The Issue The issue is whether proposed rules 9J-5.026(3)(d), (7)(b), (7)(c)4. and 6., (8)(a), (9)(a)3., 6., 18., and 19., and 9J- 11.023(2), (4), and (5), and existing Florida Administrative Code Rule 9J-5.003(80) are invalid exercises of delegated legislative authority for the reasons alleged in the Petition for Administrative Hearing to Challenge Proposed Amendments to Chapters 9J-5 and 9J-11, F.A.C. and to Challenge Existing Rule 9J-5.003(80) (Petition).1
Findings Of Fact Based on the evidence presented by the parties, the following findings are made: The Parties Petitioners are not-for-profit organizations whose members own real property throughout the State. A substantial number of their respective members own real property which could be amassed as one or more areas in the RLSA program. Some members of these organizations have taken steps in an effort to have their land designated as an RLSA. On behalf of their respective members, each Petitioner has a substantial interest in public policy relating to land use planning, growth management, and the protection of agricultural, rural, and conservation lands. Respondent, Department of Community Affairs (Department), has stipulated to the facts necessary to establish standing for each Petitioner. The Department is the state agency charged with implementing the review provisions of the Local Government Planning and Land Development Regulation Act codified in Sections 163.3164, et seq., Florida Statutes. The Original Statute Creating the RLSA Program Because of the complexity of the subject matter, a recitation of the RLSA program's history is appropriate. In 2001, the Legislature enacted Chapter 2001-279, Laws of Florida, codified as Section 163.3177(11)(d), Florida Statutes, which created the RLSA pilot program. The law became effective on July 1, 2001, and stated: It is the intent of the Legislature that rural land stewardship areas be used to further the following broad principles of rural sustainability: restoration and maintenance of the economic value of rural land; control of urban sprawl; identification and protection of ecosystems, habitats, and natural resources; promotion of rural economic activity; maintenance of the viability of Florida's agriculture economy; and protection of the character of the rural areas of Florida. § 163.3177(11)(d)2., Fla. Stat. (2001). While the eligibility criteria and substantive requirements of the RLSA program have been amended several times, the foregoing principles have remained the same. The statute provides an option, not an exception, under the State's growth management laws for local governments to implement innovative planning and development strategies for large, rural parcels. While having many of the attributes of a traditional "transfer of development rights" program, the RLSA planning process provides additional planning and economic incentives as well as flexibility for the local government to implement this program. The program was best summarized by Secretary Pelham at hearing as follows: The RLSA process is an optional planning process which local governments may elect to use in rural and agricultural areas of the state. Essentially it provides incentives to landowners to preserve or conserve environmental and natural resources and agricultural lands by giving them stewardship credits that may be assigned to those lands to be preserved, but which can be used on other lands through a transfer of those credits to the receiving areas. Tr. at 182. The first step in the RLSA planning process is for the local government to "apply to the Department in writing requesting consideration for authorization to designate a [RLSA]." § 163.3177(11)(d)3., Fla. Stat. (2001). Under the original statute, if the Department chose to authorize a local government to designate an RLSA, it would do so by written agreement with the local government. See § 163.3177(11)(d)4. and (5), Fla. Stat. (2001). Because the original statute was a pilot program, the Department could authorize only five local governments to designate RLSAs. See § 163.3177(11)(d)6., Fla. Stat. (2001). To be eligible for designation as an RLSA under this pilot program, a parcel of land had to be larger than 50,000 acres but not over 250,000 acres; it had to be designated as rural or a substantial equivalent on the future land use map (FLUM); and it had to be located outside the municipal and established urban growth boundaries. See § 163.3177(11)(d)6., Fla. Stat. (2001). For this reason, only counties (and not cities) were eligible to participate in the program. Once it received Department authorization to designate an RLSA, the county was to then propose and adopt a plan amendment designating the RLSA. See § 163.3177(11)(d)6., Fla. Stat. (2001). This plan amendment was to be subject to full review under Section 163.3184, Florida Statutes, for a compliance determination. Also, the plan amendment was required to specifically address the following: Criteria for the designation of receiving areas within rural land stewardship areas in which innovative planning and development strategies may be applied. Criteria shall at a minimum provide for the following adequacy of suitable land to accommodate development so as to avoid conflict with environmentally sensitive areas, resources, and habitats; compatibility between and transition from higher density uses to lower intensity rural uses; the establishment of receiving area service boundaries which provide for a separation between receiving areas and other land uses within the rural land stewardship area through limitations on the extension of services; and connection of receiving areas with the rest of the rural land stewardship area using rural design and rural road corridors. Goals, objectives, and policies setting forth the innovative planning and development strategies to be applied within rural land stewardship areas pursuant to the provisions of this section. A process for the implementation of innovative planning and development strategies within the rural land stewardship area, including those described in this subsection and s. 9J-5.006(5)(l), Florida Administrative Code, which provide for a functional mix of land uses and which are applied through the adoption by the local government of zoning and land development regulations applicable to the rural land stewardship area. A process which encourages visioning pursuant to s. 163.3167(11) to ensure that innovative planning and development strategies comply with the provisions of this section. The control of sprawl through the use of innovative strategies and creative land use techniques consistent with the provisions of this subsection and rule 9J-5.006(5)(l), Florida Administrative Code. Once the plan amendment was in place, the county was then to implement it through land development regulations. Under the original statute, the county by ordinance was to "assign to the [RLSA] a certain number of credits, to be known as 'transferable rural land use credits' . . . ." These credits would then be transferred to designated receiving areas "solely for the purpose of implementing innovative planning and development strategies and creative land use planning techniques adopted by the local government pursuant to this section." See § 163.3177(11)(d)8.b., Fla. Stat. (2001). Once transferable rural land use credits were transferred from a parcel, the underlying land uses would be extinguished, the parcel would be limited to agriculture or conservation, and the transfer would be memorialized as a restrictive covenant running with the land. See § 163.3177(11)(d)8.k., Fla. Stat. (2001). The Department was granted the authority to implement this section by rule in the original statute. However, the Department did not adopt rules. No county applied to participate in this pilot program. Amendments to the RLSA Statute The Legislature substantially amended the statute in 2004. See Ch. 2004-372, Laws of Fla. Although the program had no participants as of that time, the Legislature removed the pilot status of the program and the limitation on the number of local governments that may be authorized to designate an RLSA. See § 163.3177(11)(d)1., Fla. Stat. (2004). Although the requirement for a written agreement between the county and the Department was deleted, the requirement for the county's application and Department's authorization prior to the designation of an RLSA remained. See § 163.3177(11)(d)1. and 4., Fla. Stat. (2004). The minimum acreage for an RLSA was reduced to 10,000 acres and the maximum was removed. § 163.3177(11)(d)4., Fla. Stat. (2004). The statute also explicitly recognized that RLSAs could be multi-county. § 163.3177(11)(d)2., Fla. Stat. (2004). In 2005, the Legislature again amended the statute in several respects, one of which was directed to the stewardship credit methodology. See Ch. 2005-290, Laws of Fla. However, the statute still requires that the total amount of credits is to be tied to the "25-year or greater projected population of the rural land stewardship area." Although the statute was amended again in 2006, those amendments have no bearing on the issues in this case. See Ch. 2006-220, Laws of Fla. Designating an RLSA Under the Statute Collier County has been frequently mentioned as a local government with an RLSA program. However, that County's comprehensive plan provisions regarding rural development were not adopted under the RLSA statute; rather, they were adopted by the County in 1999 as conventional plan amendments that were later approved in 2002 by a final order issued by the Administration Commission. Collier County's rural planning program does, however, have some of the same core attributes found in the RLSA program, including the creation of transferable land use credits to enable development in designated receiving areas. The Department closely examined the Collier County program as part of its "Rural Land Stewardship Area Program 2007 Annual Report to the Legislature" (2007 Annual Report). See Joint Exhibit 4. See also § 163.3177(11)(d)8., Fla. Stat. ("[t]he department shall report to the Legislature on an annual basis on the results of implementation of [RLSAs] authorized by the department"). This examination revealed several substantial flaws in the program. First, the Collier County program is extremely complex, with over twenty general attributes that must be examined for every acre of land assigned stewardship credits. This would make it difficult and expensive for small rural counties with limited resources. The Collier County program also assigns the highest stewardship credits to environmentally sensitive lands and appreciably lower values to agricultural land. The result is that development is directed to agricultural areas. For example, eighty-seven percent of the footprint of one receiving area that is currently being developed, known as Ave Maria, was in active agriculture prior to its designation for development. In this respect, the Collier County system is directing development to agricultural lands and not protecting and conserving those lands, which the Department contends contravenes the principles of rural sustainability. Another major concern with the Collier County program is the extent and distribution of receiving areas. The Collier County program does not have any requirements that the receiving area be clustered, thus allowing for the possibility of scattered, sprawling receiving areas throughout eastern Collier County. Also, there appears to be no limit on the footprint of these receiving areas. The original Collier County program envisioned development on only nine to ten percent of the entire area, for a total of approximately 16,800 acres. However, due to the complexity and "flexibility" within the Collier County stewardship credit system, "the maximum development footprint cannot be determined." On September 12, 2006, St. Lucie County adopted plan amendments under the RLSA statute. Later that year, the Department reviewed the amendments and found them to be in compliance. In preparing the 2007 Annual Report, the Department undertook a detailed analysis of the St. Lucie RLSA amendments. Even though the amendments had been previously found to be in compliance, the new analysis revealed several shortcomings in the amendments, including their failure to discuss, analyze, or demonstrate how they further the principles of rural sustainability, a primary focus of the program. Also, the amendments were not supported by an analysis of land use need. Instead of projecting population and need, the RLSA adopted an arbitrary cap of 13,248 dwelling units with "no known planning basis." The St. Lucie RLSA is similar to the Collier County program in two respects: it is very complex, and it places no spacial limits on the footprint of the development area. Due to these shortcomings, the Department has placed little, if any, reliance on the St. Lucie County RLSA amendments as an example of proper planning under the RLSA statute. There is no evidence that any development has occurred under the St. Lucie program, and its most recent Evaluation and Appraisal Report dated October 2008 indicated that none may ever occur. In 2007, Highlands and Osceola Counties both applied for and were granted authorization by the Department to designate RLSAs. However, both counties later notified the Department that they would no longer pursue the RLSAs, and the authorizations were withdrawn by the Department. The Rule Development Process In early 2007, the Department became aware of assertions by some landowners that the RLSA program provides for unlimited development within a stewardship area; that RLSA plan amendments were not subject to the growth management provisions in Chapter 163, Florida Statutes; and that RLSAs were not subject to a needs analysis, as required by the law. At the same time, the Department received numerous inquiries from large landowners and/or their representatives regarding RLSA proposals, some as large as 750,000 acres, and for two "new towns" with 100,000 and 60,000 dwelling units, respectively. It also became aware of concerns and criticisms leveled against the one adopted RLSA program in St. Lucie County and rural planning efforts in Collier County. The main criticism was that the system being used for RLSA planning was too complex, which resulted in an expensive, consultant- intensive process that lacked transparency and was largely incomprehensible. Based on the above concerns and criticisms, the Department began gathering information in early 2007 in preparation for rulemaking. On July 19, 2007, it conducted its first workshop. Two other workshops were held, and the first draft of proposed rule 9J-5.026 was issued in January 2008. That proposed rule set forth the minimum substantive requirements for RLSA planning. In September 2008, the Department issued its first draft of proposed rule 9J-11.023, which sets forth the procedural requirements for a local government to seek authorization from the Department to designate an RLSA. After receiving comments from interested parties, the Department noticed the rules for adoption and conducted a rule adoption hearing. On January 7, 2009, Petitioners filed a Petition challenging most of the provisions in the proposed rules. See DOAH Case No. 09-0048RP. Based upon that challenge, which raised new issues not previously brought to the attention of the Department, the Department withdrew the rules and made substantial revisions to address these concerns. This rendered moot Petitioners' earlier challenge. After the revised rules were noticed for adoption, Petitioners filed their Petition challenging numerous provisions within the proposed rules as well as one existing rule. The Objections As summarized in their Proposed Final Order, Petitioners contend (a) that proposed rules 9J-11.023(2), (4), and (5) are invalid because they exceed the Department's grant of rulemaking authority;4 (b) that proposed rules 9J-5.026(7)(b), (7)(c)4., 6., (8)(a), and (9)(a)3., 6., 18., and 19. enlarge, modify, or contravene the specific provisions of law implemented; (c) that proposed rule 9J-5.026(3) is vague and fails to establish adequate standards for agency decisions; (d) that proposed rule 9J-5.026(9)(a)18. is arbitrary; and (e) that existing Rule 9J-5.003(80) contravenes the specific provisions of law implemented. The remaining allegations have been voluntarily dismissed. a. Does proposed rule 9J-11.023 exceed the grant of legislative authority? Petitioners first contend that subsections (2) and (4) in their entirety and the words "If authorized to proceed" in the first sentence of subsection (5) of proposed rule 9J-11.023 are an invalid exercise of delegated legislative authority because they exceed the Department's specific grant of legislative authority. The challenged subsections of the proposed rule read as follows: 9J-11.023 Procedure for the Designation of a Rural Land Stewardship Area. * * * (2) Pre-Notification Actions. Prior to giving official notification of intent to designate a RLSA to the Department, the county(ies) shall conduct at least one noticed public workshop to discuss and evaluate the appropriateness of establishing a RLSA. The county(ies) shall invite the Department of Community Affairs, Department of Agricultural and Consumer Affairs, Department of Environmental Protection, Department of Transportation, Florida Fish and Wildlife Conservation Commission, affected regional planning council(s), and affected water management district(s) (collectively referred to as the "RLSA Interagency Technical Advisory Team") to participate in the workshop. Potentially affected landowners and other interested parties shall be given notice and invited to participate in the workshop. The workshop shall address: the statutory process for designating a RLSA; the planning issues that are likely to arise; and the technical assistance that will be available from state and regional agencies if the county(ies) proceed to designate a RLSA. The county(ies) shall provide opportunities for broad public participation in the RLSA process, which may include a series of public meetings or workshops. The county(ies), in coordination with the affected landowners, shall host a site visit of the RLSA for the RLSA Interagency Technical Advisory Team in conjunction with the workshop or after the notification of intent to designate pursuant to paragraph (4)(b). * * * Review of Notification of Intent to Designate. The Department will provide members of the RLSA Interagency Technical Advisory Team with a copy of the notification of intent to designate within five days after receipt of the notification. If a site visit was not made prior to the notification of intent to designate, the Department will contact the county(ies) within ten days after receipt of the notification of intent to arrange a site visit of the proposed RLSA and surrounding lands. The county(ies) shall ensure proper coordination with the affected landowners. The Department will coordinate the scheduling of the site visit with the members of the RLSA Interagency Technical Advisory Team and request their participation in the site visit. Members of the RLSA Interagency Technical Advisory Team shall be asked to provide the Department oral and/or written comments on the proposed RLSA within 30 days of the receipt of the notification of intent to designate or the site visit, if it occurs after the notification. The Department may also request meetings with the members of the RLSA Interagency Technical Advisory Team to discuss and evaluate the notification and site visit. The Department may also request a conference with the county's(ies') staff(s) to discuss issues and questions that have arisen as a result of the site visit, comments from members of the Interagency Technical Advisory Team and other stakeholders, and the Department's evaluation of the RLSA proposal. Not later than 60 days following the receipt of the notification of intent to designate or the site visit, whichever is later, the Department shall issue a written notification to the county(ies). The Department's notification shall authorize the county(ies) to proceed with a plan amendment to designate the RLSA or inform the county(ies) of the Department's decision not to authorize. The decision shall be based on the information contained in or gained from the notification, site visit, other agency comments, and other information received. The Department shall authorize the county(ies) to proceed if it determines that the proposed RLSA meets the threshold eligibility requirements of subsection 9J-5.026(4), F.A.C. and that there is a reasonable likelihood that the RLSA will further the principles of rural sustainability. If the Department decides to authorize the county(ies) to proceed with a plan amendment to designate a RLSA, the notification will set forth the facts on which the authorization is based, and may include recommendations to the county(ies) regarding the RLSA. The notification will not guarantee that a comprehensive plan amendment(s) to designate a RLSA will be found in compliance by the Department. It will only constitute the Department's authorization to designate a RLSA if the necessary comprehensive plan amendment(s) are adopted and found in compliance pursuant to Section 163.3184, F.S. If the Department decides not to authorize the county(ies) to proceed with a plan amendment to designate a RLSA, the agency's notification will explain the reasons for the decision. Amendment to the Comprehensive Plan: If authorized to proceed, the county(ies) may prepare and process a plan amendment(s) that will be reviewed by the Department pursuant to Section 163.3184, F.S. The county(ies) may, in preparing the plan amendment(s), establish a local visioning process to facilitate the development of a RLSA plan amendment. The Department encourages the county(ies) to seek and utilize technical assistance from the members of the RLSA Interagency Technical Advisory Team in preparing a RLSA plan amendment. 33. Sections 120.52(8)(b) and 120.54(3)(a)1., Florida Statutes, require that the agency list in the rulemaking notice the purported rulemaking authority for the proposed rule. To comply with this requirement, the Department's rulemaking notice cites Sections 163.3177(9) and (11)(h), Florida Statutes, as the specific authority for adopting the rule and Section 163.3177(11)(d)1., Florida Statutes, as the law being implemented. In its Proposed Final Order, the Department relies on Section 163.3177(11)(h) as the specific statutory authority for rulemaking. It provides that the Department "may adopt rules necessary to implement the provisions of [subsection 163.3177(11)]," including the RLSA provisions found in Section 163.3177(11)(d). On the other hand, the law being implemented is quite lengthy and reads as follows: (11)(d)1. The department, in cooperation with the Department of Agriculture and Consumer Services, the Department of Environmental Protection, water management districts, and regional planning councils, shall provide assistance to local governments in the implementation of this paragraph and rule 9J-5.006(5)(l), Florida Administrative Code. Implementation of those provisions shall include a process by which the department may authorize local governments to designate all or portions of lands classified in the future land use element as predominately agriculture, rural, open, open-rural, or a substantively equivalent land use, as a rural land stewardship area within which planning and economic incentives are applied to encourage the implementation of innovative and flexible planning techniques, including those contained herein and in rule 9J- 5.006(5)(l), Florida Administrative Code. Assistance may include, but is not limited to: Assistance from the Department of Environmental Protection and water management districts in creating the geographic information systems land cover database and aerial photogrammetry needed to prepare for a [RLSA]; Support for local government implementation of rural land stewardship concepts by providing information and assistance to local governments regarding land acquisition and assistance to local governments regarding land acquisition programs that may be used by the local government programs that may be used by the local government or landowners to leverage the protection of greater acreage and maximize the effectiveness of rural land stewardship areas; and Expansion of the role of the Department of Community Affairs as a resource agency to facilitate establishment of [RLSAs] in smaller rural counties that do not have the staff or planning budgets to create a [RLSA]. Proposed rule 9J-11.023 describes in detail the process by which a local government is to request Department authorization to designate a RLSA. At issue here are provisions in subsections (2), (4), and (5) of the rule that require a local government wishing to designate an RLSA to conduct a public workshop; cover particular topics during the workshop; host a site visit with designated agencies; and based on the information gathered from this process to then allow the Department, in its discretion, to either authorize or not authorize the local government to begin to prepare and process an RLSA amendment. The latter decision is based on whether the local government has shown "a reasonable likelihood that the RLSA will further the principles of rural sustainability." Petitioners contend that there is no specific grant of rulemaking authority that authorizes the Department to mandate these procedures in the rule or to prevent a local government from proposing and processing an RLSA plan amendment. Instead, they contend that the enabling statute only allows the Department to promulgate rules that are "necessary" to implement the RLSA program, those being a requirement that the county provide notice to the Department that it intends to propose a RLSA plan amendment and a description of the subsequent review process by the Department to determine whether the amendment is in compliance. Section 163.3177(11)(d)1., Florida Statutes, authorizes the Department to provide "assistance to local governments in the implementation of this paragraph and rule 9J- 5.006(5)(l)." (The cited rule, among other things, encourages "innovative and flexible planning and development strategies" that allow conversion of rural and agricultural lands to other uses.) The statute also includes specific authority to establish a "process by which the department may authorize local governments to designate all or portions of lands classified in the future land use element (FLUE] as predominately agricultural, rural, open, open-rural, or a substantively equivalent land use, as a [RLSA] . . . ." The rule accomplishes this purpose by requiring state agency technical assistance, establishing the process for a workshop and site visit, requiring that the county's notification describe the basis for the designation, requiring broad public participation, and assuring, by approval or disapproval of the county's preliminary proposal, that the proposed RLSA will promote the principles of rural sustainability. Notably, had the Legislature intended this authorization process to be the same as the existing compliance review process for conventional plan amendments, there would be no need for this statutory language. The proposed rule does not exceed the Department's grant of rulemaking authority. b. Do certain provisions within proposed rule 9J-5.026(7) and (9) enlarge, modify, or contravene the law implemented? Petitioners further contend that proposed rules 9J- 5.026(7)(b), (7)(c)4., 6., (8)(a), and (9)(a)3., 6., 18., and enlarge, modify, or contravene the specific provisions of law implemented. The challenged rules read as follows: 9J-5.026 Rural Land Stewardship Area (RLSA) * * * Data and Analysis Requirements. * * * Population Projections and Analysis of Land Use Need. Population projections and analysis of land use need shall be prepared in accordance with Rule 9J-5.006, F.A.C., with the following modifications: The amount and extent of allowable development in the RLSA must be based on the 25-year or greater projected population of the RLSA; the anticipated effect of the proposed RLSA must receiving areas, including any committed catalyst projects, infrastructure improvements, or other projects that would attract and support development; the furtherance of the statutory principles of rural sustainability; and the goals, objectives, and policies of the RLSA plan amendment. * * * 4. Land development and other conversion threats whereby rural resources under threat require more incentives via stewardship credits and less threatened resources require lesser incentives. This includes the future threat of low-density sprawl on lands within and surrounding Eligible Receiving Areas; and * * * 6. Values shall be assigned to all of the land in the RLSA. The highest values shall be assigned to the most environmentally valuable land, and to open space and agricultural land where the retention of such lands is a priority. The assignment of values shall be submitted with the RLSA plan amendment as part of the supporting data and analysis. * * * Stewardship Credit System Criteria. (a) Each credit shall represent a defined number of residential units or a defined amount of non-residential square footage. The credit transferee may decide whether to use the credit for a residential or non- residential use in accordance with the land use standards established for the Designated Receiving Area. * * * Goals, Objectives, Policies, and Map. * * * (a) The goals, objectives, and policies shall include the following: * * * 3. Identification of the innovative planning and development strategies to be used within the RLSA, and a process for implementing the strategies, including the adoption of implementing plan amendments, land development regulations, and the issuance of development orders. The process shall include provision for the Department's review of a proposed land development regulation to designate a receiving area for consistency with the RLSA plan amendment. * * * 6. A requirement that Eligible Receiving Areas shall be located on land that is suitable for development and have the lowest land values based on the land values analysis conducted pursuant to paragraph (7)(c). * * * Policies for new towns which comply with the following: As required by subsection 9J-5.003(80) and paragraph 9J-5.006(5)(1), F.A.C., a new town shall be designated on the future land use map. A new town shall be located within a Designated Receiving Area. The plan amendment designating a new town shall include a master development plan that establishes the size of the new town, the amount, location, type, density and intensity of development, and the design standards to be utilized in the new town. Any increase in the density or intensity of land use required to achieve the proposed new town may occur only through the use of stewardship credits assigned or transferred to the Designated Receiving Area either prior to or subsequent to the designation of the new town on the future land use map. New towns shall be surrounded by greenbelts, except for any connecting rural road corridors and to the extent that new towns are adjacent to existing or planned urban development or incorporated areas. A future land use map amendment to designate a new town shall be internally consistent with RLSA provisions of the comprehensive plan. A future land use map amendment to designate a new town shall be accompanied by an amendment to the capital improvements element to incorporate a financially feasible five-year capital improvements schedule for the public facilities necessary to serve the new town and an amendment to the transportation or traffic circulation element to designate any new rural road corridors required to connect the new town with the rest of the RLSA. Provisions to ensure that any use of the underlying densities and intensities of land uses assigned to parcels of land by the county comprehensive plan prior to designation of the RLSA furthers the principles of rural sustainability. * * * The grant of authority for this rule is cited as Sections 163.3177(9) and (11)(h), Florida Statutes, while Sections 163.3177(2), (3), (6)(a), (8), (10)(e), (11)(a), (b), and (d)1., 2., 4., 5., and 6., Florida Statutes, are cited as the laws being implemented. Subsection (2) of the law being implemented provides that "[c]oordination of the several elements of the local comprehensive plan shall be a major objective of the planning process"; subsection (3) is a lengthy provision requiring that a comprehensive plan include a capital improvements element; paragraph (6)(a) describes in detail the matters that must be contained in the FLUE; subsection (8) requires that all elements of the comprehensive plan be based on data appropriate to the element involved; paragraph (10)(e) generally provides that support data and analysis shall not be subject to the compliance review process, but they must be based on appropriate data; paragraph (11)(a) describes the Legislature's recognition of using innovative planning and development strategies; paragraph (11)(b) expresses the intent of the Legislature to allow the conversion of rural lands to other uses, where appropriate, including urban villages, new towns, satellite communities, area-based allocations, clustering, and open space provisions, mixed-use development, and sector planning; and subparagraphs (11)(d)1., 2., 4., 5., and 6. describe the statutory process for creating an RLSA. Subsection (7) of the proposed rule sets forth the data and analysis requirements that apply to all RLSA plan amendments, including data and analysis of existing conditions (subparagraphs (7)(a)1. through 10.); population projections and analysis of land use (paragraph (7)(b)); and a land values analysis (subparagraphs (7)(c)1. through 6.). A land use needs analysis is an integral part of the planning process. Paragraph (7)(b) requires that an RLSA amendment be supported by population projections and an analysis of land use need such that the amount and extent of allowable development must be based on the 25-year or greater projected population of the RLSA, other items, and the anticipated effect of proposed RLSA receiving areas. Petitioners contend that this language contravenes Section 163.3177(11)(d)6., Florida Statutes, amended in 2005, which provides in part that the total amount of development "must enable the realization of the long- term vision and goals for the 25-year or greater projected population of the [RLSA], which may take into consideration the anticipated effect of the proposed receiving areas." See Ch. 2005-290, Laws of Fla. Paragraph (7)(b) does not contravene the terms of the statute. As expressed in the law being implemented, the rule directs that the need analysis shall be based upon, among other things, "the anticipated effect of the proposed RLSA receiving areas " As a part of the data and analysis to be supplied, paragraph (7)(c) requires that an RLSA amendment be supported by a land values analysis that considers six components described in subparagraphs 1. through 6. This in turn requires a comprehensive analysis of rural resources that exist within the RLSA. Subparagraph 4. requires that the analysis include the development threats to rural resources and that resources under threat of conversion receive more incentives from stewardship credits than resources under less of a threat. Petitioners contend that the rule contravenes Section 163.3177(11)(d)6.j., Florida Statutes, because it requires a greater value to be assigned to resources under threat of conversion and would result in other rural and natural and agricultural resources which may have a higher intrinsic value being assigned fewer credits. Specifically, the cited statute requires that "the highest number of credits per acre" should be "assigned to the most environmentally valuable land, or, in locations where the retention of open space and agricultural land is a priority, to such lands." The purpose of the rule is straightforward: to protect those resources that are under the greatest threat and those that are most susceptible to harm over time through land development or other changes, including urban sprawl. Contrary to Petitioners' assertion, the overall analysis does in fact consider all forms of rural resources in determining how the credits will be assigned. The rule implements the statutory directive of attaining the principles of rural sustainability. Subparagraph (7)(c)6. requires, among other things, that the local government submit as a part of the data and analysis supporting the plan amendment "the assignment of values" of all lands in the RLSA. Petitioners contend that assigning values at the time of the amendment "locks in these values" and would require a subsequent plan amendment in contravention of Section 163.3177(11)(d)6., Florida Statutes, which Petitioners argue contemplates the creation of credits after the adoption of the plan amendment. At hearing, however, the Department explained that because conditions will obviously change over time, the land values analysis will be periodically updated and can be changed without a new plan amendment. In their Proposed Final Order, Petitioners concede that given this interpretation of the rule, it "would not be an invalid exercise of delegated legislative authority." See Petitioners' Proposed Final Order, par. 73. Paragraph (8)(a) of the proposed rule requires each stewardship credit to represent either a defined number of residential units or non-residential square footage. Once the credits are created in sending areas, they can be transferred to designated receiving areas to be used to enable development that is consistent with the RLSA goals, objectives, and policies. Petitioners contend that the rule will prohibit mixed-use development in contravention of Section 163.3177(11)(d)4.c., Florida Statutes, which requires that the RLSA goals, policies, and objective provide for a "functional mix of land uses." There is no prohibition of a mix of land uses. In fact, the opposite is true. As clarified by a Department witness, "a mix is essentially required, as you can see from [sub]paragraph (9)(a)17., which describes that a mix of use must be addressed." Tr. at 273. The rule does not contravene the statute. Subsection (9) of the proposed rule generally requires that the RLSA plan amendment contain goals, objectives, policies, and a map. Subparagraphs (9)(a)1. through 21. require that the goals, objectives, and policies identify the innovative planning and development strategies to be used in the RLSA process, including the adoption of implementing plan amendments, land development regulations, and the issuance of development orders. Petitioners allege that subparagraphs 3., 6., 18., and enlarge, modify, or contravene the law implemented. Subparagraph 3. requires "implementing plan amendments" because the Department recognized the fact that the RLSA planning process will consume years or even decades and will require implementing plan amendments to accomplish its purpose. This is especially true here as the RLSA process involves the development of large tracts of land (as much as 100,000 acres or more) that will take years or decades to fully implement and build out. At a minimum, under current law, the "implementing plan amendments" will include a capital improvements element annual update; water supply planning, and the designation of new towns. Except for the requirement that an implementing plan amendment designate a new town pursuant to existing Rule 9J-5.003(80), Petitioners agree that the proposed rule is valid. Because the cited existing rule has been determined to be valid, Petitioners' contention is rejected. See Findings 62-65, infra. Subparagraph 6. provides that the goals, policies, and objectives shall contain "a requirement that the Eligible Receiving Areas shall be located on land that is suitable for development and have the lowest land values on the land values analysis conducted pursuant to paragraph (7)(c)." Petitioners contend that this provision limits the flexibility of local governments to determine the best location for Eligible Receiving Areas and therefore contravenes the provisions in various parts of Section 163.3177, Florida Statutes, that emphasize flexibility. The rule implements the principles of rural sustainability contained in Section 163.3177(11)(d)2., Florida Statutes. Only by directing development to land with the lowest environmental, agricultural, and rural resource value will an RLSA protect ecosystems, habitat, natural resources, and the agricultural economy. The rule does not contravene this statute. Subparagraph 18. requires an RLSA plan amendment to include policies for "new towns," including a requirement that a new town be designated on the FLUM. Petitioners contend that the requirement to designate a new town on the FLUM contravenes Section 163.3177(11)(4)(d)4., Florida Statutes, which provides for the implementation of the innovative planning and development strategies included in existing Rule 9J-5.006(5)(l) through zoning and land development regulations. At hearing, Petitioners narrowed their argument to this one feature in the rule. Because the Department may lawfully require that new towns be designated on the FLUM, subparagraph 18. is consistent with the statute implemented. See Findings 62-65, infra. Subparagraph 19. requires that RLSA plan amendments contain goals, objectives, and policies "to ensure that any use of the underlying densities and intensities of land uses assigned to parcels of land by the county comprehensive plan prior to designation of the RLSA furthers the principles of rural sustainability." Petitioners contend this provision contravenes Section 163.3177(11)(d)6., Florida Statutes, because it "impinges on existing land use rights which is contrary to one of the statutory principles of rural sustainability, namely the 'restoration and maintenance of the economic value associated with rural lands.'" The rule, however, furthers the principles of rural sustainability, as required by Section 163.3177(11)(d)1., Florida Statutes, since it requires that all lands within an RLSA, whether or not in a Designated Receiving Area, be developed in a manner that furthers those principles. It does not contravene the cited statute. Petitioners also contend that subparagraph 19. contravenes Section 163.3161(9), Florida Statutes, which requires, among other things, that all programs be applied "with sensitivity for private property rights and not be unduly restrictive." Petitioners surmise that the rule may operate to displace underlying density within the RSLA regardless of the use of the RLSA credit system. However, the rule does not displace any underlying density; it only requires that underlying rights be exercised consistent with the RLSA. More specifically, existing densities may be used in any manner that furthers the principles without displacing any of those densities. The rule does not contravene either statute. Is proposed rule 9J-5.026(3) vague and does it have inadequate standards for agency decisions? Petitioners next contend that subsection (3) of proposed rule 9J-5.026, and specifically certain words within the definition of the term "greenbelt," are vague and fail to establish adequate standards for agency decisions. That provision reads as follows: 9J-5.026 Rural Land Stewardship Area (RSLA) * * * (3) Definitions * * * (d) "Greenbelt" means a border of permanently undeveloped land sufficient in size to effectively preclude the expansion of urban development into the surrounding rural lands and to provide an effective buffer to protect the surrounding rural resources from development impacts. A greenbelt is an undeveloped area that surrounds an urban area, a new town, or other urban development and is meant to separate the urban developed area from the surrounding area to provide a border that protects surrounding rural lands from urban development. Petitioners contend that the use of the adjectives "sufficient," "effectively," and "effective" to describe the greenbelt buffer are vague and lack standards to guide agency determinations. In common usage, the word "sufficient" means that the greenbelt is sufficient in size to accomplish its purpose of precluding the expansion of urban development into the surrounding rural lands. Similarly, the word "effectively" means that the use or creation of a buffer to protect urban encroachment on rural lands will be accomplished in an effective manner. Likewise, the word "effective" simply means that the greenbelt achieves the purpose of creating a buffer. These phrases are easily understood by persons of ordinary intelligence, particularly when read in context with other provisions of the rule. See, e.g., Cole Vision Corp., et al. v. Dept. of Bus. and Prof. Reg., 688 So. 2d 404, 410 (Fla. 1st DCA 1997). Petitioners contend, however, that the rule fails to explicitly include the standard that site-specific data would be considered in determining the "sufficiency" of a buffer. However, this level of detail is not needed since site-specific information is typically considered and applied by the local government and Department through the planning process and might include, for example, the nature of the urban area, the potential impacts if the urban area is extended, the nature of the surrounding land, and other similar factors. The rule is not so vague or lacks sufficient standards as to be invalid. Is proposed rule 9J-5.026(9)(a)18. arbitrary? Petitioners further contend that subparagraph (9)(a)18. of proposed rule 9J-5.026 is arbitrary. That rule reads as follows: 18. Policies for new towns which comply with the following: As required by subsection 9J-5.003(80) and paragraph 9J-5.006(5)(1), F.A.C., a new town shall be designated on the future land use map. A new town shall be located within a Designated Receiving Area. The plan amendment designating a new town shall include a master development plan that establishes the size of the new town, the amount, location, type, density and intensity of development, and the design standards to be utilized in the new town. Any increase in the density or intensity of land use required to achieve the proposed new town may occur only through the use of stewardship credits assigned or transferred to the Designated Receiving Area either prior to or subsequent to the designation of the new town on the future land use map. New towns shall be surrounded by greenbelts, except for any connecting rural road corridors and to the extent that new towns are adjacent to existing or planned urban development or incorporated areas. A future land use map amendment to designate a new town shall be internally consistent with RLSA provisions of the comprehensive plan. A future land use map amendment to designate a new town shall be accompanied by an amendment to the capital improvements element to incorporate a financially feasible five-year capital improvements schedule for the public facilities necessary to serve the new town and an amendment to the transportation or traffic circulation element to designate any new rural road corridors required to connect the new town with the rest of the RSLA. As noted earlier, this rule sets forth the requirements for policies in the RLSA plan amendment that are applicable to new towns. Petitioners contend that the rule is arbitrary because it "selectively emphasizes" a new town as only one of several innovative and flexible planning strategies set forth in existing Rule 9J-5.006(5)(l). To be arbitrary, a rule must not be supported by logic or the necessary facts. See § 120.52(8)(e), Fla. Stat. Here, the more persuasive evidence shows that new towns are much larger development types; they are more intense than other development forms; and they will likely generate greater impacts. In an RLSA, they take on even more significance since the planning goal is to further the principles of rural sustainability. Collectively, these factors form a sufficient basis and rationale for giving new towns different treatment than other development forms that are smaller, have fewer uses, are less intense, and are more likely to have lesser impacts. The proposed rule is not arbitrary. e. Does existing Rule 9J-5.003(80) contravene the specific provisions of law implemented? Finally, Petitioners have challenged existing Rule 9J- 5.003(80), which became effective in 1994, on the ground that it contravenes the specific provisions of law implemented. That rule defines the term "new town" as follows: (80) "New town" means a new urban activity center designated on the future land use map and located within a rural area, distinct and geographically separated from existing urban areas and other new towns. A new town is of sufficient size, population and land use composition to support a variety of economic and social activities consistent with an urban area designation. New towns include basic economic activities; all major land use categories; and a centrally provided full range of public facilities and services. New towns are based on a master development plan. The specific authority for the rule, when adopted, was Section 163.3177(9) and (10), while the law being implemented was identified as Sections 163.3177 and 163.3178, Florida Statutes. Because Section 163.3178 involves coastal management, and a new town would probably not be located in a coastal zone, it has marginal relevance to this proceeding. The Department relies principally on Section 163.3177(6)(a), Florida Statutes, which requires, among other things, that "various categories of land use shall be shown on a land use map or map series."6 The existing definition provides, in part, that a new town will include "all major land use categories, with the possible exception of agricultural and industrial." Because they include numerous land use categories, new towns are by definition a mixed-use land use category. See Fla. Admin. Code 9J-5.006(4)(c). Mixed-use land use categories must be designated on the FLUM. See § 163.3177(6)(a), Fla. Stat.("The future land use plan may designate areas for future planned development use involving combinations of types of uses"). As noted above, a new town is recognized in existing Rule 9J-5.006(5)(l) as an innovative and flexible planning option. Because the Legislature referenced this rule provision with approval four times in the RLSA statute, it must be presumed that the Legislature was expressing approval of the existing definition with the mapping requirement. See §§ 163.3177(11)(d)1. (two separate references); 163.3177(11)(d)4.c.; and 163.3177(11)(d)4.e. The rule does not contravene the statute being implemented.
