and opposed the proposed plan amendment and rezoning.) After the transmittal hearing, Mr. Kellgren sent two letters to the DCA's Plan Review Administrator expressing concerns regarding the proposed plan amendment. One letter was signed by Mr. Kellgren and others. No complaint was made regarding the conduct of the transmittal hearing. PE 81-82; T II 358. Ms. Hunter arrived at the City Council's August 24, 2004, meeting around 5:30 p.m. (She attended the P&ZB hearing and spoke.) She testified that she was not allowed to go inside the building because she was not a City resident. She wrote comments opposing the proposed plan amendment on her speaker's card -- "7 houses per acre would be ridiculous Against [two underscored lines] rezoning of property at Friday [&] James in Cocoa - 1 house per acre only!!". She wrote this information on the card so her intentions would be known. The upper-right hand corner of her card is marked "NR," although she did not write these letters on the card. She left the public hearing around 9:30 p.m., because she had to work the next day and take care of her children. She knew that the hearing was still going on and acknowledged that her name could have been called after she left. She did not go to the December 14, 2004, adoption hearing. Brian Seaman lives in Canaveral Groves, which is in the unincorporated area of the County and east of the north parcel. FSNE at "BS." He arrived at 6:00 p.m. He testified that he was not allowed in because he was not a City resident. He filled out a speaker's card, but believes that his name was not called. His card was not marked "No Response" or "NR." He testified he remained at the public hearing until approximately 11:45 p.m., when he was told of the Council's vote. See Endnote (He attended the P&ZB hearing and later attended the December adoption hearing held at the Civic Center. He did not speak at those hearings because the issues that were of concern to him had already been raised by others.) The public hearing portion of the transmittal hearing lasted over three hours. There is evidence that names on the speaker cards (CE 10), such as Mr. Seaman, were not called. There is also evidence that there was no response for many of the names as reflected on the cards.15 Nevertheless, citizens spoke during the public hearing portion of the transmittal hearing. Notwithstanding the large turn out, the Mayor and Council took measures to accommodate the larger-than-expected crowd and public comment was received. The City Council learned from the experience and conducted the adoption hearing at the Civic Center. No issues are raised regarding the adequacy of the adoption hearing. There is no persuasive evidence that any person was deprived of the opportunity to submit written objections, comments, or recommendations to the Council prior to, during, or after the Council's consideration of the proposed plan amendment (during the transmittal hearing). The DCA's expert planner, Erin Dorn, testified that Florida Administrative Code Rule 9J-5.004 requires local governments to adopt procedures for public participation. Once the DCA receives an amendment package from a local government, it goes to the plan processing team (PPT). The PPT checks the package for "completeness" to make sure that it includes all information required by law. The PPT does not review the plan amendment. Once the package is complete, it is sent to the planning review team for a substantive review. Review of a plan amendment includes public facilities, natural resources, and transportation. Review of a plan amendment does not include a review of whether every person who wanted to attend the hearing was permitted to do so, or a review of the number of people who attended. Such aspects of public participation are not considered by the PPT, and necessarily the DCA when reviewing a plan amendment for a compliance determination. The DCA received letters from citizens, voicing concerns regarding the Plan Amendment.16
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining that the Plan Amendment adopted by the City through Ordinance No. 39-2004 is "in compliance." DONE AND ENTERED this 3rd day of July, 2006, in Tallahassee, Leon County, Florida. S 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 3rd day of July, 2006.
The Issue The issue is whether a development order adopted by Respondent City of Marathon by Resolution PC00-09-04 is consistent with the comprehensive plan, land development regulations, and statutes.
Findings Of Fact Respondent City of Marathon (Marathon) was incorporated on November 30, 1999. It adopted as its land development regulations (LDR) the LDRs of Monroe County in effect at the time of Marathon's incorporation. Marathon is within The Florida Keys Area of Critical State Concern. This case involves a development order that Marathon issued to Respondent Banana Bay of Marathon, Inc. (BB). As Planning Commission Resolution 00-09-04, the development order authorizes BB to add 12 motel rooms to an existing motel in return for imposing certain restrictions on the use of wet slips at its adjacent marina that is part of the same motel/marina development. The restrictions require the removal of cable television connections from 12 slips and limitation upon vessels using these 12 slips to those without plumbing facilities. For the remaining wet slips at the marina, the development order requires BB to limit their use to no more than 18 vessels at one time and to provide mandatory sewage pumpout for these vessels. At various points in the record and this recommended order, references to a "transfer" of 12 marina slips for 12 motel rooms refer to the conditions set forth in this paragraph. BB owns 7.39 acres of upland and 2.67 acres of adjacent bay bottom in Marathon at mile marker 49.5 (Subject Property or, as developed, Banana Bay). The Subject Property runs from U.S. Route 1 to the water. The Subject Property contains 60 motel rooms in two buildings, a conference room, a motel office, support buildings, three apartments suitable for employee use, and a marina. The marina includes 40-50 slips, depending upon the size of the moored vessels. The Subject Property is zoned Suburban Commercial (SC) and Mixed Use (MU). About 2.4 acres (104,544 square feet) running about 350 feet from U.S. Route 1 is SC. About 4.99 acres (217,364 square feet) is zoned MU. The additional 2.67 acres of adjacent bay bottom are also zoned MU, although the submerged acreage is unimportant for reasons discussed below. Twenty-five of the motel rooms are in SC, and 35 of the motel rooms are in MU, although the distinction between zoning districts is also unimportant for reasons discussed below. LDR Code Section 9.5-267 authorizes ten "rooms" per ”acre" as "allocated density" for motel uses in SC and MU and 15 "rooms" per "buildable acre" as "maximum net density" for motel uses in SC and MU. (There is no difference between "hotels" and "motels" in this case; all references to "motels" include "hotels.") Three fundamental questions emerge concerning the application of these two density limitations to this case. The first is whether BB must satisfy both the "allocated density" and "maximum net density" limitation. This is not a difficult issue; BB's proposal must satisfy each of these density limitations. The second question is what is included in the areas under each of these density limitations. Notwithstanding the use of "gross acres" in the "allocated density" formula, it is necessary to net out certain areas--just less than is netted out in the "maximum net density" formula. The third question is what constitutes a "room." When applied to marine-based units, the definition of a "room" presents a difficult and important issue. As a whole, the LDRs imply that no marine-based dwelling units should count as "rooms," but one provision specifically requires the inclusion of "live-aboard" units in density calculations. The first question requires little analysis. As noted below in the discussion of the two types of areas, "allocated density" and "maximum net density" provide two separate measures of the intensity of use of land. The allowable density for "maximum net density" is never less than the allowable density for "allocated density" because "maximum net density" is a safeguard to ensure that, after netting out from the parcel those areas reserved for open space, setbacks, and buffers, the intensity of use will not be excessive. Nothing whatsoever in the LDRs suggests that Marathon may issue a development order for a proposal that satisfies the "maximum net density," but not the "allocated density." These two densities limitations operate in tandem, not in the alternative. The calculation of the "allocated density" requires consideration of the second and third questions identified above. The issue of area seems straightforward. LDR Code Section 9.5-4(D-3) defines "density or allocated density" as "the number of dwelling units or rooms allocated per gross acre of land by the plan." LDR Code Section 9.5-4(D-4) defines "maximum net density" as "the maximum density permitted to be developed per unit of land on the net buildable area of a site, as measured in dwelling units or rooms per acre." LDR Code Section 9.5-4(G-4) defines "gross area" as "the total acreage of a site less submerged lands and any dedicated public rights-of-way." LDR Code Section 9.5-4(N-4) defines "net buildable area" as "that portion of a parcel of land which is developable and is not open space required by section 9.5-262 or 9.5-343 or required minimum bufferyard under article VII division 11 or required setbacks under section 9.5-281." The area of land involved in determining "allocated density" is greater than the area of land involved in determining "maximum net density." But the area of land involved in determining "allocated density" is itself a net amount. The LDRs expressly require reducing the gross areas by any submerged land and dedicated public rights-of-way. However, any reasonable application of the LDRs also requires reducing the gross areas used for the motel "allocated density" calculation by the minimum areas required to support other uses on the Subject Property. If the only use of the Subject Property were motel rooms, the "allocated density" limit of ten units per acre (10:1) would allow 73.9 rooms. But the Marathon Planning Commission Staff Report dated September 18, 2000, correctly netted from the Subject Property the land areas required to support the commercial aspects of the hotel and the commercial apartments. These reductions leave a total of 5.86 acres available to support the motel rooms. At a density of 10:1, the Subject Property could therefore support a total of 58 motel rooms. The Planning Commission incorrectly used the 15:1 ratio for "maximum net density" in concluding that the Subject Property could support a total of 67.65 motel rooms. Evidently, the Planning Commission used the "maximum net density" because it was not using "gross area" or "gross acres" (the terms are synonymous under the Code) in calculating the area. The netting reduction necessary to calculate whether BB's proposal satisfies the "maximum net density" limitation would require the calculation of the area of the Subject Property that must be devoted to open space, setbacks, and buffers. The Planning Commission probably undertook this step in calculating the "maximum net density" for the Subject Property, as its figures seem to include unstated deductions for the 20 percent open space plus another factor, probably for setbacks and buffers--all of which are discussed in its report. However, the Planning Commission erroneously neglected to apply the "allocated density" limitation to the "gross acres," exclusive of submerged land, public rights-of-way, and the minimum land required to support the other upland uses. As noted above, doing so would have yielded no more than 58 motel rooms. At present, the Subject Property contains 60 hotel or motel rooms. The Subject Property therefore cannot support the addition of another 12 hotel or motel rooms, given its "allocated density" of only 58 rooms. In general, BB justifies the addition of 12 rooms to the front motel by arguing that it is only transferring these units from the 12 existing wet slips. It is unnecessary to determine whether a transfer under these facts is lawful when, if these 12 slips count as units, the Subject Property is already 14 units over its "allocated density." The resolution of the third question--what constitutes a "room"--dispenses with this argument. Thirty of the existing 40-50 boat slips in the marina have water, electric, and cable hook-ups and are presently used for some form of habitation. Most vessels berth at the marina for two or three days, although the average stay is slightly over one month. The average stay at the 30 slips offering utilities, though, is two to three months. Typically, two persons use a vessel berthed at the marina for more than a couple of days. BB seals the discharge ports of all vessels mooring at the marina for any appreciable period of time. BB provides a sewage pumpout service for these and other vessels. The wastewater from the marina operations goes to a septic tank, in contrast to the wastewater from the motel operations, which goes to an onsite package plant. Persons mooring at the marina for at least two months normally obtain telephone service and may obtain cable television service, in addition to the potable water and electrical services provided by BB. The marina also provides rest rooms, laundry facilities, showers, a bar, limited food service, and a mail box. However, BB rules require that all persons berthing at the marina register a permanent address because the slips are "not considered permanent housing." At the request of the Florida Keys Aqueduct Authority and the Monroe County Planning Department, BB has limited rental agreements at the marina to a maximum of one month, although some persons enter into back-to-back rental agreements. Persons staying more than one week often have cars. Contrary to BB's contentions, none of these slips provides additional density for the Subject Property, and therefore the 12 slips are not available for transfer to the motel. For the same reason, as discussed below, the proposed transfer of the 12 units would also violate the Rate of Growth Ordinance (ROGO). In two respects, the record reveals that the conversion of marine-based residential uses to upland residential uses might facilitate the achievement of important land use planning objectives. First, the wastewater collected from the marina is directed to a septic tank, and the wastewater collected from the motel is directed to a package plant. Absent a significantly reduced flow from the marine-based residential use, the upland residential use would therefore impact the adjacent waters to a lesser extent. Second, marine-based residential users may be more reluctant to evacuate for an approaching hurricane than upland residential users. Absent a significantly greater number of visitors during hurricane season if the 12 units were taken from the marina slips and added to the motel, the upland residential use might therefore facilitate timely hurricane evacuation of the vulnerable Keys. However, the record was relatively undeveloped on these two points, and these possible advantages to the conversion of marine-based residential uses to upland-based residential uses do not override the LDRs. The LDRs may treat the more intense residential use associated with "live-aboards" differently than the less intense residential use associated with other moored vessels. Although the LDRs' treatment of "live-aboards" may not be entirely consistent, any inconsistency is irrelevant in this case because the moored vessels at the Banana Bay marina do not qualify as "live-aboards." As stipulated for the purpose of this case, LDR Code Section 9.5-4(T-4) defines a "transient residential unit" as "a dwelling unit used for transient housing such as a hotel or motel room, or space for parking a recreational vehicle or travel trailer." LDR Code Section 9.5-4(D-31) defines a "dwelling unit" as "one (1) or more rooms physically arranged to create a housekeeping establishment for occupancy by one (1) family with separate toilet facilities." LDR Code Sections 9.5-4(D-23) through 9.5-4(D-30) identify the various types of dwellings that may contain "dwelling units.” These dwellings are, respectively, detached zero-lot-line dwellings, multifamily apartment dwellings, attached dwellings, detached individual dwellings, duplex dwellings, commercial apartment dwellings, rooftop dwellings, and townhouse dwellings. The frequent references to "open yards" in these definitions precludes the application of these definitions to moored vessels, even "live- aboards." The exclusion of all moored vessels, including "live-aboards," from density calculations is also suggested by two other portions of the LDRs. As is typical, LDR Code Section 9.5-120.1 provides that the mechanism for enforcing density limitations is in the issuance of building permits, but this enforcement mechanism is of doubtful use in regulating vessel moorings, which do not typically involve the issuance of a building permit. Also, the density definitions discussed above both refer to the development of various types of residential uses on "land." Moreover, none of the zoning districts established in Marathon's LDRs measures the intensity of marina uses, including vessels moored for extended periods as live-aboards, by imposing some sort of marine density limitation, either by including the moored dwelling units or the submerged acreage. Because the LDRs did not intend to include such marine-based uses in density calculations, LDR Code Section 9.5-267, which is a table setting forth "allocated densities" and "maximum net densities," covers only upland-based uses, including recreational vehicle or campground spaces per acre, and does not extent to marine-based uses, such as live-aboard marina slips. However, two provisions in the LDRs require density calculations to include "live-aboards." LDR Code Section 9.5-308, which seems to be an older provision in the LDRs, provides that "each live-aboard shall count as a dwelling unit for the purpose of calculating density limitations in the district in which it is permitted." Better incorporated into the present regulatory scheme of the LDRs, LDR Code Section 9.5-120.1 defines a "residential dwelling unit" as a "dwelling unit," including a "transient rental unit," as defined in LDR Code Section 9.5-4(T-3), and "live-aboard vessels," as defined in LDR Code Section 9.5-4(L-6). However, LDR Code Section 9.5-4((L-6) states that a "live-aboard vessel" is "any vessel used solely as a residence or any vessel represented as a place of business, a professional or other commercial enterprise, or a legal residence." The record does not suggest that any of the moored vessels were used "solely" as a residence, as distinguished, for instance, from a vessel used for residential and recreational purposes, or that any of the mixed-use vessels served as the occupants' legal residence. Absent a finding that the moored vessels constitute "transient residential units," ROGO does not support this proposed transfer of residential uses from marine-based to upland-based. LDR Code Section 9.5-123(f)(3) authorizes the transfer of an existing "residential dwelling unit" from one site to another within the same subarea. However, LDR Code Section 9.5-122 defines a "residential dwelling unit" to extend only to "live-aboards." For the reasons already discussed, the less intense residential uses associated with the vessels moored at Banana Bay's marina preclude their treatment as "residential dwelling units" eligible for transfer to the motel. Petitioner has proved that the development order is materially inconsistent with the LDRs. LDR provisions governing the density and intensity of residential development go to the heart of effective land use planning, especially in an area as sensitive as the Keys. For these reason, it is unnecessary to consider the consistency of the development order with the more general provisions of Marathon's comprehensive plan, on which Marathon's LDRs are based.