The Issue The issue in this case is whether the City of Gainesville comprehensive plan amendment adopted by Ordinance No. 4036 on October 24, 1994, is in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact have been determined: The Parties Respondent, City of Gainesville (City), is a local government subject to the comprehensive land use planning requirements of Chapter 163, Florida Statutes. That chapter is administered and enforced by respondent, Department of Community Affairs (DCA). The DCA is charged with the responsibility of reviewing comprehensive land use plans and amendments made thereto. Petitioners, Mark Barrow, Jane Myers, Wilse Barnard, Mary Webb, and Steven and Mary Reid, own property and reside within the City. Petitioners, Historic Gainesville, Inc. and Duckpond Neighborhood Association, Inc., are organizations made up of persons who reside, own property, or operate businesses within the City. By stipulation of the parties, petitioners are affected persons within the meaning of the law and have standing to bring this action. Intervenors, John and Denise Feiber and Katherine Bodine, are the owners of two parcels of property which are at issue in this case. Intervenors submitted oral and written comments during the plan amendment review and adoption proceeding and thus have standing as affected persons to participate in this proceeding. Background During 1993 and 1994, John Feiber unsuccessfully attempted to sell his 1,800 square foot single-family home for an asking price that was disproportionately high for residential property, and was more in keeping with a commercial asking price. Recognizing that the property would be far more valuable with a commercial classification than its current residential designation, on June 11, 1994, Feiber, his wife, and the owner of the property next door, Katherine Bodine, submitted an application for an amendment to the City's Future Land Use Map (FLUM) to convert a .57 acre parcel from Residential- low Density to Planned Use District (PUD) to change a single family home into a law office, potentially convert an adjacent structure into mixed office and residential uses, and possibly build a third office building. Although the City's Plan Board unanimously recommended that the application be denied, by a 4-1 vote the City approved the application on October 3, 1994. This approval was formally ratified through the adoption of Ordinance No. 4036 on October 24, 1994. After essentially deferring to the City's findings, on January 25, 1995, the DCA completed its review of the amendment and issued a Notice of Intent to find the amendment in compliance. On February 15, 1995, petitioners filed their petition for administrative hearing with the DCA generally contending the amendment was internally inconsistent and violated certain parts of Chapter 163, Florida Statutes, the state comprehensive plan, and Chapter 9J- 5, Florida Administrative Code. In resolving these contentions, on which conflicting evidence was presented, the undersigned has accepted the more credible and persuasive evidence. Finally, by order dated March 30, 1995, intervenors were authorized to participate in this proceeding in support of the amendment. The Affected Neighborhood The parcel in question consists of two lots, one owned by the Feibers, the other by Bodine. Both lots are located within, and on the edge of, the Northeast Gainesville Residential Historic District (Historic District), a 63- acre collection of properties, which by virtue of the historically significant structures and residential land use patterns, qualified for listing on the National Register of Historic Places in 1980. The dominant land use and character within the Historic District is residential, and has been since it was zoned residential in 1932. Land uses on Northeast First Street, which forms the western boundary of the District, were always institutional, but on the east side of Northeast Second Street eastward, the uses were always residential with the exception of the Thomas Center, a 1920's vintage building now serving as a City office building. The Historic District is located in downtown Gainesville, beginning just north of East University Avenue and continuing northward until Northeast Tenth Avenue. Within its boundaries on the FLUM are two distinct land use designations, Residential-Low Density and Office. Northeast Second Street serves as the land use boundary between the two, with residential uses permitted on the east side and nonresidential uses permitted on the west side of the street. There have been no encroachments across the residential land use line since 1976 when a nonconforming parking lot was approved by the City. When the City adopted its comprehensive plan in 1985, and revised it in 1991, it continued the same two land uses, thereby codifying existing residential land use patterns and the conversion of office uses that had already occurred along First Street Northeast in the early 1970s. The Amendment As noted above, the parcel in question consists of two legal lots, one owned by the Feibers, the other by Bodine. The amendment changes the FLUM portion of the City's 1991-2001 comprehensive plan to reflect a PUD overlay for the parcel. The land is presently designated as residential-low density, a category in which office uses are not permitted. According to policy 2.1.1 of the Future Land Use Element (FLUE), this land use category is appropriate "for single family development, particularly the conservation of existing traditional low-density neighborhoods, single-family attached and zero-lot line development, and small scale multi-family development." Conversely, the same policy provides that "office designations shall not encroach in viable residential areas nor expand strip development." By their application, John and Denise Feiber seek to convert their single-family home at 206 N. E. Third Street into a law office. An adjacent two-story structure located at 206 N. E. Second Avenue would possibly be converted to office uses on the first floor and residential uses on the second floor. That building is owned by Katherine Bodine, an absentee landlord who resides in Jacksonville, Florida. The amendment also permits, but does not require, future consideration of a third, multi-story structure to accommodate offices. After the amendment was approved by the City, Bodine immediately listed her parcel for sale, and its future development is uncertain at this time. FLUE policy 2.1.1 describes the PUD designation as follows: This category is an overlay land use district which may be applied on any specific property in the City. The land use regulations pertaining to this overlay district shall be adopted by ordinance in conjunction with an amendment to the Future Land Use Map of this comprehensive plan. The category is created to allow the consideration of unique, inno- vative or narrowly construed land use proposals that because of the specificity of the land use regulations can be found to be compatible with the character of the surrounding land uses and environmental conditions of the subject land. Each adopting PUD overlay land use designation shall address density and intensity, permitted uses, traffic access and trip generation, environmental features and buffering of adjacent uses. Planned Development zoning shall be required to implement any specific development plan. In the event that the overlay district has been applied to a site and no planned development zoning has found approval by action of the City Commission within one year of the land use designation, the overlay land use district shall be deemed null and void and the overlay land use category shall be removed from the Future Land Use Map, leaving the original and underlying land use in place. Therefore, any land use proposal under this category must be "compatible with the character of the surrounding land uses and environmental conditions" and address the "buffering of adjacent uses." It follows that a PUD may not be applied arbitrarily, but rather it must be appropriate for the area and specific site. The amendment applies the following land use regulations to both the Feiber and Bodine parcels: Residential use of up to ten (10) units per acre and all uses permitted by right and by special use permit within the RMF-5 zoning district is authorized; the maximum floor area of all buildings and structures is 7,185 square feet; the Historic Preservation/ Conservation District requirements of Section 30-79, Land Development Code of the City of Gainesville regulate and control the development and design of all buildings, structures, objects and related areas; in addition to the Landscape and Tree management requirements of the Land Development Code, the property is required to be planted and maintained with residential scale landscaping to conform to the surrounding residential neighborhood, as well as act as a buffer for the surrounding uses; the average weekday afternoon peak trip generation rate per 1,000 square feet of gross floor area in office use is not permitted to exceed 1.73; any application for development is required to meet concurrency requirements of Article III of the City of Gainesville Land Development Code for each phase of development; and off-street parking is required to be provided unless on- street parking is created, pursuant to a plan attached to the ordinance as Exhibit "D". The amendment also applies the following land use regulations specifically to the Feiber parcel: An additional land use, Legal Services, as defined in Major Group 81 of the Standard Industrial Classification Manual, 1987 ed. is authorized; the maximum floor area authorized for such Legal Services is one thousand seven hundred eighty five (1,785) square feet; and, if on-street parking is not provided in accordance with the plan provided in Exhibit "D" of the ordinance, then off-street parking must be provided within 300 feet of the Feiber parcel. Finally, the amendment applies the following land use regulations to the Bodine parcel: Non-residential land uses are permitted as specified in Exhibit "E" of the ordinance; the maximum floor area authorized for non-residential uses is three thousand six hundred (3,600) square feet; the second story of the existing building is limited to residential use only; and on-site parking limitations are imposed. In accordance with policy 2.1.1, Planned Development (PD) zoning is required to implement the development plan and the uses permitted in the amendment. The underlying FLUM designation of Residential Low Density, which allows up to 12 units per acre, is neither abandoned nor repealed, but rather remains inapplicable, so long as the property is developed in accordance with a development plan to be approved when the implementing PD zoning is adopted, and such implementing zoning must be adopted within one year of the amendment becoming effective. Data and Analysis Data and Analysis Before the City Basically, the City concluded that the amendment could be justified on the theory that the conversion would provide commercial "infill" of an underutilized parcel with step-down transitions to the inner neighborhood. It further concluded that because of the small size of the parcel involved, the conversion would have a de minimis effect on the neighborhood. When the amendment was adopted, the City had before it the previously adopted comprehensive plan, including the original data and analysis to support that plan, and testimony and exhibits offered both for and against the amendment during a local government hearing conducted on October 4, 1994. Significantly, the City had no studies of any kind regarding marketability, neighborhood stability, availability of land for office and residential uses, or traffic. Indeed, in preparation for final hearing, its expert simply made a walking tour of the neighborhood. Data and Analysis Before the Department On October 28, 1994, the City transmitted the amendment to the DCA for review. The transmittal package contained the following items: The City's Final Order; Ordinance No. 4036, with Exhibits A-E; interoffice communication to the City Commission from the City Plan Board dated July 11, 1994; interoffice communication to the City Plan Board, Planning Division Staff dated June 16, 1994; attachment to Land Use Application (pages 1-5); and excerpts from the City Zoning and Future Land Use Maps showing the zoning and land uses assigned to adjacent properties. However, the transmittal package did not include transcripts of the City Plan Board hearing, the Commission Adoption hearing, or any part of the record of the quasi-judicial hearing of October 4, 1994. The DCA planning staff consulted data contained in the Department of Transportation's ITE Manual in analyzing the traffic and parking impacts of the adopted land use map amendment. It also contacted the Department of State, Division of Historic Resources (Division), for analysis of the amendment's impact on historic resources, and it received comments on the amendment from the the North Central Florida Regional Planning Council (NCFRPC). The DCA planning staff also analyzed the FLUM to determine compatibility of the amendment with surrounding uses. During this review, the DCA planning staff reviewed all pertinent portions of the City's Plan Goals, Objectives and Policies (GOPs) and data and analysis. This review was done in a cursory fashion, however, since the DCA viewed the application as being a very small project with no perceived impact. Given the lack of any studies concerning marketability, neighborhood stability, availability of land for office and residential uses, and traffic, all of which are pertinent to this amendment, it is found that the City and DCA did not use the best available data and analysis. Therefore, the amendment is inconsistent with the requirement in Rule 9J-5.005(2), Florida Administrative Code, and Section 163.3177, Florida Statutes, that the best available (and appropriate) data and analysis be used. Compatibility with Adjacent Uses To the south of the subject parcels is a four-lane loop road (Northeast Second Avenue) which now serves as a buffer from the adjacent uses. Across the street to the south is City Hall, which was constructed more than thirty years ago. To the west of the property is a commercial parking lot with an office building next door to that parking lot. On the east side of the property are multi-family dwellings. To the south and east from the parcels is a commercial lot. An area from the corner of Northeast Second Avenue and Northeast First Street, one block from the subject parcels, and proceeding north along Northeast First Street, contains many non- residential uses, including offices. Areas to the north are predominately multi-family and single-family uses. Transitional uses and buffering are professionally-acceptable planning tools. However, changing a single-family dwelling into an office does not enhance buffering for the residential properties further in the neighborhood because the Feiber house is currently a less intense use than office. Therefore, the amendment conflicts with the plan's requirement that a PUD provide buffering for adjacent uses. The concept of transitional uses entail the practice of providing for a gradation of uses from high-intensity to low-intensity uses. Insertion of another non-residential use at the Feiber property to achieve a chimerical "step-down transitional use" merely moves the "edge" another step inward. Nonresidential uses already exist just outside the Historic District neighborhood that would meet this "step-down" criteria. Retrofitting an existing neighborhood is not appropriate unless it is no longer viable, which is not the case here. Contrary to the proponents' assertion, the Feiber and Bodine parcels will not provide the transitional uses of office and multi-family uses between the high-intensity office (City Hall) uses and lower intensity, multi-family uses to the north of the subject parcels. The four-lane street between the City Hall and the subject property now serves as an adequate buffer. A major goal of the City's plan is to protect viable, stable neighborhoods, and the FLUM, with its residential land use category, provides that protection. This goal cannot be achieved by converting these parcels to office use. Another major goal of the plan is to protect and promote restoration and stablization of historic resources within the City. That goal cannot be achieved by converting these parcels to nonresidential uses. Yet another major goal of the plan is the prohibition of office uses intruding into residential neighborhoods. The amendment contravenes that requirement. Impact on Historic Resources As noted earlier, the Feiber and Bodine properties are located on the southern edge of the Historic District of the City, separated from the City Hall by a one-block long segment of a four-lane street plus the full half-block length of the City Hall parking lot. A major goal of the City's plan is the protection of historic architectural resources and historically significant housing within the City. This goal is found in FLUE objective 1.2, Historic Preservation Element goals 1 and 2, and Housing Element policy 3.1.3. This overall major goal, as embodied in the foregoing objective, policies and goal, cannot be furthered by the amendment. Conversions which intrude across stable boundaries, such as exist in this neighborhood, begin a pattern of disinvestment. As investment subsides, the physical, historic structures will be adversely affected. The conversion contemplated by the amendment would represent a small encroachment of office use into the neighborhood with a cumulative effect. There is nothing to preclude its precedential effect or encouragement of similar applications. Although the Division of Historic Resources stated that it had no objection to the amendment, its acquiesence to the amendment is not controlling. Rather, the more persuasive evidence supports a finding that the amendment will have an adverse impact on the Historic District and will not further applicable goals, policies and objectives. Local Comprehensive Plan Issues One criteria for evaluating a plan amendment is whether it would result in compatibility with adjacent land uses. The overriding goal in the area of compatibility analysis is the protection of viable, stable neighborhoods. There is nothing in the plan amendment itself which provides compatibility or buffering for the residential properties located to the north and east of the subject parcel. Indeed, office development of the land will increase the pressure to convert more structures. Objective 2.1 of the FLUE establishes an objective of providing sufficient acreage for residential, commercial, mixed use, office and professional uses and industrial uses at appropriate locations to meet the needs of the projected population. Those acreages are depicted on the FLUM. When reviewing a FLUM amendment, such as the subject of this proceeding, the City is required to make a need analysis. The amendment is not supported by any analysis of need. Prior to the amendment, the plan contained an overallocation of office space and a shortage of housing for Market Area 4, in which the subject parcel is located. The amendment does not increase available housing or alleviate the overallocation of office space in Market Area 4. Indeed, it has a contrary result. Adaptive reuse is not promoted by the City's plan. Rather, the Housing Element promotes restoration and conservation of historically or architecturally significant housing, which means returning to housing use, not adapting structures to some other use. In this respect, the amendment is contrary to the City's plan. Summary Because the plan amendment is internally inconsistent and not based on the best available data and analysis, it is found that the amendment is not in compliance.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Community Affairs enter a final order finding the amendment to be not in compliance. DONE AND ENTERED this 19th day of September, 1995, in Tallahassee, Florida. DONALD R. ALEXANDER 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 19th day of September, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-0749GM Petitioners: Petitioners' proposed findings, while substantially modified and shortened, have been generally adopted in substance. Respondents/Intervenors: 1-8. Partially covered in findings of fact 10-16. 9-37. Partially covered in findings of fact 17-22. 38-53. Partially covered in findings of fact 23-30. 54-71. Partially covered in findings of fact 31-33. 72-106. Partially covered in findings of fact 31-38. Note: Where a proposed finding has been partially accepted, the remainder has been rejected as being unnecessary for a resolution of the issues, cumulative, irrelevant, not supported by the more credible, persuasive evidence, subordinate, or a conclusion of law. COPIES FURNISHED: Patrice F. Boyes, Esquire W. David Jester, Esquire Post Office Box 1424 Gainesville, Florida 32602-1424 Richard R. Whiddon, Jr., Esquire Post Office Box 1110 Gainesville, Florida 32602 Suzanne H. Schmith, Esquire 2740 Centerview Drive Tallahassee, Florida 32399-2100 C. David Coffey, Esquire 105 S. E. First Avenue, Suite 1 Gainesville, Florida 32601-6215 James F. Murley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Dan R. Stengle, Esquire General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100
The Issue The issue in Case 08-1144GM is whether Martin County Comprehensive Growth Management Plan (CGMP or Plan) Amendment 7-20, called the "Land Protection Incentives" (LPI) Amendment (LPIA), which was adopted by Ordinance 777 on December 11, 2007, and amended by Ordinance 795 on April 29, 2008, is "in compliance," as defined by Section 163.3184(1)(b), Florida Statutes.1 The issue in Case 08-1465GM is whether Martin County's Comprehensive Plan Amendment 7-22, called the "Secondary Urban Service District" (SUSD) Amendment (SUSDA), which was adopted by Ordinance 781 on December 11, 2007, is "in compliance," as defined by Section 163.3184(1)(b), Florida Statutes.