Recommendation It is RECOMMENDED that the Florida Land and Water Adjudicatory Commission enter a final order denying the request of Banana Bay of Marathon, Inc., to approve the transfer of 12 slips to 12 rooms in a motel on the Subject Property. DONE AND ENTERED this 7th day of December, 2001, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 7th day of December, 2001. COPIES FURNISHED: Barbara L. Leighty, Clerk Growth Management and Strategic Planning The Capitol, Suite 2105 Tallahassee, Florida 32399 Charles Canaday, General Counsel Office of the Governor Department of Legal Affairs The Capitol, Suite 209 Tallahassee, Florida 32399-1001 Cari L. Roth, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Mitchell A. Bierman Weiss Serota 2665 South Bayshore Drive Suite 420 Miami, Florida 33133 James S. Mattson James S. Mattson, P.A. Post Office Box 586 Key Largo, Florida 33037
The Issue Whether Martin County Comprehensive Plan Amendment 13-5, adopted by Ordinance 938 on August 13, 2013, as amended by Ordinance 957 on July 8, 2014, is “in compliance,” as that term is defined in section 163.3184(1)(b), Florida Statutes (2014).1/
Findings Of Fact The Parties and Standing Respondent, Martin County (Respondent or County), is a political subdivision of the State of Florida with the duty and responsibility to adopt and amend a comprehensive growth management plan pursuant to section 163.3167. Petitioner, Midbrook 1st Realty Corp. (Petitioner), owns real property and operates a business in Martin County. On August 13, 2013, the County held a public hearing and adopted Ordinance 938, amending chapters 1, 2, and 4 of the Comprehensive Plan. On July 8, 2014, the County held a public hearing and adopted Ordinance 957, further amending chapters 1, 2, and 4 of the Comprehensive Plan. The plan amendments adopted by Ordinance 938, as amended by Ordinance 957, are the subject of this challenge and are referred to herein as the “Operative Amendments.” Petitioner submitted written and oral comments to the County concerning the Operative Amendments during the period of time between transmittal and adoption of the Operative Amendments. Intervenor, 1000 Friends of Florida (1000 Friends), is a Florida not-for-profit organization with a substantial number of members residing in Martin County who are engaged in matters related to the use and development of land, and the impacts therefrom, as set forth in the Comprehensive Plan. Participation in the County’s comprehensive planning process is part of 1000 Friends’ mission. 1000 Friends submitted written comments to Martin County during the period of time between transmittal and adoption of the Operative Amendments. Intervenor, Martin County Conservation Alliance, Inc. (MCCA), is a Florida not-for-profit organization incorporated in the State of Florida in 1997, with members who reside in, own property in, or operate businesses in Martin County. Representation of its members in proceedings concerning the Comprehensive Plan is part of MCCA’s mission and function, and the organization has been recognized as a party in previous administrative proceedings involving the Comprehensive Plan. MCCA submitted oral and written comments to Martin County during the period of time between transmittal and adoption of the Operative Amendments. Intervenor, Treasure Coast Environmental Defense Fund, Inc., d/b/a Indian Riverkeeper (Riverkeeper) is a Florida not- for-profit organization operating in Martin County which was incorporated in 1999 for the purpose of encouraging and assisting in enforcement of federal, state, and local environmental laws and regulations through lawsuits and administrative proceedings, as well as engaging in scientific and educational programs. A substantial number of Riverkeeper’s members reside in, own property in, or operate businesses in Martin County. Riverkeeper submitted oral comments to Martin County during the period of time between transmittal and adoption of the Operative Amendments. Municipal Intervenors are local governments adjoining Martin County whose residents all reside and/or own property, or operate businesses in Martin County. The Town of Jupiter Island adopted Resolution 728 on December 17, 2013, in which it found, in pertinent part, as follows: WHEREAS, the Town Commission finds that a successful challenge by the Petitioners resulting in the repeal of these plan amendments would produce substantial impacts on areas in the Town which have been designated for protection or special treatment; and * * * WHEREAS, the Town Commission finds that a successful challenge by the Petitioners would increase the need for publically [sic] funded infrastructure, including the beaches and roads in the Town, and the Town’s operation of its utility. The Town of Seawall’s Point adopted Resolution 792 on December 10, 2013, in which the Town Commission found that “successful challenge by the Petitioners . . . would increase the need for publically [sic] funded infrastructure.” The City of Stuart adopted Resolution 152-2013 on December 9, 2013, in which the City Commission found that “successful challenge . . . would increase the need for publically [sic] funded infrastructure.” Background EAR Amendments The County’s original Comprehensive Plan was adopted in 1990 and was challenged by the Department of Community Affairs (DCA) as not “in compliance.” Since its inception, the Comprehensive Plan has been the subject of substantial litigation, most of which has little relevance hereto. At least once every seven years, local governments are required to undertake an evaluation and appraisal of their comprehensive plans. See § 163.3191(1), Fla. Stat. During this evaluation, local governments must amend their plans to reflect changes in state requirements. See § 163.3191(2). The statute also encourages local governments to comprehensively evaluate changes in local conditions, and if necessary, update their plans to reflect said changes. See § 163.3191(3). Local government plan amendments made pursuant to section 163.3191 are commonly referred to as “EAR amendments.” The County adopted its most recent EAR amendments in 2009, following an evaluation and appraisal of the Comprehensive Plan and changes in state requirements. The 2009 EAR amendments were challenged by a number of parties as not “in compliance.” Administrative challenge to the EAR amendments concluded, and the amendments became effective in 2011. Operative Amendments Adoption Process3/ The Operative Amendments originated with former County Commissioner Maggy Hurchalla, who made a presentation to the County Commission at its regular meeting on November 20, 2012, during which she proposed amendments to the Comprehensive Plan. On December 11, 2012, the County Commission conducted a public workshop on amendments proposed by Ms. Hurchalla. The workshop agenda included draft Comprehensive Plan amendments in legislative (strike-through/underline) format, a summary of the amendments, and a draft resolution by which the County could initiate the proposed changes as text amendments to the Comprehensive Plan. The County Commission adopted the resolution initiating the amendments on that date. On February 12, 2013, the County Commission held the first of three public meetings to discuss the proposed amendments to the Comprehensive Plan. The meeting focused on proposed changes to chapter 1, the Preamble to the Comprehensive Plan. The meeting materials included Ms. Hurchalla’s proposed amendments with highlighted comments from the County’s planning staff. On February 26, 2013, the County Commission held a second public meeting to discuss proposed changes, this time focusing on chapter 2, the Definitions for the Comprehensive Plan. Proposed changes to chapter 2 included incorporating “Overall Goals” of the Comprehensive Plan, as well as some new and revised definitions. The meeting materials included Ms. Hurchalla’s proposed changes with highlighted comments from County planning staff. On March 5, 2013, the County Commission held a third public meeting to discuss proposed changes to the Comprehensive Plan, this time focused on changes to chapter 4, the Future Land Use Element (FLUE). These changes were proposed by County staff to maintain consistency among chapters 1, 2, and 4. On March 21, 2013, the Martin County Local Planning Agency (LPA) held a public hearing to consider Comprehensive Plan Amendment (CPA) 13-5, the product of Ms. Hurchalla’s original proposal, as developed through three discussion meetings with the County Commission and planning staff. At the LPA meeting, staff recommended approval of the changes, and included a matrix which analyzed each change by section, goal, objective, or policy number, as applicable. The agenda packet included all public comments regarding the proposed amendments received by the County subsequent to the February 12, 2013, meeting. On April 16, 2013, the County Commission held a public hearing on proposed CPA 13-5. The Commission held a second public hearing on April 26, 2013, and voted to transmit the amendments to the state reviewing agencies, pursuant to section 163.3184(3). County staff provided the County Commission with all state agency comments at a meeting on June 18, 2013, wherein County staff recommended additional changes to the Plan Amendment, and the Commission voted to schedule a public hearing on adopting CPA 13-5. On July 9, 2013, the County Commission conducted a public hearing on CPA 13-5, directed staff to make changes to the amendments to address certain agency comments, and continued the public hearing to August 13, 2013. The Commission adopted CPA 13-5 by Ordinance 938 at the public hearing on August 13, 2013. The record supports a finding that the County complied with all public notice requirements for the LPA public hearing, and the County Commission public meetings and public hearings conducted related to CPA 13-5. On July 8, 2014, the County Commission adopted CPA 14- 7 by Ordinance 957, further amending chapters 1, 2, and 4 of the Comprehensive Plan. The record supports a finding that the County held the required public hearings required for adoption of CPA 14-7 and complied with applicable public notice requirements for said public hearings. Urban Service Districts A major reason for the DCA’s compliance determination on the County’s 1990 Comprehensive Plan was that it did not discourage urban sprawl. The state’s challenge to the Comprehensive Plan was resolved by a compliance agreement under which the County amended the Comprehensive Plan to incorporate primary and secondary urban service districts (USDs). There are two locations of the USDs. The Eastern USD is located east of the Florida Turnpike, and the Indiantown USD is located in western Martin County. According to the 2009 data on which the existing Comprehensive Plan is based, 87 percent of the County’s population resides east of the Florida Turnpike. The Eastern and Indiantown USDs are separated by roughly 12 miles of mainly agricultural land. The purpose of the USDs is to regulate urban sprawl by directing growth to areas where urban public facilities and services are available, or programmed to be available, at appropriate levels of service. Public urban facilities and services are defined by the Comprehensive Plan as “[r]egional water supply and wastewater treatment/disposal systems, solid waste collection services, acceptable response times for sheriff and emergency services, reasonably accessible community park and related recreational facilities, schools and the transportation network.” Commercial, industrial, and urban-density residential development, as well as future development requiring public urban facilities, is concentrated within the primary USD. The boundaries of the primary USD may be expanded only when “reasonable capacity does not exist on suitable land in the existing [primary USD] for the 15-year planning period.” Rural and estate densities not exceeding one unit per acre (one unit/acre) are concentrated in the secondary USD where a reduced level of public facility needs are programmed to be available at appropriate levels of service. The boundaries of the secondary USD may only be expanded when “[r]easonable residential capacity does not exist on suitable land in the existing [secondary USD] for the 15-year planning period.” Development outside the USDs is limited to low- intensity uses, including Agricultural (not exceeding one unit/20 acres), Agricultural Ranchette (not exceeding one unit/five acres), and small-scale services necessary to support rural and agricultural uses. Some residential estate development is allowed on the fringe of the USDs at one unit/acre. Petitioner’s Challenges A. Residential Needs Analysis Petitioner’s first overarching challenge is with the County’s methodology for determining need for future residential development. Need is determined using the basic variables of demand and supply, or capacity. Demand is, in turn, driven by projected population growth. Petitioner challenges each of the methodologies for calculating future need – population projections, residential demand analysis, and residential capacity analysis – each of which is taken in turn. Population Projections Section 163.3177(6)(a)4. requires that a local government FLUE “shall accommodate at least the minimum amount of land required to accommodate the medium [population] projections as published by the Office of Economic and Demographic Research for at least a 10-year planning period[.]” Section 1.7.A of the Operative Amendments provides that “base data for population estimates and projections comes from the U.S. Decennial Census” and that “[i]n the years between the decennial Census, the permanent population estimates and projections provided by BEBR [Florida’s Bureau of Economic and Business Research] shall be used[.]” Petitioner assails Section 1.7.A as inconsistent with the statute because it relies upon BEBR population estimates rather than Office of Economic and Demographic Research (OEDR). Petitioner’s argument is not persuasive. BEBR provides population estimates and projections to OEDR pursuant to a contract between the two entities. BEBR population estimates and projections are professionally-acceptable data commonly relied upon by jurisdictions in the State of Florida. Section 1.7.A and Policy 4.1D.2 require County staff to annually produce a Population Technical Bulletin utilizing the BEBR medium population estimates for the County. Data from the Population Technical Bulletin are utilized in the County’s residential demand analysis. The 2013 Bulletin reported a permanent population (i.e., excluding population in prisons and group homes) of 124,120 in 2010, and a projected permanent population of 136,621 for the year 2020 and 143,653 for the year 2025. Thus, the percentage increase in population is 1.10 percent for the year 2020 and 1.16 percent for the year 2025. 2. Residential Demand Methodology Petitioner’s next objection is with the County’s methodology for determining residential housing demand, set forth in Section 1.7 and Policies 4.1D.3.4/ Petitioner urges that the methodology is neither professionally acceptable, nor “based upon relevant and appropriate data and analysis,” pursuant to 163.3177(1)(f). Policy 4.1D.3 provides the methodology for calculating residential housing demand, and reads as follows: 4.1D.3 Future residential housing demand. Future housing demand projections shall be based on all of the following: The demand for future residential housing units in the unincorporated area shall be based on the percentage increase in permanent population projected by the Population Technical Bulletin. Occupied housing units (HO) are classified by the Census as those residential units in use by permanent population. Vacant seasonal housing units (HS) are classified by the Census as those residential housing units that are seasonally occupied by residents who spend less than 6 months of the year in Martin County. Permanent and seasonal population in residential housing is served by housing units in actual use (HU). Housing units in actual use (HU) equals the occupied housing units (HO) plus vacant seasonal housing units (HS). HU = HO + HS Vacant housing not in seasonal use shall not be used in calculating housing unit demand, but shall be used in calculating supply. Hotel/motel units shall not be used in calculating residential housing demand. The projected demand for housing units in the future shall be determined by dividing the projected, permanent population (housing), as defined in Chapter 2, by the permanent population (housing) identified in the last decennial Census. Projected permanent population (housing) / Permanent population (housing) in the last decennial Census = percentage increase in demand. This percentage increase in demand multiplied by the housing units in actual use (HU) in the most recent census year equals the projected residential housing unit need in the future period. Percentage increase in demand x HU = projected housing unit demand. Petitioner contends that the methodology is flawed because it excludes unoccupied housing units other than seasonal units, such as vacant rental units and residential units for sale. As such, Petitioner argues the methodology is not professionally acceptable. The 2010 Census counted 5,228 vacant non-seasonal residential units in Martin County. Because the County’s demand methodology ignores those units in calculating residential demand, Petitioner argues the methodology is not based on relevant and appropriate data. To the contrary, vacant non-seasonal housing is a variable relative to residential housing supply, rather than housing demand. The appropriate methodology for calculating housing demand is occupied permanent and occupied seasonal housing units multiplied by the percentage increase in population over the planning period. The County’s methodology is professionally acceptable and does not ignore data available at the time the Operative Amendments were adopted. The County previously used this same methodology for projecting residential housing demand, but it was not adopted as part of the Comprehensive Plan. 3. Residential Demand Calculations In August 2013 the County produced a Residential Demand Analysis implementing the methodology adopted by the Operative Amendments. In accordance with Policy 4.1D.3(1), the demand for future residential housing in the unincorporated area of the County is based on the percentage increase in permanent population projected in the Population Technical Bulletin. Using the 2010 data supplied by the U.S. Census for the unincorporated area, the formula yields 54,709 occupied units, plus vacant seasonal housing units of 6,203, for a total yield of 60,912 housing units in use in the unincorporated area of Martin County. Applying the percentage increase in projected population of 1.10 for the planning period to 2020, and 1.16 for the planning period to 2025, yields a demand for 6,091 residential units for 2020, and 9,746 units for 2025. Petitioner alleges that the County failed to follow its methodology adopted in Policy 4.1D.3 because it utilized 2010 Census data, rather than data from “the most recent census year” as stated in subsection (6) for calculation of the housing units in actual use (HU). Petitioner’s expert, Kenneth Metcalf, testified that the “most recent census data would have been 2012, rather than 2010.” Thus, Petitioner argues that the Policy is likewise flawed because it is not based on the best available data. The issue boils down to one of semantics – whether the term “most recent census year” in subsection (6) has a different meaning than the term “Census” used in subsection (2) to define the data source for the number of occupied housing units (HO) and the number of vacant seasonal housing units (HS). Petitioner points to the use of the term “last decennial Census” used in subsection (5) as the data source for permanent population numbers. Petitioner concludes that the County knew that “last decennial Census” had a different meaning than “most recent census year” and intended for the updated census information provided between the decennial Censuses to be utilized as the data set for projecting housing unit demand. Petitioner’s argument ignores that the variable HU, utilized in the residential demand formula in subsection (6), is defined in subsection (3) as the sum of factors derived from Census data: HU = HO + HS, where HO is occupied housing units classified by the Census as those residential housing units in use by permanent population, and HS is vacant seasonal housing units classified by the Census as those residential housing units that are seasonally occupied. If one ascribes a different meaning to the term “most recent census” than the term “Census,” the formula itself would be useless. HU is derived in subparagraph (2) from census data with a capital “C,” meaning the decennial Census. That same variable cannot be input in paragraph (6) as derived from a different source. Petitioner’s theory likewise ignores that the Operative Amendments specify that, between decennial Census years, BEBR data shall be used in projections of demand for future residential housing units. See §§ 1.7.A and 4.2.A(8). Thus, if the County intended to use data more recent than the last Census, it would have specified BEBR data. Moreover, the definition of “vacant seasonal housing units,” is “[t]he decennial Census count for residential housing units that are occupied, but for less than six months of the year.” See § 2.4(186). Petitioner also assails the residential demand analysis as flawed because it is based exclusively on permanent population estimates in violation of section 163.3177(1)(f)3. The operative statutory section provides, “[t]he comprehensive plan shall be based upon permanent and seasonal population estimates and projections[.]” § 163.3177(1)(f)3, Fla. Stat. Contrary to Petitioner’s assertion, the demand methodology includes seasonal population projections. Under Policy 4.1D.3, one factor in projecting housing unit needs is the housing units in actual use (HU), which is based on both permanent and seasonal population in residential housing. Petitioner further contends that Policy 4.1D.3 conflicts with Section 1.7, which states, “appropriate resident and seasonal population figures are critical to the local government in assessing future needs for housing units,” rendering the Comprehensive Plan internally inconsistent, in violation of section 163.3177(2). In light of the finding that Policy 4.1D.3 does not exclude seasonal population in calculating residential demand, Petitioner’s allegation has no merit. 