Findings Of Fact Petitioners' Standing FOF and MCCA objected to the LPIA and the SUSDA during the time period from transmittal to adoption of those amendments.3 FOF FOF is a non-profit organization incorporated in 1986, shortly after Florida’s Local Government Comprehensive Planning and Land Development Regulation (Growth Management) Act was enacted to monitor the Act's implementation. FOF engages in legislative, legal, and grassroots advocacy for sustainable comprehensive land use planning in Florida. It conducts membership meetings, sends newsletters to members and others, hosts meetings open to the general public, and initiates or participates in litigation or administrative proceedings concerning amendments to local comprehensive plans. Its main office is in Tallahassee, where several employees work. It also has a branch office in Lake Worth, Palm Beach County, where one employee works. It has no office or employees in Martin County. There was no evidence that FOF has applied for or obtained any license or permit to operate a business in Martin County; nor was there any evidence as to the requirements for obtaining such a license or permit. FOF has approximately 3,500 members; approximately 550 members live or own property in Martin County. FOF does not have a continuous presence in Martin County, other than its members who live and own property there, but it continuously monitors comprehensive planning and related growth management issues in Martin County and from time to time engages in activities in Martin County. Since 1990, FOF was involved in the Loxahatchee Greenways project, a major river corridor running through Martin County; was involved in the protection of Jonathan Dickinson State Park, which is in Martin County; undertook its Palm Beach and Martin County Green Initiative (which addressed housing, legal, transportation, and other planning issues in Martin County and resulted in the distribution of educational materials on Martin County planning issues); opposed specific local development proposals; supported a sales tax referendum to buy and preserve environmentally- sensitive lands; collaborated with the County planning department to update the housing element of the County Comprehensive Plan; assisted with a local affordable housing initiative; published a booklet on comprehensive planning in the County; and conducted a public survey of County residents assessing attitudes about planning. FOF staff members speak at and participate in annual growth management forums in Martin County, which are attended by a substantial number of its members. FOF has regularly commented in person and in writing to the Martin County Commission on proposed CGMP changes. FOF also has previously participated as a party in administrative hearings conducted in the County concerning the CGMP, during which its president has testified as an expert planner. The relief requested by FOF in this case is germane to its goals and appropriate to request on behalf of its members. MCCA MCCA is a Florida not-for-profit corporation created in 1997. It is a membership-based organization of 120 individuals and 14 other organizations. MCCA itself does not own real property in Martin County. However, at least 38 individual members reside and own real property in the County, and at least one organizational member (Audubon of Martin County) owns real property in the County. MCCA does not maintain an office or have paid employees. It operates through its members, who volunteer. MCCA's Articles of Incorporation state that it was formed "to conserve the natural resources of Martin County, to protect the native flora and fauna of Martin County, [and] to maintain and improve the quality of life for all of the residents of Martin County." It engages in various forms of lobbying and advocacy for or against amendments to Martin County's Comprehensive Plan, including initiation or participation in litigation and administrative proceedings. It conducts membership meetings in the County, sends newsletters to members and others, hosts meetings in the County that are open to the general public (including an annual growth management meeting with FOF and an annual awards luncheon with local conservation groups), and works with member organizations on issues relating to the Indian River Lagoon (IRL), including petition drives. The relief requested by MCCA in this case is germane to its goals and appropriate to request on behalf of its members. Martin County Comprehensive Growth Management Plan The CGMP establishes two "urban service districts" in the County, a Primary Urban Service District (PUSD) and a Secondary Urban Service District (SUSD). See CGMP, § 4.4.G. The PUSD has been part of the Plan since it was first adopted in 1982, while the SUSD was added during the major revision of the Plan in 1990. Approximately 65,702 acres (101 square miles) are located within the PUSD. The PUSD encompasses most of the eastern coastal area of the County surrounding four incorporated municipalities, (Stuart, Sewall's Point, Jupiter Island, and Ocean Breeze Park), plus an isolated inland area known as Indiantown. Approximately 9,621 acres (14 square miles) are located within the SUSD. All land within the SUSD is immediately adjacent to land within the PUSD, but is split into several discontinuous sections so that some of the land along the western border of the PUSD abuts land outside the urban service districts. The County's purpose for having urban service districts is to "regulate urban sprawl tendencies by directing growth in a timely and efficient manner to those areas where urban public facilities and services are available, or are programmed to be available at the levels of service adopted in [the Plan]." CGMP, § 4.4.G. The Plan further provides: Objective: Martin County shall concentrate higher densities and intensities of development within the strategically located [PUSDs], as delineated, including commercial or industrial uses as well as residential development exceeding a density of two units per acre . . . . * * * b. Policy: Martin County shall require that new residential development containing one-half acre or smaller lots, commercial uses, and industrial uses shall be located within the [PUSD]. * * * Objective 2. Martin County shall concentrate rural and estate densities not exceeding one unit per gross acre within the [SUSDs] where a reduced level of public facility needs are programmed to be available at the base level of service adopted in the Capital Improvements Element. a. Policy: Martin County shall designate land uses within the [SUSD] in order to provide for the use and extension of urban services in an efficient and economical manner, and consistent with the reduced intensity of urban services normally associated with densities of one unit per gross acre (Estate Density RE-1A) and one unit per two gross acres (Rural Density). . . . * * * f. Policy: In areas designated as [SUSD], where development is proposed that would contain one- half acre lots, or commercial and industrial uses, a change to a [PUSD] designation must be approved by the Board of County Commissioners as part of a land use amendment . . . . The Plan thus generally establishes residential density for land within the PUSD at 2 or more dwelling units per acre, and for land within the SUSD at 1 dwelling unit per acre to 1 dwelling unit per 2 acres. The remaining land within the County that is not within the PUSD or SUSD is generally referred to as "outside" the urban service districts. There are approximately 269,034 acres of such land. The vast majority of such land (approximately 210,379 acres) is designated in the Plan for "agricultural" use. Most of the other land outside the urban service districts is designated for either "public conservation" or "public utilities" See CGMP, § 4.4.L., § 4.4.M.1.a., i., and j. The Plan currently allows residential use of land outside the urban service boundaries that is designated for agricultural use but limits it to either 1 dwelling unit per 5 acres, known as "agricultural ranchette," or 1 dwelling unit per 20 acres. See CGMP, § 4.4.M.1.a.& c. The Plan further specifies for the latter that: Residential development in the agricultural area is restricted to one-single family residence per gross 20-acre tract. [N]o development shall be permitted which divides landholdings into lots, parcels or other units of less than 20 gross acres. Acreage may be split for bona fide agricultural uses into parcels no smaller than 20 gross acres. . . . Residential subdivisions at a density or intensity or greater than one single- family dwelling unit per 20 gross acre lot shall not be allowed. (CGMP, § 4.4.M.1.a.) Throughout the Plan, residential development on lots of 2 acres or more is consistently referred to as "rural" development (even within the SUSD), while residential development on smaller lots is consistently referred to as "urban" and must be in either the PUSD or SUSD. It was undisputed that the County's adoption of such a distinction between urban and rural residential lots was a professionally acceptable planning practice. Preservation of the County's agricultural lands is a goal of the Plan. See CGMP, § 4.4.L.1. It is also later stated in a policy related to the allocation of land: Through its planning, capital improvements, cooperative extension, regulatory and intergovernmental coordination activities, Martin County shall continue to protect agriculture as a viable economic use of land. (CGMP, § 4.4.M.1.b.) Preservation of conservation and open space areas within the County is the subject of an entire element of the Plan. See CGMP, Chap. 9.4 The County's goal is "to effectively manage, conserve, and preserve the natural resources of Martin County, giving consideration to an equitable balance of public and private property rights. These resources include air, water, soils, habitat, fisheries, and wildlife, with special emphasis on restoring the St. Lucie Estuary and the Indian River Lagoon." CGMP, § 9.4.A. Preservation of conservation and open space areas is also addressed in numerous other objectives and policies throughout the several elements of the Plan and is a predominant theme of the entire Plan. The provision of "urban public facilities and services" is expressly limited by a policy to the County's urban service districts "in order to preserve agricultural lands and provide maximum protection to the farmer from encroachment by urban uses." CGMP, § 4.4.L.1.a. The Plan defines the term "public urban facilities and services" as "regional 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." CGMP, § 4.1.B.4. However, the term is often used in the Plan in a rearranged or abbreviated manner, such as "urban public facilities and services" (§ 4.4.G.1.f.(7)), "public facilities and services" (§ 4.4.G and § 4.4.G.1.f.), "public services and facilities" (§ 4.4.G.1.i.), "public urban facilities" (§ 4.4.G.1.c.), "public urban facilities" (§ 4.4.G.1.i.), or merely "public facilities (§ 4.4.G.1.) or "urban services " (§ 4.4.G.2.a.). LPIA Provisions The LPIA adds a new objective and new policies under the Future Land Use Element goal addressing "natural resource protection," which provides: Martin County shall protect all the natural resource systems of the County from the adverse impacts of development, provide for continued growth in population and economy and recognize the inter-relationship between the maintenance of urban support infrastructure in waste management, air and water quality, and the coastal zone environmental quality. (CGMP, § 4.4.E.) To the existing 6 objectives under that goal, the LPIA adds a seventh which states: Martin County shall create opportunities for the permanent preservation of contiguous open space, environmentally sensitive land and agricultural land uses while maintaining residential capacity as it existed on January 1, 2007. For the purposes of Section 4.4.E.7., and supporting paragraphs, the definition of open space, found in Section 9.4.A.11., CGMP, shall not include roads, highways and their median strips and berms. This objective is intended to encourage the conveyance of fee simple title of land listed for public acquisition by state, regional or local environmental or governmental agencies or land trusts. Lands listed for acquisition include, but are not be limited to [sic], land designated for public acquisition under the Save Our Rivers program, the Indian River Lagoon, North Palm Beach, and the Lake Okeechobee portions of the Comprehensive Everglades Restoration Plan (CERP), as well as Northern Everglades and Estuaries Protection Program. The overall purpose of the LPIA is to encourage the owners of tracts of land outside the urban service districts that are at least 500 acres to choose a different pattern of development than the Plan now allows, by allowing a substantial reduction in the minimum lot size so that the development may be "clustered" on a smaller "footprint" within the overall tract of land, but only if at least 50% of the entire tract is "set aside" permanently for conservation, open space, or agricultural use and stripped of its potential for future development. This approach, it is hoped, will make it easier and cheaper for the County and other governmental entities to acquire the large tracts of land they desire to use for the CERP and other conservation projects. The LPIA does not allow for more development than is allowed under the Plan currently. It allows the same amount of development to be arranged on a tract of land in a different pattern than is currently allowed. It accomplishes this primarily through the combination of a change in the minimum lot size from "20 acres" to "over 2 acres" with a new allowance for "clustering" the smaller lots on a portion of an overall tract of land rather than having an equal number of larger lots spread throughout the entire tract of land. The LPIA adopts six policies to accomplish the new objective: Policy (7)a. provides for the protection of the land "set aside" to be conveyed or subject to an easement in favor of a combination of the County, the South Florida Water Management District, and a third entity, chosen from among the other governmental or not-for-profit conservation- oriented organizational entities listed in the policy. Policy (7)b. requires that a combination of a comprehensive plan amendment and a PUD agreement be used for the change in the development characteristics of the land. The PUD agreement would address the portion of the tract subject to development and not "set aside," while the plan amendment would address (at a minimum) the remaining portion of the tract which is permanently "set aside" for conservation, open space, or agricultural use and would no longer have any potential for residential development. Policy (7)c. provides additional specificity concerning the subject matters that would be addressed by the comprehensive plan amendment, such as any required change in land use designation for the set-aside portion of the tract of land, and if it remains designated for agricultural use, the removal of any potential for development. Policy (7)d. primarily provides additional specificity concerning the subject matters that would be addressed by the PUD agreement, setting minimum requirements to be met such as the tract having to be a minimum of 500 acres in size; the development being "fiscally neutral to existing taxpayers"; the lots having to be more than 2 acres in size; the inability to develop in environmentally sensitive areas on the tract; and the acknowledgment of a permanent restriction against any future increase of density on the tract. The policy also essentially repeats some of the requirements enunciated in the second and third policies regarding the conveyance of title or easement and the required comprehensive plan amendment, and addresses who pays the closing costs for the set-aside portion of the tract. Policy (7)e. establishes additional requirements specifically applicable to land that has been "listed for acquisition by state, regional, or local agencies as part of an established conservation program." Policy (7)f. enumerates the "site specific benefits" that the second policy states the County must consider when deciding whether to approve an application for development under the optional pattern allowed by the LPIA, such as whether more than the minimum 50% of the tract will be "set aside" permanently, whether the location fills "gaps in natural systems, wildlife corridors, greenways and trails," or whether buffers are provided along roads "to limit access and to protect vistas." The LPIA requirement for at least 50% of an entire tract being set aside for one of the three public purposes, when coupled with other requirements of the Plan such as establishment of construction setback distances, preservation of wetlands and creation of buffers around wetlands, preservation of certain uplands, would result in more than 50% of an undeveloped tract of land remaining in an undeveloped state and at least 50% of agricultural land remaining in agricultural use. Meaning and Predictability of LPIA Standards Petitioners contend that the LPIA fails to establish meaningful and predictable standards in numerous respects. No Guide to Location and Pattern of Development Petitioners contend that the LPIA fails to establish meaningful and predictable standards essentially because it does not identify the lands to be preserved and developed, leaving the results up to the choice of landowners to make proposals and Martin County's case-by-case decisions on future development proposals. See PPRO, ¶¶52-53. However, the goals of the LPIA are quite clear, and there is no basis to speculate that Martin County will make decisions contrary to those goals--for example, by approving PUDs or agricultural uses on the most environmentally-sensitive part of tract, ignoring the importance of environmentally-sensitive and agricultural lands and the impact of development patterns on them, and ignoring the impact of the pattern of development under the LPIA on rural character. Petitioners also criticize the LPIA for not being clear "whether a subject property must be in single ownership." (PPRO, ¶61.) However, it is not clear why that omission would be pertinent. Undefined Increase in Maximum Density Petitioners contend that, in four ways, the LPIA increases maximum density in the Agricultural category without defining the amount of the increase. Waiver of Density Limits Clearly, the LPIA exempts the PUD option from "the agricultural land use policies in Section 4.4.M.1.a. pertaining to the 20 acre lot size . . . ." LPIA § 4.4.E.7.d.(8). Contrary to Petitioners' contention, that does not eliminate density standards. Residential lots must be greater than two acres. See LPIA § 4.4.E.7.d.(3). Maintenance of Residential Capacity Petitioners contend the LPIA increases density because its objective is to "create opportunities for the permanent preservation of contiguous open space, environmentally sensitive land and agricultural land uses while maintaining residential capacity as it existed on January 1, 2007." LPIA § 4.4.E.7. (Emphasis added.) Petitioners complain that County-wide residential capacity on that date is not identified and that the objective requires residential capacity in Agricultural lands to increase as it decreases elsewhere in the County. This interpretation is unreasonable. The County's interpretation, that residential units lost by preservation are to be maintained by clustering on the remaining Agricultural lands, is more reasonable. Transfer of Wetland Density Petitioners contend that the LPIA increases density by allowing transfer of wetland density in the Agricultural future land use category. See LPIA § 4.4E.7.d.(7). Under the Plan before the LPIA, up to half of wetland density can be transferred to uplands in a PUD. See CGMP § 9.4A7.b.(8). PUDs were not allowed in Agricultural lands before the LPIA. But Petitioners did not prove that allowing the transfer and clustering of residential units into a PUD on Agricultural lands under the LPIA would change the total number of residential units already allowed in Agricultural lands (at one unit per 20 acres). Alleged Failure to Remove Density from All Non-PUD Land Petitioners contend that the LPIA increases density by not stripping residential units from all so-called non-PUD land. Contrary to this contention, the more reasonable interpretation is that land not set aside for permanent preservation in a proposal made under the LPIA must be part of the proposed PUD. In any event, even if an LPIA proposal could include land that is neither set aside for preservation nor part of the PUD land, no residential units is such land would be transferred to the PUD, and failure to strip such land of its residential units would not affect the total number of units associated with the LPIA proposal. Petitioners also contend that the LPIA allows text amendments to increase density on land set aside for preservation under the LPIA because it specifies that such land must be changed on the FLUM and will not be eligible for "any additional [FLUM] amendment which increases residential density or intensity of use . . . ." LPIA § 4.4E.7.d.(7). The negative implication Petitioners draw from this language is contrary to the intent of the LPIA and is not warranted. Even if text amendments are not prohibited, they would apply to all land in a particular land use category, not just to land set aside under the LPIA. Subsequent Plan Amendments Not Required for PUD Petitioners contend that the LPIA "is unclear as to whether a PUD can be approved without a subsequent plan amendment specifically authorizing the two-acre lot subdivision site plan." PPRO, ¶80. This contention supposedly arises from the language of LPIA § 4.4.E.7.c.: "The Comprehensive Plan amendment that is part of a joint Plan Amendment and concurrent PUD application submitted under this objective must address the land use designation on the land set aside in perpetuity as contiguous open space, environmentally sensitive land and/or agricultural land uses in the following manner: . . . ." (Emphasis added in PPRO, ¶82.) The negative implication Petitioners draw from this language is contrary to the intent of the LPIA and is not warranted. It ignores LPIA § 4.4.E.7.d.(7): "The Comprehensive Plan amendment filed concurrently with the PUD application shall allow the site-specific clustering of density in one portion of the total subject site, including the transfer of full density of any wetlands on the site, at a density that shall not exceed one unit per twenty acres for the total site prior to conveyance. . . . The Plan amendment shall further specify that neither the land conveyed nor the land controlled by the PUD agreement shall be eligible for any additional [FLUM] amendment which increases residential density or intensity of use . . . ." While LPIA § 4.4.E.7.d.(7) discusses land that is conveyed, it is reasonably clear that a Plan amendment addressing the PUD also would be required for lands that are set aside using one of the other mechanisms specified in the LPIA. Public Benefit Criteria Petitioners contend that LPIA Section 4.4.E.7.b. and f. gives the County "unfettered discretion to reject or approve a PUD 'for any reason.'" PPRO, ¶90. Those sections provide that approval of a PUD will be based on consideration of "significant site-specific public benefits," some of which are listed. While it is true that the LPIA gives the County discretion to grant or approve a PUD based on its consideration of those factors, Petitioners did not prove "unfettered discretion." First, minimum requirements under the LPIA first must be met. Second, the list of public benefits gives some guidance as to the kinds of additional public benefits that will justify approval of a PUD. Petitioners did not prove that a comprehensive plan provision allowing for PUD zoning need be any more specific to be implemented in a consistent manner. Protection of Land Set Aside Petitioners contend that the LPIA fails to protect land set aside under the LPIA because it does not identify the land most appropriate for preservation or require that it be set aside. This contention ignores the objective to encourage conveyance of "land listed for public acquisition by state, regional or local agencies as part of established conservation programs" which "include, but are not be [sic] limited to land designated for public acquisition under" several named public acquisition programs. LPIA § 4.4.E.7. It also ignores the policy: "No development in the PUD shall be allowed on unique, threatened or rare habitat, or other environmentally sensitive lands that are critical to the support of listed plant or animal species . . . ." LPIA § 4.4.E.7.d.(4). It also ignores the policy that "PUDs that include land listed for acquisition by state, regional or local agencies as part of an established conservation program shall be subject to . . . additional requirements": including fee simple conveyance of at least half of such land; and no development in the PUD on such land "unless the land has been previously impacted by agricultural activities and the proposed development is determined to be inconsequential to the implementation and success of the conservation program . . . ." LPIA § 4.4.E.7.e.(1)-(2). In addition, various means of protecting such lands are several of the listed "additional significant site-specific benefits" of a PUD proposal to be considered in the approval process. See LPIA § 4.4.E.7.f. Petitioners contend that the LPIA fails to "require set-aside lands to be contiguous to other farmland, open space, or natural lands" and "contiguous, functional, and connected to adjacent and regional systems." PPRO, ¶¶102-98 [sic]. These contentions ignore the objective to "create opportunities for the permanent preservation of contiguous open space, environmentally sensitive land and agricultural land uses. . . ." LPIA § 4.4.E.7. They also ignore that land in public acquisition programs ideally is contiguous to other open space and natural lands. Petitioners did not prove their contention in PPRO ¶97 [sic] that it is necessary to specify the public acquisition programs for the LPIA to be implemented in a consistent manner. Petitioners contend that the LPIA fails to define the "perpetual easement" mechanism allowed in LPIA Section 4.E.7.a. for setting aside land in lieu of fee simple conveyance. See PPRO, ¶103. This contention ignores the policy in LPIA Section 4.E.7.d.(5) to use perpetual easements as a means of enforcing the prohibition against increasing residential density or intensity of use by FLUM amendments, as well as the policy in LPIA Section 4.E.7.d.(6) to use perpetual easements "to restrict future uses and ensure the government agencies or other entities holding fee simple title do not sell or develop the property inconsistent with this policy or the approved uses within the PUD Agreement." Petitioners did not prove their contention in PPRO ¶103 that it is necessary to further define "perpetual easement" for the LPIA to be implemented in a consistent manner. Petitioners contend in PPRO ¶¶105 and 107 that the LPIA fails to define the "agricultural uses" to be preserved in LPIA Section 4.4.E.7.c.(3) and allows the County to "specify allowed uses" without limitation and with "no certainty that farmland will be protected as farmland by easement." (Emphasis in PPRO ¶105.) Petitioners contend that everything allowed in the Agricultural category under the Plan will be allowed. See PPRO ¶107. Contrary to Petitioners' contention, it is reasonably clear that, while the language of LPIA Section 4.4.E.7.c.(3) contains a typographical error, the policy clearly is to maintain existing agricultural uses, not to allow intensification of agricultural use or expansion into "non-farm" uses that might be allowed in the Agricultural category. Alleged Threat to IRL and CERP Lands Petitioners contend that, by making development under its PUD option more marketable, the LPIA will encourage PUDs that do not protect and that fragment IRL and CERP lands. Petitioners did not prove that such a result is likely. Petitioners contend that the adverse impacts on IRL and CERP lands is more than speculation in part because of the wording of the policy in LPIA Section 4.4.E.7.c.(2), which is misstated in PPRO ¶114 and actually states: "If the land to be protected and maintained in perpetuity is land that is part of the North Palm Beach, and the Lake Okeechobee portions of the Comprehensive Everglades Restoration Plan (CERP), as well as Northern Everglades and Estuaries Protection Program, the plan amendment must include a future land use amendment to change the Future Land Use Designation to Institutional-Public Conservation." The language used in the policy is poor. But Petitioners' interpretation--that only land set aside for protection that is part of all of the described CERP projects will be protected--is absurd since no such land exists. That interpretation and Petitioners' interpretation that no IRL lands are protected under the LPIA ignore and are contrary to the language and intent of the objective stated in LPIA Section 4.4.E.7. and of the policies stated in Section 4.4.E.7.a., c.(1), and d.(5). The County's interpretation, that CERP and IRL lands are eligible for protection, is more reasonable. Definition of Critical Habitat Petitioners contend that LPIA Section 4.4.E.7.d.(4) does not provide a meaningful or predictable standard because the term "critical to the support of listed plant or animal species" is not better defined. Actually, PUD development is prohibited "on unique, threatened or rare habitat, or other environmentally sensitive lands that are critical to the support of listed plant or animal species." While the policy could have been better defined, Petitioners did not prove that a better definition is necessary for the LPIA to be implemented in a consistent manner. Petitioners contend that, regardless of the "critical habitat" definition, the policy language in LPIA Section 4.4.E.7.e.(2) "guts" Section 4.4.E.7.d.(4) by prohibiting PUD development "on land listed for acquisition . . . unless the land has been previously impacted by agricultural activities " Actually, the policy continues to state that the exception only applies if "the proposed development is determined to be inconsequential to the implementation and success of the conservation program . . . ." Petitioners' interpretation, that the policy allows PUD development on virtually all Agricultural lands, is unreasonable and contrary to the language and intent of the LPIA. The County's interpretation is more reasonable and is reasonably clear. It allows for distinctions among the various kinds of agricultural activities, which the Plan already recognizes. See, e.g., CGMP § 4.2.A.6.b.(8) ("Many low intensity agricultural uses such as range (pasture) land can be compatible with environmentally significant resource areas.") For these reasons, Petitioners did not prove that LPIA Section 4.4.E.7.e.(2) "guts" Section 4.4.E.7.d.(4), or that the LPIA cannot be implemented in a consistent manner. LPIA and Urban Sprawl In part based on unreasonable interpretations of the LPIA's objective and policy language, Petitioners contend that Martin County's Comprehensive Plan as amended by the LPIA no longer discourages urban sprawl and that the LPIA encourages urban sprawl. In part because the interpretations were unreasonable, Petitioners' urban sprawl contentions were not proven. Even if the LPIA results in a proliferation of PUDs with clusters of residences on lots slightly larger than two acres, which is the minimum lot size, it would not equate to urban (or suburban) sprawl. Assuming PUDs based on 500-acre tracts, it would result in a cluster of 25 homes within a 500-acre rural area. The LPIA does not plan for the extension of urban services to those homes and does not provide for or allow any new commercial or industrial development. Both the LPIA and the rest of the CGMP include provisions, most notably those related to the urban service districts, to reasonably ensure that urban sprawl will not result. To the extent that the LPIA triggers the first primary indicator of urban sprawl in Florida Administrative Code Rule5 9J-5.006(5)(g) ("designates for development substantial areas of the jurisdiction for low-intensity, low density or single use development or uses in excess of demonstrated need"), the Agricultural lands designation already does. Petitioners did not prove that the LPIA triggers the second primary indicator of urban sprawl in Rule 9J-5.006(5)(g) ("[p]romotes, allows or designates significant amounts of urban development to occur in rural areas at substantial distances from existing urban areas while leaping over undeveloped lands which are available and suitable for development"). The development promoted, allowed, or designated by the LPIA is not "urban" and does not "leap over undeveloped lands which are available and suitable for development." It allowed for development already promoted, allowed, and designated to arrange itself differently in a rural area. Petitioners did not prove that the LPIA triggers the third primary indicator of urban sprawl in Rule 9J-5.006(5)(g) (designation of urban development in "radial, strip, isolated or ribbon patterns generally emanating from existing urban development"). Petitioners did not prove that the LPIA triggers the fourth primary indicator of urban sprawl in Rule 9J-5.006(5)(g) (promotes premature conversion of rural land to other uses, thereby failing to adequately protect and conserve natural resources). To the contrary, its primary purpose is to protect and conserve natural resources and rural land. Petitioners did not prove that the LPIA triggers the fifth primary indicator of urban sprawl in Rule 9J-5.006(5)(g) (fails to adequately protect "adjacent agricultural areas" as well as "passive agricultural activities and dormant, unique and prime farmlands and soils"). Petitioners did not prove that the LPIA triggers either the sixth or seventh primary indicator of urban sprawl in Rule 9J-5.006(5)(g) (fails to maximize use of existing and future public facilities and services). Petitioners did not prove that the LPIA triggers the eighth primary indicator of urban sprawl in Rule 9J-5.006(5)(g) ("[a]llows for land use patterns or timing which disproportionately increase the cost in time, money and energy, of providing and maintaining facilities and services"). Petitioners did not prove that the LPIA triggers the ninth primary indicator of urban sprawl in Rule 9J-5.006(5)(g) ("[f]ails to provide a clear separation between rural and urban uses"). Petitioners did not prove that the LPIA triggers the tenth primary indicator of urban sprawl in Rule 9J-5.006(5)(g) ("[d]iscourages or inhibits infill development or redevelopment of existing neighborhoods and communities"). Although LPIA PUDs obviously would not be infill or redevelopment, it was not proven that they will discourage or inhibit infill and redevelopment. To the extent that the LPIA triggers the eleventh primary indicator of urban sprawl in Rule 9J-5.006(5)(g) ("[f]ails to encourage an attractive and functional mix of uses"), the Agricultural lands designation already does. To the extent that the LPIA triggers the twelfth primary indicator of urban sprawl in Rule 9J-5.006(5)(g) ("[r]esults in poor accessibility among linked or related uses"), the Agricultural lands designation already does. Petitioners did not prove that the LPIA triggers the thirteenth primary indicator of urban sprawl in Rule 9J- 5.006(5)(g) ("[r]esults in the loss of significant amounts of functional open space"). The LPIA does not exacerbate the two already-existing indicators of urban sprawl, but Petitioners still contend that the indicators are triggered by the LPIA essentially because development will proceed more quickly under the LPIA. This contention was not proven. Even if it were, Petitioners did not prove that the LPIA encourages the proliferation of urban sprawl or that the CGMP, as amended by the LPIA, fails to discourage the proliferation of urban sprawl. LPIA Data and Analysis Petitioners contend that the LPIA is not supported by data and analysis because the County explained it as a necessary response to the proliferation of 20-acre ranchette developments whereas only 75 have been built and only 15 have certificates of occupancy. Actually, the ranchette developments were only one reason for the LPIA, and the data and analysis showed 13 approved developments as of mid-September 2007, and three more approvals plus two pending applications for approval a year later. Petitioners also contend that the LPIA is not supported by data and analysis essentially because the LPIA implements some but not all of the recommendations in the various reports and studies cited by the County as part of the data and analysis. Petitioners also contend that the LPIA is not supported by data and analysis essentially because the LPIA does not conform to some recommendations in the various reports and studies cited by the County as part of the data and analysis. However, Petitioners base their contentions largely on unreasonable interpretations of the language of the objective and policies of the LPIA. In addition, the data and analysis they point to essentially reflect merely that planners disagree on the best plan for the Agricultural lands. Petitioners also contend that the LPIA is not supported by data and analysis essentially because the LPIA is not identical to the Atlantic Ridge project amendment. While all agree that the Atlantic Ridge project is a resounding success story, it is unique. The obvious and understandable inability to instantaneously duplicate Atlantic Ridge to the greatest extent possible in the Agricultural lands should not prevent the County from taking any action in its direction, such as the LPIA. Taken together, the data and analysis are adequate to support the LPIA. LPIA and TCRPC Regional Policy Plan Petitioners contend that the LPIA is inconsistent with the TCRPC's Strategic Regional Policy Plan (SRPP). The TCRPC's SRPP was not introduced in evidence, but the TCRPC's Executive Director testified and sponsored the TCRPC's report on the LPIA and the SUSDA. The TCRPC's findings on consistency with its SRPP were not contradicted. According to the TCRPC, the LPIA is inconsistent with the TCRPC's Strategic Regional Policy Plan (SRPP) Policies 2.1.1.1 and 2.1.1.2, which are to determine areas that are environmentally significant and to map, acquire, and manage them. The LPIA does not do this. According to the TCRPC, the LPIA is inconsistent with the TCRPC's SRPP Goal 1.1, which requires sustainable countryside development in urban enclaves, such as towns and villages, with mixed-use and appropriate densities between 4-10 units per acre, on strategically selected locations while preserving contiguous, targeted land identified through SRPP Policies 2.1.1.1 and 2.1.1.2. The LPIA does not do this. According to the TCRPC, the LPIA is inconsistent with the TCRPC's SRPP Policy 15.1.3.1, which is to increase the clarity of local land use plans so that preferred forms of development can be pre-approved. Instead, the LPIA uses the case-by-case PUD approval process to determine the ultimate development patterns for the Agricultural lands. The inconsistency with SRPP Policy 15.1.3.1 is the only LPIA inconsistency not already equally present in the existing CGMP. The TCRPC's concern as to the other inconsistencies is that the LPIA will make residential development in the Agricultural lands more marketable and increase the rate of residential growth in a manner inconsistent with SRPP Goal 1.1 and Policies 2.1.1.1 and 2.1.1.2. Internal Consistency of the LPIA Petitioners contend that the LPIA is inconsistent with CGMP Sections 1.6 and 1.11.A. for being inconsistent with the TCRPC's SRPP. CGMP Section 1.6 states that "elements of the [CGMP] shall be consistent and coordinated with policies of [various entities, including the TCRPC]. Petitioners did not prove that the County does not interpret that provision to require internal consistency and coordination with the other entities' policies, or that such an interpretation would be incorrect. CGMP Section 1.11.A. refers to amendment procedures. Essentially, it states that plan amendments must be "in compliance." There was no evidence that the County intended it to require strict and absolute consistency with the TCRPC's SRPP, or any evidence to prove that it would be incorrect for the County to interpret it not to. Petitioners also contend that the LPIA is inconsistent with CGMP Section 1.11.K., which also refers to amendment procedure. Petitioners did not prove that the LPIA is inconsistent with CGMP Section 1.11.K. for not having concurrently-processed land development regulations (LDRs) since concurrently-processed LDRs are only required "[t]o the extent necessary to implement a proposed amendment," and Petitioners did not prove that concurrently-processed LDRs are necessary. Petitioners also contend that the LPIA is inconsistent with numerous other provisions of the CGMP. These contentions were not proven. Most, if not all, were based on unreasonable interpretations of the LPIA. SUSDA Provisions The SUSDA amends the text of the future land use element, the sanitary sewer services element, and the potable water services element of the Plan. As amended, the Plan would allow owners of real property within the SUSD to apply for connection to regional water and sewer service rather than be limited to using individual potable water wells and individual septic tanks, provided all costs of connection to the public services would be paid by the owner. The policy of SUSDA Section 4.4.G.2.g. expressly states: The County Commission has determined that it is in the best interest of the health, safety, and welfare of the citizens of Martin County that regional water and sewer services be made available to properties within the [SUSD], in order to: (1) Protect our natural resources . . . from the negative impacts of onsite sewage disposal (septic) systems and private wells to serve individual residential units; (2) Provide fire protection; [and] (3) Provide safe drinking water. The policy of SUSDA Section 4.4.G.2.h. requires that the extension of any such services to properties within the SUSD must have Board approval, which cannot occur unless the Board finds that certain enumerated criteria have been met, including: Regional utility services may be provided to properties within the [SUSD] upon the request of the affected property owner, and upon payment of the required costs for connection to the regional system. Such services may only be provided by a regional utility, public or private, within a service area shown on Figure 11-2. Package plants for the provision of utility service are prohibited except under the provisions of the [CGMP]. The regional utility must demonstrate the treatment facility has capacity for the proposed connection and priority has been given to projects within the [PUSD]. Extension of utility services shall not be construed to imply support for any increase in the residential density of the property inside the [SUSD]. Property lying outside the Urban Service Districts . . . shall not receive utility service from a regional wastewater system. Extension of utility service outside the Urban Service Districts shall be prohibited. Development within the [SUSD] shall maintain lot sizes that exceed one-half acres. The SUSDA also contains new charts added to both the sanitary sewer services element and the potable water services element that display the numerical capacity of the regional water and sewer systems to handle additional customers upon extension of lines to the SUSD. See SUSDA Tables 10-3 through 10-6 and 11- 12 through 11-15. There was no credible evidence of any likelihood that the adoption of the SUSDA would allow the further extensions of water and sewer lines from the SUSD to properties outside the urban service districts. The testimony offered by Petitioners was speculative at best and depended upon an unproven assumption that the County would violate the explicit provisions of the SUSDA prohibiting such extension of services. See SUSDA §§ 4.4.G.2.h.(6)-(7) and 4.5.H. Meaning and Predictability of SUSDA Standards Petitioners contend that the SUSDA's standards are not meaningful or predictable because of the undefined term "central water and sewer" in the policy in SUSDA Section 4.4.G.2.a. Petitioners contend that "central water and sewer" can be interpreted to mean something other than a regional utility, and that the SUSDA can be interpreted to allow regional utility, package plant, and other similar types of utility systems serving two or more houses outside the urban services districts. Petitioners' interpretations are unreasonable and contrary to the language and intent of the SUSDA. Petitioners' evidence was speculative and depended on an unproven assumption that the County would violate the explicit provisions of the SUSDA prohibiting package treatment plants in the SUSD. See SUSDA § 4.4.G.2.h.(3) and § 4.5.H. In addition, the evidence was that package treatment plants may no longer be economically feasible. The County's interpretation is more reasonable--"central water and sewer," as used in SUSDA Section 4.4.G.2.a., means the provision of regional utility services by Martin County in the SUSD, and no such facilities may be provided outside the urban service districts. SUSDA Data and Analysis Petitioners contend that the data and analysis do not support the SUSDA essentially because they do not establish "any actual health, safety, or welfare problems." PPRO, ¶208. The absence of proof of actual health, safety, or welfare problems is not fatal in view of the rest of the data and analysis supporting the SUSDA. Since the creation of the SUSD in 1992, development in the PUSD has resulted in the extension of water and sewer lines up to the border between the PUSD and the SUSD. In effect, the intended SUSD transition area has transitioned. Meanwhile, the regional water and sewer utilities serving the County now have the necessary capacity to serve the PUSD and the SUSD. Improved fire protection in the SUSD is a benefit of regional water service, allowing installation of community fire hydrants. Without it, developers in the SUSD must rely on installed sprinklers and emergency generators and water drawn from nearby lakes or installed water tanks. While regional water service can fail temporarily in major storms, and the data and analysis did not include actual instances of fire damage cause by the lack of regional water service in the SUSD, regional water service generally provides more reliable and less costly fire protection. While the data and analysis do not establish that developers and property owners in the SUSD have not been able to permit potable water wells, regional water service generally is better, more reliable, and less costly. The data and analysis did include actual instances of home owners having to install expensive water treatment systems due to increasing chloride levels in their potable water wells. Connection to regional water service would eliminate those costs and concerns. While the data and analysis do not establish that developers and property owners in the SUSD have not been able to permit septic tanks systems for onsite sewage treatment (i.e., systems that meet environmental and health standards), such systems can fail if improperly installed, maintained, and repaired. If they fail, nutrients such as nitrogen and phosphorus can leach into and harm the groundwater and nearby surface waters. The North Fork of the Loxahatchee River, which is nutrient-impaired, probably would benefit from elimination of septic tanks. Regional sewer service generally is better for the environmental and public health. The data and analysis suggest that allowing regional water and sewer service in the SUSD, with the SUSDA's requirement for developers to pay the cost of installation, probably will save the County money in the long run. It will be a significant cost to the County if it has to install water and sewer lines post-development. Petitioners attack the credibility of the data and analysis supporting the SUSDA because regional water and sewer service is optional in the SUSD. But there were data and analysis that, even if regional water and sewer service in the SUSD is preferable, there are valid reasons to make it optional at this time. Alleged Environmental Impact of the SUSDA Petitioners contend that the SUSDA will have negative environmental impacts in part from a proliferation of package treatment plants in the SUSD, which is discouraged in CGMP Section 4.4. See PPRO, ¶¶221, 223. This contention is based on Petitioners' unreasonable interpretations of two sentences of the SUSDA. SUSDA Section 4.5.G. prohibits interim water systems outside the urban service districts and allows them, with conditions, in the PUSD where connection to a regional utility is not feasible. Petitioners interpret these two sentences to mean that interim water systems are allowed, without conditions, in the SUSD. The County's interpretation is more reasonable. Since the SUSDA makes connection to the regional utilities optional, there is no need for interim water systems in the SUSDA, and the SUSDA should not be construed to allow them there. Petitioners contend that the SUSDA will have negative environmental impacts in part essentially because increased development results in increased pollution. See PPRO, ¶228. To the extent true, it would be equally or more true of similar development without regional water and sewer services. SUSDA and Urban Sprawl Petitioners contend, in part due to their unreasonable interpretations of the objective in SUSDA Section 4.4.G.2.a., that Martin County's Comprehensive Plan as amended by the SUSDA, no longer discourages urban sprawl and that the SUSDA encourages urban sprawl. In part due to the unreasonableness of Petitioners' interpretation of the SUSDA, Petitioners' urban sprawl contentions were not proven. It is unlikely that the SUSDA will encourage urban sprawl. Petitioners also contend that the SUSDA will encourage urban sprawl simply by allowing denser development in the 5,000- 6,000 acres of the SUSDA not yet developed. This contention is contrary to the SUSDA policy: "Extension of utility services shall not be construed to imply support for any increase in residential density of the property inside the [SUSD]." SUSDA § 4.4.G.2.h.(5). Even if the SUSDA increased density in the SUSDA, increase in density itself does not promote urban sprawl. To the contrary, it is possible for increased density to discourage urban sprawl. Petitioners did not prove that increasing density in the SUSDA itself encourages urban sprawl or that, with the SUSDA, the CGMP will discourage urban sprawl less. Petitioners contend that the SUSDA will create pressures to develop areas that border the SUSD, leaping over areas suitable for urban development. See PPRO, ¶¶236-237. This contention actually devalues the very urban service district concept Petitioners seek to defend and can be said about any urban district boundary. Currently, there are many places where the PUSD borders the Agricultural lands. The pressures created by the SUSDA will be no greater than the pressures that have existed in those places all along. Petitioners contend that the SUSDA will increase costs to the County essentially because, notwithstanding SUSDA's requirement that developers pay the cost of connection, development will not pay for itself in the long run (taking into account costs of operations, maintenance, and repair.) To the extent true, it can be said of all development and does not prove that the SUSDA encourages urban sprawl. Petitioners did not prove that the SUSDA triggers any of the indicators of urban sprawl; did not prove that the SUSDA encourages the proliferation of urban sprawl; and did not prove that the CGMP, as amended by the SUSDA, fails to discourage the proliferation of urban sprawl. Internal Consistency of the SUSDA Petitioners contend that the SUSDA is internally inconsistent with CGMP Section 4.4.G.1.i., which gives priority in the provision and funding of water and sewer services to the PUSD, essentially because the data and analysis ensure that water demands in the PUSD can be met through 2025. The lack of data and analysis at present to ensure that water demands in the PUSD can be met beyond 2025 does not prove that priority will not be given to the needs of the PUSD.