4. Residential Capacity Analysis Petitioner next contends that the residential capacity analysis (RCA) methodology is not “based upon relevant and appropriate data and analysis,” pursuant to 163.3177(1)(f); is “limited solely by the projected population,” in violation of 163.3177(1)(f)3.; is internally inconsistent with other provisions of the Comprehensive Plan, in violation of 163.3177(2); and, as such, does not “establish meaningful and predictable standards for the use and development of land,” pursuant to 163.3177(1). In essence, Petitioner argues that the RCA overestimates the supply of land needed to meet residential housing demand in the 10- and 15-year planning periods. Petitioner’s argument relies, in part, upon a comparison of the results of the RCA methodology under the Operative Amendments to the results from applying the RCA adopted in 2009. The numbers are curious, indeed. Utilizing the 2009 RCA, the County determined a total capacity of 16,025 residential units in the primary and secondary USDs. Utilizing the 2013 methodology, the County determined a total capacity of 26,446 residential units in the primary and secondary USDs. Obviously, the total numbers are not dispositive of the issue. An examination of the methodology is required. Policy 4.1D.5 provides the RCA methodology, and reads as follows:5/ Policy 4.1D.5 Residential capacity analysis. Martin County shall produce a residential capacity analysis every five years. Residential capacity defines the available residential development options within the Primary and Secondary Urban Service Districts that can meet the demand for population growth consistent with the Future Land Use Map. Residential supply shall consist of: Vacant property that allows residential uses according to the Future Land Use Map. The maximum allowable density shall be used in calculating the number of available units on vacant acreage. For the purpose of this calculation, the maximum allowable density for wetlands shall be one-half the density of a given future land use designation. Subdivided single family and duplex lots. The following lot types shall be included in the residential capacity calculation: Vacant single family or duplex lots of record as of 1982 developed prior to the County’s tracking of development approvals. Vacant single family or duplex lots of record platted after 1982. Potential for residential development in Mixed Use overlays. Multifamily residential site plans with final approval shall be counted as vacant property under (1) above until such time as Certificates of Occupancy are issued. Where Certificates of Occupancy are issued for a portion or phase of a final site plan, appropriate acreage shall be removed from the vacant land inventory. Appropriate acreage shall be the same percentage of the project acreage as the number of units with Certificates of Occupancy is to the total number of units for the final site plan. Excess vacant housing not in use by permanent or seasonal residents. Excess vacant housing is a vacancy rate higher than 3% of the number of housing units in actual use. To calculate the residential supply of dwelling units that can be developed on existing vacant lands, Policy 4.1D.5 directs that the calculation begin by determining the maximum residential density allowed under each future land use category of the vacant lands. In the following discussion, the maximum density allowed under a future land use designation will be referred to as the “theoretical” maximum density. Development is generally prohibited in wetlands. However, landowners whose lands contain wetlands can transfer half the “lost” density associated with the wetland acreage to the uplands. Thus, in calculating the acreage of vacant lands available for residential development, the RCA subtracts half the acreage of wetlands. Other than wetlands, the RCA incorporates no limiting factors that prevent the attainment of theoretical maximum density on vacant acreage. The RCA methodology under the Operative Amendment differs from the 2009 RCA methodology which took effect in 2011. There are four major differences between the 2009 and the 2013 methodologies. First, the 2009 methodology included a deduction from vacant residential acreage of 8.5 percent to account for the loss of developable acreage due to presence of road rights-of- way and utility easements within which development is prohibited. Under the Operative Amendments, the RCA does not reduce available residential acreage to account for said infrastructure. The County offered no explanation for this change in the RCA methodology. Second, the 2013 RCA includes, as vacant residential acreage, subdivided but vacant lots in single family and duplex subdivisions. The County’s 2009 RCA did not include vacant lots in these “older” subdivisions as capacity. Including these units in the 2013 analysis accounted for approximately 3,300 residential units which were not counted as capacity in 2009. Samantha Lovelady is a Principal Planner for the County. She has a master’s degree in Urban and Regional Planning and is certified by the American Institute of Certified Planners. Ms. Lovelady testified that including the vacant lots is a more accurate reflection of residential capacity than that utilized in 2009. Third, the 2013 methodology counts as capacity vacant acreage within approved multifamily residential projects. Approved but unbuilt units in multifamily projects were counted as capacity in the 2009 RCA. The County tracks approved unbuilt projects through its Active Residential Development Program, or ARDP. In 2009, ARDP units were removed from the County’s vacant residential acreage analysis and counted as capacity in addition to vacant acreage. By contrast, the 2013 approach is based on acreage, rather than number of units. The 2013 approach first determines the percentage of total approved residential units to the number of units with certificates of occupancy. Then, the formula applies that same percentage to total project acreage to derive the “vacant acreage” of the multifamily project. Policy 4.1D.5(1) requires the County to utilize the theoretical maximum density of the underlying land use category to calculate the potential residential units on the vacant acreage in the multifamily projects, regardless of whether the overall project was approved for maximum density or some lesser density. The County’s main response to this allegation is that the total number of units derived from this part of the RCA was small, only 382, and that those units were counted under the former methodology, but outside the vacant acreage analysis. The County’s response misses the mark. The issue is not whether the methodology substantially increased the County’s capacity figures, but whether it is a professionally-acceptable method for gathering the data. Ms. Lovelady has been employed by the County for six years, and conducts statistical analysis, especially with regard to population projections, for the Planning Department and Metropolitan Planning Organization. Ms. Lovelady prepared both the 2009 and the 2013 Population Technical Bulletins. She also prepared both the 2013 Residential Demand Analysis and the 2013 Residential Capacity and Vacant Land Analysis based on the methodologies in the Operative Amendments. Ms. Lovelady testified that she would have calculated density on the vacant acreage at the same density as the built acreage within those developments. Ms. Lovelady further testified that she was not familiar with a methodology that calculated unbuilt acreage within a multifamily project at a density greater than the built acreage, either through professional planning literature or examples from any other communities. Ms. Lovelady’s testimony is accepted as competent and reliable.6/ Petitioner’s comprehensive planning expert, Dr. David Depew, also testified that the County’s methodology is not professionally acceptable because it ignores the development rights already assigned to the “vacant” property within approved multifamily projects. Based on the record evidence, the RCA methodology used to calculate the capacity of vacant acreage in approved multifamily developments is not professionally acceptable. Fourth, the formula includes as capacity “excess vacant housing” not in use by permanent or seasonal residents. For purposes of this calculation, the Operative Amendments define “excess vacant housing” as a vacancy rate in excess of three percent of the number of housing units in actual use. The variable allows for some vacancy rate in a “normal market,” but provides that excess vacancy is actually available to serve the projected population through the 10- and 15-year planning timeframes. The 2009 methodology did not include built, vacant housing in calculating residential capacity. Neither party presented any evidence on whether including vacant built housing in the RCA was professionally acceptable. Instead, the parties focused on the definition of excess as exceeding a three percent vacancy rate. Petitioner assails the three percent vacancy rate as neither appropriate nor professionally acceptable for the Martin County housing market. Yet, Petitioner introduced no evidence of a different vacancy rate which would be appropriate under normal market conditions. A three percent vacancy rate under normal market conditions in Florida is supported by the “Planner’s Estimating Guide, Projecting Land-Use and Facility Needs,” Arthur Nelson, FAICP, Planners Press, American Planning Association (2004).7/ Petitioner’s allegation with regard to use of the three percent vacancy rate in calculating residential supply was not proven beyond fair debate. 5. Merging Eastern and Indiantown USDs Petitioner argues that the 2013 RCA methodology exacerbates the distortion of residential capacity by considering together, or “merging,” the Eastern and Indiantown USDs in determining available capacity. The 2009 methodology treated the Eastern and Indiantown USDs separately for purposes of calculating residential demand and supply and arrived at separate housing needs determinations for the two USDs. Under the 2009 needs analysis, the County identified a shortfall of 616 units in the Eastern USD to meet demand for the 15-year planning period, and an oversupply of 6,260 units in the Indiantown USD for that same period. By comparison, the 2013 needs analysis yielded an oversupply of 20,768 units in the combined USDs to meet demand for the 10-year planning period, and an oversupply of 17,361 for the 15-year planning period. The 2009 methodology was based on population data showing that 87 percent of the County population resided east of the Florida Turnpike and an assumption that the trend would continue. The 2009 data showed an “imbalance” between the vacant land capacity in the Eastern and Indiantown USDs, and that, based on population projections for the Indiantown area, the imbalance was likely to continue. Having determined that separation of the USDs was appropriate for the County’s population trends, the County proceeded to calculate demand for the two areas separately. The County introduced no evidence of changed population data or trends to support aggregating the two USDs for purposes of calculating residential housing demand and supply in 2013. In fact, the data and analysis in the County’s 2013 Population Technical Bulletin revealed that 99.68 percent of the certificates of occupancy (COs) issued in the 2008-2012 timeframe were issued in areas east of the Florida Turnpike.8/ The County’s population projections by planning area, forecast 71.68 percent of the permanent population living east of the Florida Turnpike by the year 2020, and 86 percent by the year 2025.9/ The statistics are higher for the peak population during the same planning timeframes.10/ The County’s decision to combine the Eastern and Indiantown USDs in the 2013 methodology is not supported by relevant data and analysis available at the time the Operative Amendments were adopted. The County offers two explanations for the change, neither of which is persuasive. First, County staff testified that the County has always had only one primary and one secondary USD. County staff cited Policy 4.7A.7 as data supporting combining the Eastern and Indiantown USDs. Policy 4.7A.7, as renumbered by the Operative Amendments, sets forth the criteria for expanding the primary urban service district boundary. The policy does not mention either the Eastern or Indiantown USD. Ms. Lovelady did not explain how this policy relates to the issue of combining the Eastern and Indiantown USDs for purposes of calculating housing needs in the County.11/ Second, County staff argued that the Eastern and Indiantown USDs were only considered separately for the first time in the 2009 methodology, and that was in error. Separation of the two USDs for purposes of calculating housing demand and supply, as well as distributing housing capacity, was adopted in the 2009 EAR amendment, which was found “in compliance” in 2011. The undersigned cannot assume the 2009 methodology was flawed. This methodology was supported by data and analysis regarding the population distribution within the County. Further, County staff admitted that the housing demand has been, historically, lower in the Indiantown USD than in the Eastern USD. Ms. Lovelady offered her professional opinion that the difference in growth rate between the east and west areas is data supporting evaluating the housing needs separately. Neither the 2013 demand methodology nor the 2013 RCA is supported by data and analysis regarding population projections and trends in the County. Combining the Eastern and Indiantown USDs is not an appropriate reaction to data showing a disparity in growth rates between the two USDs. Petitioner proved, beyond fair debate, that neither Policy 4.1D.3 nor Policy 4.1D.5 is a professionally-acceptable method of collecting the applicable data. 6. Maximum Theoretical Density Although not a change between the 2009 and 2011 RCA, Petitioner also challenged the 2013 RCA as not based on data and analysis because it does not account for development restrictions which prevent a landowner from attaining maximum theoretical density. Petitioner’s expert, Dr. Depew, testified that the methodology ignores the fact that certain types of vacant land which may be designated for residential use cannot be developed at maximum capacity. Petitioner cited as examples, Policy 4.1F.2 (the County’s “tiered development” policy), as well as unspecified setback and buffering requirements, and the County’s former 8.5 percent reduction in vacant residential acreage to account for infrastructure needs. Policy 4.1F.2 prohibits approval of maximum density for projects located adjacent to lands approved for “lower density” uses. Application of the policy is project-specific and dependent on the location and uses of the surrounding properties. Required setbacks and buffers between land uses may be found in either the Comprehensive Plan or the County’s land development regulations. Setbacks and buffers are very dependent on location of the project and the characteristics of surrounding uses. For the reasons discussed in the Conclusions of Law, Petitioner did not prove beyond fair debate that the RCA is flawed because it does not account for limitations preventing attainment of maximum theoretical density. Real Estate Markets Section 163.3177(6)(a)4. requires that “the amount of land designated [by the local government] for future land uses should allow the operation of real estate markets to provide adequate choices for permanent and seasonal residents[.]” Petitioner alleges the Operative Amendments contravene this provision by combining the Eastern and Indiantown USDs for purposes of residential housing capacity. Applying the 2009 methodology, the County concluded it could accommodate 94 percent of the residential need within the Eastern USD for the 15-year planning period, and 1,569 percent of the residential need for the Indiantown USD for that same period (an overcapacity of 6,260 units). Applying the 2013 methodology, combining the Eastern and Indiantown USDs, the County concluded that it can accommodate 466 percent of the residential housing need for the 10-year planning period and 291 percent for the 15-year planning period. Dr. Henry Fishkind is an economist with significant experience in analyzing real estate markets, as well as developing property for clients throughout Florida. He testified, credibly, that the residential housing market in the eastern part of the County is unique and distinct from the Indiantown market. The eastern market is characterized by high- value coastal property, including golf course communities and master-planned developments. By contrast, the “market in and around Indiantown is relatively affordable housing for people who either work in the agricultural industries thereabouts, or travel south into West Palm Beach and Broward. There is very little seasonal or high-end housing.12/ Dr. Fishkind concluded that the County’s methodology interferes with operation of the housing market, limits choices, limits supply, and increases prices. In response to Dr. Fishkind’s testimony, the County offered the testimony of Charles Pattison, Policy Director for 1000 Friends, who was qualified as an expert in comprehensive planning. Mr. Pattison’s testimony on the issue was conclusory in nature. He expressed the opinion that the Operative Amendment “does not violate that standard” and that, under the Amendment, when there is a shortfall in residential capacity, the County could “potentially expand the urban service area boundary or just [] provide additional capacity inside the urban boundary.” Mr. Pattison professed no expertise in, or familiarity with, the housing markets in the Indiantown and Eastern USDs or relate his testimony to the economic impact of merging the two USDs for purposes of calculating residential capacity. Dr. Fishkind’s testimony is accepted as more persuasive on the issue. The County argues that the Operative Amendments are not contrary to section 163.3177(6)(a)4., because they do not change the amount of land designated for any future land use category. The County is correct that the Operative