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 LPIA and the SUSDA are "in compliance." DONE AND ENTERED this 10th day of April, 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 10th day of April, 2009.
The Issue The issue presented for decision in this proceeding is whether a future land use map (“FLUM”) amendment, adopted by Hillsborough County on October 27, 1994, as part of its Comprehensive Plan update for the planning time frame through 2015 (variously referred to as the “Comprehensive Plan” or "CPU-2015"), that changed the future land use category on a 253 acre parcel1 in Northwest Hillsborough County ("the Geraci Parcel") from Regional Commercial ("RC") to Community Mixed Use-12 ("CMU-12") complies with the requirements of Chapter 163, Part II, Florida Statutes, as defined in Section 163.3184(1)(b), Florida Statutes.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: PARTIES Petitioners Nick and Peter Geraci are the fee simple owners of a parcel of land comprising approximately 450 acres located on the northeast corner of the intersection of North Dale Mabry Highway and Van Dyke Road, two hundred fifty-three (253) acres of which are at issue in this proceeding. Advance Leasing is a Florida corporation that was a contract vendee for a portion of the Geracis’ property intended for development as a “super regional” or “regional scale” mall, and was the applicant in the amended applications for DRI approval of that mall. Hillsborough County’s motion to dismiss Advance Leasing as a party for failure to establish standing as an affected person under Section 163.3184(1)(a), Florida Statutes, was granted at the final hearing. Advance Leasing failed to establish that it was an entity that either owned or operated a business within Hillsborough County or owned property in Hillsborough County as of October 27, 1994. Respondent DCA is the state land planning agency, with responsibility to review plan amendments under Chapter 163, Part II, Florida Statutes, pursuant to Sections 163.3184, 163.3187 and 163.3189, Florida Statutes, and to determine compliance with the relevant provisions. Respondent Hillsborough County is a local government with responsibility to prepare and adopt a Comprehensive Plan and any required amendments thereto pursuant to Sections 163.3167, 163.3171 and 163.3174, Florida Statutes. The Hillsborough County Board of County Commissioners makes the final, legislative decision on all Comprehensive Plan amendments in Hillsborough County. Hillsborough County Charter Section 9.09 specifies that a single local planning agency, created by special law, "shall have responsibility for Comprehensive Planning and related activities[.]" The Hillsborough County Local Government Comprehensive Planning Act, as amended by Chapter 97-351, Laws of Florida, designates the Hillsborough County City-County Planning Commission ("Planning Commission”) as Hillsborough County's local planning agency. The Planning Commission is charged with preparing Comprehensive Plans and making recommendations to the public bodies for Hillsborough County and the incorporated municipalities within Hillsborough County. The role of the Planning Commission is advisory and its recommendations are not binding upon Hillsborough County. Intervenors Sierra Club and Dr. Richard and Bonnie Hoffman have established their standing to participate in this proceeding as "affected persons" pursuant to Section 163.3184(1)(a), Florida Statutes. Sierra Club represents numerous members who reside in Hillsborough County, and also operates a business within the boundaries of Hillsborough County by way of its local affiliate. The Hoffmans own property within Hillsborough County. Both Sierra Club and the Hoffmans participated in the local government proceedings in accordance with Section 163.3184(1)(a), Florida Statutes.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that the Administration Commission enter a final order finding the portion of CPU-2015 challenged by the Petition to be in compliance. DONE AND ENTERED this 14th day of October, 1998, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON 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 Filed with the Clerk of the Division of Administrative Hearings this 14th day of October, 1998.
The Issue The issue in this case is whether Ordinance 679-L of the City of St. Petersburg ("City"), which amended the Future Land Use Map (“FLUM”) of the City's Comprehensive Plan on certain property generally located at the northeast corner of 9th Avenue North and 66th Street North within the boundaries of the City (the "Subject Property") from Institutional to Residential Office Retail (R/O/R) land use on 2.98 acres, Residential Office General (R/OG) on 2.98 acres, and Residential Urban (RU) on 12.02 acres (the “Plan Amendment”), is "in compliance" as defined by Section 163.3184(1)(b), Florida Statutes,i notwithstanding Petitioners' contentions that the Plan Amendment is internally inconsistent and not based on data and analysis.
Findings Of Fact Parties Each Petitioner submitted oral and/or written comments, recommendations and/or objections to the City regarding the disputed land use amendments that are the subject of this case between the day of the transmittal hearing (July 18, 2006) and the day of the adoption hearing (February 15, 2007). Each individual Petitioner owns and/or resides on property within the boundaries of the City. The Eagle Crest Civic Association, Inc., f/k/a Eagle Crest Neighborhood Association, Inc., is a Florida not-for- profit corporation conducting business within the boundaries of the City. The Eagle Crest Civic Association, Inc., collects dues from membership, conducts monthly business and informational meetings at the St. Petersburg College Gibbs Campus Library in the City, and advocates interests on behalf of its membership before the St. Petersburg Council of Neighborhood Associations and various City and County governmental boards, commissions and councils. The Department is the state land planning agency that is statutorily charged with the duty of reviewing comprehensive plans and their amendments, and determining whether a plan or amendment is “in compliance,” as that term is defined in Section 163.3184(1)(b), Florida Statutes. The City is a municipality and political subdivision of the State of Florida and has adopted a comprehensive plan that it amends from time to time pursuant to Section 163.3167(1)(b), Florida Statutes. Sembler is a Florida corporation headquartered and conducting business in the City; by virtue of a contract for the purchase of the property that is the subject of this dispute, Sembler is an equitable owner of the property that is affected by the challenged FLUM Amendment in this case. Background The Subject Property has been owned by the Catholic Diocese of St. Petersburg since 1952. Notre Dame High School, a Catholic girls-only high school, was constructed on the Subject Property in the early 1960’s. In 1977, Notre Dame High School merged with Bishop Barry High School (a Catholic boys-only high school to the east of the Subject Property) and the improvements on the Subject Property were used for various Catholic diocesan offices and other administrative purposes. Notre Dame High School was eventually demolished, and the only improvements remaining on the Subject Property are a former field house used for storage purposes and a former convent used for a multi-purpose building. The Subject Property is otherwise currently completely vacant. Since 1977 the Subject Property has had a FLUM designation of Institutional. In January of 2006, Sembler applied to the City for a change in the FLUM designation on the Subject Property from Institutional to Commercial General for an approximately 13.25 acre portion of the Subject Property fronting predominately along the west side 66th Street North between 9th Avenue North and 13th Avenue North. On March 7, 2006, Sembler requested a deferral of its pending application to consider a modification of the development plan to less intensive commercial uses. The deferral was granted by the City Planning Commission. On March 29, 2006, Sembler submitted a new application, abandoning the prior request to change the FLUM designation for the approximately 13.25-acre portion from Institutional to Commercial General. The new application (March 29, 2006) by Sembler requested a change to the Future Land Use designation for an approximate 6.19-acre portion of the Subject Property from its existing Institutional designation to Residential Office Retail ("R/O/R"). This new application was assigned City File Number PC-700 (“PC-700”). The intention of the PC-700 application was to develop multifamily residential units on approximately 11.8 acres of the Subject Property and to develop neighborhood commercial uses on the approximate 6.19-acre portion of the Subject Property. The PC-700 application included a Development Agreement proposed by Sembler which, among other things, limited the actual commercial development of the 6.19 acre portion to 26,000 square feet of space, and required that a quarter, or 25 percent, of that space be developed under the zoning regulations for Residential Office General ("R/OG"), instead of R/O/R. On May 2, 2006, the City’s Planning Commission (the “LPA”) conducted a public hearing to consider the PC-700 Application, and voted 6-2 to recommend approval of the PC-700 application to the St. Petersburg City Council (the “City Council”). On July 18, 2006, the City Council conducted a public hearing for the First Reading of the PC-700 application, and unanimously adopted a resolution approving the transmittal of a proposed ordinance adopting PC-700 to the Department, among others, for review and comment pursuant to Chapter 163, Florida Statutes and Chapter 9J-5, Florida Administrative Code. On September 29, 2006, the Department published its Objections, Recommendations and Comments (“ORC”) Report on the Plan Amendment contained in PC-700. The Department raised no objections to the proposed Plan Amendment. Sometime between September 29, 2006, and December 14, 2006, Sembler modified its application PC-700. The modified application was intended to address some of the concerns raised by neighborhood associations representing citizens who owned property and resided in areas adjacent to the Subject Property. The modified PC-700 application requested a FLUM amendment for 2.98 acres of the Subject Property to be changed from Institutional to R/O/R, for 2.98 acres of the Subject Property to be changed from Institutional to R/OG, and for 12.02 acres of the Subject Property to be changed from Institutional to RU (“PC-700 Modified”). The PC- 700 Modified application also included a proposed Development Agreement which, among other things, limited the actual development of the R/O/R acreage to a maximum of 13,000 square feet, and limited the total combined development of the R/O/R and ROG acreage to 26,000 square feet. On December 14, 2006, the City Council conducted its First Reading of the PC-700 Modified application, approving the application and setting the Second Hearing for the application for February 15, 2006. On February 6, 2006, the Pinellas County Commission, meeting as the County Planning Authority (the “CPA”), held a public hearing to consider the PC-700 Modified application. The CPA approved the PC-700 Modified application. On February 15, 2007, the City Council conducted its Second Reading public hearing of the PC-700 Modified application and voted to adopt Ordinance 679-L, amending the FLUM designation of the Subject Property from Institutional to R/O/R on 2.98 acres, R/OG on 2.98 acres, and RU on 12.02 acres (the “Plan Amendment”). Petitioners do not challenge the FLUM amendment for the RU portion of the Subject Property. On February 23, 2007, the City transmitted the adopted Ordinance 679-L, together with staff reports from the December 14, 2006, and February 15, 2007, public hearings and certain other pertinent information, to the Department for its review pursuant to Chapter 163, Florida Statutes, and Chapter 9J-5, Florida Administrative Code. On April 16, 2007, the Department published in the St. Petersburg Times newspaper its NOI to find the City’s Plan Amendment “in compliance.” Petitioners' Challenge The Petitioners assert that the FLUM amendment adopted by the City in Ordinance 679-L is not “in compliance” pursuant to Section 163.3184(1)(b), Florida Statutes, because: (1) the FLUM amendment is not based on adequate data and analysis as required by Section 163.3177(8), Florida Statutes, and Florida Administrative Code Rule 9J-5.005(2)(a) iii; and (2) the FLUM amendment is not internally consistent with specific objectives and policies of the City’s Plan as required by Section 163.3177(2), Florida Statutes, and Rule 9J-5.005(5)(a) and (b). The Petitioners’ challenge is centered on three specific objectives and policies contained in the Future Land Use Element ("FLUE") of the City’s Plan: Policy LU3.17, Objective LU4(2), and Objective LU18.iv The Petitioners assert that the challenged Plan Amendment is inconsistent with those objectives and policies and is not based on data and analysis. The Department and the Intervenors assert that those objectives and policies are not applicable, that the Plan Amendment is not inconsistent with those objectives and policies, and that the Plan Amendment is based on data and analysis. The Intervenors also assert that, even if the Plan Amendment were inconsistent with those objectives and policies, consistency with other goals, objectives, and policies in the plan should be "balanced" against the inconsistency and that the consistencies outweigh the inconsistencies, so that the Plan Amendment still would be "in compliance." The Petitioners and the Department do not subscribe to such a balancing of consistencies and inconsistencies, citing Dept. of Community Affairs v. Lee County and Leeward Yacht Club, LLC, AC-06-006, DOAH Case No. 06-0049GM, 2006 Fla. ENV LEXIS 158 (Admin. Comm'n Nov. 15, 2006). Pertinent City Comprehensive Plan Provisions The City's FLUE Policy LU3.17 states: The City has an adequate supply of commercial land use to meet existing and future needs. Future expansion of commercial uses shall be restricted to infilling into existing commercial areas and activity centers, except where a need can be clearly identified. The City's FLUE Objective LU4 states in pertinent part: The Future Land Use Plan and Map shall provide for the future land use needs identified in this Element: * * * Commercial – additional commercial acreage is not required to serve the future needs of St. Petersburg. An oversupply exists based upon the standard of 1 acre of commercial land for every 150 persons in the community. * * * 4. Mixed Use – developments are encouraged in appropriate locations to foster a land use pattern that results in fewer and shorter automobile trips and vibrant walkable communities. The City's FLUE Objective LU18 states: Commercial development along the City’s major corridors shall be limited to infilling and redevelopment of existing commercially designated frontages. Section 1.2.2 of the General Introduction to the City’s Plan describes the format of the elements of the Plan and includes the following pertinent sub-headings and language: 1.2.2.3 Goals, Objectives, and Policies The Goals, Objectives, and Policies have been developed in response to and in accordance with the needs and directions of growth and determined levels of service requirements as identified within the Inventory and Analysis which can be found in the accompanying 1989 Technical Support Documents [TSDs] and the 1996 Evaluation and Appraisal Report [EAR]. All objectives are designed to identify the measurable achievements necessary to support the related goal. In those cases, where the Objective is not specific and/or measurable, but rather, the actual specificity and measurability is found in the supporting policy(ies), the policy(ies) shall be used for the purposes of monitoring and evaluation. The policies are intended to act as implementation mechanisms identifying programs and procedures to be used to accomplish the related objective. This Comprehensive Plan is intended to be utilized as a document in its entirety. It shall hereby be established that no single goal, objective or policy or minor group of goals, objectives or policies, be interpreted in isolation of the entire plan. 1.2.2.5 Status and Use of the TSD and the EAR . . . . The 1989 TSD and the 1996 EAR are hereby referenced and established as the supporting data and analysis for this Comprehensive Plan. The TSD and the EAR may be used to assist in the interpretation of this comprehensive plan and to aid in the review of proposed changes to this plan. It should be updated as necessary to maintain the usability of the data and analysis as an interpretive and advisory aid. * * * 1.3.1.2 Competing Policies Where two or more policies are competing when applied to a particular set of factual circumstances, such conflict shall be resolved first by administrative interpretation of the Comprehensive plan policies. The objective of any such interpretation shall be to obtain a result which maximizes the degree of consistency between the proposed development or public sector activity and this Comprehensive Plan considered as a whole. The City’s Plan also includes the following pertinent definitions in Section 1.7: Commercial Uses - Activities within land areas which are predominately connected with the sale, rental, and distribution of products, or performance of services. * * * Mixed Use - A site that has a combination of different land uses, such as residential, office and retail. In addition, Policy LU3.1(B) of the City’s FLUE defines "Commercial and Mixed Use Categories" to include: Residential/Office General (R/OG) - allowing mixed use office, office park and medium density residential up to a floor area ratio of 0.5 and a net residential density of 15 dwelling units per acre. . . . Commercial General (CG) - allowing the full range of commercial uses including retail, office, and service uses up to a floor area ratio of 0.55. . . . Retail/Office/Residential (R/O/R) - allowing mixed use retail, office, service, and medium density residential uses generally up to a floor are ratio of 0.4 and a net residential density of 15 dwelling units per acre. . . . Finally, FLUE Policy LU3.1(D) defines "Public/Semi- Public Categories" to include: 2. Institutional (I) - Limited to designation of federal, state and local public buildings and grounds, cemeteries, hospitals, churches, and religious institutions and educational uses. Residential uses having a density not to exceed 12.5 dwelling units per acre, are also allowed. Residential equivalency uses are not to exceed 3 beds per dwelling unit. Non-residential uses permitted in the land development regulations are not to exceed a floor area ratio of 0.55. Consistency with Commercial Use Restrictions The Petitioners proved beyond fair debate that the Plan Amendment at issue increases "the supply of commercial land use to meet existing and future needs." FLUE Policy LU3.17. This is clear not only from the potential for commercial use in the mixed use R/O/R and R/OG future land use categories, but also from the City's inclusion of nine-tenths of the former's and one-tenth of the latter's acreage in the inventory of commercial land use for purposes of determining the "supply of commercial land use to meet existing and future needs" in FLUE Policy LU3.17 and the ratio described in FLUE Objective LU4.2. The question is whether the restrictions on commercial future land uses reflected in those Plan provisions apply to the mixed use categories of R/O/R and R/OG. Prior to adoption, the City's staff reports stated that the commercial restrictions do apply, and that the Plan Amendment at issue was inconsistent with those restrictions, but that the Plan Amendment was consistent with several other Plan provisions and "on balance, consistent with the goals, objectives and policies of the Comprehensive Plan." However, in this de novo proceeding, the staff reports are not controlling on the applicability of the commercial restrictions and the consistency of the FLUM amendments at issue with those restrictions. In the first place, in light of the contrary testimony of staff during the final hearing, the intent of staff in using the language in the reports is fairly debatable. Second, after the staff reports were prepared, significant testimony on need and demand for commercial land use at the particular location of the FLUM amendments at issue was presented during the final public hearing on the PC-700 Modified application on February 15, 2007, which could have changed staff's mind on at least some of the issues. Finally, the extent to which the City Council may have relied on the staff reports in determining that the Plan Amendment was "in compliance" is not clear from the evidence and is fairly debatable. The City now takes the position, along with the Department, that the restrictions on commercial future land use in FLUE Policy LU3.17 and Objective LU4.2 do not apply to R/O/R and R/OG because they are mixed use future land use categories, not commercial future land use categories. In support of this position, they point out that Objective LU4 treats "Mixed Use" and "Commercial" "future land use needs" differently and applies the restriction only to "Commercial" "future land use needs," while encouraging mixed use developments in appropriate locations. Several of the specific Plan provisions cited in the staff reports as being consistent with the Plan Amendment addressed the appropriateness of a mixed use development at the proposed location, including: FLUE Policy LU3.18, which states that "retail and office activities shall be located, designed and regulated so as to benefit from the access afforded by major streets without impairing the efficiency of operation of these streets or lowering the LOS [level of service] below adopted standards, and with proper facilities for pedestrian convenience and safety"; FLUE Policy LU3.4, which states that "[t]he Land Use Plan shall provide for compatible land use transition through an orderly land use arrangement, proper buffering, and the use of physical and natural separators"; FLUE Policy LU3.6, which states that "[l]and use planning decisions shall weigh heavily the established character of predominately developed areas where changes of use or intensity of development are contemplated"; FLUE Policy LU3.8, which seeks to "protect existing and future residential uses from incompatible uses, noise, traffic and other intrusions that detract from the long term desirability of an area through appropriate land development regulations"; and FLUE Policy LU3.5, which states that "[t]he tax base will be maintained and improved by encouraging the appropriate use of properties based on their locational characteristics and the goals, objectives and policies within this Comprehensive Plan." There also was considerable testimony at the hearing concerning the appropriateness of a mixed use development at the proposed location.v Petitioners also contend that the Plan Amendment is inconsistent with FLUE Objective LU18 concerning commercial development along major corridors. In favor of Petitioners' position, 66th Street North, where the Subject Property is located, is a major north-south corridor in the City. However, the Department and the Intervenors argue that the objective does not apply because the policies under it only specify 4th Street and Central Avenue and do not mention 66th Street. Taking all of the evidence and the City's Plan into consideration, including Sections 1.2.2.3, 1.2.2.5, and 1.3.1.2 of the General Introduction, it is found that Petitioners did not prove beyond fair debate that FLUE Policy LU3.17, Objective LU4.2, or Objective LU18 apply to the FLUM amendments at issue; even if those Plan provisions applied, Petitioners did not prove beyond fair debate that the FLUM amendments at issue do not constitute "infilling into existing commercial areas" or "infilling . . . of existing commercially designated frontages," or that "a need can[not] be clearly identified."vi All but one witness testified that, if those Plan provisions applied, the FLUM amendments would constitute commercial infill under the pertinent Plan provisions; the lone dissenter was using what he called a "narrow definition" of infill and agreed that the FLUM amendments would constitute commercial infill using the broader definition held by the majority view. There also was ample evidence that there was a clearly identified need for the FLUM amendments at issue, especially when considered along with the unchallenged RU FLUM amendment. Based on the foregoing findings on internal consistency, which is the context of Petitioners' data and analysis argument, Petitioners also did not prove beyond fair debate that the Plan Amendment was not based on data and analysis.
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 City's Ordinance 679- L is "in compliance." DONE AND ENTERED this 5th day of October, 2007, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of October, 2007.
The Issue The issue in this case is whether the small-scale comprehensive plan amendment adopted by the Town of Pomona Park (Town) through enactment of Ordinance No. 01-7 (the Plan Amendment) is "in compliance," as defined by Section 163.3184(1)(b), Florida Statutes (2001).
Findings Of Fact The Town's current Future Land Use Map (FLUM) (Exhibit H) depicts the subject parcel and Petitioner's adjoining parcel as fronting on the western shore of Lake Broward and being within a primarily residential land use area that encompasses most of the Town's land area lying west of Lake Broward and northeast of Highway 17. The parcels immediately to the north and south of the subject parcel and Petitioner's adjoining parcel are in Low Density Residential future land use, which allows densities up to two units per acre; the lake is to the east. The eastern five acres of the 13-acre subject parcel, including the lake frontage, were not included in the amendment; only the western eight acres were changed to Agricultural land use, which allows densities up to one unit per five acres (unless occupied only by the owner's family members, in which case densities up to one unit per acre are allowed). The property owner, Town Council member Barry Fouts, had previously requested to have the entire 13-acre parcel changed to Agricultural land use but withdrew that request. Fouts testified that, in requesting the same change for only eight acres of his parcel, he took into consideration that keeping the request under 10 acres would avoid review by the Department of Community Affairs (DCA). Several parcels near the Fouts parcel, including some of the parcels across the street to the west, are designated for Agricultural future land use. However, those parcels across the street to the west of the subject parcel are actually being used for residential rather than agricultural purposes. The nearest parcel that might be considered to be in actual use for agricultural purposes is a horse farm located approximately one quarter mile to the north. However, the present Town Clerk testified in her capacity as Town zoning officer that a horse farm (or an exotic bird breeding operation) is not to be considered an agricultural use because the animals are not being raised for human consumption. Fouts has voluntarily provided some visual buffering along his property line, but there is no requirement in the Plan Amendment that it be maintained in the future, nor would visual screening be particularly effective in protecting nearby Residential properties against noises and odors produced by some common types of agricultural livestock. The Plan Amendment was not initiated by the Town; rather, it was requested by the subject parcel's owner, Barry Fouts, whose request for a change in land use stated that his purpose was to bring his "established agricultural activities, which include horse and bird breeding" into conformity with "Putnam County [sic] zoning recommendations." Fouts gave no other reasons for wanting the change. The former Town Clerk (and zoning officer) testified that there were no restrictions on keeping any type or number of animals in Residential future land use, that Fouts could engage in horse and bird breeding without changing the future land use or zoning, and that there was no need for the land use change. No survey, study, or analysis of the Plan Amendment is reflected anywhere in the Town's files relating to the Plan Amendment, and it is found that there were none. When the Plan Amendment was presented to the Town Council for consideration, all that the former Town Clerk and present Town Clerk presented to the Town Council was a one-page note prepared by the former Town Clerk relating Fouts' desire to continue with his agricultural activities, including horse and bird breeding. At final hearing (with the assistance of leading questions on cross-examination by the Town's attorney), the present Town Clerk and former Town Clerk testified that, notwithstanding the absence of any written survey, study, or analysis, they made a site visit and recalled reviewing the Plan Amendment in relation to the Town's Comprehensive Plan, including the FLUM, as well as analyzing and considering the need for more agricultural land use within the Town's municipal boundaries and the desirability of keeping residential development and septic tanks away from the lake, in arriving at a recommendation to approve the land use change. Regardless whether any such analyses actually occurred by the time of adoption of the Plan Amendment, they clearly were presented as part of the evidence at final hearing. The analysis presented at final hearing that the Town's Comprehensive Plan calls for more land area to be designated for Agricultural future land use was based on an erroneous reading of the Comprehensive Plan adopted by the Town in 1991. The analysis presumed that, under the plan, 1220.3 acres of agricultural land use was "desired" (compared to less that 600 acres in actual agricultural use in 2001). This presumption was based on parenthetical references to 1220.3 acres next to the word "Agricultural" in two places in the plan. But it is clear from a fair reading of the plan that, in designating Agricultural future land use, the plan transferred all 648.6 acres in the "Vacant or Undeveloped" existing land use category to the Agricultural future land use category "for lack of a better land use designation," in addition to the 571.7 acres of existing agricultural land use, for a total of 1220.3 acres. (Other future land use designations mirrored 1991 existing land use.) There was no intention to indicate a need for 1220 acres of agricultural land use in the Town. To the contrary, the plan projected a need for 170 additional housing units through 2001 and stated that "[m]ost of the Town's . . . agricultural and vacant/undeveloped land is suitable for development." Consistent with that, the evidence showed that in the vicinity of the subject parcel most if not all of the parcels designated for Agricultural land use are actually being used for residential purposes and not for agriculture. If anything, it would seem that in 1991 the Comprehensive Plan anticipated a need to designate more acreage for Residential future land use and less for Agricultural. Even if the Comprehensive Plan reflected a perceived need for 1220 acres of actual agricultural use, 1220 acres already is designated for Agricultural future land use, and no reason was given for designating additional acreage for the category. Finally, this part of the Town's analysis makes no sense in light of the undisputed testimony of the Town Clerk, as zoning officer, that "agricultural use" consists of the raising of plants or animals for human consumption. The evidence was clear that the horses, cows, and exotic birds on the Fouts property are not for human consumption. It was not clear from the evidence what the 15-20 chickens on the Fouts property are used for. The analysis that the Plan Amendment was to protect Lake Broward from septic tanks associated with residential land use also is shallow and faulty. While it is true that allowable development densities are lower in the Agricultural future land use category, the five acres of the Fouts parcel that were nearest the lake were not included in the amendment but remained in Residential future land use. Second, the present Town Clerk testified that there never have been any negative effects on the lake from septic tanks, which are regulated, whereas she had no way of knowing whether the unregulated effects of agricultural runoff might be worse than any effects from septic tanks. Objective A.1.1 provides that the Town "shall coordinate future land uses with . . . adjacent land uses, . . . through implementing the following policies . . ..". In this case, the immediately adjacent land uses are designated on the FLUM as Residential, and most if not all of the nearby parcels that are designated Agricultural are actually being used for residential purposes. But Petitioner did not allege that the Plan Amendment was inconsistent with any of the policies listed under Objective A.1.1, and the evidence did not prove any such inconsistencies. Policy A.1.3.2 requires that the Town's Subdivision and Zoning Code shall require buffering and separation between land uses of different densities or intensities of use sufficient to ensure compatibility between uses and also requires the elimination of non-conforming land uses. In this case, the Plan Amendment did not provide for separation or buffering between the newly designated Agricultural future land use and the directly adjoining Residential properties, but neither did it have any effect on the Policy requiring the Town's Subdivision and Zoning Code to require such buffering and separation. Policy A.1.9.3.C.1 provides in pertinent part: "Residential land use is intended to be used primarily for housing and shall be protected from intrusion by land uses that are incompatible with residential density." The Plan Amendment intrudes a small area of Agricultural future land use into an area that is primarily designated for Residential land use and that is in actuality almost exclusively used for residential purposes. The sounds and smells associated with at least some types of agricultural activity, such as the pasturing and raising of livestock and poultry, are capable of adversely affecting nearby residents and are incompatible with residential land use. Policy A.1.9.3.C.4 provides in pertinent part: "Agricultural land is intended to be used primarily for pasture, grove operations or silviculture with possibly some row crops." In this case, the evidence shows that the primary purpose of the Plan Amendment was to allow the landowner to breed horses and operate an exotic bird breeding facility. The Town Clerk, as zoning officer, has taken the position that those activities do not fit within the definition of agriculture. But the Plan Amendment itself is not inconsistent with this Policy.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order finding that the Town's small-scale amendment adopted by Ordinance No. 01-7 is not "in compliance." DONE AND ENTERED this 18th day of June, 2002, in Tallahassee, Leon County, Florida. ___________________________________ J. LAWRENCE JOHNSTON 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 18th day of June, 2002. COPIES FURNISHED: James L. Padgett, Esquire 3 North Summit Street Crescent City, Florida 32112-2505 Michael W. Woodward, Esquire Keyser & Woodward, P.A. Post Office Box 92 Interlachen, Florida 32148-0092 Barbara Leighty, Clerk Growth Management and Strategic Planning The Capitol, Room 1801 Tallahassee, Florida 32399-0001 Charles Canaday, General Counsel Office of the Governor The Capitol, Suite 209 Tallahassee, Florida 323999-0001 Cari L. Roth, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325 Tallahassee, Florida 32399-2100
The Issue Ultimately at issue in this case is whether certain comprehensive plan amendments, adopted by Lee County Ordinance No. 94-30, are "in compliance" with Chapter 163, Part II, Florida Statutes. As reflected in the Preliminary Statement, many of the subordinate issues raised by parties seeking to have the plan amendments found to be "not in compliance" have been withdrawn, and others have been stricken as not timely raised or for other reasons. The remaining issues are addressed in this Recommended Order.
Findings Of Fact The FLUM and the Overlay. Lee County adopted its first Comprehensive Plan with a land use map in 1984. On January 31, 1989, the County adopted an amended version of the 1984 Plan intended to plan for growth up to the year 2010 and to comply with the 1985 Growth Management Act requirements. Essentially, the 1989 Plan was very similar to that drafted in 1984. Some major differences were provision of development timing and concurrency, creation of the privately-funded infrastructure overlay, elimination of the fringe land use category, and a variety of other new goals, objectives, and policies (GOP's). Most of the land use categories in the 1984 Plan were carried forward to the 1989 Plan. Almost all of the land use categories are mixed land use categories that allow residential, commercial and in some cases also light industrial uses without any percentage distributions or other objective measurements of distribution among uses. The DCA took the position that the 1989 Lee Plan was not in compliance with the Growth Management Act and filed a petition under Section 163.3184(10). The Department's objection to the 1989 Plan flowed in large part from the alleged overallocation of land for development by the year 2010 that resulted from the categories in the future land use map series (FLUM). Using the County's data and analysis, the DCA concluded that the 1989 map provided for 70 years of growth, to the year 2060, instead of 20 years, to the year 2010. To resolve the 1989 Plan dispute, the County agreed to adopt a 2010 Overlay and create a Density Reduction/Groundwater Resource future land use (FLUE) category (DRGR). The 1989 Plan Compliance Agreement included the following provisions: Amend the Future Land Use Map series by designating the proposed distribution, extent, and location of the generalized land uses required by Rule 9J-5.006(4)(a)1.-9. for the year 2010. These designations will include acreage totals and percentage distributions (illustrated by a bar graph) for about 125 discrete sub-districts encompassing all of Lee County, which, once designated, shall be changed only by a formal amendment to the Lee Plan. The data for these designations shall be consistent with the Lee Plan's population pro- jections for the year 2010. This amendment shall be accomplished by the adoption of over- lay or sub-district maps for the entire County using the concepts developed therefor by Thomas H. Roberts of Thomas H. Roberts Associates and presented publicly to the Board of County Commissioners of Lee County on September 12, 1989, and to the Department of Community Affairs on September 22, 1989. Adopt a policy which will provide that no development approvals for any land use category will be issued in any of the sub- districts described above that would cause the acreage total set for that land use category in 2010 to be exceeded. In accordance with the 1989 Plan Compliance Agreement, the County created a 2010 Overlay. The County first projected future growth in Lee County to the year 2010, using a basic assumption that historic patterns of growth in Lee County, including historic densities, would continue. The County's 2010 population estimate was 757,370 for the entire unincorporated County. The County then assigned acreage allocations for different land uses allowed in each planning subdistrict. In accordance with the 1989 Plan Compliance Agreement, the County adopted the resulting 2010 Overlay, as well as a DRGR FLUE category with a density range of one unit per ten acres, as part of the 1990 remedial plan amendments. The Overlay consisted of Maps 16 and 17, which were added to the FLUM, along with implementing policies in the Future Land Use Element. The 2010 Overlay is, in the words of the 1994 Codification of the Plan, "an integral part of the Future Land Use Map series." Map 16 is a map which divides Lee County into 115 subdistricts. "Map" 17 is not a true map; it is a series of bar tables and pie charts that correspond to acreage allocations for land uses within the subdistricts. Each subdistrict is allocated a specific number of acres for each of the following land uses: residential, commercial, industrial, parks and public, active agriculture, conservation, passive agriculture and vacant. The land use acreage allocations for each Overlay subdistrict are the maximum amount of land which can be developed in that subdistrict. The intent of the 2010 Overlay was to match the amount of development that could be accommodated by the 2010 FLUM with the projected County-wide population for the year 2010. The 2010 Overlay accomplished this in part by assigning percentage distributions, in the form of acreage allocations, to the various uses in the many mixed use categories in the FLUM. Under the Overlay, once the acreage allocation for a particular land use is exhausted, no more acreage can be developed for that land use in that subdistrict unless the Lee Plan is amended. Policy 1.7.6 was adopted to establish an ongoing mandatory review procedure for evaluation and amendment of the 2010 Overlay. On September 6 and 12, 1990, Lee County adopted the 1990 Remedial Plan Amendments and officially revised the original data and analysis supporting the Plan. As the support documents for the 1990 remedial amendments stated: The future land use map series currently contained in the Future Land Use element of the Lee Plan depicts 18 land use categories and has an estimated 70-year population holding capacity. A future land use map series is re- quired by state law and is also a useful and necessary part of the plan in guiding land use and related decisions. The Year 2010 Overlay makes this map series even more useful as a decision-making guide by providing a 20-year horizon in addition to its present longer- term horizon. * * * In addition to this "pure planning" function of the 2010 Overlay, a regulatory function will be added. No final development orders or building permits for any land use category will be issued in any subdistrict that would cause the acreage total for that category in 2010 to be exceeded. The Dwelling Unit Counts and Projections charts in the support documents for the 1990 amendments demonstrate that the 2010 Overlay was designed to greatly limit the number of dwelling units that could be constructed by 2010 compared to the number allowed by the 2010 FLUM without the Overlay. On or about October 29, 1990, DCA published a Notice of Intent to find the 1990 Remedial Plan Amendments in compliance. However, a citizen challenge to the County's 1990 Remedial Plan Amendments resulted in an Administration Commission Final Order that the amendments were not in compliance and that the County had to take certain remedial actions to bring the Plan amendments into compliance. Final Order, Sheridan v. Lee Co. and DCA, 16 FALR 654 (Fla. Admin. Com. 1994)(the "Sheridan Final Order"). The Sheridan Final Order required the County to apply the 2010 Overlay at the development order stage, rather than at the building permit stage. As a result, no development order could be issued which caused the acreage allocations for any given individual subdistrict to be exceeded. The Sheridan Final Order also held that the County had not properly calculated the amount of development allowed by the 2010 Overlay and adopted the following analysis from the hearing officer's Recommended Order: The calculation of a density allocation ratio is part of the determination whether data and analysis support the residential densities in a plan. The analysis misses the point of the process if the maximum densities authorized by a plan are reduced to reflect historic densities. The question is whether the densities authorized by a plan are supported by data and analysis, not whether data and analysis support densities some- where between the maximum authorized densities and historic densities. Especially where historic densities reflect an inefficient use of land, as is clearly the case in Lee County, analysis of a plan based in part on historic densities invites the repetition of past planning failures. * * * The purpose of the density allocation calculation, as part of the process of determining if the plan is supported by data and analysis, is not to predict the actual density that will occupy the planning jurisdiction at buildout. The purpose of the density allocation calculation is to compare the maximum density allowed by the plan with the projected population, and consider the extent of the overallocation in the light of other factors in the planning jurisdiction, including plan provisions and relevant data and analysis. The ratio is not required to be 1:1 to satisfy the criterion of supporting data and analysis. But the ratio must be ascertainable in order to determine if the density allocations in a plan, in view of other plan provisions, are supported by data and analysis. Sheridan Final Order, 16 FALR at 689. As a result, one of the remedial amendments required by the Administration Commission was: To address the density calculation issue the County shall revise the data and analysis to include the maximum allowable densities in determining the amount of development allowed by the 2010 overlay and to show that the amount of development allowed is based on the expected growth. Sheridan Final Order, 16 FALR at 661. The County adopted 2010 Overlay remedial amendments in October, 1994. In December, 1994, the DCA determined that the remedial amendments were in compliance. (The revised data and analysis were not made a part of the record in this case.) On July 1, 1994, the County adopted an Evaluation and Appraisal Report (EAR) for its Plan and subsequently submitted to the DCA the EAR, along with the proposed EAR-based amendments for the year 2020. Among other things, the proposed EAR-based amendments eliminated the 2010 Overlay. Among other things, the DCA's Objections, Recommendations and Comments (ORC) Report objected to the elimination of the 2010 Overlay, taking the position that, without the Overlay, the EAR-based plan had the same allocation-related problems that had been in the 1989 plan. On November 1, 1994, the County adopted a modified version of the EAR- based amendments--still without any Overlay--and submitted these to the DCA, together with its staff response to the DCA's ORC Report. On December 28, 1994, the DCA issued a Statement of Intent to find the EAR-based amendments not in compliance. FLUM Population Accommodation Data and Analysis. The evidence in this case includes data and several different analyses comparing the population accommodated by the plan amendments at issue--i.e., the FLUM without any Overlay--with the population projected for the year 2020. Figure 14. Lee County's proposed population accommodation data and analysis is included in the EAR in Figure 14. Based on Figure 14, the County concluded that the 2020 FLUM accommodates 802,655 persons, or 128 percent of the projected 2020 population (an accommodation ratio of 1.28). Although the FLUM's many mixed use categories do not establish percentage distributions or other objective measurements of distribution among uses, Figure 14 assumes that certain percentages of the many mixed use categories will develop in residential use, based on historic growth patterns. Also based on historic growth patterns, Figure 14 assumes that residential density will be less than the maximum of the standard residential density range allowed in each category although the GOP's allow residential development at much higher densities. Since Figure 14 is based on historic patterns of growth that are expected to continue into the future, Figure 14 appears to predict future growth as accurately as is possible at this time. It probably is the best possible estimate of how Lee County will build out under the proposed amendments. However, the ability to make truely accurate predictions over such a long period of time--25 years--is questionable. Figure 14 assumes that only a fraction of the new Vested Community land use district (Lehigh Acres) will be developed by the end of the planning timeframe. Most of the Vested Community district consists of subdivisions which were approved and platted several years before the adoption of the earliest Lee Plan, and which are vested from the restrictions of the Lee Plan. The Vested Community district contains over 130,000 vested lots which can accommodate at least 271,700 residents. In addition, the Vested Community district contains some land which is not actually vested from the Lee Plan but is allowed to develop at four density units per acre (du/ac). Figure 14 assumes that 45,888 residential units accommodating 95,906 persons will be developed in Lehigh Acres by 2020. There is no goal, objective or policy in the Lee Plan which would prevent the development of more lots vested or allocated in the Vested Community district. Lee County's Figure 14 analysis assumed that the Rural and Outer Islands categories will develop at their maximum residential density of one du/ac. In fact, the Lee Plan includes a Planned Development District Option ("PDDO") which allows: landowners outside the Future Urban Areas to increase allowable densities for development that will be totally independent of county- subsidized facilities and services. (Objective 1.8) The PDDO increases the maximum theoretical residential density of the Rural and Outer Islands districts from 1 du/ac to 6 du/ac. However, due the requirements for use of the PDDO, realistically it cannot be anticipated that much Rural or Outer Islands land will utilize it. Lee County's Figure 14 analysis did not include any residential allocation for the General Interchange category. The General Interchange category allows residential development of 100 residential units at 8 du/ac for every 100,000 square feet of commercial development. If the residential option applied to all 1,436 acres of the General Interchange category, the Lee Plan would accommodate another 13,209 persons in that category. However, for the residential option, the category requires 160 acres under common ownership. Currently, there is only one case in which the requirement is met, and it is a development of regional impact (DRI) that does not allow residential at this time. Figure 14A. Figure 14A is part of the County's response to the DCA's ORC report. It was supposed to adjust Figure 14 by assuming the maximum residential density allowed by each land use category in accordance with the Sheridan Final Order. The Figure 14A accommodated population rises to 1,325,568, and the so-called allocation ratio rises to 2.11. Actually, Figure 14A does not take into account the actual maximum residential density in Intensive Development (22 du/ac), Central Urban (15 du/ac), and Urban Community (10 du/ac). Instead, it uses the top of the "standard density range" in those categories. Figure 14 B. Figure 14B also is part of the County's response to the DCA's ORC report. It adjusts the Figure 14A analysis by estimating the total residential development allowed by the Vested Community category at 170,732 dwelling units, which will accommodate 356,829 persons. Adding those Vested Community numbers to the Figure 14A numbers, Figure 14B estimates the population accommodated by the 2020 FLUM as 1,586,491 persons, or an accommodation ratio of 2.53. Maximum Theoretical Residential Potential. The DCA proposes an analysis of the data using maximum theoretical residential potential for each land use category. Under the DCA analysis, there is enough land available for residential development accommodate a population of approximately 2.5 million people--401 percent of the expected County population in 2020 or, expressed as a ratio, 4.01. In contrast to Figure 14B, the DCA's preferred analysis takes into account all of the residential development capacity in Lehigh Acres. In addition, it assumes residential development in the Vested Intensive Development part of the Lehigh Vested Community at the maximum density of 14 du/ac and in the Vested Central Urban part at the maximum density of 10 du/ac. These assumptions add to the FLUM population accommodation analysis the capacity to accommodate approximately 246,000 more people, over and above the Figure 14B capacity. The DCA's preferred analysis also assumes that all Rural and Outer Islands land will utilize PDDO and develop residentially at 6 du/ac. Use of this assumption more than doubles the population accommodation in those categories, adding approximately 500,000 people to the analysis. While theoretically possible, as previously stated, this assumption is unrealistic. The DCA's preferred analysis also assumes that 13,209 people are accommodated in residential development in the General Interchange category. This assumption, too, is theoretically possible but not realistic. Finally, the DCA's preferred analysis assumes that, although most of Lee County's future land use categories allow a mix of uses, the land will develop at the maximum potential residential densities over the entire land area--i.e., that no other type of permitted use, such as commercial, parks, schools or even roads would occur in any of the land use categories. Finally, it disregards the actual existence of non-residential uses and residential uses at lower densities; instead, it assumes redevelopment at the maximum potential residential densities over the entire land area. County's 2010 Overlay Analysis. It seems obvious that deletion of the 2010 Overlay must increase population accommodation, at least up to the year 2010. Up to the time of the final hearing, the DCA had not requested, and no party did, an allocation ratio analysis of the 2010 Overlay similar to the one the DCA prefers for the 2020 FLUM without any Overlay for purposes of making a comparison between the two. The County's chief planner testified that he performed such an analysis during the course of the final hearing using the maximum residential and maximum density assumptions. Neither the details nor the results of the analysis were clear. However, it appears to indicate that the 2010 Overlay accommodated a 2010 population of 1.06 million, apparently including 282,000 assumed to be accommodated in Lehigh Acres, an allocation ratio of 2.11. Assuming that the County's 2010 Overlay analysis included Lehigh, it can be roughly compared to the Figure 14B analysis and the DCA's preferred "maximum theoretical residential potential" analysis by removing the Lehigh component from each. Subtracting the Lehigh component from the County's 2010 Overlay population accommodation analysis results in a 2010 population accommodation of 778,000. Removing the Lehigh component from Figure 14B results in 2020 population accommodation of 1,229,662. Removing the Lehigh component from the DCA's analysis results in 2020 population accommodation of 2,008,927. Meanwhile, the County's projection of future increased by only about 70,000 between 2010 and 2020 for the entire unincorporated county. RGMC Alternative 2010 Overlay Accommodation Analysis and Comparision. RGMC proposes its own alternative analysis for comparing the population accommodated under the 2010 Overlay to the population accommodated without it. Using the County's population projection for 2020 of 626,860 in the unincorporated county and the accepted 2.09 people per unit, it can be estimated that approximately 300,000 units will be needed in the year 2020. Subtracting the 127,000 units existing in 1990, approximately 173,000 additional units will be needed over the 30 years from 1990 to 2020 to accommodate the expected population, or approximately 5,800 additional units per year. At that average rate, 116,000 units would be added by the year 2010 (5,800 units per year times 20 years). Adding the new units to the 127,000 units existing in 1990 results in a total of approximately 244,000 units in 2010. Since it is agreed that the Overlay was designed to accommodate, and accommodated, approximately the population expected in the year 2010, it can be estimated that the Overlay accommodated approximately 244,000 units. In the sense that all units accommodated under the 2020 FLUM without the Overlay are available for development before 2010, a rough comparison can be made between the population accommodated under the 2010 Overlay and the population accommodated according to the other analysis methodologies: according to Figure 14, the amended 2020 plan accommodates 384,045 units for the year 2020; according to Figure 14A, the amended 2020 plan accommodates 634,243 units for the year 2020; according to Figure 14B, the amended 2020 plan accommodates 759,086 units for the year 2020; and according to the DCA's preferred "maximum theoretical residential potential" methodology, the amended 2020 plan accommodates 1,201,973 units for the year 2020. Calculation and Use of the "Allocation Ratio". The technique of determining a residential density allocation ratio was described in an article entitled "Expanding the Overallocation of Land Use Categories," which appears in a June, 1995, publication of the Department of Community Affairs called "Community Planning." "Community Planning" is published by the Department of Community Affairs "to provide technical assistance to Florida's counties and cities and implement any requirements of Florida's growth management laws." The article announces how the Department reviews the question of "overallocation" in determining whether a plan is in compliance with statutory and rule requirements regarding urban sprawl. According to the article, the Department suggests that a comprehensive plan should allocate up to 125 percent of the amount of land needed to accommodate the projected future population. The article does not explain how the "allocation ratio" should be calculated. The Sheridan Final Order seems to say that maximum densities should be assumed. See Finding 11, above. But neither the "Community Planning" article nor the Sheridan Final Order indicate what other assumptions should be made. The "Community Planning" article and the Sheridan Final Order also do not specify whether, in calculating the allocation ratio, population accommodation capacity should be compared to the total expected population or to the incremental growth expected in the population. The DCA has accepted a 1.25 allocation ratio applied to the total expected population as being reasonable. A major treatise in this area known as Urban Land Use Planning, Fourth Edition, by Kaiser, Godchalk, and Chapin, suggests that an allocation ratio of up to 2.05 can be considered reasonable; however, when doing so, the authors were evaluating plans with a closer planning horizon (one to five years), and they were comparing the population accommodation capacity to the incremental growth expected in the population. When calculating an allocation ratio for a 20-year planning horizon, they suggest that a 1.20 allocation ratio that compares population accommodation capacity to the incremental growth expected in the population would be reasonable. By accepting a 1.25 allocation ratio that compares the population accommodation capacity to the total population expected on a 25-year planning horizon, the DCA seems to have been misapplying the allocation ratio analysis. Clearly, an accommodation ratio comparing the population accommodation capacity to the incremental growth expected in the population would be much than one comparing to to the total population expected. There was no data and analysis as to exactly how much higher, and it is difficult to say based on the record in this case. However, an example of the difference between the too methodologies is suggested by one of RGMC's alternative analyses. It is known that approximately 300,000 units of residential development will be needed for the population expected in the year 2020. See Finding 36, above. The evidence was that there were approximately 143,000 units existing in 1995, so approximately 157,000 additional units will be needed by the year 2020 to accommodate the expected population. Meanwhile, using the County's Figure 14 assumptions, the FLUM without the Overlay makes 384,045 units available for development by the year 2020, or an accommodation of an additional 241,045 units over what was in existence in 1995. Comparing incremental accommodation for growth to the incremental population growth expected by the year 2020 would result in an "accommodation ratio" of approximately 1.54, versus the ratio of 1.28 calculated in Figure 14 comparing to total population expected. By way of further examples, using the same method of comparison: Figure 14A's 2.11 "accommodation ratio" would become a ratio of 3.13, comparing incremental accommodation for growth to the incremental population growth expected by the year 2020; Figure 14B's 2.53 "accommodation ratio" would become a ratio of 3.92; and the DCA's "accommodation ratio" of 4.01 would become a ratio of 6.75. It should be noted that the Urban Land Use Planning treatise also speaks of the use of the allocation ratio as a safety factor to provide a choice of location for housing type and to avoid artificially increasing land and housing prices. Rather than being a device merely to avoid the overallocation of land, the safety factor also is said to be necessary to ensure that enough land is allocated and that the limitations of forecasting approaches do not exacerbate the need for affordable housing. It also should be noted that neither the "Community Planning" article nor the Sheridan Final Order specify that allocation and urban sprawl issues should be determined from the simple calculation of a residential density allocation. To the contrary, the Sheridan Final Order would indicate that, once the allocation ratio is obtained, full consideration should be given to all pertinent factors "in order to determine if the density allocations in a plan, in view of other plan provisions, are supported by data and analysis." Analyses Not Conducted. The plan amendments do not only eliminate the 2010 Overlay. They also decline to retain the Overlay concept and extend it another ten years to the year 2020. There is no data or analysis in this case comparing the population accommodated by the FLUM without any Overlay to the population that would be accommodated in the year 2020 if the Overlay were extended another ten years to 2020. Such data and analysis would most clearly illuminate the impact of eliminating the 2010 Overlay, and abandoning the Overlay concept, on the residential allocation of the plan for the year 2020. There may be tens of thousands of, up to perhaps almost a hundred thousand, residential units in DRI's that have been approved but not yet built. There was inadequate data and analysis of how many of the residential units that will be needed by the year 2020 can be supplied in these DRI's. Lehigh Acres. Clearly, Lehigh Acres presents a special problem for Lee County and the DCA. Lehigh Acres was platted in the 1950s and 1960s. It covers approximately 97 square miles, which is slightly more than 62,000 acres. Since its inception, Lehigh has had all the attributes of urban sprawl. It is a large, sprawling, almost entirely residential community that was created in an area remote from urban services. It is characterized by grid patterns of development, a poorly-designed transportation network with large numbers of small local roads and no four-lane roads, huge amounts of land allocated to residential development and a relatively small amount of land allocated to commercial