Amendments do not include any change to the Future Land Use Map (FLUM). However, under the Operative Amendments, there is a direct, fundamental relationship between the RCA and the County’s ability to accommodate future urban residential demand within the primary and secondary USDs. Policy 4.1D.6 provides, The residential capacity analysis will determine if the future demand for residential units exceeds the supply for residential units as provided in the residential capacity analysis. When the undeveloped residential acreage within either the Primary Urban Service District or the Secondary Urban Service District no longer provides for projected population growth for the fifteen year planning period, planning for expansion of residential capacity shall commence. When the undeveloped acreage within either the Primary Urban Service District or the Secondary Urban Service District provides for no more than 10 years of projected population growth, the County is required to expand capacity. By spreading the capacity to meet housing demand across both the Indiantown and Eastern USDs, the Operative Amendments effectively increase the threshold which triggers expansion of, or a density increase within, the USDs. It is illogical, and perhaps contrary to the intent of the statute, to require an affected person to wait for a FLUM amendment changing the amount of land designated for urban uses, to challenge the methodology by which that decision was made. Especially when the challenge relies upon an argument that the methodology is designed to prevent, or at least delay, said FLUM amendment. Commercial and Industrial Lands Petitioner asserts that Policy 2.4C.3 limits the extent of commercial and industrial land uses to population growth, and is thus not based upon relevant and appropriate data and analysis as required by section 163.3177(1)(f).13/ Policy 2.4C.3 reads as follows: Policy 2.4C.3. The county shall limit commercial and industrial land use amendments to that needed for the projected population growth for the next 15 years. The determination of need shall include consideration of the increase in developed commercial and industrial acreage in relation to population increases over the preceding ten years, the existing inventory of vacant commercial and industrial land, and the goals, objectives, and policies of the [Comprehensive Plan], including the Economic Element. The County shall update this analysis at least every two years. While the first sentence appears to limit commercial and industrial land uses based solely on population growth, the remainder of the policy includes other variables, such as existing vacant commercial and industrial land and policies within the Economic Element. This fact was confirmed by Mr. Pattison’s testimony. Petitioner did not demonstrate beyond fair debate that the Policy 2.4C.3 is not based on data and analysis. The “Stricter Rule” Among the contested provisions in Chapter 1, is language providing that where two or more policies conflict, the stricter policy will govern. The applicable provisions read, as follows: Section 1.1 – Purpose * * * In furtherance of these purposes the more restrictive requirements of this chapter and of the overall goals, objectives and policies of Chapter 2 shall supersede other parts of the Plan when there is conflict. * * * Section 1.4. – Comprehensive Basis * * * Where one or more policies diverge, the stricter requirement shall apply. Where a subject is addressed by two or more provisions of the Comprehensive Plan, all provisions apply, and the stricter provision shall prevail to the extent of conflict. Plan policies addressing the same issue shall be considered consistent when it is possible to apply the requirements of both policies with the stricter requirements governing. Petitioner first argues that this “stricter rule” both acknowledges and enables internal conflict within the Comprehensive Plan contrary to section 163.3177(2), which requires the several elements of the comprehensive plan “shall be consistent.” Rules of interpretation, such as the stricter rule, are commonly found in local government comprehensive plans. The fact that the County included the stricter rule of interpretation is not evidence, in and of itself, that inconsistencies exist within the Comprehensive Plan. Petitioner cited a single example14/ of an internal inconsistency: Objective 2.2A and Policies 2.2A.1 and 2.2A.2.15/ Objective 2.2A expresses the County’s objective to preserve “all wetlands regardless of size unless prohibited by state law.” Policy 2.2A.1 provides, “[a]ll wetlands shall be preserved except is [sic] set out in the exceptions listed below.” Policy 2.2A.2 provides three exceptions to the requirement that all wetlands be preserved. Dr. Depew testified that the statements are contradictory and it is not clear which one is stricter. Dr. Depew’s testimony, as to this issue, is not accepted as either credible or persuasive. The cited objective and policies set out a general rule with a series of exceptions, not an uncommon legislative construction. The provisions are not in conflict. Thus, the stricter rule does not apply. Petitioner’s cited example is insufficient evidence on which to base a finding that the stricter rule acknowledges any internal inconsistencies. As to Petitioner’s contention that the stricter rule enables unspecified inconsistencies to continue indefinitely, no credible evidence was presented. County staff acknowledged that conflicting provisions in the Comprehensive Plan have been discovered in the past, usually when reviewing a specific application for development order. Nicki Van Vonno, the County’s Director of Growth Management, described the process by which conflicting policies have been reconciled by staff. No evidence was introduced on which to base a finding that once the County discovered conflicting provisions, the County failed to correct said conflicting provisions. The undersigned cannot infer that fact from the evidence. Petitioner next contends the stricter rule lacks meaningful guidance in determining which policy or provision would apply in the event of conflict. Ergo, Petitioner argues, the provisions render the Comprehensive Plan lacking in “meaningful and predictable standards for the use and development of land” as required by section 163.3177(1). In support of its argument, Petitioner highlights that the Comprehensive Plan does not define the term “stricter,” leaving staff without guidance in determining which unspecified conflicting provision would apply in a particular development scenario. Section 2.4.10 of the Comprehensive Plan provides that where a term is undefined, it shall be given its customary, or ordinary, meaning. The plain and ordinary meaning of strict is “stringent in requirement or control.” Merriam Webster 2d www.merriam-webster.com/dictionary. Clyde Dulin was the County’s Senior Planner responsible for preparation of agenda items and packages for the County Commission on the Operative Amendments. Mr. Dulin is currently a principal planner with the County. In his experience interpreting the County’s Comprehensive Plan, he has been called on to reconcile conflicting provisions, especially with regard to conflict between the plan and the County’s land development regulations. Mr. Dulin acknowledged that County staff may be likewise required to reconcile any conflict if the Operative Amendments become effective. Nicki Van Vonno has served as Director of the County’s Growth Management Department since 1999, and has previously served the County in the Growth Management Department in various professional planning roles since 1983. Ms. Van Vonno obtained her planning certification from the American Institute of Certified Planners in 1991. Ms. Van Vonno explained that, when conflicting provisions arise, it is usually in the context of reviewing a proposed Comprehensive Plan amendment, or applying the Comprehensive Plan to a specific development proposal. In such cases, staff discusses the issue and consults with other County department staff who may have expertise in the issue area. Both Ms. Van Vonno and Mr. Dulin were credible witnesses, and their testimony is determined by the undersigned to be reliable. County staff are capable, in most instances, of determining, between conflicting provisions, which is the more stringent requirement or control. Despite staff’s acknowledged experience interpreting and applying the Comprehensive Plan, Petitioner emphasized Mr. Dulin’s and Ms. Van Vonno’s testimony that there may be development scenarios in which staff could not determine which provision was more stringent. In such cases, the County Commission itself may be called upon to make the final decision. The fact that the County Commission may be called upon to interpret its own legislative provisions does not necessitate a finding that the stricter rule lacks meaningful guidance for County staff. Nor does that fact support a finding that the County Commission will make said decisions arbitrarily, thus unpredictably, as pronounced by Petitioner’s expert.16/ Petitioner further contends that Section 1.1(5) and 1.4 are in conflict with one another, thus both creating an internal inconsistency and failing to provide meaningful guidance for application of the Comprehensive Plan. This contention is without merit. The Comprehensive Plan contains 17 chapters. Section 1.1(5) states that where conflict exists, the more restrictive provisions of Chapter 1 and 2 supersede provisions in other chapters. Section 4.1 provides that, in the event of a conflict, the more restrictive provisions of the plan, generally, prevails. Granted, the language is inartfully drafted. However, inartful drafting does not render the statements in conflict. Read together the language provides that, in the event of conflict, Chapters 1 and 2 prevail if provisions therein are more restrictive than provisions in other chapters. If the conflict is between chapters other than Chapters 1 or 2, the more restrictive provision of the remaining chapters applies. Next, Petitioner argues that the stricter rule is not supported by data and analysis which is required by section 163.3177(1)(f). Sections 1.1 and 1.4 are rules for interpreting and applying the Comprehensive Plan. The various experts disagreed about whether these sections are substantive, thus required to be supported by data and analysis, or procedural, thus not required to be supported by data and analysis. The issue of whether Sections 1.1 and 1.4 are substantive, rather than procedural, thus subject to data and analysis requirements, is at least the subject of fair debate. Balanced Development Section 163.3177(1) requires a local government comprehensive plan to “provide the principles, guidelines, standards, and strategies for the orderly and balanced future economic, social, physical, environmental, and fiscal development of the area that reflects community commitments to implement the plan and its elements.” Section 163.3177(6)(a)4. provides “the amount of land designated for future planned uses shall provide a balance of uses that foster vibrant, viable communities and economic development opportunities[.]” Petitioner contends the Operative Amendments do not balance future economic development with environmental concerns or provide a balance of uses to foster economic development opportunities. Petitioner advances several bases for this allegation. First, Petitioner complains that the County conducted no analysis of the economic impact of the Operative Amendments. The County was not required to prepare an economic analysis of the Operative Amendments prior to their adoption. Next, Petitioner argues that the Operative Amendments exalt environmental concerns over other development considerations, in part because the Operative Amendments were drafted by Ms. Hurchalla, who has an admitted “environmentalist policy bent.” The Comprehensive Plan does demonstrate a commitment by the County to protecting the environment. However, a plan that contains stringent environmental protections is not necessarily out of balance as a whole. Petitioner cites Sections 1.1 and 1.5 in support of its argument, urging those sections make environmental issues paramount and everything else, including economic development, subservient. The plain language of Section 1.1 does not support Petitioner’s contention. Section 1.1 cites “protect and restore natural and manmade resources” as one of many purposes of the Comprehensive Plan, along with “achieve and maintain conservative prudent fiscal management” and “maintain the character, stability and quality of life for present and future County residents.” No one purpose is afforded more weight than the others.17/ Further, under the Operative Amendments, “quality of life” includes both environmental and business concerns, as well as fiscal prudence. Section 1.5 provides that a principle goal of the County is to promote balanced, orderly, sustainable economic growth by creating an economic environment “consistent with section 1.1” to enhance prosperity in the community. This section recognizes both the environment and quality of life as foundations of the County’s economy. According to Tom Pelham, one of the Respondent’s experts who has been professionally involved with the Martin County plan for a number of years, the County has demonstrated a strong commitment to implementing its plan through the USDs in the last 30 years. Petitioner’s expert also opined that the Operative Amendments fail to balance environmental and economic development issues by allowing, through Section 1.4, Chapters 1 and 2 to “trump” other chapters of the Comprehensive Plan. Chapter 2 provides the overall goals and objectives of the Comprehensive Plan, but is not limited to environmental goals. Chapter 2 includes measures relating to providing public facilities concurrent with needs of development, and measures for “prudent fiscal management,” among others. As previously found, section 1.4 provides a method for reconciling competing provisions in the event they are discovered. Petitioner also contends the Operative Amendments fail to designate sufficient land for commercial use, yet another basis for Petitioner’s contention that the plan is out of balance. Petitioner’s argument relies heavily on the assertion that the Operative Amendments limit commercial land use designations to permanent population growth. Having already rejected this interpretation of Policy 2.4C.3, the undersigned will not rely on that policy to support a finding that the Operative Amendments do not balance environmental and economic development issues. Petitioner is correct that the data available to the County in 2009 demonstrated a deficit of commercial land necessary to accommodate future economic needs. That finding remains in the Operative Amendments at Section 4.2A(12). The applicable Section of the Comprehensive Plan reads, as follows: The raw data appear to show a significant deficit of commercial land necessary to accommodate economic needs. Any attempt to remedy the deficits should be based on geographic area in order to reflect sustainability principles and provide population centers with necessary services in an orderly and timely fashion. Further analysis is planned to continue refining the inventory and consider whether population demands for retail/commercial services should be applied to the vacant land. The Operative Amendments do not designate any new land for commercial use. Prior to adopting the Operative Amendments, the County began updating its vacant commercial and industrial sites inventory. The County’s strategy is to identify existing sites with infrastructure available to serve commercial and industrial needs, and designate those sites for expedited permitting. The strategy includes identifying parcels with outdated zoning inconsistent with the Comprehensive Plan as candidates for rezoning to effectuate use for commercial or industrial purposes, combining adjacent parcels in common ownership, and identifying undeveloped sites with approved site plans for remarketing. This approach is consistent with the County’s urban containment strategy which it has sustained since the 1990 Plan. Subsequent to the 2009 EAR amendments, the County adopted a FLUM amendment, known as Ag-Tec, which added substantial amounts of commercial and industrial land to the County’s inventory. Dr. Fishkind opined that despite that addition, the County does not have adequate commercially- designated land to serve future needs. Dr. Fishkind’s analysis was criticized for excluding the Ag-Tec property because he relied upon the Property Appraiser’s use designations, rather than the County’s land use designations. The issue of whether the Comprehensive Plan, under the Operative Amendments, designates adequate lands for commercial use to serve future needs is at least fairly debatable. Petitioner also cited Objective 2.4C and Policy 2.4C.1 in support of its argument that the Operative Amendments do not balance economic concerns. Petitioner did not identify Objective 2.4C and Policy 2.4C.1 as compliance issues in its Amended Petition for Formal Administrative Hearing. Neither that Objective nor those policies were identified in the parties’ prehearing stipulation. Although testimony regarding those provisions was offered at the final hearing, that evidence has been disregarded and does not form the basis of any finding of fact herein.18/ Finally, Petitioner argues the Operative Amendments do not balance environmental and economic issues because they do not allow the operation of real estate markets to provide adequate choices for residents. While Petitioner proved its allegation that the RCA does not allow the operation of real estate markets to provide adequate choices for residential housing, that finding does not support a finding that the Operative Amendments do not balance economic and environmental concerns. In fact, the undersigned’s determination that the Operative Amendments interfere with the normal operation of the housing market is dependent on the merging of the Indiantown and Eastern USDs for purposes of calculating residential demand and capacity, and is in no way dependent on environmental factors. Thus, the matter of whether the Operative Amendments balance environmental and economic concerns is at least a matter of fair debate. Supermajority Vote Next, Petitioner challenges Section 1.11.D(6) of the Operative Amendments, which require “four votes for transmittal and for adoption” of plan amendments involving a number of critical issues specified therein. Petitioner argues that the supermajority vote requirement is a substantive requirement of the Comprehensive Plan unsupported by data and analysis. The County maintains the supermajority vote requirement is a simple procedural issue requiring neither data nor analysis in support. Petitioner concludes the requirement is substantive because it controls how the County Commission sets development policy by making it more difficult to amend the Comprehensive Plan in the future based on changed conditions. Petitioner’s expert, Dr. Depew, reasoned the vote requirement must be based on some data identifying a problem which necessitates the supermajority vote. Petitioner’s arguments are not persuasive. Regardless of the supermajority vote requirement, future amendments affecting identified critical issues (e.g., changes to the USD boundaries) must be supported by data and analysis, which may include changed conditions. The fact that the County Commission may have to adopt those changes by four votes rather than three, does not relieve the County Commission from supporting its legislative changes with appropriate data. The supermajority vote issue is largely a legal question, rather than one to be discerned based on expert planning opinion. For the reasons discussed in the Conclusions of Law, Petitioner did not prove beyond fair debate that the supermajority vote is not supported by data and analysis. Miscellaneous Issues In its Amended Petition, Petitioner raised the following additional allegations: Neither the 15-year planning timeframe nor the density allocations in Objective 4.1F were supported by data and analysis; and, the RCA is inconsistent with section 163.3177(6)(f)(minimum requirements for the housing element). Petitioner did not present any evidence on these issues. Thus, Petitioner did not prove these allegations beyond fair debate.
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 Plan Amendment is not “in compliance.” DONE AND ENTERED this 2nd day of June, 2015, 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 2nd day of June, 2015.
The Issue Appellant raises three issues on appeal: (1) whether there is competent substantial evidence to support certain findings in the Resolution; (2) whether the Commission departed from the essential requirements of the law by incorrectly applying and interpreting the definition of "public buildings"; and (3) whether the Commission denied Hoover "a fair and impartial hearing" by basing its decision "on a plebiscite from a hostile crowd." For the reasons expressed below, the Commission's Resolution is affirmed.
The Issue Whether Amendment 15-1ACSC to the Monroe County Comprehensive Plan, adopted by Ordinances 003-2016 and 004-2016 on February 10, 2016, is “in compliance,” as that term is defined in section 163.3184(1)(b), Florida Statutes (2015).1/
Findings Of Fact The Parties The County is a political subdivision of the State of Florida with the duty and responsibility to adopt and maintain a comprehensive growth management plan pursuant to section 163.3167, Florida Statutes. Petitioners reside in, and own property within, the County. Petitioners submitted oral or written comments concerning the Plan Amendment to the County during the period of time beginning with the transmittal hearing for the Plan Amendment and ending with the adoption of the Plan Amendment. Rockland owns the property subject to the Plan Amendment and is the applicant for the Plan Amendment.4/ The Navy owns the Station in the County and submitted oral or written comments concerning the Plan Amendment to the County during the period of time beginning with the transmittal hearing for the Plan Amendment and ending with the adoption of the Plan Amendment. The Subject Property The Plan Amendment affects five different parcels of property in the Lower Keys. The parcels are owned by Rockland and are all either current or former mining sites with developed ancillary uses. Most of the property is vacant scarified land and the remainder supports warehousing and distribution facilities and related uses. Four of the parcels are located on Rockland Key (the Rockland parcels): two along U.S. Highway 1 and two on the north side of the Key along the Gulf of Mexico. Together, the four parcels total 29.59 acres. The existing FLUM designation of the parcels is Industrial, the primary purpose of which is to “provide for the development of industrial, manufacturing, and warehouse and distribution uses.” FLUE Policy 101.4.7. (2015).5/ The non-residential development potential of the property is between 322,235 and 773,364 square feet. The Industrial category also allows residential development at a density of one dwelling unit per acre (1du/acre) and a maximum of 2du/buildable acre.6/ Under the existing FLUM category, the Rockland parcels could be developed for a maximum of 47.3 residential units.7/ The parcel on Big Coppitt Key (the Big Coppitt parcel) is a narrow L-shaped 14.8-acre property bordering a former mining pit. The parcel runs north along the western boundary of Petitioners’ residential subdivision, then west along the Gulf of Mexico. Petitioners’ homes are located directly adjacent to the Big Coppitt parcel. The majority of the parcel (12.33 acres) is designated Industrial and the remainder (2.5 acres) as Mixed Use/Commercial Fishing (MCF). The non-residential development potential of the Big Coppitt parcel is between 161,498 and 365,816 square feet. Under the existing FLUM categories, the Big Coppitt parcel could be developed for a maximum of 43.7 dwelling units. Together, the subject property could be developed for a maximum of 91 dwelling units or 1.1 million square feet of non- residential uses, or some proportional mix thereof. The Plan Amendment The Plan Amendment changes the FLUM designation of the Rockland parcels from Industrial to Commercial. The Commercial FLUM category does not allow residential development, thus limiting future development of the property to between 193,341 and 644,470 square feet of non-residential uses. The Plan Amendment changes the FLUM designation on the Big Coppitt parcel to Mixed Use/Commercial (M/C), which allows residential development at a maximum density of 2-8du/acre. Under the M/C designation, the Big Coppitt parcel could be developed for a maximum of 213.6 dwelling units. Under the M/C designation, the Big Coppitt parcel has a non-residential development potential of between 64,599 and 290,697 square feet. However, the Plan Amendment also creates FLUE Policy 107.1.6, a sub-area policy applicable to the Big Coppitt parcel. The policy restricts development to deed- restricted affordable housing units (minimum mix of 10 percent median-income and at least 20 percent combination of low- and very low-income categories) and employee housing. The policy prohibits all non-residential development of the property, including dredging, and prohibits development of market-rate and transient-dwelling units. As adopted, the Plan Amendment authorizes development of up to 213 affordable housing units, no market rate units, no transient units, approximately 644,000 square feet of non- residential uses, and no dredging of the existing mining pit on the Big Coppitt parcel. Compared to the existing FLUM designations of the subject property, that is a potential increase of 114 units and a decrease of approximately 456,000 square feet of non-residential development. Naval Air Station Key West Rockland Key is located directly across U.S. Highway 1 from the Station. The Big Coppitt parcel is in close proximity to the Station. The Station’s Boca Chica airfield has been in operation since 1943. The primary mission at Boca Chica is to train pilots for air-to-air combat and to meet aircraft carrier qualifications. Fighter pilots from all over the country are trained for air-to-air combat primarily at the Station. The Station is uniquely situated to accomplish its training mission because there is little commercial air traffic and a large unencumbered airspace in close proximity to the airfield. Pilots who take off from Boca Chica quickly arrive in vast airspaces west and south of the Station for air-to-air combat training. This allows for very efficient use of fuel for training. Pilots train for aircraft carrier qualifications through field carrier landing practice at Boca Chica. Field carrier landing practice requires flying the same touch-and-go pattern at the field that the pilot would fly at an aircraft carrier. Each pilot in a squadron must fly the pattern accurately to a certain “readiness level” before the squadron can be certified to deploy. The readiness level is based on the number of sorties completed. One sortie includes at least one takeoff and one landing. Boca Chica typically operates Monday through Saturday from 8:00 a.m. to 10:00 p.m. However, the airfield operates outside of those hours, and on Sundays, when training missions dictate. The airfield averages 36,000 sorties per year. The Station is extremely valuable to the Department of Defense due to the size of the airspace, weather, lack of commercial traffic interference, and capacity for training missions. As the commanding officer of the Station, one of Captain Steven P. McAlearney’s primary duties is to protect the military value of the Station by protecting the airspace and existing operation capacity. As such, Captain McAlearney is concerned with encroachment by development incompatible with Station operations. Navy AICUZ The Navy has established a Military Installation Area of Impact (MIAI) surrounding the Station. In its most recent Environmental Impact Statement (EIS), the Navy has designated Air Installation Compatible Use Zones, or AICUZ, within the MIAI. The AICUZ are mapped as noise contours extending outward from the Station. Each contour indicates a range of day- night average noise levels (DNL) which are expected to impact properties within the specific contour. The AICUZ map is accompanied by a Land Use Compatibility Table (the table) containing recommendations for compatibility of various land uses within the specific noise contours. According to the table, residential land uses are “generally incompatible” in both the 65-69 and 70-74 DNL zones, also referred to as “noise zones.” The Navy discourages residential use in DNL 65-69 zones, and strongly discourages residential use in DNL 70-74 zones. The table deems residential use in the 75-79 DNL zone as “not compatible” and recommends local government prohibit residential use in those zones, also referred to as “incompatibility zones.” FLUE Policy 108.2.5 On May 22, 2012, the County adopted FLUE Policy 108.2.5, which took effect on July 25, 2012. The Policy, which is lengthy and is not set forth in full herein, generally prohibits applications to change FLUM designations within the MIAI after the Policy’s effective date. However, the Policy sets forth a procedure by which FLUM amendment applications “received after the effective date of this [p]olicy,” which increase density or intensity within the MIAI, may be approved. The procedure requires the County to transmit the application to the Navy for a determination of whether the property subject to the application is within a noise zone or an incompatibility zone, and whether the proposed density or intensity is incompatible with Station operations. If the Navy determines an application is within an incompatibility zone, the Policy requires the County to determine whether appropriate data and analysis supports that determination, and, if so, maintain the existing designation. Additionally, the Policy states that “Monroe County shall encourage the Navy to acquire these lands . . . for the protection of the public health, safety, and welfare of the citizens of the Florida Keys.” If the Navy determines an application is within a noise zone, the Policy requires the applicant to submit a supplemental noise study, based on “professionally acceptable methodology,” to establish whether the property is within a 65 DNL or higher zone. The Navy has nine months from receipt of the supplemental noise study to provide comments to the County concerning whether the noise study is based on professionally accepted methodology. After receipt of the Navy’s comments, the County may allow the application to proceed through the public hearing process, but must also adopt a resolution determining whether the property subject to the application is subject to the density and intensity restrictions within the MIAI. Affordable Housing The parties stipulated that the County has a demonstrated community need for affordable housing. A 2014 study projected a deficit of 6,500 affordable units in the City of Key West alone. In 2013, 51 percent of all County households were “cost-burdened,” meaning they paid more than 30 percent of their income for housing. That figure compares to 43 percent of cost-burdened households statewide. In the County, more than half of renters are cost- burdened and about 45 percent of home owners are cost-burdened. The lack of affordable housing in the County is exacerbated by four factors: high land values; geographic and environmental limitations on development; artificially- controlled growth of housing supply8/; and a tourist-based economy which drives lower paying service-sector jobs. The lack of affordable housing impacts not only the tourism industry, but also public-sector agencies, including the school system, emergency management, and even the County’s Planning and Environmental Resources Department. Lack of affordable housing makes it harder to recruit and retain school teachers, police, and firefighters, among other public-sector employees. High turnover rates in these areas present budget and personnel challenges for the County. The County has 460 existing affordable housing units for the very-low, low-, and median-income households, and 354 units for moderate-income households (a combination of rental and owner-occupied units). The greatest percentage of existing affordable housing units is deed-restricted for the moderate-income range. The yearly income limit for a three-person household (a couple with a child) in the very-low income category is $52,400; the low-income category is $83,800; and the median- income limit is $104,800. The moderate-income level maximum is $125,760 for rental, and $167,680 for owner-occupied. The County has approximately 700 affordable housing units to be allocated through the year 2023. The Plan Amendment Application On May 18, 2012, Rockland applied for a FLUM amendment which included the Rockland parcels, but did not include the Big Coppitt parcel. The application affected 141 acres (approximately 77 upland acres). As proposed, the application would have allowed development of a maximum of 385 dwelling units, 1,155 transient rooms (or spaces), and 500,940 square feet of non-residential uses, or some proportional mix thereof. The application was reviewed by the County’s development review committee (DRC) on November 27, 2012, which recommended denial due to the density and intensity impacts. Largely in response to the DRC’s concerns, and after lengthy discussions with County staff, Rockland submitted revisions to its application on April 1, 2014. The revisions greatly reduced the overall size, as well as the density and intensity impacts of, the proposed amendment. The revised application included the Big Coppitt parcel for the first time. Rockland revised the application again on June 17, 2014, to reflect the same proposed acreages and designations as the approved Plan Amendment. The application, as amended on June 17, 2014, was approved by both the DRC and the County Planning Commission. On December 10, 2014, the Board of County Commissioners voted to transmit the application to the state land planning agency, the Department of Economic Opportunity (DEO), pursuant to section 163.3184(4).9/ On March 20, 2015, DEO issued its Objections, Recommendations, and Comments (ORC) report objecting to the Plan Amendment, particularly the increased residential development potential on the Big Coppitt parcel. The ORC report included the following relevant objections: The Plan Amendment is inconsistent with policy 108.2.6, which adopts the MIAI Land Use Table, designating residential uses as “generally incompatible” in the 65-69 DNL zone. The Big Coppitt parcel lies within the 65-69 DNL zone where residential use is discouraged. The Land Use Table notes that “[a]lthough local conditions regarding the need for affordable housing may require residential uses in these [z]ones . . . . The absence of viable alternative development options should be determined and an evaluation should be conducted locally prior to local approvals indicating that a demonstrated community need for the residential use would not be met if development were prohibited in these [z]ones.” While the applicant supports the application by arguing that it will support a multi- family affordable housing development, nothing in the amendment provides assurance that any future residential development on this property will be for affordable housing. While there is a shortage of affordable housing in the County, especially in the lower keys, there is no shortage of vacant lots with density for housing. The County failed to establish that, “in the absence of viable alternative development . . . a demonstrated community need for the residential use would not be met if development were prohibited” on the parcel. The [Big Coppitt] parcel is entirely within the Coastal High Hazard Area (CHHA) and therefore, inconsistent with Monroe County comprehensive plan policy 101.14.1, which states, “Monroe County shall discourage developments proposed within the [CHHA].” The [Big Coppitt] parcel is very narrow and development of the area adjacent to the mine pools could have negative water quality impacts on the tidally influenced mining pool and is inconsistent with the Principles for Guiding Development in the Florida Keys. After consideration of the ORC report, Rockland submitted a text amendment application creating FLUE Policy 107.1.6 to restrict development on the Big Coppitt parcel to affordable housing. In addition, the sub-area policy requires noise attenuation of all habitable buildings in the 65-69 DNL to an indoor noise level reduction of at least 25 decibels (25dB). Similarly, the Policy requires noise attenuation of habitable buildings within the 70-74 DNL zone to achieve an indoor noise level reduction of at least 30dB. The amendment to the FLUM remained the same. The County adopted both the FLUM amendment, and the text amendment creating Policy 107.1.6, on February 16, 2016, and forwarded the Plan Amendment to DEO for review, pursuant to 163.3184(4)(e)2. On April 25, 2016, DEO issued a notice of intent to find the Plan Amendment “in compliance.” The instant Plan Amendment challenge followed. Petitioners’ Challenge Petitioners allege two bases on which the Plan Amendment should be found not “in compliance.” First, Petitioners allege the Plan Amendment is internally inconsistent with Plan Policies 108.2.5 and 101.14.1, in violation of section 163.3177(2), which states that “[c]oordination of the several elements of the [Plan] shall be a major objective of the planning process. The several elements of the comprehensive plan shall be consistent.” Second, Petitioners allege the Plan Amendment is inconsistent with the Principles, in violation of section 163.3184(1)(b). That statute requires all plan amendments in the Keys Area of Critical State Concern (ACSC) be consistent with the applicable principles. Policy 108.2.5 Petitioners allege that Policy 108.2.5 applies to the Plan Amendment because the application was filed after Policy 108.2.5 took effect on July 25, 2012. If proven, Policy 108.2.5 would require the applicant to follow the procedure for approval of residential density in the noise zones, including submission of a supplemental noise study and a legislative finding as to whether the Plan Amendment is subject to the density and intensity restrictions in the MIAI. Rockland’s original application for the Plan Amendment was made on May 18, 2012, prior to the effective date of Policy 108.2.5. Petitioners argue that the revised application on April 1, 2014, should be considered a new application subject to Policy 108.2.5 because it was made two years after adoption of the Policy and contained significant substantive changes to the original application. In essence, Petitioners argue that the 2014 revised application (and subsequent changes thereto) constitute a new and different