development. The roads in Lehigh are built. Virtually all of Lehigh has been subdivided into relatively small single family residential homesites, and almost all of these homesites have been sold to buyers all over the world. By virtue of the platting and sale of the land into homesites, Lehigh is a vested community. Over the years, the County has considered a number of potential solutions to the Lehigh Acres dilemma. Ultimately, the County decided to take a multi-pronged approach: (1) creating restrictions on additional subdivision and attempting to reduce densities to no more than four units per acre; (2) continuing the privately-funded infrastructure overlay as the means of providing infrastructure in Lehigh; and (3) utilizing sector planning to work toward a better transportation system and larger areas of commercial allocation to create a more balanced community. Based on the new treatment of Lehigh Acres, the County engaged in different assumptions about how Lehigh will build out. In 1989, Lehigh was shown as "central urban" and "urban community," together with the rest of the Lee Plan future land use categories. Under the 2010 Overlay, the County purported to reduce acreage allocations in Lehigh, but in fact there was little impact on residential potential due to vesting. In the EAR-based amendments, Lehigh is shown under "Vested Community," a separate land use category. Through the vested community category, the County attempted to restrict additional subdividing of lots and, with a few limited exceptions, set a maximum density of four units per acre. Based on the different treatment of Lehigh in the Plan, the County projected a population for Lehigh based on the amount of growth actually expected to occur by Year 2020. To do this, the County utilized eight different methodologies and averaged the projections to come up with a 2010 population for Lehigh of 95,906. These assumptions are reflected in the County's Figures 14 and 14A. Neither the Department's rules nor the "Community Planning" article provide specific guidance as to how vested areas are to be treated in making a calculation of a plan's "allocation ratio." The vast area of Lehigh has the capacity to absorb virtually all the anticipated future population growth in unincorporated Lee County through the year 2020. In fact, it may be appropriate for Lee County to increase overall density in Lehigh if necessary to support the infrastructure and transportation needed to convert Lehigh Acres into a more balanced, multi-use development. Lee County's approach to Lehigh essentially was to attempt to satisfy the Department's desire for an acceptable "allocation ratio" by estimating how many residents will actually live in Lehigh by 2020, assuming the Plan's treatment of Lehigh, and treating those estimates as Lehigh's population accommodation. By studying historic rates of growth, the Lee Planning Division believes that number will be approximately 96,000 people. No evidence was presented by the Department or any intervenor in contradiction of this estimate. The results of the County's approach to Lehigh are reflected in the County's Figures 14 and 14A. Another approach would be to attempt to reduce residential development in other parts of the County. It would be poor planning to reduce densities "across the board" throughout the County just to achieve a lower allocation ratio. Such an approach could direct population concentration away from urban areas into poorly-served rural areas, thereby discouraging the efficient use of land and encouraging sprawling uses. Depending on the densities, it could direct growth to remote areas of the county. Additionally, if Lee County attemped to limit residential growth based on incorrect assumptions regarding future densities, it could seriously underallocate land uses. Underallocation can greatly inflate land costs to the detriment of the general public. On the other hand, a better approach might be to couple sector planning in Lehigh with a reduction in densities in certain other parts of the County. If successful, such an approach could both create more balanced development in Lehigh Acres and direct future growth to Lehigh and away from coastal high hazard areas (CHHA), DRGR and other environmentally sensitive areas, and Open Lands and Rural land (especially rural lands not situated so as to be potential future urban infill or expansion), including important wildlife habitat. Commercial Allocations. The 2020 Lee Plan, without the 2010 Overlay, has some guidance for the location of commercial development, especially retail commercial. But it does not have percentage distributions or other objective measurement of the distribution of commercial and other uses allowed in its many mixed land use districts. Policy 6.1.2 of the 2020 Lee Plan consists of site location criteria which apply to retail commercial development, such as shopping centers, restaurants, gas stations, and other commercial development generating large volumes of traffic. Non-retail commercial development, such as office, hotel and motel or wholesale commercial development, may be developed at the identified intersections or anywhere else in the land use categories which allow commercial development. Even retail commercial can be developed at locations which do not meet the location criteria under discretion granted to the Board of County Commissioners. According to Lee County's EAR, the Commercial Site Locations Standards Map (Map 16) identifies 52 full intersections and 15 half-moon intersections which comply with the site location standards for Community Commercial and Neighborhood Commercial. They represent 9,520 acres of land designated for retail commercial development. Using the standard planning conversion rate of 10,000 square feet per acre, average, there is room for approximately 95,000,000 square feet of commercial development in the commercial sites depicted on Map There also may be other intersections which meet the criteria for Community Commercial or Neighborhood Commercial but are not shown on Map 16. In addition, there are numerous intersections which meet the criteria for Minor Commercial which are not shown on Map 16. Map 16 also does not include Regional Commercial development. The report by Thomas H. Roberts & Associates on Commercial Land Use Needs In Lee County (Jan. 10, 1987), indicates that the retail space ratio in Lee County is 26 square feet per capita. Just counting the 95,000,000 square feet of retail commercial development allowed in the land shown on Map 16, the 2020 Lee Plan has enough retail commercial capacity to accommodate 3.7 million people. Without even considering the non-retail commercial uses that can be developed at any location in the several land use districts which allow commercial uses, or the unknown amount of retail commercial that can be developed at the numerous intersections which meet the Minor Commercial location criteria, the 2020 Lee Plan without the 2010 Overlay allows commercial development far in excess of the amount needed to accommodate the projected 2020 population. Industrial Allocation Policy 7.1.4 in the 2020 Lee Plan provides: The [FLUM] shall designate a sufficient quantity of land to accommodate industrial development that will employ 3 percent of the county's population in manufacturing activities by the year 2010. The 2020 FLUM, without the 2010 Overlay, designates 6,062 acres in the Industrial Development category. Three percent of the 2020 County population represents approximately 19,000 people. The 1984 Roberts industrial land analysis for Lee County suggested a ratio of seven industrial workers per acre for industrial related activities. Most industrial land uses employ more workers per acre, and the national average is about 17 employees per acre. But even using the ratio suggested by the Roberts analysis, Lee County would need only approximately 3,000 acres of industrial land to accommodate three percent of the 2020 County population in industrial employment. Analysis in the EAR indicates that enough additional industrial land is needed to serve the needs of municipal populations that probably cannot or will not be supplied within the cities themselves and that this additional land accounts for the apparent excess in industrial lands allocated in the county. However, it is not clear from the data and analysis how this determination was made. In addition, light industrial development is permitted in several other mixed land use categories. For example, the existing approximately 2,800 acres of Airport Commerce (AC) located to the northwest of the airport is intended to include light industrial activities. There was no data or analysis as to how much additional industrial use will be made of land in those categories. There are no percentage distributions or other objective measurements of the distribution of land uses in the mixed land use districts that allow light industrial use. The Mixed Land Use Districts. As has been seen, the Lee Plan without any Overlay makes extensive use of mixed land use districts without percentage distributions or other objective measurements of distribution among uses. Much of the dispute between the parties as to residential accommodation and allocations of land for commercial and industrial uses results from the lack of percentage distributions or other objective measurements of distribution among uses in the plan's mixed land use categories. Although the County predicts development of only a percentage of these districts as residential, it remains possible for much larger percentages to be developed residential. On the other hand, it is possible for practically all of mixed land use districts to develop commercially or even industrially. The 2010 Overlay attempted to address the lack of percentage distributions or other objective measurements of distribution among uses in the plan's mixed land use districts by limiting the acreage that could be developed in particular uses by the year 2010. Without the Overlay concept, no percentage distributions or other objective measurements of distribution among uses remain in the plan. Because of the plan's extensive use of mixed use districts, the County's ability to control development through the plan is seriously undermined. Other Urban Sprawl Considerations. Unincorporated Lee County contains approximately 685 square miles. Lehigh Acres and the DRGR areas, combined, are approximately 199 more square miles, 29 percent of the total area of unincorporated Lee County. Except for the growth that will occur in the Vested Community of Lehigh, much of the future growth in Lee County will occur in the I-75, U.S. 41 corridor, which is oriented in a generally North-South direction and contains most of the urbanized areas of the County, including the City of Fort Myers. Because this area is already largely urbanized, most of the growth in it will result in either the expansion of existing urbanized areas or in-fill between existing urban areas. Certificated water and sewer franchise areas also generally coincide with the north/south urban core in which growth is expected to continue. The presence of water and sewer franchise areas in the north/south urban core and in Lehigh Acres encourages utilization of these areas through the ability to provide urban services. The absence of water and sewer franchise areas in other portions of the County will act as a hindrance to development in areas which are undeveloped and either in conservation or agricultural use. A review of County DRI approvals, together with approved development orders, also appears to indicate a trend toward development in the north/south core. The absence of development orders in most of the outlying areas, indicated as either agricultural, vacant, or conservation use, indicate that probably relatively little growth will occur in those areas. Platted subdivisions also appear to show a trend toward development in the north/south urban core. In general, there also appears to be a correlation between existing land uses and those factors which can reasonably be expected to establish future growth trends in the north/south urban core. Growth in the north/south I-75, U.S. 41 corridor across the county line to the south in Collier County tends to encourage similar growth at the southern end of Lee County. Meanwhile, there are hindrances to development across the county line to the east and southeast by virtue of the presence of agricultural lands and regional wetland systems such as the Corkscrew Swamp and the Everglades. The County has also made use of sector planning. The County's sector plans represent extensive and detailed planning studies which in many cases are reflected in both the FLUM and the policies in the Plan. However, currently there is no sector plan for Lehigh Acres. Policy 1.5.5, creating the Vested Community category for Lehigh, states a sector plan for Lehigh will be developed beginning in 1996. In terms of land uses, the Plan seems to be fairly well functionally related, both in terms of what is shown on the FLUM and the relation between the FLUM and the Plan policies themselves. A good example of this is the commercial site location standards, which establish a strong functional relationship between transportation and regional commercial facilities. There is also a good functional relationship between existing land uses. The Plan mixed use categories appear to recognize and attempt to encourage sound functional relationships between home, work, and shopping. The Plan also has compatibility standards that help maintain functional relationships. However, without the Overlay, the many mixed use categories in the Plan do not contain a percentage distribution or other objective measurement of distribution among mixed uses within the mixed use districts. In terms of land use suitability, the County generally appears to be designating for development those areas which are most suitable for development. However, because it allows development of all kinds throughout the County in excess of what is needed by 2020, the Plan allows development in less suitable areas. A variety of methodologies and assumptions leads to the conclusion that the Lee Plan generally is an urban development plan, not a rural development plan. For instance, under the Figure 14 methodology, 80 percent of the population is directed toward urban land uses, and 12 percent into rural. Under Figure 14B, which unrealistically assumes that all of Lehigh Acres will be built out within the planning time frame, 90 percent of the population is directed to urban areas, and only 10 percent to rural. Even assuming that 100 percent of the land will be used for residential purposes, and that all of Lehigh will build out within the planning time frame, 92 percent is directed to urban areas, and only 8 percent to rural. Finally, even assuming 100 percent of the land to residential at maximum densities, and also that all rural land uses will use the PDDO option at six units per acre, only 4 percent of the population will be directed to rural areas in the FLUM. Notwithstanding the overall patterns of growth in Lee County, it clearly is indicated in the Sheridan Final Order that land in Lee County historically has been used inefficiently and that, without the Overlay, the plan allows inefficiency to continue unabated. This is due in large part to the extensive use of mixed land use categories that do not contain a percentage distribution or other objective measurement of distribution among mixed uses within the mixed use districts, together with the overallocation of land that also results in part from their use. By comparing the FLUM's since 1984 with the current Existing Land Use Map (ELUM) (Lee 56), it is apparent that rural designations have not preserved agriculture. Significant parts of county that have been designated rural since 1984 actually have been developed residential or non-agricultural use. In Range (R) 25 East (E), Township (T) 45 South(S), Sections 31 and 32 are residential, while 33 is a golf course. Similarly, R 25 E, T 47 S, Sections 14, 15 and 23 have developed significantly residential and part of Section 14 is now designated Outlying Suburban. In addition, significant residential development has occurred in areas of Pine Island that have been designated rural since 1984. On the other side of the coin, much of the "New Community" still is in rural use (R 35 E, T 45 S, Sections 1, 2, 3, parts of 10, 11, and 12; R 26 E, Sectons 5-8, 17 and 18.) Some "Industrial Development" land is actually still in rural use or vacant--R 25 E, T 46 S, Section 3 west of I-75, and Sections 4- There is significant land that actually is rural or vacant adjacent to wetlands and Estero Bay in R 24 E, T 45 S (Sections 28, 29, and 31-35), together with Sections 3-5, 8-10, and 15 in R 24 E, T 46 S, that are designated for Suburban or Outlying Suburban uses. Land designated rural, open land or fringe in 1984 has been redesignated for urban uses over the years. A large block straddling Daniels Parkway east of the 6 Mile Cypress Strand has been designated Outlying Suburban. Approximately between Buckingham Road, Orange River Boulevard and I-75, rural land has been redesignated as Rural Community Preserve. Large blocks of land, one at the extreme north end of the county between U.S. 41 and I-75, and the other east of I-75 near the river, have gone from rural to Outlying Suburban. A large amount of what was rural and fringe between Bonita Springs and San Carlos Park, west of U.S. 41, has become Suburban and Outlying Suburban. CHHA and Hurricane Evacuation and Shelter. Objective 75.1 of the amended Lee Plan defines and delineates Coastal High Hazard Areas (CHHA) for the first time. Previously, the plan referred to the Federal Emergency Management Agency (FEMA) "A Zone," which encompasses somewhat more land than the new CHHA. Policy 75.1.4 of the amended Lee Plan, which formerly applied to the "A Zone," states: Through the Lee Plan amendment process, land use designations of undeveloped areas within [CHHA] shall be considered for reduced density categories (or assignment of minimum allowable densities where density ranges are permitted) in order to limit the future population exposed to coastal flooding. In this round of amendments, the County did not consider either reducing density categories, or assigning the minimum allowable densities in categories with a range of densities, in undeveloped land in the CHHA. In prior rounds of amendments, the County reduced densities in areas that would be inundated by Category 1, 2 and 3 hurricanes (which would include CHHA). Assuming maximum allowable densities together with the other Figure 14A assumptions, the density reductions reduced population accommodation by 13,000 units in those areas. Elimination of the 2010 Overlay opened additional land to immediate development in the CHHA. There was no data and analysis on the amount of new land opened to immediate development or the additional population accommodated in the CHHA that would result. Goal 79 in the Lee Plan, as amended, is to "provide evacuation and shelter capabilities adequate to safeguard the public against the effects of hurricanes and tropical storms." Objective 79.1 of the Lee Plan, as amended, is to restore evacuation times to 1987 levels by 2000, and to reduce the clearance time portion of evacuation time to 18 hours or less by 2010. Previously, the plan's objective was to achieve 1987 evacuation times by the year 1995. Lee County has among the best hurricane planning efforts in southwest Florida. Nonetheless, as of the time of the final hearing, evacuation times still exceeded 1987 levels, and clearance times exceeded 18 hours. Little progress had been made toward the previous objective to achieve 1987 evacuation times by the year 1995. That is why the objective was extended five more years until the year 2000. It may be that the 2010 Overlay was not designed with hurricane evacuation times in mind. It also is true that the County's evacuation plans are updated every three years based on actual development data. But it also is true that additional development in the CHHA due to elimination of the 2010 Overlay may make it more difficult to achieve Objective 79.1, even as amended. Objective 79.2 of the Lee Plan is to make adequate shelter space available by the year 2010 "for the population in the Hurricane Vulnerability Zone at risk under a Category 3 storm." There was no data and analysis of the impact of eliminating the 2010 Overlay on the County's ability to achieve either Objective 79.1 or Objective 79.2. There also was no data and analysis of the impact of amending Objective 75.1 and 75.1.4 to reduce the size of the coastal area subject to consideration for land use density reductions on the County's ability to achieve either Objective 79.1 or Objective 79.2. Change of Alico Property from DRGR to AC. Another significant FLUM amendment in the EAR-based amendments was to change the designation of 1400 acres of property owned by Alico, Inc., from DRGR to Airport Commerce (AC). Uses allowed in the AC district include light manufacturing and assembly, warehousing, distribution facilities, ground transportation and airport related terminals or transfer facilities, and hospitality services. Suitability. Policy 1.4.5 of the plan, as amended, defines DRGR as "upland areas that provide substantial recharge to aquifers most suitable for future wellfield development" and as "the most favorable locations for physical withdrawal of water from those aquifers." Although previously designated DRGR, more recent data and analysis calls this designation into question. The amendment property does provide some recharge to both the water table (surficial) aquifer and the underlying Sandstone aquifer, but it does not provide above-average groundwater recharge for either aquifer (or any recharge to any of the deeper aquifers). In addition, it is not a good site for the development of a wellfield in either the water table or the Sandstone aquifer. The water table aquifer is not especially thick, and there are too many wetlands on the site for production from the water table aquifer. (Pumping from the water table aquifer next to the airport also could be problematic in that the stability of the soil under the airport could be affected. (Cf. Finding 100, below.) In the Sandstone aquifer, groundwater flows away from the site, making it unsuitable for production. Despite the questions raised by the new data and analysis, the amendment property may still be suitable for designation as DRGR. But that does not necessarily make it unsuitable for AC use. In terms of location, the amendment property is perfectly suited to AC use. I-75 and other AC-designated property is to the immediate west of the amendment property. The Southwest Florida International Airport is to the immediate north of the amendment property. A second runway and a new cargo handling facility are planned for construction to the south of the existing airport runway. When built, the new facilities will practically be touching the northern boundary of the amendment property, and the proposed new south airport access will cross the amendment property and intersect Alico Road, which is the southern boundary of the amendment property. Commercial and industrial use on the property would not pose an unreasonable threat to contaminate either existing or future potable water wells. Theoretically, stormwater from the amendment property could contain contaminants which could eventually migrate to a drinking water well. But the threat of such contamination is small. Permitting criteria adopted and imposed by the South Florida Water Management District will require all construction on this site to conform to surface water quality standards through Chapter 373, Florida Statutes, and permitting rules of the Water Management District within Chapter 40, Florida Administrative Code. These rules will require on-site detention and retention of stormwater which will greatly reduce the threat of surface contaminants leaving the property. Additionally, all surface water runoff from the property, and most groundwater, will be intercepted by the Alico Road Canal, which drains in a westerly direction away from any existing drinking water wells. If any contaminants from the amendment property were to enter the groundwater, avoid the Alico Road Canal and leave the property, they would have to migrate a considerable distance to reach a potable water wellhead. The only wellfield pumping, or planned to pump, from the water table aquifer which contaminants possibly could reach would be the existing Gulf Utilities wellfield approximately one mile and a half southeast of the amendment property. Contaminants within the groundwater move at a slower speed than the water itself. Most contaminants move at a much slower speed than the water. Thus, the chances are very slight that contaminants from the amendment property would threaten the Gulf Utilities wellfield. Any metals in the groundwater would attach to soil particles and migrate extremely slowly. Other potential contaminants would eventually break down within the soil as they slowly migrated away from the site. It was estimated that the travel time from the closest portion of the amendment property to the Gulf Utilities well field would be in the neighborhood of 50 to 100 years. If any such contaminants did reach the wellfield they would be in such dilute concentrations that they would pose no health hazard. The only other wellfield that is reasonably close to the proposed site is the Florida Cities well field to the northeast. This wellfield taps the Sandstone aquifer. The Sandstone aquifer is separated from the water table aquifer by an approximately 40 foot thick semi-confining layer. This layer is composed of silt and clay which provides hydraulic separation between the aquifers. There are no known breaches of the semi-confining layer in this area. The direction of flow and the nature of the semi-confining layer also make it extremely unlikely that contaminants from activities on the amendment property and discharged from the site by stormwater could migrate to the Florida Cities water wellfield. The groundwater in the water table aquifer flows generally southwest, and the confining layer has low leakance values. Additionally, safety measures required for the development of the amendment property include the installation of monitoring wells and the requirement to use the best environmental management practices. The data and analysis includes panther sitings in the vicinity of the amendment property. There also is evidence that the amendment property is part of land that has been labeled as "Panther Priority 2." The significance of this label was not clear from the evidence. In any event, while part of the "Panther Priority 2" land, the amendment property clearly also is surrounded by uses not particularly suited for panthers. Currently, rock mining is occurring on property to the east and to the south of the amendment property. Rock mining on the amendment property itself also is allowed under its previous DRGR designation. The airport is immediately to the north, and both other AC property and I-75 are immediately to the west. In light of those developments, the "Panther Priority 2" designation does not make the amendment property unsuitable for AC designation. Need. The County has a legitimate need to diversify its economy so that it is not so dependent on tourism. It is the County's perogative to attempt to develop its regional airport into an international trade center. In view of the suitability of the amendment property for AC, and its projected role in furthering the County's plans to develop its regional airport into an international trade center, the amendment property should be viewed as a valuable economic resource in need of protection. It is appropriate, when trying to protect a resource, to plan for the needs of generations to come. If the amendment is not approved, there is a good chance that the land eventually will be used for a rock mine. Residential use in that location is incompatible with airport noise. A public gun range is a permissible use of DRGR property, but there are no plans for a public gun range on the amendment property, and such a use also would not be compatible so close to the airport and would be unlikely. Although agricultural use as pasture is possible, ultimate use of the property for pasture seems less likely than rock mining. As previously mentioned, the land immediately to the east of the subject parcel and to the south of the subject parcel is being utilized as rock pits. If the amendment property eventually is used for rock mining, the land would be excavated into what becomes deep lakes. In all likelihood, such a use would permanently preempt the land in question from being a commercial resource that could be utilized in conjunction with the airport. Of the 1400 acres of amendment property, approximately 800 acres are jurisdictional wetlands; only about 600 acres of uplands actually can be used for AC purposes. Meanwhile, approximately 173 acres of industrial land has been rezoned to other uses within Lee County between 1990 and the date of the hearing. Another 300 acres of AC are to be incorporated into the new airport expansion. But there was no data or analysis as to how much of those 473 acres consist of wetlands. Utilizing the 1984 Roberts methodology, the County has analyzed the need for industrial land in the County and has concluded that the addition of the amendment property is necessary to meet those requirements. However, as previously mentioned, it is not clear how the County's analysis was conducted or what the actual needs for industrial land in the County are. In addition, several mixed land use categories permit light industrial use but do not establish percentage distributions or other objective measurements of the distribution among the mixed uses within those categories. Taken as a whole the data and analysis does not establish that the AC amendment is necessary to meet the need for industrial land in the County. Adequate data and analysis to establish those needs is necessary to determine whether other land where industrial use is permitted should be redesignated if the AC amendment is to be adopted. As previously discussed, Lee County has much more land designated for commercial development than will be needed to accommodate the projected 2020 population. See Findings 58-68, above. In support of their position that the AC map amendment is needed in order to meet the demand for airport-related industrial and commercial development that will be generated by the expanding Southwest Florida International Airport, Lee County and Alico point out that international airports serve a larger area than a single County, and that a larger AC district near the Airport will serve the Southwest Florida region. With its new runway and larger terminal with new cargo handling facility, the Airport Authority intends, and the County would like to encourage, a large increase in airfreight handled by the Airport by 2020. Alico prepared a Response to DCA's ORC, which attempted to compare the acreage of approved, large-scale commercial and industrial development near the Orlando International Airport to the amount of acres proposed for Airport Commerce near the Southwest Florida International Airport. However, the Alico Response failed to take into account the amount of approved development near the Orlando Airport which is vacant. According to the Alico Response, the Orlando International Airport handled 233,587 tons of airfreight in 1994. Also according to the Alico Response, 7,152 acres of industrial and commercial development, including ten DRI's, are located near the Orlando Airport. The ten DRI's located near the Orlando Airport include 55,464,770 square feet of approved industrial and commercial development. But as of June of 1995, only 3,386,744 square feet of industrial and commercial development, or 6.11 percent of the approved industrial and commercial square footage, had been constructed. Applying the percentage of approved industrial and commercial in DRI's actually developed by 1995 (6.11 percent) to the acreage approved for industrial and commercial (7,152 acres), it can be determined that 440 acres of existing industrial and commercial development were supporting the 233,587 tons of airfreight handled by the Orlando Airport in 1994. Based upon the Orlando Airport experience, it would appear that each acre of industrial and commercial development near an airport supports 534.54 tons of airfreight each year. The Southwest International Airport projects that 196,110 tons of airfreight will be handled by the Airport by 2020. Dividing the projected 2020 tonnage by the 534.54 tons of airfreight per acre from the Orlando Airport experience, it would appear that the air freight activities projected for the Southwest Florida International Airport by the year 2020 will support only about 367 acres of AC. The Lee Plan FLUM already includes approximately 2800 acres of AC located to the northwest of the Airport. (It is not clear whether the 300 acres consumed by the runway expansion should be deducted from the 2850 acres of AC said to currently exist.) The existing AC district is essentially undeveloped. The AC which already exists to the northwest of the Airport is more than sufficient to support the airfreight which the Airport expects to handle by 2020. Zemel FLUM Amendment. Background. The Zemels own approximately 8600 acres of land in northwest Lee County. The 1990 Comprehensive Plan amendments which resulted from the settlement between Lee County and DCA, designated Zemel property as DRGR with a residential density of one unit per ten acres. The DRGR designation for the Zemel property was determined to be in compliance with the Growth Management Act. Zemel v. Lee County & DCA, 15 FALR 2735 (Fla. Dept. Comm. Aff. 1993), aff'd, 642 So. 2d 1367 (Fla.1st DCA 1994). Based in part on data and analysis which were not available at the time of adoption of the DRGR category, a circuit court determined that the Zemel property did not meet the criteria for inclusion in the DRGR category. The circuit court ordered that: The property is hereby restored to the Rural land use classification on the Future Land Use Map of the Lee Plan, including restoration of the subject property's density to 1 du/acre and use of the Planned Development District Option for the property. This action shall not preclude the County from amending its plan, including the 2010 Overlay, as it pertains to the Zemel property, pursuant to Chapter 163, Fla. Stat., subject to constitutional limita- tions and other requirements of law. Placement of Zemel Property in Open Lands Classification The 1994 EAR-based amendments changed the land use designation of the Zemel property to Open Lands. Open Lands is a new category created by the EAR- based amendments in Policy 1.4.4. The residential density allowed in the Open Lands category is one unit per ten acres, except a density of one unit per five acres is permitted if the planned development process is used to prevent adverse impacts on environmentally sensitive lands (as defined in Policy 77.1.1.4). (Commercial and industrial uses are permitted in the Open Lands category in accordance with the standards in the Rural category.) Of the 8,600 acres owned by Zemel, approximately 1,900 acres are wetlands and 6,700 acres are uplands. Lee County chose the Open Lands category for the Zemel property because it was the least intensive land use category available after the circuit court determined that the DRGR category was not appropriate, and because the County did not wish to exacerbate the overallocation of the FLUM. According to new Policy 1.4.4: Open Lands are upland areas that are located north of Rural and/or sparsely developed areas in Township 43 South. These areas are extremely remote from public services and are characterized by agricultural and low-density residential uses. It was not proven that the Zemel property does not meet the Policy 1.4.4 definition of Open Lands. The Zemel property clearly is in Township 43 South. It is north of areas that can be said to be "sparsely developed." The Zemel property clearly is characterized by agricultural use. Finally, although some of the Zemel property is not "extremely remote" from some public services, all of the Zemel property can be said to be "extremely remote" from at least some public services, and some of the Zemel property can be said to be "extremely remote" from all public services. Placement of the Zemel property in the Opens Lands category was based on adequate data and analysis. To the extent that data and analysis in the EAR may have been lacking, the evidence at final hearing included adequate data and analysis. Using the Figure 14 methodology, the County calculated that Open Lands category would accommodate 2,073 people, as compared to 8,293 people at the Rural density. However, assuming development of all of the Zemel property at the one du/ac standard density allowed by the Lee Plan for Rural, 14,003 people (1 du/ac x 6700 upland acres x 2.09 persons/unit) would be accommodated. In the case of the Zemel property, such an assumption would be less unrealistic than in many other parts of the County since it is a large, vacant tract. The evidence also was that the Zemel property is one of the few parcels of land in the County in which use of the PDDO is a realistic possibility. Assuming maximum densities under the PDDO, the Zemel property under the Rural designation could accommodate 84,018 people (6 du/ac x 6700 upland acres x 2.09 persons/unit). Under the Open Lands category, even at the maximum density allowed for planned developments, the Zemel property could accommodate only 2,801 people (1 du/5 ac x 6700 upland acres x 2.09 persons/unit). Dependence of Open Lands on Deletion of Overlay Section 10 of the Lee County Ordinance 94-30, which adopted the plan amendments in issue in this case, purported to defer, until after the conclusion of these proceedings, the decision as to which adopted plan amendments would become effective. Although all of the parties now agree that the attempted deferral of this decision was "ultra vires," the evidence was that one purpose of Section 10 of the ordinance was to insure that intended packages of amendments would remain together and either become effective together or not at all. Specifically, there was evidence that the amendments to the FLUM and to FLUE Policy 1.4.4, changing the land use