application than the May 2012 application. Petitioners introduced no evidence that any administrative provision of the Plan, or any other County ordinance or regulation, provides for expiration of an application for plan amendment after a specified time period. The April 2014 changes were filed with the County in strike-through/underline (legislative format) as “revisions to its FLUM amendment application.” The June 17, 2014, changes were likewise filed in legislative format as “additional revisions to its FLUM amendment application.” One of the main reasons for delay between the May 2012 application and the April 2014 revisions was County staff’s recommendation that the Rockland parcels be rezoned to the Commercial-2 (C-2) zoning category, a category which was being created and would be consistent with the Commercial FLUM category. Staff recommended the category because it would prohibit residential uses but allow Rockland to proceed with plans for commercial and retail development of the formerly industrial property. The C-2 zoning category was not finalized and adopted by the County until early 2014. The application, as revised in June 2014, was not reviewed again by the DRC, but was set for hearing by the Planning Commission on August 27, 2014, and considered by the County Commission on December 10, 2014, which approved the application for transmittal. Rockland was not required to pay a second application fee for the revised application in 2014; however, the County charged Rockland an additional fee to cover a second hearing before both the Planning Commission and the County Commission. The County’s director of planning and environmental resources, Mayte Santamaria, testified that it is not unusual for delays to occur between initial applications for, and final adoption of, plan amendments. Some applicants request an application be put on hold while they address issues with surrounding property owners. Other times, significant changes are made in the interim, especially in response to concerns raised by the state land planning agency, which take time to draft and refine. In neither case does the County consider the passage of time to require a new application. Likewise, the revisions do not require a new application, even revisions which remove property from, or add property to, a FLUM amendment application. Clearly, Petitioners believe it was unfair to allow the application, which was “on hold” for almost two years and revised in 2014 to exclude some of the original property, and include additional property adjacent to their subdivision, to proceed without applying newly-adopted plan policies. Despite their belief, Petitioners did not prove that the application, as revised in April and June 2014, was a new application subject to Policy 108.2.5. Policy 101.14.1 Next, Petitioners allege the Plan Amendment is internally inconsistent with Policy 101.14.1, which provides that the “County shall discourage developments within the Coastal High Hazard Area (CHHA).” The subject property is located entirely within the CHHA. In fact, Ms. Santamaria testified that “almost the entire Keys is in the [CHHA],” with exception of some areas just along U.S. Highway 1 in the Upper Keys. The Plan Amendment reduces total potential non- residential intensity on the subject property, while increasing potential residential density. The Plan Amendment also eliminates future transient (hotel and motel) density, as well as future dredging and other industrial uses. “Development” is defined broadly in section 380.04 as “the carrying out of any building activity or mining operation, the making of any material change in the use or appearance of any structure or land, or the dividing of land into three or more parcels.” § 380.04(1), Fla. Stat. The definition specifically includes “a change in the intensity of use of land, such as an increase in the number of dwelling units . . . on land or a material increase in the number of businesses, manufacturing establishments, offices, or dwelling units . . . on land.” § 380.04(2)(b), Fla. Stat. Notably, the definition also includes “mining or excavation on a parcel” and “deposit . . . of fill on a parcel of land.” § 380.04(2)(c) and (d), Fla. Stat. Two expert witnesses testified regarding whether the Plan Amendment violates the County’s policy to discourage development within the CHHA. In Ms. Santamaria’s opinion, the Plan Amendment, on balance, is consistent with the policy to discourage development because it prohibits residential development of the Rockland parcels, and prohibits all but affordable housing units on the Big Coppitt parcel. In addition, the amendment prohibits future uses which are within the statutory definition of “development,” such as industrial, marinas, market-rate housing, and residential subdivisions. Max Forgey, expert witness for Petitioners, opined that the increase in density from 91 to 213 units is “as far from discouraging as I could imagine.” Overall, the Plan Amendment reduces non-residential intensity while increasing residential density. Given the totality of the evidence, it is reasonable to find that the Plan Amendment complies with Policy 101.14.1 by discouraging many types of development allowed on the property under the existing FLUM designations. Principles for Guiding Development Petitioners’ final argument is that the Plan Amendment is inconsistent with the Principles in the Keys ACSC. The property subject to the Plan Amendment is located in the Keys ACSC, thus, subject to the Principles in section 380.0552(7), which reads as follows: (7) PRINCIPLES FOR GUIDING DEVELOPMENT.— State, regional, and local agencies and units of government in the Florida Keys Area shall coordinate their plans and conduct their programs and regulatory activities consistent with the principles for guiding development as specified in chapter 27F-8, Florida Administrative Code, as amended effective August 23, 1984, which is adopted and incorporated herein by reference. For the purposes of reviewing the consistency of the adopted plan, or any amendments to that plan, with the principles for guiding development, and any amendments to the principles, the principles shall be construed as a whole and specific provisions may not be construed or applied in isolation from the other provisions. However, the principles for guiding development are repealed 18 months from July 1, 1986. After repeal, any plan amendments must be consistent with the following principles: Strengthening local government capabilities for managing land use and development so that local government is able to achieve these objectives without continuing the area of critical state concern designation. Protecting shoreline and marine resources, including mangroves, coral reef formations, seagrass beds, wetlands, fish and wildlife, and their habitat. Protecting upland resources, tropical biological communities, freshwater wetlands, native tropical vegetation (for example, hardwood hammocks and pinelands), dune ridges and beaches, wildlife, and their habitat. Ensuring the maximum well-being of the Florida Keys and its citizens through sound economic development. Limiting the adverse impacts of development on the quality of water throughout the Florida Keys. Enhancing natural scenic resources, promoting the aesthetic benefits of the natural environment, and ensuring that development is compatible with the unique historic character of the Florida Keys. Protecting the historical heritage of the Florida Keys. Protecting the value, efficiency, cost- effectiveness, and amortized life of existing and proposed major public investments, including: The Florida Keys Aqueduct and water supply facilities; Sewage collection, treatment, and disposal facilities; Solid waste treatment, collection, and disposal facilities; Key West Naval Air Station and other military facilities; Transportation facilities; Federal parks, wildlife refuges, and marine sanctuaries; State parks, recreation facilities, aquatic preserves, and other publicly owned properties; City electric service and the Florida Keys Electric Co-op; and Other utilities, as appropriate. Protecting and improving water quality by providing for the construction, operation, maintenance, and replacement of stormwater management facilities; central sewage collection; treatment and disposal facilities; the installation and proper operation and maintenance of onsite sewage treatment and disposal systems; and other water quality and water supply projects, including direct and indirect potable reuse. Ensuring the improvement of nearshore water quality by requiring the construction and operation of wastewater management facilities that meet the requirements of ss. 381.0065(4)(l) and 403.086(10), as applicable, and by directing growth to areas served by central wastewater treatment facilities through permit allocation systems. Limiting the adverse impacts of public investments on the environmental resources of the Florida Keys. Making available adequate affordable housing for all sectors of the population of the Florida Keys. Providing adequate alternatives for the protection of public safety and welfare in the event of a natural or manmade disaster and for a postdisaster reconstruction plan. Protecting the public health, safety, and welfare of the citizens of the Florida Keys and maintaining the Florida Keys as a unique Florida resource. (emphasis added). Petitioners’ challenge, as set forth in the Amended Petition, focuses on subsections (7)(a), (b), (e), and (h)4. Petitioners introduced no evidence to support a finding that the Plan Amendment is inconsistent with either subsection (7)(a), (b), or (e) regarding the local government’s capability to manage land use and development, protect shoreline and marine resources, and protect water quality, respectively. 1. section 380.0552(7)(h)4. Petitioners argue that the Plan Amendment will adversely impact the “value, efficiency, cost-effectiveness, and amortized life” of the Station, in violation of subsection (7)(h)4. A portion of the Rockland parcels lie within the 75-79 DNL zone, in which the Navy deems residential development incompatible and recommends that the local government prohibit it. The Plan Amendment changes the FLUM designation of the Rockland parcels from Industrial, which allows residential development at 47.3du/acre, to Commercial, which does not allow any residential development. Thus, the Plan Amendment prohibits future residential development in the 75-79 DNL zone as recommended by the Navy. A portion of the Rockland parcels and the southern end of the Big Coppitt parcel lie within the 70-74 DNL zone. The remainder of the Big Coppitt parcel lies within the 65-69 DNL zone. The Navy deems residential development in the 70-74 and 65-69 DNL zones as “generally incompatible,” but not prohibited. The AICUZ table strongly discourages residential use in the 70-74 DNL zone, and discourages residential use in the 65-69 DNL zone. With respect to the 65-69 and 70-74 DNL zones, the AICUZ contains the following recommendations: The absence of viable alternative development options should be determined and an evaluation should be conducted locally prior to local approvals indicating that a demonstrated community need would not be met if development were prohibited in these zones. * * * Where the community determines that these uses must be allowed, measures to achieve an outdoor to indoor [noise level ratio or] NLR of at least 25 decibels (dB) in DNL 65 to 69 and NLR of 30 dB in DNL 70 to 74 should be incorporated into building codes and be in individual approvals . . . . Normal permanent construction can be expected to provide a NLR of 20 dB, thus the reduction requirements are often stated as 5, 10, or 15 dB over standard construction . . . . The Plan Amendment, through the sub-area policy, prohibits residential dwellings on that portion of the Big Coppitt parcel within the 70-74 DNL zone. As such, the Plan Amendment prohibits residential use where the Navy strongly discourages said use. The majority of the Big Coppitt parcel lies within the 65-69 DNL zone. The Plan Amendment increases allowable residential density from 91 units to 213 units. Through the sub-area policy, the Plan Amendment requires sound attenuation of at least 25 dB for residences in the 65-69 DNL zone. Further, the Plan Amendment requires sound attenuation of at least 30 dB for any habitable buildings within the 70-74 DNL zone.10/ One purpose of recommending sound attenuation for dwelling units within noise zones of 65 DNL and higher, is to limit the number of community noise complaints to the Station. Community complaints regarding noise from Station exercises are directed to the Station’s Air Operations Department. The Station receives an average of 10 complaints per month, but that number fluctuates with the number of squadrons in town for training at the Station. Sometime in the past, the Station altered a training flight arrival pattern known as the Dolphin One Arrival. The arrival pattern is now called the King One, and it avoids directly flying over Stock Island. The evidence did not clearly establish whether the pattern was changed due to community noise complaints or due to the fact that Stock Island was in residential use. Captain McAlearney testified that because of the population on Stock Island, we set up a little to the south of what would be optimum for practicing, or most safe, frankly, for practicing a carrier landing or bringing a formation of airplanes into the field. On cross-examination, Captain McAlearney admitted that the change occurred well before his time as station commander and that he had no direct knowledge of the reason the change was made. Petitioners argue that the County must do more than just establish a community need in order to approve new housing in the 65-69 DNL zone consistent with the Navy recommendations. They argue that, pursuant to the AICUZ table, the County must establish that no viable alternative development options exist and that the demonstrated community need would not be met if development were prohibited in that zone. The County conceded that other parcels are available for construction of affordable housing within the Keys, however, there are very limited locations of Tier III,11/ scarified properties, outside of the 65-69 DNL zone in the Lower Keys with potential for affordable housing development. The parcels are scattered and none would support a large-scale affordable housing development such as is proposed pursuant to the Plan Amendment. While the County’s demonstrated need for affordable housing may be met, eventually, by incremental development of smaller scattered parcels and occupancy in renovated mobile home parks, the Plan Amendment addresses a significant amount of the affordable housing deficit in the immediate future. Based on the totality of the evidence, Petitioners did not demonstrate that the Plan Amendment is inconsistent with section 380.0552(7)(h)4. In reviewing and recommending adoption of the Plan Amendment, County staff carefully considered the recommendations of the Navy AICUZ table and revised the amendment to prohibit residential use in the 75-79 DNL zone, where the Navy deems those uses incompatible and recommends prohibition of said uses; and to prohibit residential use in the 70-74 DNL zone, where the Navy deems those uses generally incompatible and strongly discourages them. The Plan Amendment was crafted to limit residential use to those areas within the 65-69 DNL zone, where Navy discourages, but does not recommend prohibition of, residential uses. Further, County staff determined a local community need for affordable housing, determined that the need could not be addressed through viable alternatives, and required sound attenuation as recommended by the Navy. While the Navy introduced some evidence regarding potential impacts to the Station from increased residential density on Big Coppitt Key, the evidence was speculative. Captain McAlearney’s testimony did not establish that additional noise complaints (assuming the new development would generate new noise complaints) would negatively impact the “value, efficiency, cost-effectiveness, and amortized life” of the Station. 2. section 380.0552(7)(g) Although not included in their Amended Petition, Petitioners argued at hearing that the Plan Amendment was inconsistent with section 380.0552(7)(g), the Principle to “protect[] the historical heritage of the Florida Keys.” Petitioners’ expert based his opinion of inconsistency with this principle on the long-standing presence of the Station in the Keys and its important role in naval air training. No evidence was introduced to establish that the Station itself has a historic resource designation or contains any historic structures or archeological resources. The site is not designated as an historic resource by either the County or the State. Petitioners did not prove the Plan Amendment is inconsistent with this Principle. Other Principles A. section 380.0552(7)(l) Section 380.0552(7)(l) sets forth the Principle to “[make] available adequate affordable housing for all sectors of the population in the Florida Keys.” The Plan Amendment limits development of the Big Coppitt parcel to deed-restricted affordable housing and requires, at a minimum, a mix of at least 10 percent median- income category and at least 20 percent mix of very-low and low- income categories. The Plan Amendment would allow development of 213 of the 700 affordable housing units the County has to allocate through 2023. The Plan Amendment addresses affordable workforce housing needs in the County for income levels in both the service industry and the public sector. The Plan Amendment furthers section 380.0552(7)(l) by making available affordable housing for residents in a range of income levels from very low- and low-income to moderate-income. B. Remaining Principles The majority of the remaining Principles either do not apply to the Plan Amendment, or have only limited application. Very little evidence was introduced regarding these Principles. No evidence supports a finding that the Plan Amendment is inconsistent with the remaining Principles. The evidence did not establish that the Plan Amendment is inconsistent with the Principles as a whole.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity enter a final order determining that the Monroe County Comprehensive Plan Amendment adopted by Ordinances 003- 2016 and 004-2016 on February 10, 2016, is “in compliance,” as that term is defined in section 163.3184(1)(b), Florida Statutes. DONE AND ENTERED this 9th day of August, 2016, 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 9th day of August, 2016.
The Issue The issue in this case is whether Town of Yankeetown (Town) plan amendment 08-01 (adopted by Ordinance 2007-10) and plan amendment 08-CIE1 (adopted by Ordinance 2008-03), as modified by remedial amendment 09-R1 (adopted by Ordinance 2009-02) (together, referred to as the Plan Amendments or the Revised Comprehensive Plan), are "in compliance" as defined in Section 163.3184(1)(b), Florida Statutes (2009).1
Findings Of Fact The Town is located in the southwest corner of Levy County. The Town is bounded on the east by the Town of Inglis, on the north by unincorporated Levy County, on the west by the Gulf of Mexico, and on the south by the Withlacoochee River. The Town has significant planning challenges due to its geographic location. The maximum elevation in the Town is 10 feet, and the entire Town is located in the 100-year floodplain and Coastal High Hazard Area (CHHA). The Town is located in a rural area north of the banks of the Withlacoochee River and is surrounded by wetlands and environmentally-sensitive land. The Town is located at the end of County Road 40, and is separated from the nearest intersection of major roads (State/County Road 40 and U.S. 19) by the Town of Inglis. The Plan Amendments are a community-generated plan that incorporates the results of an extensive community visioning survey conducted by the Town and numerous public meetings that exceeded the public participation requirements for plan amendments contained in Florida Administrative Code Rule Chapter 9J-53 and Chapter 163, Florida Statutes. The Plan Amendments resulted in a Revised Comprehensive Plan for the Town. IWI is a legal entity that owns land within the Town and submitted oral or written comments on the Plan Amendments during the period of time beginning with the transmittal hearing for the Plan Amendments and ending with the adoption of the Plan Amendments. IWI contends that the Plan Amendments are not "in compliance" for several reasons. Population Projections and Need In its pleadings, IWI contended that "[t]here is inadequate data regarding projected population growth and the infrastructure needed to support the projected population growth for both the short term (five years) and the long term (horizon of the plan)"; "[t]he Plan Amendment is not in compliance with [Section] 163.3177(6)(a) Florida Statutes, by failing to provide future land use categories that are based on need"; and "[t]he Plan Amendment is not in compliance with the requirements of 9J- 5.006, Florida Administrative Code, demonstrating that future land use is based on need." Prehearing Stipulation § 2.H., U., and GG. However, its expert planning witness, Gail Easely, conceded that the data and analysis submitted by the Town was adequate to demonstrate that the residential land uses in the Revised Comprehensive Plan are based on need. IWI limited its contention on this point to the alleged inadequacy of the data and analysis to support the Revised Comprehensive Plan's new Light Industrial land use and revised commercial land use designations. The Revised Comprehensive Plan designates the same areas for commercial as the currently effective Comprehensive Plan, with the exception of one parcel that was changed from commercial to Light Industrial. The Revised Comprehensive Plan designates the commercial parcels near the Withlacoochee River as Commercial Water Dependent and the other commercial parcels as Commercial Neighborhood, totaling approximately 51 acres. Of the 51 acres of commercially-designated land, approximately 26 acres are currently developed and 25 acres are vacant and undeveloped. Of the 26 developed commercial acres, 19 parcels are currently developed and utilized as residential. There is no shortage of land available for commercial development in the Town. Inglis, a town located adjacent and to the east of Yankeetown, and Levy County near Yankeetown provide "more than adequate" existing commercial buildings on the market to serve the residents of Yankeetown and surplus vacant commercially- designated land to serve the future needs of Yankeetown. There is no shortage of commercial potential near the Town. The evidence was that it is acceptable for a local government to plan for the future need for the availability of commercial and industrial lands by maintaining the existing proportionate of availability of land use categories. Alternatively, it is acceptable to plan to mimic the proportions found to exist in other communities. This is essentially how the Town planned its allocation of commercial and industrial lands in its Revised Comprehensive Plan. IWI also contended that the intensity standards for commercial and industrial land uses in the Revised Comprehensive Plan unduly restrict commercial development. The existing Comprehensive Plan did not have explicit intensity standards and criteria for commercial land uses. After extensive debate at numerous public hearings, the Revised Comprehensive Plan established a floor/area ration (FAR) of 0.07, which limits the size for each single structure to a maximum of 3,000 square feet. It also allows for multiple 3,000 square foot structures on larger parcels in a "campus style" development. These standards and criteria reflect the existing, built environment of the Town and the Town's vision of itself. Existing commercial buildings run from 960 square feet to 3,600 square feet. Although the existing Comprehensive Plan did not have an FAR ratio, other standards--such as setbacks, square footage required for on-site septic tanks, drainfields, and parking, a 50 percent open space ratio, and a building height restriction of 35 feet--restricted commercial development in a manner similar to the Revised Comprehensive Plan. Petitioner's expert economist, Dr. Fishkind, testified that the restrictions on intensity of commercial land uses are not financially feasible because not enough revenue can be generated to make a profit, given the cost of land in Yankeetown. His testimony was refuted by his University of Florida colleague, Dr. James Nicholas, who was called as an expert economist for the Town. Dr. Nicholas pointed out that there was some commercial use in the Town and that economics would lower the cost of land in the Town if it is too expensive to allow the kind of commerce desired by the Town to make a reasonable profit. Businesses requiring more space to make sufficient revenue could locate outside the Town but close enough in Inglis or Levy County to serve Yankeetown as well. The character of the Town, its limited projected population growth, and the availability of commercial development nearby in Inglis and in Levy County all support the Town's decision to limit the intensity of commercial land use, and to maintain the existing amount of land available for commercial and light industrial uses. 15. Rules 9J-5.006(1)(a)(3) and 9J-5.006 (4)(a)(3) require the designation of some industrial lands, and the Revised Comprehensive Plan changes the designation of six acres of land located to the west of the intersection of County Roads 40 and 40-A from "Commercial" to "Light Industrial." Since industrial uses are generally not compatible with residential uses, the Light Industrial parcel is separated from residential parcels by commercial. The Light Industrial parcel is allocated for more intense commercial uses (such as fishing trap and boat storage) or reserved for economic development of light industrial uses that may wish to locate in Yankeetown, such as aquaculture. The existing ratio of residential to commercial land is adequate to supply the existing need as reflected by the existing surplus, vacant, and unused commercial lands. The Plan Amendments maintain residential lands and commercial lands in their general designations with refinements to the categories. The existing ratio and availability of vacant commercial land indicate that there is no deficit in any category, and maintaining the existing residential/commercial ratio preserves the existing character of the Town. Urban Service Area versus Urban Service Boundary IWI contends that "[t]he Plan Amendment is not in compliance with [Section] 163.3177(14), Florida Statutes, by failing to ensure that the urban service boundary was appropriately adopted and based on demonstrated need." This contention has no merit. Section 163.3177(14), Florida Statutes, encourages a local government to adopt an "urban service boundary." If one is adopted, there must be a demonstration "that the amount of land within the urban service boundary does not exceed the amount of land needed to accommodate the projected population growth at densities consistent with the adopted comprehensive plan within the 10-year planning timeframe." If a local government chooses to adopt an "urban service boundary" under Section 163.3177(14) and a community vision under Section 163.3177(13), Florida Statutes, it may adopt plan amendments within the urban service boundary without state or regional agency review. See § 163.3184(17), Fla. Stat. The Revised Comprehensive Plan does not use the term "urban service boundary," and the Town did not intend to adopt one under Section 163.3177(14), Florida Statutes, nor did it seek to avoid state and regional agency review of plan amendments under Section 163.3184(17), Florida Statutes. Instead, as explained on page 6 of the Revised Comprehensive Plan, it uses the term "urban area" to designate an area allowed to receive development rights from the sending area, namely the Residential Environmentally Sensitive (formerly Conservation) land use district. The Revised Comprehensive Plan uses the term urban service "area" (rather than "boundary") as the area located generally between County Roads 40 and 40-A that can receive development rights transferred from the Residential Environmentally Sensitive land use district. This area is depicted as "Urban Service Area Overlay Zones" Map 2008-02 of the Future Land Use Map (FLUM) series to more clearly designate the area on a larger scale than the FLUM map of the entire Town (Map 2008-05). The existing FLUM series also used the term "urban area" to depict the transfer of development rights receiving area. Financial Feasibility and Capital Improvements IWI’s expert, Dr. Henry Fishkind, testified that he ran his Fiscal Impact Analysis Model for the Town and concluded that the Revised Comprehensive Plan is not financially feasible because the Town cannot generate sufficient operating revenue to cover its operating costs without increasing property tax rates. Dr. Fishkind was not asked to explain how his computer model works, give any specific modeling results, or explain how he reached his conclusion. The Town's expert, Dr. James Nicholas, refuted his University of Florida colleague's testimony on this point as well. Essentially, Dr. Nicholas testified that a small and unique community like Yankeetown can choose to limit its operating costs by relying on volunteers and part-time employees. In this way, it can operate on a bare-bones budget that would starve a more typical and larger community. It also could choose to increase property tax rates, if necessary. Recent amendments to Chapter 163, Florida Statutes, in Senate Bill 360, the "Community Renewal Act," which became effective June 1, 2009, postponed and extended until December 1, 2011, the statutory requirement to maintain the financial feasibility of the five-year capital improvements schedule (CIS) for potable water, wastewater, drainage, parks, solid waste, public schools, and water supply. However, the Town concurred with Petitioner in requesting findings of fact and conclusions of law on this issue in case Senate Bill 360 is struck down in a pending constitutional challenge. The Plan Amendments include a CIE (Chapter 8) with a five-year CIS and a table to identify sources of revenue and capital projects sufficient to achieve and maintain the adopted levels of service, supported by data and analysis submitted with the Remedial Amendments. The Town's CIS five-year lists projects to achieve and maintain the adopted level of service (LOS) standards and identifies funding sources to pay for those projects. It describes the projects and conservatively projects costs and revenue sources. The CIS identifies revenue sources and capital projects for which there are committed funds in the first three years and identifies capital projects for which funds have not yet been committed in year four or year five. CIS is adequate to achieve and maintain the adopted level of service and is financially feasible. Stormwater and Drainage A drainage LOS is adopted in Revised Comprehensive Plan Policy 4.1.2.1, which states: "All new development and expansion of existing residential development greater than 300 square feet of additional impervious coverage shall meet requirements under Chapter 62-25, F.A.C. for Outstanding Florida Waters." The exemption of minor residential improvements of 300 square feet or less is reasonable and does not violate Rule Chapter 9J-5 or Chapter 163, Florida Statutes. The Department's ability to require retrofitting for existing drainage problems is limited by Rule Chapter 9J- 5.011(2)(c)5.b.i., which states that the Rule "shall not be interpreted or applied to [m]andate that local governments require existing facilities to be retrofitted to meet stormwater discharge water quality standards or stormwater management level of service standards." Nonetheless, the Town agreed in the Compliance Agreement to adopt appropriate policies and provide additional data and analysis on this issue. Policy 4.1.2.13 requires that the "Established Storm Water Drainage Committee shall monitor storm water facilities in [the] town, oversee maintenance functions, and evaluate and recommend capital improvements projects and funding sources." To pay for stormwater capital improvement projects, Policy 4.1.2.14 in the Plan Amendments states: "Yankeetown shall adopt a storm water utility fee ordinance and establish storm water utility fees by December 31, 2009 to provide necessary funding for capital improvements to the Town's storm water drainage facilities and maintenance of storm water drainage facilities." In accordance with the Compliance Agreement, the Town modified CIS Table 1 by adding $120,000 to FY 2011-2012 (Year 5) for the stormwater drainage improvement project and adding Note 5 to Table 1, which states: "Anticipated to be funded by a 75%/25% matching grant from SWFWMD, DEP or DCA. The matching (town) funds will be obtained from the proposed stormwater improvement fund. If no grants can be obtained and the stormwater improvement fund is not approved[,] the project will be funded from the general fund reserves and long term loans." Because the stormwater utility fee ordinance must still be adopted, and these funds are not technically committed at the time of adoption of the Plan Amendments, the stormwater capital improvement project was placed in year 5 (2011-1012) of the CIS. As funding becomes available and committed, the project may be moved to an earlier year in required annual updates to the CIS. Drainage also is addressed in new Objective 4.3.2 and in new Policies 4.3.2.1. through 4.3.2.5. The Town has addressed stormwater and drainage appropriately in the Revised Comprehensive Plan. Proportionate Share and Concurrency Management Policy 4.1.2.6 in the Public Facilities Element states: "The Town shall consider, and adopt as appropriate, a means to ensure that new development shares proportionate responsibilities in the provision of facilities and services to meet the needs of that development and maintain adopted level of service standards." Policy 8.1.3.4 in the CIE of the Revised Comprehensive Plan states: The Town shall consider, and adopt as appropriate, a means to ensure that new development shares a proportionate cost on a pro rata basis in the provision of facilities and services necessitated by that development in order to maintain the Town’s adopted level of service standards. Proportionate costs shall be based upon, but not limited to: Cost for extension of water mains, including connection fees. Costs for all circulation and right-of-way related improvements to accommodate the development for local roads not maintained by Levy County. Costs to maintain County Road 40 and 40[-]A and any other road within the town that are maintained by Levy County shall be governed by the Levy County Proportionate Share Ordinance and Yankeetown will continue to adopt and ensure the level of service is maintained [through] coordination mechanisms between the two planning departments. Costs for drainage improvements. Costs for recreational facilities, open space provision, fire protection, police services, and stormwater management. Although the Town does not have any public facility deficiencies, Rule Chapter 9J-5 requires that the CIE address "[t]he extent to which future development will bear a proportionate cost of facility improvements necessitated by the development in order to adequately maintain adopted level of service standards"; and include a policy that addresses programs and activities for "[a]ssessing new developments a pro rata share of the costs necessary to finance public facility improvements necessitated by development in order to adequately maintain adopted level of service standards . . . ." Fla. Admin. Code R. 9J-5.016(3)(b)4. and (c)8. Policy 8.1.3.4 meets this requirement. The statute forming the basis of IWI’s contentions regarding proportionate fair share is Section 163.3180(16)(a), Florida Statutes, which requires local governments "to adopt by ordinance a methodology for assessing proportionate fair-share mitigation options." The evidence was that the requirements of this statute will be met by the Town's Proportionate Fair Share Concurrency Management Ordinance, which had been drafted and scheduled for adoption hearings at the time of the final hearing, and which will implement Policy 8.1.3.4. IWI did not present any evidence regarding the alleged lack of a concurrency management system in the Revised Comprehensive Plan and did not prove that the Revised Comprehensive Plan fails to meet the requirements of Rule 9J- 5.055 for concurrency management. The Town is exempt from maintaining school concurrency requirements. Objective 8.1.3 and Policies 8.1.3.1 through 8.1.3.6 of the Revised Comprehensive Plan meet the requirements of Rule 9J-5.055 for concurrency management. Policy 8.1.3.6 states: "The Town shall evaluate public facility demands by new development or redevelopment on a project by project basis to assure that capital facilities are provided concurrent with development." Policy 8.1.3.3 states: "The Yankeetown Land Development Code shall contain provisions to ensure that development orders are not issued for development activities which degrade the level of service below the adopted standard as identified in each comprehensive plan element. Such provisions may allow for provision of facilities and services in phases, so long as such facilities and services are provided concurrent with the impacts of development." The Town has a checklist system to track the specific impact of each development order on LOS concurrent with development. As indicated, a Proportionate Fair Share and Concurrency Management Ordinance had been drafted and scheduled for adoption hearings. Wastewater Treatment and Water Quality The Town is located entirely within the 100-year floodplain and coastal high hazard area. See Finding 2, supra. This presents challenges for wastewater treatment. The adoption of the Revised Comprehensive Plan followed public meetings and workshops held with representatives of DCA, including Richard Deadman, and expert Mark Hooks, formerly with the State of Florida Department of Health and Rehabilitative Services and now with the State of Florida Department of Health. The Plan Amendments include Policy 8.1.3.1.1, which states in part: Due to the location of the town within the 100 year flood plain and within the Coastal High Hazard Area (CHHA), there are no plans to provide central wastewater treatment until a regional system can be developed in conjunction with the neighboring town of Inglis and Levy County, and constructed outside the Coastal High Hazard Area east of U.S. Highway 19. In the interim period before a regional central wastewater system is available, the Town shall require in all land use districts: a. Yankeetown shall develop a strategy to participate in water quality monitoring of the Withlacoochee River; b. develop an educational program to encourage inspection (and pump-out if needed) of existing septic tanks; c. all new and replacement septic tanks shall meet performance based standards (10mg/l nitrogen). The Town's approach to wastewater treatment under the circumstances is sound both economically and from planning perspective and is sufficient to protect natural and coastal resources, including water quality, and meet the minimum requirements of Rule Chapter 9J-5 and Chapter 163, Florida Statutes. There is direction in the State Comprehensive Plan to: "Avoid the expenditure of state funds that subsidize development in high-hazard coastal areas." § 187.201(8)(b)3., Fla. Stat. This