designation of certain property to "Open Lands," was intended to remain together with the amendments which delete the FLUM 2010 Overlay, and to either become effective together or not at all. Otherwise, there would be no development authorized in property redesignated "Open Lands" because there was no land use category called "Open Lands" at the time of adoption of the 2010 overlay, and no express authorization for development of any kind in "Open Lands." Planning Timeframe. Clearly, the EAR-based Lee Plan amendments are intended to plan through the year 2020. The year 2020 was chosen for the amendments to enable the County to make use of the best available demographic projections being generated by the Metropolitan Planning Organization for that time frame. The Parks, Recreation and Open Space Element of the plan, as amended, retains Map 11. Map 11 depicts "Future Recreational Uses within Generalized Service Boundaries." It is the map that was generated in 1989 and used in the 1989 and subsequent plans for the year 2010. However, it was not proven that the map does not accurately depict "Future Recreational Uses within Generalized Service Boundaries" for the year 2020. The County concedes that the Community Facilities and Services Element of the plan, as amended, projects waste generation and recycling rates only from 1991 to 2015. The County contends that these projections are easily extrapolated to the year 2020, and no party disputes this. The County's response to the DCA's ORC report indicates that the Hurricane Shelter/Deficit analysis for the Conservation and Coastal Management Element is for shelter needs to the year 2000. However, the County cannot accurately project shelter needs much further in the future. The evidence is that the better practice is to plan for shorter periods of time and continually update the projections. This is what the County does. It was not proven that the County is planning for the wrong timeframe or that its plan is defective for that reason. Other alleged uses of the wrong planning timeframe actually arise from questions as to the allocation of land to meet the needs of the County through the year 2020. There is no question whether the County's intent is to plan for the year 2020. The dispute is whether land has been overallocated. Other Alleged Internal Inconsistency. Amended Objective 100.1 in the Housing Element uses data for the County, including municipalities, in projecting the number of housing units needed for the 2020 timeframe. It is true that EAR Figures 14, 14A and 14B, which analyze the FLUM, identify the number of units which may be accommodated for the unincorporated area. But EAR Figures 12 and 13, which also analyze the FLUM, are directed to the entire county, including municipalities. Besides, it is clear that the County understands its obligation is only to implement affordable housing with respect to the unincorporated county. Water Supply. The Regional Water Supply Master Plan (RWSMP) serves as supporting data for several amended policies in the Potable Water sub-element of the Community Facilities and Services Element. The purpose of the RWSMP was to ensure an adequate, reliable and cost-efficient supply of potable water to meet the current and future needs of Lee County to the Year 2030 and beyond, considering both economic and environmental factors. The County's reliance on implementation of the RWSMP for this purpose is justified. Preparation of the plan was a very complex undertaking. In preparing the population projections on which the Regional Water Supply Master Plan relies, the County's consultant attended the technical staff meetings of the individuals with the Metropolitan Planning Association (MPO) charged with preparing the MPO population projections. The MPO Countywide population projections utilized in the RWSMP were prepared by estimating the number of permanent residents and taking into account a number of other economic characteristics and social characteristics such as the number of children per household, historic and expected natural and State trends, and the degree to which these trends will affect the future of Lee County. The Lee Plan, as well as the Comprehensive Plans of the other governmental jurisdictions in Lee County, were utilized in preparing the RWSMP. It was a plainly spelled out requirement for preparation of the Master Plan that it had to be consistent with the Comprehensive Plans of the County and cities in Lee County. The MPO population projections are reasonably accurate, and they are the best available data for purposes of planning water supply. The MPO projections are preferable to the "maximum theoretical" population accommodation used in the DCA's residential allocation analysis. Regardless of the appropriate analysis for purposes of determining whether a plan overallocates land, it would not be appropriate to plan water supply based on unrealistic population projections. The RWSMP uses MPO 2020 population projections that are somewhat different from, but reasonably close, to the 2020 population projections reflected in Figure 14 and used to support the FLUE of the Lee Plan. The special purposes of the RWSMP projections justify the differences. Besides, the differences are not large enough to prove beyond fair debate that the plan is not internally consistent. Wetlands Protection. Prior to the County's adoption of the EAR-based amendments, Goal 84 in the Conservation and Coastal Management Element of the Lee Plan and its objectives and policies included guides for local land development regulations in the protection of wetlands by establishing allowable land uses and their densities, and by establishing design and performance standards for development in wetlands. The County modified Policy 84.1.2 (renumbered 84.1.1) in part by deleting a prohibition against the construction of ditches, canals, dikes, or additional drainage features in wetlands. Ditches, canals and dikes could be constructed in wetlands to have beneficial effects. For example, a ditch could be built to increase the hydroperiod of a wetland and result in a benefit. A dike could enhance a mitigation area, which would also result in environmental benefits. Thus, the repeal of this prohibition could benefit wetlands. The 1984 data and analysis contained in the EAR recommended that the prohibition be deleted and instead suggested the use of performance standards for the construction of ditches, canals, dikes, or other drainage features in wetlands. The EAR-based amendments to the Lee Plan do not include performance standards for the construction of ditches, canals, dikes, or other drainage features in wetlands. Instead, the County has modified Policy 84.1.1 (renumbered 84.1.2) in part by deleting the following language: Wetland regulations shall be designed to protect, conserve, restore, or preserve water resource systems and attendant biological functions, including: Preventing degradation of water quality and biological productivity. Preventing degradation of freshwater storage capabilities. Preventing damage to property and loss of life due to flooding. Preventing degradation of the viability and diversity of native plants and animals and their habitats. Assuring the conservation of irretrievable or irreversible resources. In place of those performance standards, the EAR-based Policy 84.1.2 provides: The county's wetlands protection regulations will be amended by 1995 to be consistent with the following: In accordance with F.S. 163.3184(6)(c), the county will not undertake an independent review of the impacts to wetlands resulting from development in wetlands that is specifically authorized by a DEP or SWFWMD dredge and fill permit or exemption. No development in wetlands regulated by the State of Florida will be permitted by Lee County without the appropriate state agency permit or authorization. Lee County shall incorporate the terms and conditions of state permits into county permits and shall prosecute violations of state regulations and permit conditions through its code enforcement procedures. Every reasonable effort shall be required to avoid or minimize adverse impacts on wet- lands through the clustering of development and other site planning techniques. On- or off-site mitigation shall only be permitted in accordance with applicable state standards. Mitigation banks and the issuance and use of mitigation bank credits shall be permitted to the extent authorized by applicable state agencies. As a part of the EAR-based amendments, the County also modified Policy 84.1.4 by deleting language that addressed permitted uses in wetlands and their densities, but that issue is now covered under renumbered Policy 84.1.1. The amendments added to Policy 84.1.4 the following provision: Land uses in uplands will be regulated through the implementation of the Land Development Code to avoid degrading the values and functions of adjoining and nearby wetlands. New Policies 84.1.2 and 84.1.4 in effect defer performance standards covering development in wetlands to the state and water management district permitting processes. The Lee amendments in part are an attempt to avoid duplicating what state agencies accomplish through their permitting programs. The evidence is that the state and water management district permitting processes include newly adopted Environmental Resource Permit (ERP) rules. These rules consider the type, value, function, size, condition and location of wetlands in determining how to protect them. The ERP rules also require proposed development to avoid or eliminate wetland impacts or, if not possible, to minimize and mitigate for them. The ERP rules also require consideration of the cumulative and long-term adverse impacts of development on wetlands in a comprehensive manner within the same water basin. The DEP and the Southwest Florida Water Management District also have adopted supplemental ERP rules covering only the jurisdiction of that water management district, which includes Lee County. By including a requirement that every state environmental permit shall be incorporated into county permits and that violations of a state permit also are violations of the county permit, the Lee Plan commits the County to assist the State in enforcing environmental permits in Lee County. Through this new emphasis on compliance and enforcement, Lee County will be providing valuable assistance to state environmental protection. Lee County's efforts will assist those agencies by devoting staff to compliance and enforcement efforts. Prior to the EAR-based amendments, the County had two wetland land use categories under the Lee Plan. These were described as the Resource Protection Areas (RPA) and Transition Zones (TZ). Guidelines and standards for permitted uses and development in the RPA and TZ were found in the policies under Objective 84.1 and 84.2, respectively. As a part of the EAR-based amendments, the County replaced the RPA and TZ categories with a single Wetlands category. This new Wetlands category includes all lands that are identified as wetlands under the statewide definition using the state delineation methodology. The County's definition of "wetlands" in the plan amendments covers more area than the areas previously known as "resource protection" and "transition zones." To that extent, the present amendments to the Lee Plan give greater protection to wetlands than the previous version of the Lee Plan. The Lee Plan, as amended, also contains other GOP's. Taken together, the GOP's ensure the protection of wetlands and their natural functions. Reservation of Future Road Right-of-Way. As a part of the EAR-based amendments, the County has deleted or amended certain policies in the Traffic Circulation Element of the Lee Plan regarding the acquisition and preservation of rights-of-way. Deleted Policy 25.1.3 provided that the County would attempt to reserve adequate rights-of-way for state and county roads consistent with state and county plans. The County also deleted Policy 21.1.7, which addressed the possibility of acquiring future rights-of-way through required dedications of land. Policy 21.1.7 provided: The previous policy encouraging the voluntary dedication of land for future right of way needs shall not be construed so as to prohibit the adoption of regulations requiring such dedication. However, any such regulations must provide for a rational nexus between the amount of land for which dedication is required and the impact of the development in question, and must also provide that such dedication, when combined with other means which may be used to offset the impact of development (such as, for example, the imposition of impact fees), does not exceed the total impact of the develop- ment in question upon the county's transportation network. The "previous policy encouraging the voluntary dedication of land for future right of way needs," referenced in Policy 21.1.7, above, was Policy 21.1.6, which has been renumbered 21.1.5. As modified, that policy provides: In order to acquire rights-of-way and complete the construction of all roads designated on the Traffic Circulation Plan Map, voluntary dedications of land and construction of road segments and inter- sections by developers shall be encouraged through relevant provisions in the development regulations and other ordinances as described below: Voluntary dedication of rights-of-way necessary for improvements shown on the Traffic Circulation Plan Map shall be encouraged at the time local development orders are granted. In cases where there are missing segments in the traffic circulation system, developers shall be encouraged to also construct that portion of the thoroughfare that lies within or abuts the development, with appropriate credits granted towards impact fees for roads. However, site-related improvements (see glossary) are not eligible for credits towards impact fees. Policy 21.1.7 provided policy guidance for LDRs in establishing required dedication of future rights-of-way as a means of acquisition, if the County chose to use that measure. Policy 21.1.6 (renumbered 21.1.5) provides policy guidance for LDRs in establishing voluntary dedication of future rights- of-way as another means of acquisition. By deleting Policy 21.1.7, the Lee Plan, as amended, is left with a policy that establishes only the voluntary dedication measure as a means towards acquiring future rights-of-way to facilitate the construction of roads designated on the Traffic Circulation Plan Map of the Lee Plan. The County has made these changes because legally it appears that reservation of future right-of-way may no longer be a viable option after the decision in Joint Ventures, Inc., v. Dept. of Transportation, 563 So. 2d 622 (Fla. 1990). The County's plan does more than just encourage voluntary dedication of rights-of-way. There are numerous policies in the Lee Plan that, taken together, adequately address the acquisition and preservation of rights-of-way. The following policies relate and achieve right-of-way protection: Policy 1.3, 1.6, 4.1.1, 4.1.2, 6.1.5, 16.3.5, 21.1.5, Objective 21.2, Policies 21.2.1, 21.2.3, 21.2.5, 21.2.6, 21.2.7, Policy 23.1.2, 23.1.4, 23.2.3, Policy 25.1.1, and 25.1.3. Under these policies, all new projects receive a review for voluntary dedication as against the Lee County official trafficways map and the facility need identified for the planning horizon of the future traffic circulation element and map. In addition, all new developments are required to mitigate off-site impacts through a payment of impact fees. They are also required to address and mitigate site-related impacts through the provision of site-related improvements at the developer's expense. Payment of impact fees and additional revenues generated through mitigation of site-related impacts, both generate revenues for the capital improvements programming process for purchase of rights-of-way. Accomplishing necessary site-related improvements pursuant to the Lee County program also frequently results in County acquisition of rights-of-way at the developer's expense. Mitigation of site-related impacts, as well as payment of proportional share and impact fees, are generally accomplished through Policy 1.8.3, Subsection 1, Policy 2.3.2, Objective 3.1, Policy 3.1.3, Policy 7.1.2, Policy 14.3.2, Objective 22.1, 23.1, and the policies thereunder, Policy 23.1.1, 23.1.3-.7, 23.2.6, Objective 24.2, Policy 25.1.2, Objective 28.2, and Policy 70.1.1, Subsection A-7. The County's primary method of acquisition of rights-of-way is through the Capital Improvements Element. The Capital Improvements Element does include projected costs to purchase needed rights-of-way. The Lee County Capital Improvements Program is accomplished through Goal 70 of the Lee Plan, which expressly includes acquisition of rights-of-way. Objective 77.3 - Wildlife. Before the EAR-based changes, Objective 77.3 of the Lee Plan was to: "Maintain and enhance the current complement of fish and wildlife diversity and distribution within Lee County for the benefit of a balanced ecological system . . .." In pertinent part, the EAR-based amendment deleted the phrase "current complement of." The change does not alter the meaning of the objective. The concept of a baseline expressed by the deleted phrase also is inherent in the words "[m]aintain and enhance" and remains in the amended objective. Policy 77.11.5 - Endangered and Threatened Species. The EAR-based amendments deleted Policy 77.11.5, which stated: Important black bear and Florida panther use areas shall be identified. Corridors for public acquisition purposes shall be identified within these use areas. The corridor boundaries shall include wetlands, upland buffers, and nearby vegetative communities which are particularly beneficial to the Florida panther and black bear (such as high palmetto and oak hammocks). Data and analysis supports the deletion of the first two sentences. The use areas and public acquisition corridors have been identified. To reflect the new data and analysis, Policies 77.11.1 and 77.11.2 also were amended to provide for updating of data on sitings and habitat for these species and to encourage state land acquisition programs. The last sentence of former Policy 77.11.5 has been transferred and added verbatim to Policy 77.11.2. Related Policy 77.11.4 was also amended to reflect new data and analysis and to provide that, instead of just encouraging the acquisition of the Flint Pen Strand, the County shall continue an acquisition that is in progress. The Adoption Ordinance. As mentioned in connection with the Zemel amendment, Section 10 of the Lee County Ordinance 94-30, which adopted the plan amendments in issue in this case, purported to defer, until after the conclusion of these proceedings, the decision as to which adopted plan amendments would become effective. All of the parties now agree that the attempted deferral of this decision was "ultra vires." All of the parties except for the Zemels agree that, under Section 8 of the ordinance, the "ultra vires" part of the adopting ordinance is severable from the rest of the ordinance, which remains valid. The Zemels take the positions (1) that the state circuit courts have exclusive jurisdiction to determine whether the remainder of the ordinance is valid and (2) that the remainder of the ordinance is invalid. Section 8 of Ordinance 94-30 provided: [I]t is the intention of the Board of County Commissioners . . . to confer the whole or any part of the powers herein provided. If any of the provisions of this ordinance shall be held unconstitutional by any court of competent jurisdiction, the decision of such court shall not affect or impair any remaining provision of this ordinance. It is hereby declared to be the legislative intent of the Board of County Commissioners that this ordinance would have been adopted had such unconstitutional provisions not been included therein. The evidence was that, notwithstanding Section 8 of Ordinance 94-30, one purpose of Section 10 of the ordinance was to insure that intended packages of amendments would remain together and either become effective together or not at all. As discussed in connection with the Zemel amendment, the evidence was that one such package consisted of the amendments to the FLUM and to FLUE Policy 1.4.4, changing the land use designation of certain property to "Open Lands," and the amendments which delete the FLUM 2010 Overlay. There also was some less compelling evidence that amendments creating the Commercial Site Location Standards Map, FLUM 16, were intended to remain together with the amendments which delete the FLUM 2010 Overlay. No other examples of similar "packages" of plan amendments was shown by the evidence or argued by any party. RGMC's Standing. The Responsible Growth Management Coalition, Inc. (RGMC), was formed in 1988 to insure compliance with Chapter 163, Florida Statutes, and F.A.C. Rule Chapter 9J-5 and to conserve resources. RGMC has offices in Lee County and conducts educational programs in Lee. In addition, at the time of the hearing, RGMC had 157 members residing throughout Lee County, most or all of whom own property in Lee County. RGMC participated in the process leading to the adoption of the Lee plan amendments in issue in this case and submitted oral or written comments, recommendations or suggestions between the transmittal hearing and adoption of the plan amendments.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Administration Commission enter a final order finding that the Lee Plan amendments are not in compliance and requiring as remedial action: That the FLUE's mixed land use categories be amended to include percentage distribution or other objective measurements of the distribution among allowed uses, whether by use of an appropriate 2020 Overlay or by other appropriate means. That a sector plan be adopted for Lehigh Acres, including appropriate plans for provision of infrastructure, to create more balanced development in Lehigh and, to the extent possible, to direct future population growth to Lehigh and away from CHHA, DRGR and other environmentally sensitive areas, and Open Lands and Rural land (especially rural lands not situated so as to be potential future urban infill or expansion), including important wildlife habitat. Such a sector plan could include minimum densities and target densities to support mass transit along transit corridors in Lehigh. That consideration be given to increasing densities in central urban areas and along transit corridors while at the same time reducing densities or adopting other plan provisions, such as the prohibition of certain kinds of development, to afford more protection to CHHA, DRGR and other environmentally sensitive areas, and Open Lands and Rural land (especially rural lands not situated so as to be potential future urban infill or expansion), including important wildlife habitat. One example would be the prohibition, or staging, of non-farm development in some or all rural areas. That, in accordance with Policy 75.1.4, undeveloped areas within CHHA be considered for reduced density categories (or assignment of minimum allowable densities where density ranges are permitted) in order to limit the future population exposed to coastal flooding. That the data and analysis supporting the remedial amendments account for units approved but not built and include both a population accommodation analysis based on maximum densities and an explanation of how the GOP's in the remedial amendments justify the resulting allocation ratio. That the remedial amendments include data and analysis of the impact of the resulting plan, as amended, on hurricane evacuation and clearance times and shelter planning, especially if, as part of remedial amendments, the 2010 Overlay is removed (or replaced). That the remedial amendments be based on data and analysis as to the need for commercial and industrial land, including the Alico amendment property. That the data and analysis extrapolate solid waste projections to 2020. That the sub-elements of the Community Facilities and Services Element (and other parts of the plan, as appropriate) be consistent with and based on data and analysis of future population predictions in light of any remedial amendments to the FLUE and FLUM. RECOMMENDED this 31st day of January, 1996, in Tallahassee, Florida. J. LAWRENCE JOHNSTON, 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 31st day of January, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-0098GM To comply with the requirements of Section 120.59(2), Fla. Stat. (1995), as construed by the decision in Harbor Island Beach Club, Ltd., v. Dept. of Natural Resources, 476 So. 2d 1350 (Fla. 1st DCA 1985), the following rulings are made on the parties' proposed findings of fact: DCA's Proposed Findings of Fact. 1-17. Accepted. 18. There is a legal issue whether Ordinance 94-30 was adopted validly; otherwise, accepted. 19.-28. Accepted. Conclusion of law. Rejected in part: plan includes "guides" (but no "objective measurements"); and Commercial Site Location Standards Map 16 implies that other uses are required elsewhere in the districts where these sites are located. Otherwise, accepted. Last sentence, rejected. (Assumptions are in part "based on" the GOP's, but they also assume less development than permitted by the GOP's.) Otherwise, accepted. Accepted. Characterization "conservative" rejected as argument; otherwise, accepted. 34.-35. Accepted. 36. Accepted as being theoretically possible, but not likely to happen. 37.-38. Accepted. 39. Accepted as approximation of maximum theoretical residential capacity. 40.-46. Accepted. (However, as to 45 and 46, these numbers do not take into account industrial land needed to serve municipal populations that probably cannot or will not be supplied within the cities themselves.) First sentence, conclusion of law. Second sentence, rejected as not proven by a preponderance of the evidence. (The plan is "based on" the population projections, but allocates more land than needed to accommodate the population.) First sentence, conclusion of law; second sentence, accepted. 49.-50. Conclusions of law. 51.-52. First sentence, conclusion of law; rest, accepted. 53. First sentence, conclusion of law; second and third sentences, rejected as not proven by a preponderance of the evidence; last sentence, accepted. 54.-55. First sentence, conclusion of law; rest, rejected as not proven by a preponderance of the evidence. 56. First sentence, conclusion of law; rest, accepted. 57.-58. First sentence, conclusion of law; rest, rejected as not proven by a preponderance of the evidence. First sentence, conclusion of law; second, accepted; third, rejected as not proven by a preponderance of the evidence. First sentence, conclusion of law; rest, rejected as not proven by a preponderance of the evidence. First sentence, conclusion of law; second, rejected as not proven by a preponderance of the evidence; third, accepted (but does not prove non- compliance with the state plan.) First sentence, conclusion of law; rest, rejected as not proven by a preponderance of the evidence. 63.-64. Accepted. As to b.1. not timely raised; accepted as to b.2. (but easily extrapolated five more years to 2020); otherwise, rejected as not proven beyond fair debate. First two sentences of a. and b., accepted; otherwise, rejected as not proven beyond fair debate. (As to b., the discrepancies are not significant enough to create "internal inconsistency.") First sentence, rejected as not proven beyond fair debate; rest, accepted. Rejected as not proven by a preponderance of the evidence that deletion of the Overlay "accelerated development." (Rather, it allows--and, under certain conditions, would result it--development of more acreage sooner.) First sentence, accepted; rest, conclusion of law. First sentence, accepted; second, rejected as not proven beyond fair debate. First and third sentences, accepted; rest, rejected as not proven by a preponderance of evidence. (The population projections are easonably accurate and certainly more realistic than the "maximum theoretical" populations used in the DCA's residential allocation analysis.) Last sentence, rejected as not proven by a preponderance of evidence. (The RWSMP population projections are reasonably close to the Figure 14 projections. See also 66., above.) First sentence, accepted; rest, rejected as not proven by a preponderance of evidence. See also 71., above. 74.-77. Accepted. 78. 2850 rejected as somewhat high (does not take into account some acreage removed from AC); otherwise, accepted. 79.-81. Accepted. 82.-83. Accepted. However, last sentences assume: (1) accurate inventory of developed acres in Orlando comparable to the land uses in AC under the Lee Plan; (2) 2850 acres of AC; and (3) developability of all AC acreage--including wetlands--for AC use. Those assumptions are not, or may not be, reasonable. 84. Rejected as not proven by a preponderance of evidence. See 82.-83. 85.-87. Accepted. However, as to 87., it is noted that the words "area," "surrounded by," and "nearby" are imprecise. Accepted; however, the degree of the sandstone aquifer's "susceptibility" to impacts depends on many factors. Last sentence, rejected as not proven by a preponderance of evidence that existing sources cannot produce any more; however, proven that new sources will be required, and otherwise accepted. Accepted. Last sentence, rejected as not proven by a preponderance of evidence that groundwater moves "to" the existing and planned wellfields. Otherwise, accepted. First sentence, rejected as not proven by a preponderance of evidence; rest, accepted. Fourth sentence, rejected as not proven by a preponderance of evidence; rest, accepted. First sentence, accepted; second, rejected as not proven by a preponderance of evidence. Accepted. Rejected as not proven by a preponderance of evidence that the circuit court judgment was based entirely on new data and analysis; otherwise, accepted. 97.-98. Accepted. Characterization of methodology as "flawed" rejected as not proven by a preponderance of evidence. (It depends on the use being made of the results of the methodology.) Otherwise, accepted. Accepted. Last sentence, legal conclusion. (Legally, it appears that reservation of future right-of-way may no longer be a viable option, and the County's amendments presume that it is not.) Rest, accepted. 102.-105. Accepted. 106. Rejected as not proven by a preponderance of evidence that voluntary dedication is not "effective" as one of several policies. Otherwise, accepted. 107.-108. Accepted. First sentence, accepted; rest, rejected as not proven by a preponderance of evidence. Accepted. First sentence, accepted; rest, rejected as not proven by a preponderance of evidence. Accepted. Second and third sentences, rejected as not proven by a preponderance of evidence that the state regulations are supposed to serve as "guidelines" or "guidance" for LDR's; rather, they are to serve in the place of duplicative County LDR's on the subject. Otherwise, accepted. Accepted. (However, appropriate comprehensive planning for wetlands occurs in other parts of the plan; the state regulations take the place of performance standards that would be duplicated in plan provisions and LDR's.) Last sentence, rejected as not proven by a preponderance of evidence and as conclusion of law. Rest, accepted. (However, state regulations apply to some uplands that adjoin or are near to wetlands.) First sentence, accepted. (They don't guide the establishment of design and performance standard kinds of LDR's for any development in any wetlands; the state regulations take the place of design and performance standards that would be duplicated in plan provisions and LDR's.) Second sentence, rejected as not proven by a preponderance of evidence (that they are the "core wetland policies in the plan.") Third sentence, rejected as not proven by a preponderance of evidence and as conclusion of law. RGMC's Proposed Findings of Fact. 1.-8. Accepted. 9. Conclusion of law. 10.-15. Subordinate; conclusion of law; argument. 16. Accepted but subordinate. 17.-18. Rejected as not supported by record evidence. 19.-35. Accepted. 35(a). Conclusion of law. 36.-40. Accepted. 40(a). Conclusion of law. 41. Accepted. 41(a). Conclusion of law. 42.-44. Accepted. Accepted; however, the option to consider assignment of the minimum of a range of densities is in parentheses after the primary option to consider reducing densities. Largely argument. The objective and policy is "triggered" by any plan amendment, before and after the change from "A Zone" to "CHHA." See 47. Accepted. 47(a). Rejected as not proven beyond fair debate. (It is a question of internal consistency.) Accepted. 48(a). Argument and recommended remediation. Accepted. 50.-59. County motion to strike granted. (Issue not raised timely.) 60.-62. Accepted. See rulings on DCA proposed findings. County motion to strike granted. (Issue not raised timely.) 65.-66. Rejected as not proven by a preponderance of evidence. (The population projections are reasonably accurate and certainly more realistic than the "maximum theoretical" populations used in the DCA's residential allocation analysis.) 67.-73(a) County motion to strike granted. (Issue not raised timely.) See rulings on DCA proposed findings. Accepted. Rejected as not proven by a preponderance of evidence. 77.-78. 2800 rejected as somewhat high (does not take into account some acreage removed from AC); 1000 rejected as 400 low; otherwise, accepted. 79.-81(a). Accepted. Rejected as not proven by a preponderance of evidence. 82(a). Accepted. Conclusion of law. Rejected as not proven by a preponderance of evidence. Accepted. Accepted but "between" is imprecise. Accepted, but not likely. Accepted that two are mutually exclusive; otherwise, rejected as not proven by a preponderance of evidence. Rejected as not proven by a preponderance of evidence. Rejected as not proven beyond fair debate. Accepted. Rejected as not proven by a preponderance of evidence that the lands are "adjacent"; otherwise, accepted. 93.-94. Accepted. Rejected as not proven beyond fair debate. Rejected as not proven by a preponderance of evidence. Accepted. Rejected as not proven by a preponderance of evidence. See rulings on DCA proposed findings. Rejected as not proven by a preponderance of evidence that it is "the reasonable professionally acceptable methodology." Rejected as unclear and as not proven by a preponderance of evidence. (Whether it is appropriate to apply a safety margin factor just to projected new growth can depend on the safety margin factor used and how far out the projection.) Rejected as unclear and as not proven by a preponderance of evidence. Rejected as being hypothetical argument. (Also, the ratios do not convert to percentages, i.e., 25:1 does not convert to a safety margin factor of 25 percent.) 104.-111(a). Rejected as not proven by a preponderance of evidence that "overallocations" occur in the earlier years of the planning timeframe; the relevant inquiry relates to the planning horizon. Also, as to 111., the reference should be to the year 2020. (Also, again the ratios do not convert to percentages.) Otherwise, accepted. 112.-118. Accepted as being paraphrased from part of the Sheridan Final Order. 119.-128. Accepted as being the adjustments to Figure 14B to yield unrealistic "maximum theoretical" capacity. 129.-130. Conclusions of law. 131. Accepted. 132.-133. Rejected as not proven by a preponderance of evidence. (The plan does not "propose development"; its projections on which the County bases its facilities and services are more realistic that the "maximum theoretical" capacity projections.) Also, these specific issues were not timely raised, and County motion to strike granted. 134. Accepted. 135.-140. Descriptions of what the various FLUM's show and what development has occurred over the years, accepted as reasonably accurate. Rejected as not proven by a preponderance of evidence that there were either official or unofficial "urban expansion lines." (It was not clear from the evidence whether the so-called "Proposed EAR Urban Boundary" shown on Lee Exhibit 53 was either an official or an unofficial "urban expansion line," and there was no other evidence of any "urban expansion lines.") Also, rejected as not proven by a preponderance of evidence that there was a "failure to maintain" them, or that the Southwest International Airport or the Westinghouse Gateway DRI "breached" the alleged "1988 urban expansion line." (The Westinghouse Gateway DRI was vested prior to 1984, and the regional airport development appears on FLUM's prior to 1988.) Also, development that occurred in earlier years is not particularly probative on the issues in this case (in particular, the amendment eliminating the Overlay). 141.-142. Accepted. 142(a). Rejected as not proven by a preponderance of evidence. Also, the specific issue of failure to establish an "urban expansion line" is not raised by amendments at issue in this case (in particular, the elimination of the Overlay), and was not timely raised by any party. 143.-146. Densities in land use categories, accepted as reasonably accurate. The rest is rejected as not proven by a preponderance of evidence. The plan provisions (or lack of them) in question have been determined to be in compliance. Primarily, with deletion of the Overlay, the amendments at issue open up for development in accordance with these plan provisions more acreage of non-urban land uses prior to 2010. They also do not extend the Overlay to 2020. 147.-150. Accepted. For the most part, the plan provisions (or lack of them) in question have been determined to be in compliance; however, failure of the plan to include objective measures for distribution of uses in mixed land use districts contributes to the overallocation without the Overlay. 150(a). Rejected as not proven by a preponderance of evidence; also, conclusion of law. Conclusion of law. In part, accepted; in part conclusion of law. For the most part, the plan provisions (or lack of them) in question have been determined to be in compliance; however, failure of the plan to include objective measures for distribution of uses in mixed land use districts contributes to the overallocation without the Overlay. Rejected as not proven by a preponderance of evidence; also, conclusion of law. 154.