direction is also found in Chapter 163.3178(1), Florida Statutes, and in Rule 9J-5.012(3)(b)5., which require local governments to limit public expenditures that would subsidize development in the CHHA. It also is impractical for the Town, with a population of 760 people, to fund and operate a central wastewater system. It is logical and economical to do this in partnership with the adjoining Town of Inglis and Levy County, which could share in the costs and provide a site for a regional wastewater facility located nearby but outside of the CHHA. In contrast, this approach was not a viable option for the entirety of the Florida Keys. The Town already has begun water quality testing under Policy 8.1.3.1.1.a. The Town will be required to prepare educational programs to encourage inspection of existing septic tanks (and pump-out, if needed) under Policy 8.1.3.1.1.b. and under new Policy 4.3.1.2. In the short-term, while the Town pursues a regional treatment facility located outside the CHHA, Policy 8.1.3.1.c. in the Revised Comprehensive Plan will be implemented by new Policy 4.1.2.1.IV.B., which states: Yankeetown shall require that all new or replacement sanitary sewage systems in all land use districts meet the following requirements: All new or replacement sanitary sewage systems shall be designed and constructed to minimize or eliminate infiltration of floodwaters into the system and discharge from the system into floodwaters. Joints between sewer drain components shall be sealed with caulking, plastic or rubber gaskets. Backflow preventers are required. All new or replacement sanitary sewage systems shall be located and constructed to minimize or eliminate damage to them and contamination from them during flooding. The DCA has objected and recommended, and Yankeetown has concurred that all new and replacement septic systems are to be performance-based certified to provide secondary treatment equivalent to 10 milligrams per liter maximum Nitrogen. Performance-based treatment systems that are accepted as achieving the 10 mg/l nitrogen standard have already been tested by the National Sanitation Foundation and approved by the State of Florida Department of Health. Performance-based systems achieving the 10 mg/l nitrogen standard have been certified and approved for use in Florida and are now available on the market "in the $7,200 range" for a typical two- or three-bedroom home, and there are systems that would meet the 10mg/l nitrogen standard for commercial and multi-family buildings. Compliance with the performance-based 10 mg/l nitrogen standard is measured at the treatment system, not in the receiving water, and additional nutrient removal and treatment occurs in the drainfield soils. Performance-based treatment systems also require an operating permit and routine inspection and maintenance, unlike conventional septic tanks. The United States Environmental Protection Agency stated in its 1997 report to Congress: "Adequately managed decentralized wastewater systems are a cost-effective and long- term option for meeting public health and water quality goals." The existing Comprehensive Plan addresses wastewater in Chapter 4, Policy 13-2, which states: "Prohibit the construction of new publicly funded facilities or facilities offered for maintenance in the coastal high hazard area (including roads, water, sewer, or other infrastructure)." It also is addressed in the existing Comprehensive Plan in: Chapter 1, Policies 3-1 and 3-2 (Vol. II p. 11); and Chapter 4, Policies 1-2-1 and 1-2-7 (Vol. II, pp. 32, 34). A more in-depth analysis of the Town's previous approach to wastewater treatment is found in Volume III, Infrastructure Element, pp. 107-109 ("Facility Capacity Analysis, Sanitary Sewer"), which expresses similar long-term and interim approaches to wastewater treatment. The Revised Comprehensive Plan removes confusing and out-of-date references to "class I or other DOH-approved aerobic systems" used in the existing Comprehensive Plan. The Plan Amendments contemplate that the Town will pursue a long-term solution of a regional wastewater facility with the Town of Inglis and Levy County to be located outside the CHHA. The Revised Comprehensive Plan is adequate to protect the natural resources in Yankeetown and includes a short-term requirement that all new and replacement septic tanks meet the 10 mg/l nitrogen standard measured at the performance-based treatment system, together with a long-term requirement that the Town pursue a regional wastewater treatment plant to be located outside the CHHA. The Plan Amendments include: Objective 4.1.3; Policies 4.1.3.1 through 4.1.3.3 and 4.1.2.8 through 4.1.2.11; Policy 5.1.4.4; Policy 7.1.22.6; Policy 8.1.3.1; Policy 10.1.2.1; and Policy 10.1.2.3. These provisions move the Town in the direction of a regional central wastewater treatment located outside the CHHA and establish appropriate interim standards. Petitioner contended that the Town has allocated money for a new park when it needed a new central wastewater treatment facility. But the evidence was that the money for the new park came from a grant and could not be used for a new central wastewater treatment facility. Protection of Natural Resources and Internal Consistency The Future Land Use Element (FLUE) and the FLUM in the Revised Comprehensive Plan contain "Resource Protection" and "Residential Environmentally Sensitive" land use designations. In the existing Comprehensive Plan, these lands are designated Public Use Resource Protection and Conservation, respectively. The Plan Amendments reduce density in the Residential Environmentally Sensitive land use district, which contains a number of islands, to a maximum gross density of one dwelling unit per ten gross acres and maximum net density of one dwelling unit per five acres of uplands. Policy 1.1.2.1 in the Plan Amendments would allow development rights to be transferred from the Residential Environmentally Sensitive land to the development rights area receiving zone located between County Roads 40 and 40-A, as shown in Map 2008-02. The current Conservation designation for those lands sets a "maximum density of 1 unit per 5 acres"; and Policy 1-2 in the existing Comprehensive Plan allows the transfer of development rights within the Conservation district "as long as gross density does not exceed 1 dwelling unit per 5 acres." Under Policy 1-2 of the existing Comprehensive Plan, a minimum of "two (2) acres of uplands" is required for a development in the Conservation land use district. Likewise, under Policy 1.1.2.1.2 of the Plan Amendments, a minimum of "two (2) contiguous natural pre-development upland acres" is required in the Residential Environmentally Sensitive land use district. Although allowed, few if any transfers of development rights actually occurred under the existing Comprehensive Plan. To provide additional incentive to transfer development out of the "Residential Environmentally Sensitive" land use district and into the urban receiving area, Policy 1.1.2.7.F. of the Plan Amendments would allow the land owner to retain private ownership and passive recreational use on the "sending" parcel, including one boat dock. All other development rights on the sending parcel would be extinguished. Besides facilitating the transfer of development rights, it is expected that use of boat docks on the islands will decrease environmental damage from boats now grounding to obtain access to the islands. Although the policies for Environmentally Sensitive Residential and Conservation Lands are slightly different, the minor differences do not fail to protect natural or coastal resources or fail to meet the minimum criteria set forth in Rule Chapter 9J-5 and Chapter 163, Florida Statutes. Numerous policies in the Plan Amendments establish standards and criteria to protect natural and coastal resources, including: Policy 1.1.2.1.7(i), restricting dredging; Policies 1.1.1.2.10, 5.1.5.7, and 5.1.6.10, restricting the filling of wetlands; Policy 5.1.6.7, establishing wetlands setback buffers; Policy 5.1.6.4, establishing nutrient buffers; Policy 5.1.5.1, limiting dredge and fill; Policies 1.1.3.4 and 5.1.5.5, establishing standards and criteria for docks and walkways; Policy 5.1.16.1, protecting certain native habitats as open space; Policy 1.1.1.3, establishing low-impact development practices for enhanced water quality protection; and Policy 5.1.5.1, protecting listed species, including manatees. These provisions are more protective than the provisions of the existing Comprehensive and are supported by data and analysis. The Plan Amendments acknowledge and protect private property rights and include Objective 1.1.11 (Determination and Protection of Property Rights), providing for vested rights and beneficial use determinations to address unintended or unforeseen consequences of the application of the Plan Amendments in cases where setbacks cannot be achieved for specific development proposals due to lot size or configuration. FLUE Policy 1.1.1.2.8 and Conservation and Coastal Management Element Policy 5.1.6.4 in the Plan Amendments sets out procedures, standards, and criteria (including mitigation) for variances from the 150- foot Nutrient Buffer Setback. Taken as a whole, the Plan Amendments protect natural and coastal resources within the Town. Internal Consistency Docks, Open Space, and Dredge and Fill IWI contends that the Plan Amendments are internally inconsistent because policies addressing docks, open space, and dredging requirements use different language and with different meanings in different contexts. Policies in the Revised Comprehensive Plan establish 100 percent open space requirements for certain natural habitats, namely: (a) submerged aquatic vegetation; (b) undisturbed salt marsh wetlands; (c) salt flats and salt ponds; (d) fresh water wetlands; (e) fresh water ponds; and (f) maritime coastal hammock. Pile-supported, non-habitable structures such as boat docks and walkways are allowed if sited on other portions of a site. (Conservation and Coastal Management Element Policies 5.1.5.7, 5.1.6.7, 5.1.6.10, and 5.1.16.1). Other policies limit dredging to maintenance dredging. Policy 5.1.5.1 states that the Town will: Prohibit all new dredge and fill activities, including construction of new canals, along the river and coastal areas. Maintenance dredging of existing canals, previously dredged channels, existing previously dredged marinas, and commercial and public boat launch ramps shall be allowed to depths previously dredged only when the applicant demonstrates that dredging activity will not contribute to water pollution or saltwater intrusion of the potable water supply. Applicant must also demonstrate that development activities shall not negatively impact water quality or manatee habitat. Maintenance dredging is prohibited within areas vegetated with established submerged grass beds except for maintenance dredging in public navigation channels. This prohibition does not preclude the minor dredging necessary to construct "pile supported structures such as docks and walkways that do not exceed 4’ in width and constructed in accordance with OFW and Aquatic Preserve regulations," which are specifically exempted and allowed by Policy 5.1.5.7 of the Plan Amendments. Additional dredging and filling activities (beyond installation of pile supports) would not be required for docks sited where adequate water depth exists. Docks and walkways allowed under Policy 5.1.5.7 are not counted as open space. The policies concerning docks and walkways can be reconciled and do not render the Plan Amendments internally inconsistent. Low-Impact Development Policies IWI also contends that policies in the Plan Amendments requiring and encouraging low-impact development (LID) practices (which are not required or mandated under minimum requirements of Rule Chapter 9J-5 F.A.C. and Chapter 163, Florida Statutes, but adopted for additional water quality protection) are internally inconsistent. The Plan Amendments require LID practices for some new uses (new subdivisions, planned unit developments, and commercial development) and encourage them for existing uses. The Plan Amendments require or encourage these practices in different land use districts, which address different commercial or residential uses, and also discuss these practices in different elements of the Revised Comprehensive Plan, which addresses different purposes and concerns, including the FLUE (Chapter 1), the Public Infrastructure Element (Chapter 4), and the Coastal Management Element (Chapter 5). FLUE Policy 1.1.1.3 states that: In addition to complying with Outstanding Florida Water (OFW) standards, all new subdivisions, planned unit developments, and commercial development in all land use districts shall utilize "low impact" development practices appropriate for such use including: Landscaped biofiltration swales; Use native plants adapted to soil, water and rainfall conditions; Minimize use of fertilizers and pesticides; Grease traps for restaurants; Recycle storm water by using pond water for irrigation of landscaping; Dry wells to capture runoff from roofs; Porous pavements; Maintain ponds to avoid exotic species invasions; Aerate tree root systems (for example, WANE systems); Vegetate onsite floodplain areas with native and/or Florida-friendly plants to provide habitat and wildlife corridors; Rain barrels and green roofs where feasible; and Use connected Best Management Practices (BMPs) (treatment trains flowing from one BMP into the next BMP) to increase nutrient removal. Existing development shall be encouraged, but not required to use the above recommendations and shall not be considered nonconforming if they do not. In the Residential Low Density land use district, FLUE Policy 1.1.2.2.5 states: "All (a) new planned unit residential developments or (b) new platted subdivisions of 2 or more units (construction of 1 single family dwelling unit or duplex is exempt) shall utilize 'low impact' development practices for storm water management. Individual dwelling units and duplexes are encouraged to utilize those 'low impact' development practices that may be required or recommended in the Land Development Regulations." In the Residential Highest Density land use district, FLUE Policy 1.1.2.3.3 states: "Existing platted parcels are encouraged to utilize site suitable storm water management such as connecting to swales where available. All (a) new planned unit residential developments or (b) new platted subdivisions of 2 or more units (construction of 1 single family dwelling unit or duplex is exempt) shall utilize 'low impact' development practices for storm water management. Individual dwelling units and duplexes are encouraged to utilize those 'low impact' practices that may be required or recommended in the Land Development Regulations." In the Resource Protection and Public Use land use districts, FLUE Policies 1.1.2.5 and 1.1.2.6. require LID practices for all development. In the Neighborhood Commercial land use district, FLUE Policy 1.1.2.7.6 requires LID practices for "all development." In the Commercial Water-Dependent land use districts, FLUE Policy 1.1.2.8.9 requires LID practices for "all new commercial development." In the Light Industrial land use district, FLUE Policy 1.1.2.9.2 requires LID practices for "all development." These policies can be reconciled. The use of slightly different language in a particular district, or creation of an exemption for existing uses, does not render the policies internally inconsistent. Policy 4.2.2.2 of the Public Infrastructure Element (Chapter 4) of the Plan Amendments requires the adoption of land development regulations (LDRs) establishing minimum design and construction standards for new subdivisions, planned unit developments, and commercial development that will ensure that post development runoff rates do not exceed predevelopment runoff rates and encourage the same LID practices set out in FLUE Policy 1.1.1.3. IWI also contends that the inclusion of the phrase "as appropriate for such use" in the LID policies is internally inconsistent. To the contrary, it acknowledges that some of the listed practices may not be appropriate for a proposed specific use. For example, subsection (d) on "grease traps for restaurants" would not be appropriate if no restaurant is proposed. Under Section 163.3202, Florida Statutes, the Town has a year to adopt implementing LDRs providing further details, standards, and criteria for low-impact development BMPs for specific uses and within specific districts. The use of the phrase "as appropriate for such use" in the low-impact development policies allows for the exercise of engineering discretion in formulating LDRs. It does not render the policies internally inconsistent. Setbacks and Variances IWI also contends that the Plan Amendments are internally inconsistent because buffers contain different setback distances and allow for a variance to the setback buffers. The policies addressing setbacks can be read together and reconciled. The Plan Amendments include two types of setback buffers adopted for different purposes: (1) for structures, a 50-foot setback from the river and wetlands in Policies 1.1.1.2.7 and 5.1.6.7; (2) for sources of nutrient pollution other than septic systems (such as fertilized and landscaped areas and livestock sources), a 150-foot nutrient buffer setback from the river in Policies 1.1.1.2.8 and 5.1.6.4; and (3) for septic systems, special setbacks in Policy 1.1.1.2.11 (which is referred to in the nutrient buffer setback policies). These different setback policies were adopted for different purposes and are not internally inconsistent. Data and analysis supporting the establishment of these different setbacks further explains the different purposes of the different types of setbacks adopted in the Revised Comprehensive Plan. The availability of variances to the 150-foot nutrient buffer setback allows some use on a parcel to ensure protection of private property rights in the event of an unforeseen taking of all use on a specific parcel where an applicant cannot meet the setback but can meet the listed criteria for a variance and provide the mitigation required for impacts. Protection of private property rights is a competing concern that must be addressed under Chapter 163, Florida Statutes, and Rule Chapter 9J-5. The Plan Amendments need not address every possible or potential set of facts and circumstances. Additional detail can be provided in implementing LDRs adopted under Section 163.3202, Florida Statutes. Specific implementation and interpretation of policies and LDRs applicable to any particular development proposal will be made by the Town during application review process. Seemingly inconsistent policies can be reconciled by applying the most stringent policy. Seemingly inconsistent policies also could be reconciled by application of a specific exemption, variance, or beneficial use determination. Site-specific application and interpretation of policies and LDRs in development orders, and issues as to their consistency with the goals, objectives, and policies of the Revised Comprehensive Plan, can be addressed under Section 163.3215, Florida Statutes. Small Local Governments IWI contends that the Town was not held to the same data and analysis standards under Section 163.3177(10)(i), Florida Statutes, as larger local governments. Under that statute and Rule 9J-5.002(2), the Department can consider the small size of the Town, as well as other factors, in determining the "detail of data, analyses, and the content of the goals, objectives, policies, and other graphic or textual standards required " Prior to adoption of the remedial amendments, the Town was unable to utilize GIS mapping. However, for the remedial amendments, GIS mapping was provided with the assistance of the Regional Planning Council. IWI did not prove beyond fair debate that the Town's data and analyses were insufficient under Chapter 163, Florida Statutes, and Rule Chapter 9J-5. State and Regional Plans IWI also contends, for essentially the same reasons addressed previously, that the Plan Amendments are inconsistent with State Comprehensive Plan provisions on water resources, natural systems, and public facilities and Withlacoochee Strategic Regional Policy Plan provisions on natural resources, fisheries, and water quality. A plan is consistent with the State Comprehensive Plan and regional policy plan if, considered as a whole, it is "compatible with" and "furthers" those plans. "Compatible with" means "not in conflict with" and "furthers" means "to take action in the direction of realizing goals or policies of the state or regional plan." § 163.3177(10)(a), Fla. Stat. Using those definitions, IWI failed to prove beyond fair debate that the Revised Comprehensive Plan, as a whole, is inconsistent with the State Comprehensive Plan or the Withlacoochee Strategic Regional Policy Plan.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order finding the Plan Amendments to be "in compliance." DONE AND ENTERED this 30th day of October, 2009, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 October, 2009.