-160. Accepted. Rejected as not proven by a preponderance of evidence. (It remains to be seen how effective they will be in the long term.) Accepted. For the most part, the plan provisions (or lack of them) in question have been determined to be in compliance; however, with deletion of the Overlay, the amendments at issue open up for development in accordance with these plan provisions more acreage in potential wildlife habitat and corridor areas prior to 2010. (They also do not extend the Overlay to 2020.) See rulings on DCA proposed findings. 164.-168. Rejected because issues not raised timely. 169. Rejected as not proven by a preponderance of evidence and as conclusion of law. 170.-174. County motion to strike granted. 175.-179. Accepted. 180.-182. Conclusions of law. 183.-184. Rejected as not proven beyond fair debate. 185. Accepted. 186.-188. Rejected as not proven by a preponderance of evidence. 189. First clause, rejected (see 186.-188.); second clause, accepted. 190.-191. Rejected as not proven by a preponderance of evidence. 192.-193. Rejected as not proven beyond fair debate. 194. Conclusion of law. 195.-196. Rejected as not proven by a preponderance of evidence. 197.-198. Except for typographical errors, accepted. (However, the last sentence of former Policy 77.11.5 was transferred verbatim to amended Policy 77.11.2.) Rejected as not proven by a preponderance of evidence to be the entire justification. (Also justified by updated data and analysis--namely, that the habitats have been identified and mapped--and by amended Policies 77.11.1 and 77.11.2, which respond to the new data and analysis.) Argument. 201.-204. Cumulative. (See 154.-157.) 205.-206. Rejected as not proven by a preponderance of evidence. 207.-208. Accepted. Accepted (although not demonstrated by Lee Exhibit 49). Rejected as contrary to the greater weight of the evidence. Accepted. Rejected as not clear from the evidence that the Zemel property is connected to and part of the Cecil Webb Wildlife Management Area. Otherwise, accepted. 213.-216. Accepted. 217.-218. Not an issue; but, if an issue, rejected as not proven by a preponderance of evidence (which is not to say that it was proven that the land should be designated for higher densities, or that 1 unit per 5 acres or lower densities are not suitable.) 219.-222. Not an issue; but, if an issue, rejected as not proven beyond fair debate (which, again, is not to say that it was proven that the land should be designated for higher densities, or that 1 unit per 5 acres or lower densities are not suitable.) 223. Not an issue; but, if an issue, rejected. See 217.-222. Zemels' Proposed Findings of Fact. 1. Accepted; however, relatively little of the Zemel property abuts either U.S. 41 or Burnt Store Road. 2-10. Accepted. Last clause rejected as not proven beyond fair debate; another option would be to amend the definition. Otherwise, accepted. Last clause, rejected as not proven by a preponderance of evidence that they are not "sparsely developed." Otherwise, accepted. 13.-15. Accepted. First sentence, rejected as not proven by a preponderance of evidence; otherwise, accepted. First sentence, rejected as not proven by a preponderance of evidence as to the south; otherwise, accepted but irrelevant to the application of the definition. Accepted; however, not proven by a preponderance of evidence that the Zemel property is not north of "sparsely developed areas." (Emphasis added.) Rejected as not proven by a preponderance of evidence. Accepted. First sentence, rejected as not proven by a preponderance of evidence. Rest, accepted in large part and rejected in part as not proven by a preponderance of evidence. Clearly, at least a good portion of the Zemel property is "extremely remote" from all existing public services. Some portions of the Zemel property are not "extremely remote" from some public services, but not proven by a preponderance of evidence that at least some public services are not "extremely remote" from all portions of the Zemel property. Also, in addition to existing public services, c) and e) also refer to future public services. Rejected as not proven by a preponderance of evidence that no agricultural activities have been profitable (only that row crop farming has not); otherwise, accepted. Last sentence, not proven by a preponderance of evidence; otherwise, accepted. Rejected as not proven by a preponderance of evidence. Rejected as not proven by a preponderance of evidence (as to second and third sentences, because of the existence of the Open Lands category.) Accepted (although there also are other data and analysis in the record). First sentence, rejected as not proven by a preponderance of evidence. (Not all of the statements are "conclusory".) Second, accepted. Third, rejected; see 21., above. 28.-29. Accepted. (However, as to 29., it refers to existing access.) First sentence, accepted. A. - rejected as not proven by a preponderance of evidence that the analysis "fails to recognize" the roads in northern Cape Coral (although it clearly does not mention them); otherwise, accepted. B. - rejected as not proven by a preponderance of evidence that the analysis "appears to ignore" the water line along U.S. 41 (although it clearly does not mention it); otherwise, accepted. C. - accepted; however, the "proximity" is to a point on the periphery of the property. Last sentence, rejected as not proven by a preponderance of evidence. Accepted. Second sentence, rejected as not proven by a preponderance of evidence except using the County's methodology. Otherwise, accepted. 33.-34. Accepted. Second sentence, rejected as not proven by a preponderance of evidence. (The County in effect "borrowed" the DCA's data and analysis.) Rest, accepted. Accepted, assuming the County's methodology; however, there also are other concerns. Accepted. First sentence, accepted; rest, rejected as not proven by a preponderance of evidence. As to the second, there is rural land to the northwest; as to the third, there also is resource protection land in Charlotte County to the north, and the "enclave" is large; as to the fourth, no I-75 boundary would appear to apply to Township 43 even if it might appear to apply to the south. Rejected as not proven by a preponderance of evidence. (The analysis compares the costs and difficulty in Yucca Pen to Lehigh and Cape Coral; in terms of such a comparison, the differences are significant.) 40.-45. Accepted. County's Proposed Findings of Fact. 1.-2. Accepted. First sentence, accepted; second, rejected as contrary to the greater weight of the evidence; third, accepted (assuming "actual bona fide business" means a for-profit commercial enterprise.) Accepted. Rejected as contrary to the greater weight of the evidence that the DCA "agreed with and relied on" the County's analysis. (The DCA utilized the analysis for purposes of its objection.) Otherwise, accepted. Accepted. First sentence, accepted. Second, rejected as contrary to the greater weight of the evidence that the determination was "on a largely subjective basis" (although some determinations necessarily were at least partly subjective); otherwise, accepted. Accepted. Rejected as contrary to the greater weight of the evidence that the Overlay was designed "without policy considerations" or that historic growth trends were "simply extrapolated." (The policy considerations already in the plan were utilized, and an effort was made to predict growth in light of those policy considerations. It is true, however, that the Overlay was not designed to further direct growth patterns within the planning districts and subdistricts.) Accepted (but not particularly probative). 11.-14. Accepted. Rejected in part as contrary to the greater weight of the evidence to the extent that it implies that the impact of the plan was not taken into consideration in predicting future population. See 9., above. Otherwise, accepted. Firsts sentence, accepted. As to second and third, not clear from the evidence what if anything was submitted in the way of data and analysis for the remedial amendments. They were not introduced in evidence or referred to by any party. As to the last sentence, it is not clear from the evidence exactly how the 2.11 factor was derived or whether it took into account the 2010 population accommodation for Lehigh (282,000 people in this analysis). (T. 1267-1269.) If the 507,000 units of accommodation did not include Lehigh, the total accommodation of 1.06 million also could not have included Lehigh. Accepted. First three sentences, argument. Rest, accepted. 19.-20. Accepted. 21. Rejected as unclear what "that allocation" refers to. (Accepted if it means "up to 125 percent"; rejected as contrary to the greater weight of the evidence if it means "200 percent.") 22.-23. Accepted. First sentence, accepted; second, conclusion of law. First sentence, rejected as contrary to the greater weight of the evidence; second, accepted. Rejected as contrary to the greater weight of the evidence. Subordinate. Rejected as contrary to the greater weight of the evidence. (In addition, a more meaningful comparison would be between the adopted EAR 2020 plan without a 2010 Overlay and a 2020 plan with an overlay extending the 2010 Overlay out another ten years.) Last sentence, rejected as contrary to the greater weight of the evidence. Rest, accepted (as accurate recitation of testimony) but subordinate to facts contrary to those found. 30.-32. Accepted. Conclusion of law. Rejected as contrary to the greater weight of the evidence. Rejected as contrary to the greater weight of the evidence. (As to first sentence, see Sheridan Final Order.) Accepted. First and last sentences, accepted. Rest, rejected as contrary to the greater weight of the evidence. Such an approach would direct population to Lehigh, which might be the best thing to do. (At this point in time, development of Lehigh under a good Sector Plan might be able to change what was classic urban sprawl under past conditions into well-planned growth under present and future conditions.) It might also direct population to other, non- urban areas if densities were not low enough in them. Finally, Nelson suggested other ways of bring the plan into compliance without the Overlay. 38.-42. Accepted. First sentence, accepted; second, rejected as contrary to the greater weight of the evidence. The County did not seek to "match the available land to meet that growth"; rather, it checked to see if what was on the FLUM would "accommodate" (i.e., hold) the population projected for 2020. Last sentence, rejected in that RGMC challenged the opinion in its response to this proposed finding; otherwise, accepted. Rejected that the County "cannot alter the future development" of Lehigh or that Lehigh is "beyond the reach of" the comprehensive plan; otherwise, accepted. The 199 acres is part of the 685 acre total. Otherwise, generally accepted. However, significant additional growth can be expected in coastal areas, and there is rural land both within and outside the so-called "I-75, U.S. 41 corridor"; presumably, the existence of this land is the reason the finding is couched in the terms: "the remaining area . . . is largely . . . along the I-75, U.S. 41 corridor"; and "all future growth . . . will predominantly occur." First and third sentences, conclusion of law; second, accepted. Conclusion of law. First sentence, accepted but subordinate; also, the rule citation is incorrect; in addition, they testified to the effect of removing the Overlay. Second sentence, conclusion of law. Accepted. (The effect of the Overlay is in the extent of the indicators that exist.) Accepted. First sentence, rejected as contrary to the greater weight of the evidence; second, accepted; third, conclusion of law; fourth, accepted. First sentence, rejected as contrary to the greater weight of the evidence; second, accepted. First sentence, accepted; second, conclusion of law. First sentence, accepted. Second, rejected as contrary to the greater weight of the evidence. Rejected as contrary to the greater weight of the evidence. Rejected as contrary to the greater weight of the evidence that it is "clear"; also, conclusion of law. 58.-60. Accepted. Rejected as contrary to the greater weight of the evidence. (The same conditions exist without the Overlay.) Accepted. Rejected as contrary to the greater weight of the evidence. Accepted. First sentence, rejected; second, accepted. Rejected as contrary to the greater weight of the evidence that the Overlay did not have any "true policy bias or consideration built into it"; otherwise, accepted. Accepted. (However, the same conditions exist without the Overlay.) 68.-71. Accepted. Rejected as contrary to the greater weight of the evidence that "removing Cape Coral . . . reduces the FLUM capacity"; rather, it represents a change in the methodology of evaluating the FLUM capacity. Otherwise, accepted. Accepted. 74.-78. Accepted. However, it appears that the County's treatment of Lehigh essentially was a device to enable it to have the projected population in the year 2020 treated as if it were the capacity of Lehigh in the year 2020. 79.-81. First sentence of 79, unclear; rest, accepted. However, only certain retail commercial are restricted to the locations on Map 16; others can go either there or elsewhere. 82.-85. Conclusion of law. First sentence, conclusion of law; rest, accepted. Accepted. Rejected as contrary to the greater weight of the evidence that the ELUM "represents the growth trends" (rather, it shows what is there now) or that, except for Lehigh, growth only "is occurring in the north/south core." Otherwise, accepted. Accepted. First and last sentences, rejected as contrary to the greater weight of the evidence. ("Barrier" is too strong; "obstacle" or "hindrance" would be accepted.) Otherwise, accepted. 91.-95. Generally, accepted. Conclusion of law. Rejected as contrary to the greater weight of the evidence and as conclusion of law that they are "objective measures" and "responsive to . . . 5(c)"; otherwise, accepted. Accepted. First sentence, accepted; second, accepted (although some higher, urban densities are in coastal areas, and there remains some rural land in the so-called "north/south core"); third, rejected as contrary to the greater weight of the evidence that a "large impact" is "clear"; fourth, rejected as contrary to the greater weight of the evidence that the "segmentation" is absolute but otherwise accepted. Except for Lehigh, generally accepted. (What is missing are "objective measures.") Generally, accepted. First sentence, conclusion of law; second, rejected as contrary to the greater weight of the evidence. Accepted. Rejected as contrary to the greater weight of the evidence that it is "nearly identical." Third sentence, rejected as contrary to the greater weight of the evidence that it necessarily is not excessive. The evidence was that it is not necessarily excessive, but it could be depending on many factors, including whether it was calculated based on total capacity on the planning horizon or incremental growth during the planning timeframe, and the length of the planning horizon. Otherwise, accepted. First two sentences, accepted; last two, rejected as contrary to the greater weight of the evidence. 107.-108. Accepted. 109. First sentence, rejected as contrary to the greater weight of the evidence; second, accepted. 110.-117. Rejected as contrary to the greater weight of the evidence. The effect of removing the Overlay is to allow more development sooner throughout the County. The effect of the increased development would depend on how it occurs. As to 116 and 117, one purpose of the Overlay was to require a mix of uses in mixed land use districts. First sentence, rejected. See 110-117, above. Rest, accepted. Cumulative. Last sentence, subordinate argument; except for apparent typographical error in third sentence, rest accepted. Last sentence, rejected as unclear from the evidence why there has been no agricultural use; otherwise, accepted. Accepted. Last sentence, rejected as contrary to the greater weight of the evidence. ("Significance" depends on other factors as well, including the amount of acreage in other mixed land use categories that allow light industrial.) Assuming that the "127 additional acres" refers to uplands, the rest is accepted. 124.-125. Rejected as contrary to the greater weight of the evidence and, in part, conclusion of law. There was no evidence of any serious risk of a taking. If these were legitimate reasons to redesignate the Alico property AC, it would be questionable if any DRGR would survive. First sentence, accepted (assuming the County's efforts are otherwise "in compliance"; second, subordinate argument; third, cumulative. Accepted. (However, the County's analysis does not include acreage in other mixed land use categories that allow light industrial.) First four sentences, accepted but irrelevant; penultimate, rejected as contrary to the greater weight of the evidence that it is "safe to assume"; last sentence, accepted. First two sentences, accepted; third, rejected as contrary to the greater weight of the evidence that mining would "permanently preempt" commercial use, but accepted that subsequent commercial use would be much less likely; fourth sentence, accepted (except for typos); last sentence, accepted. Second sentence, rejected as not clear that it "won't be available," but accepted that it may not, depending on when it is "needed." Rest, accepted. First sentence, subordinate argument; second, rejected as contrary to the greater weight of the evidence that it is "clear" but accepted that it probably "will not pose a significant threat"; third and fourth, accepted; fifth, rejected as contrary to the greater weight of the evidence that there is no recharge, but accepted that recharge is not better than average; rest, accepted. Accepted (with the understanding that the last sentence refers to surface water runoff). First sentence, accepted; second and third, rejected as contrary to the greater weight of the evidence that the Gulf Utilities-San Carlos wellfield is the only wellfield in the water table aquifer (otherwise, the third sentence is accepted). 134.-136. Accepted. Accepted. Last sentence, rejected as contrary to the greater weight of the evidence. (There also were other internal consistency issues concerning the date.) Otherwise, accepted. Rejected as contrary to the greater weight of the evidence. 140.-141. Accepted. 142. Irrelevant; issue not timely raised. 143.-144. Accepted. First sentence, accepted (in that DCA and RGMC did not prove internal inconsistency beyond fair debate); second, third and fourth sentences, accepted (but do not rule out the possibility of impacts from removal of the Overlay); rest, rejected as contrary to the greater weight of the evidence. Accepted (but do not rule out the possibility of impacts from removal of the Overlay). 147.-149. Accepted. First two sentences, argument; third, rejected as contrary to the greater weight of the evidence; last, accepted. First sentence, rejected as contrary to the greater weight of the evidence in that a reduction in densities is not necessarily positive; rest, accepted. 152.-155. Accepted. First sentence, accepted (assuming it refers to the deleted first sentence of former Policy 84.1.2, now 84.1.1); second, rejected as contrary to the greater weight of the evidence since its context requires the opposite interpretation. Accepted. First sentence, rejected as contrary to the greater weight of the evidence that the report "specifically recommends the amendment . . . in the fashion that Lee County has done." Otherwise, accepted. 159.-160. Accepted (159, based on the plan language and Joyce testimony, as well as the Deadman testimony.) First sentence, accepted; second, conclusion of law. Rejected as contrary to the greater weight of the evidence; conclusion of law; subordinate. Accepted; subordinate. Accepted. Rejected as contrary to the greater weight of the evidence that the circuit court judgment was based entirely on new data and analysis; otherwise, accepted. 166.-169. Accepted. Conclusion of law. Rejected as contrary to the greater weight of the evidence. (Use of the "allocation ratio" is being determined in this case.) Rejected as contrary to the greater weight of the evidence to the extent that the Sheridan Final Order can be said to be a DCA "publication." Otherwise, accepted. Rejected as contrary to the greater weight of the evidence in that Joint Exhibit 17 gives some indication of how to apply an "allocation ratio"; accepted that Joint Exhibit 17 does not fully explain how to apply the "allocation ratio." Accepted. Rejected as contrary to the greater weight of the evidence to the extent that the Sheridan Final Order constitutes such evidence. Accepted. Rejected as contrary to the greater weight of the evidence. Atlantic Gulf's Proposed Findings of Fact. 1.-3. Accepted. 4. Accepted (but do not rule out the possibility of impacts from removal of the Overlay). 5.-7. Accepted. 8.-10. In part conclusions of law; otherwise, accepted. (The incorporation of the DEP and SWFWMD permitting requirements only replaces former County permitting requirements; other parts of the amended plan's provisions relating to wetlands protection remain in effect.) Alico's Proposed Findings of Fact. 1.-13. Accepted. Rejected as contrary to the greater weight of the evidence in that the phrase "substantial recharge to aquifers most suitable for future wellfield development" may distinguish DRGR-suitable land from other land by the nature of the aquifer it recharges, not by the relative amounts of recharge. However, the suitability of the AC amendment property for DRGR is questionable, and redesignation to AC is not prohibited. First sentence, accepted; second, rejected as contrary to the greater weight of the evidence in that it is in the "area" of "most favorable locations for physical withdrawal of water from those aquifers." However, the suitability of the AC amendment property for DRGR is questionable, and redesignation to AC is not prohibited. 16.-19. Accepted. Accepted (assuming it refers to the DCA submitting); subordinate. Accepted. 22.-24. Subordinate argument and conclusion of law. 25.-34. Accepted. 35.-36. Accepted; subordinate. Last sentence, accepted; rest, subordinate argument and conclusion of law. Accepted (except, in s. and u., it should read "Six Mile Cypress Basin.") Rejected as contrary to the greater weight of the evidence that the list is not exhaustive ; otherwise, accepted. 40.-41. Accepted. Rejected as contrary to the greater weight of the evidence in that Policy 7.1.1 just says applications are to be "reviewed and evaluated as to" these items; it does not say that "negative impacts" must be "avoided." Rejected as contrary to the greater weight of the evidence in that Goal 12 and Standard 12.4 under it are renumbered under the current amendments as Goal 11 and Standard 11.4; otherwise, accepted. Rejected as contrary to the greater weight of the evidence in that former Standard 14.1 has been transferred to Policy 7.1.1. under the current amendments. See 40 and 42, above. Accepted. First sentence, rejected as contrary to the greater weight of the evidence that former designation as DRGR is the only reason why water quality and quantity issues arise; second, cumulative. Cumulative. First two sentences, cumulative; rest, accepted. First two sentences, accepted; rest, cumulative. First sentence, unclear which fact is "in dispute"; rest, accepted. (The AC amendment property probably would not be developed as a producing wellfield.) First sentence, accepted; second, cumulative. First two clauses of first sentence, accepted; rest, conclusion of law. First sentence, cumulative; rest, accepted. First sentence, accepted; second, conclusion of law. 55.-56. Cumulative. 57.-59. Accepted. First two sentences, accepted; rest, cumulative. Accepted. First sentence, rejected as contrary to the greater weight of the evidence; second, third and fourth sentences, accepted; rest, cumulative. First sentence, argument; rest, accepted. Accepted. 65.-66. In part, cumulative; otherwise, accepted. 67.-70. Accepted. First sentence, argument; middle sentences, accepted; penultimate sentence, rejected as contrary to the greater weight of the evidence in that he made no blanket concession, instead conditioning interception on water table levels; last sentence, accepted. First sentence, rejected as contrary to the greater weight of the evidence (that there's no "realistic way" "you" can do it); rest, accepted. 73.-74. Cumulative. Accepted. Cumulative. Accepted; subordinate and unnecessary. Cumulative. Beginning, cumulative; last sentence, subordinate argument. First sentence, accepted; second, rejected as contrary to the greater weight of the evidence in that the influence of additional pumping has not been analyzed; last, accepted. Accepted. First two sentences, conclusion of law; last, accepted. Subordinate argument. First sentence, conclusion of law; second, accepted; third, rejected as contrary to the greater weight of the evidence in that the "performance standards" say to maintain current protection and expand protection "to encompass the entire area." Accepted. (However, it is far from clear that the BMP's referred to in Policy 1.2.2 are the same ones referred to in this proposed finding.) Accepted. 87.-88. Subordinate argument. Cumulative or subordinate argument. Unclear what is meant by "several generations of numbers." Otherwise, cumulative. Cumulative. Accepted but subordinate. Accepted. (However, he also raised the question that the County's analysis did not include acreage in other mixed land use categories that allow light industrial.) 94.-95. Accepted. First sentence, subordinate argument; second, rejected as contrary to the greater weight of the evidence in that they conceded need is not based exclusively on resident and seasonal population, not that it is not based at all on it; third, accepted. First sentence, accepted; rest, subordinate argument. Accepted. Accepted. (Nor was there testimony that there is a need based on population.) Accepted. First sentence, accepted; second, conclusion of law, cumulative, and rejected as contrary to the greater weight of the evidence in that there was evidence of other motivations for providing the information as well. Accepted. (However, the analysis was limited to Orlando, and Nelson's method resulted in no need found.) Subordinate argument; cumulative. Subordinate argument. Accepted. (As to third sentence, neither did any other witness.) 106.-107. Accepted. Last sentence, subordinate argument; penultimate, rejected as contrary to the greater weight of the evidence (or, at least, unclear); rest accepted. Cumulative. 110.-113. Accepted. Cumulative. First sentence, conclusion of law; second, accepted as an excerpt from the dictionary, but argument and conclusion of law that it is the "plain meaning" of the word "need," as used in 9J-5. (Also, citation to Joint Exhibit 11, p. 9, is not understood.) Argument and cumulative. 117.-118. Accepted. 119.-120. Conclusion of law, argument and cumulative. 121. Last sentence, accepted. (It is not clear from the evidence that the designation of the property as "Panther Priority 2" on Lee Exhibit 42, introduced by RGMC, means that the County has identified it as being "in need of conservation.") Rest, conclusion of law, argument and cumulative. 122.-126. Conclusion of law and cumulative. To the extent that accepted proposed findings are not essentially incorporated into the Findings of Fact of this Recommended Order, they were considered to be either subordinate or otherwise unnecessary. COPIES FURNISHED: David Jordan, Esquire Deputy General Counsel Bridgette Ffolkes, Esquire Assistant General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Timothy Jones, Esquire Thomas L. Wright, Esquire Assistant County Attorney Post Office Box 398 Fort Myers, Florida 33902-0398 Thomas W. Reese, Esquire 2951 61st Avenue So. St. Petersburg, Florida 33712 Elizabeth C. Bowman, Esquire Connie C. Durrence, Esquire Hopping Boyd Green & Sams 123 South Calhoun Street Post Office Box 6526 Tallahassee, Florida 32314 Russell P. Schropp, Esquire Henderson, Franklin, Starnes & Holt Post Office Box 280 Fort Myers, Florida 33902 Charles J. Basinait, Esquire Henderson, Franklin, Starnes & Holt Post Office Box 280 Fort Myers, Florida 33902 Kenneth G. Oertel, Esquire Scott Shirley, Esquire Oertel, Hoffman, Fernandez & Cole, P.A. Post Office Box 6507 Tallahassee, Florida 32314-6507 Neale Montgomery, Esquire Pavese, Garner, Haverfield, Dalton, Harrison & Jensen Post Office Drawer 1507 Fort Myers, Florida 33902 Steven C. Hartsell, Esquire Pavese, Garner, Haverfield, Dalton, Harrison & Jensen Post Office Drawer 1507 Fort Myers, Florida 33902 Thomas B. Hart, Esquire Humphrey & Knott, P.A. 1625 Hendry Street, Suite 301 Post Office Box 2449 Fort Myers, Florida 33902-2449 Michael J. Ciccarone, Esquire Goldberg, Goldstein, & Buckley, P.A. Post Office Box 2366 Fort Myers, Florida 33902 Greg Smith, Esquire Governor's Legal Office The Capitol - Room 209 Tallahassee, Florida 32399-0001 Barbara Leighty, Clerk Growth Management and Strategic Planning Administration Commission The Capitol - Room 2105 Tallahassee, Florida 32399-0001
The Issue The issue in this case is whether an amendment to the future land use map of the Martin County comprehensive plan, Amendment No. 98-3, is "in compliance" as those terms are defined in Section 163.3184(1)(b), Florida Statutes (2000).
Findings Of Fact The Parties. Hobe Sound Citizens Alliance, Inc. (hereinafter referred to as the "Alliance"), is a not-for-profit corporation organized under the laws of Florida. The Alliance was organized in July 1998 primarily to respond to proposed land use designation changes for the property that is the subject of this proceeding and for other property. The Alliance has three officers (a President, Secretary, and Treasurer) and an eight-member Board of Directors. The officers and directors of the Alliance all reside in Martin County, Florida. The members of the Board of Directors are from different neighborhoods in Martin County. The Alliance maintains a mailing list of approximately 500 individuals who are considered "members" of the Alliance. These individuals have all expressed interest in the activities of the Alliance, but have not taken any formal steps to join the Alliance, such as paying dues or completing an application for membership. In fact, the Alliance does not collect dues or have a membership application. Petitioner, Mary A. Merrill, is an individual who resides in an area of unincorporated Martin County, Florida, known as "Hobe Sound." Ms. Merrill serves as President of the Alliance. During the process of adopting the amendment which is the subject of this matter, Ms. Merrill and the Alliance made comments and objections. Respondent, Martin County (hereinafter referred to as the "County"), is a political subdivision of the State of Florida. The County is located on the east coast of Florida. The County is bordered on the east by the Atlantic Ocean, on the south by Palm Beach County, on the north by St. Lucie County, and on the west by Lake Okeechobee and a portion of Okeechobee County. Intervenor, Hobe Sound Land Company, Ltd. (hereinafter referred to as the "Land Partnership"), is a limited partnership organized under the laws of Florida. The Land Partnership's general partner is Hobe Sound Land Company, Inc. (hereinafter referred to as the "Land Company") and the limited partners are a number of trusts organized for the benefit of various members of the Reed family. The Land Partnership is the owner of the property which is the subject of this proceeding (hereinafter referred to as the "Subject Property"). The County's Comprehensive Plan. General The County has adopted a comprehensive land use plan as required by the Local Government Comprehensive Planning and Land Development Regulation Act, Part II, Chapter 163, Florida Statutes (hereinafter referred to as the "Act"). The Martin County Florida Comprehensive Growth Management Plan 1999/00 (hereinafter referred to as the "Plan"), has been determined to be "in compliance" as those terms are defined in the Act. The Future Land Use Element The Plan includes a Future Land Use Element (hereinafter referred to as the "FLUE"), consisting of the following: Section 4-1, "Background Information"; Section 4-2, "Analysis of Land Use Features"; Section 4-3, the "Future Land Use Map and Map Series"; Section 4-4, "Goals, Objectives and Policies"; Section 4-5, "Performance Standards"; and Section 4- 6, "Implementation Strategies." Sections 4-1 and 4-2 consist of what the County refers to as "narrative" sections which the County gives less weight to in determining whether an amendment to the Plan is "in compliance" than it gives Section 4-4, which contains the Goals, Objectives, and Policies of the Plan. These narrative sections of the Plan, however, are not "data and analysis." They were adopted as a part of the Plan. See the second unnumbered page of the Plan. The FLUE establishes 13 separate and distinct land-use categories. These land-use categories determine the uses to which property subject to the Plan may be put. The Plan's Future Land Use Map and Map Series (hereinafter referred to as the "FLUM"), depicts all property subject to the Plan and depicts the land use category assigned to all property in the County. Among the land use categories established in the FLUE pertinent to this proceeding is the "Institutional" land use category. To distinguish this category from the "Institutional- County" land use designation of the FLUE, the category is referred to as the "General Institutional" category. Property designated as General Institutional is subject to the following sub-categories or intensities of use: "retirement home, churches, schools, orphanages, sanitariums, convalescent, rest homes, cultural organizations, military, colleges, hospitals, federal, municipal, utilities, and rights- of-way." Section 4-4.M.1.h.(3). of the FLUE, provides the following Policy governing the use of General Institutional property: General Institutional - The General Institutional category accommodates public and not-for-profit facilities such as, but not limited to schools, government buildings, civic centers, prisons, major stormwater facilities, fire and emergency operation center facilities, public cemeteries, hospitals, publicly owned public water and sewer systems, dredge spoil management sites, and airports. Investor owned regional public water and sewer systems and private cemeteries may be allowed in General Institutional. . . . While Institutional use is reserved for the above uses, this shall not prohibit for- profit medical offices and other ancillary facilities owned by a non-profit hospital as long as they are part of a Planned Unit Development. . . . . . . . The Plan also establishes land use categories in the FLUE for the residential use of property. All land which is designated for residential development on the FLUM is subject to Section 4-4.M.1.e. of the FLUE: The Land Use Map allocates residential density based on population trends; housing needs; past trends in the character, magnitude, and distribution of residential land consumption patterns; and, pursuant to goals, objectives, and policies of the Comprehensive Growth Management Plan, including the need to provide and maintain quality residential environments, preserve unique land and water resource and plan for fiscal conservancy. There are seven types of designated residential land use categories created by the Plan. Those uses include the following: 10 units per acre for "high density;" 8 units per acre for "medium density;" 5 units per acre for "low density residential;" 2 units per acre and 1 unit per acre for "estate density;" .5 units per acre for rural areas. There is also a "mobile home density" category. The lowest density of .5 units per acre is reserved for those areas that are designated as rural. The estate density categories are used for areas are located "generally on the fringe of the urban service districts and generally are not accessible to a full complement of urban services." Sections 4-4.M.1.e.(1) and (2) of the Plan. Of primary pertinence to this proceeding is the residential land use designation of "Low Density Residential." Residential land designated "Low Density Residential" is limited by Section 4-4.M.1.e.(3). of the FLUE as follows: Low Density Residential Development. The low density residential designation is reserved for land accessible to existing urban service centers or located in the immediate expansion area. Densities permitted in this area shall not exceed five (5) units per gross acre. Review of specific densities shall be directed toward preserving the stability and integrity of established residential development and toward provided equitable treatment to lands sharing similar characteristics. Design techniques such as landscaping, screening and buffering shall be employed to assure smooth transition in residential structure types and densities. Generally, where single family structures comprise the dominant structure type within these areas, new development on undeveloped abutting lands shall be required to include compatible structure types on the lands immediately adjacent to existing single family development. Excessive Residential Property and the Active Residential Development Preference Planning System. Section 4-2.A.6.c. of the Plan recognizes that the County has designated an excessive amount of land for residential use. This section of the Plan indicates that, at the time the Plan was adopted, there was a projected need for 26,231 acres of land to accommodate the projected population of the County to the Year 2005. It also indicates that, as of the date of the Plan, 35,834 acres of vacant land had been designated for residential use, well in excess of the amount of land necessary to meet demand. Despite the requirements of the Act and Chapter 9J-5, Florida Administrative Code, requiring appropriate planning for residential needs within a local government's jurisdiction, the Plan was approved by the Department as being "in compliance" with the designation of an excessive amount of land for residential use in the County. Instead of requiring strict compliance with the provisions of the Act and Chapter 9J-5, Florida Administrative Code, dealing with planning for future residential land use needs, the County and the Department entered into a Stipulated Settlement Agreement specifying that the Plan include a requirement that the County undertake the collection of more current land use data and refine the various land use predictive factors it had been using. The Stipulated Settlement Agreement also required that the County institute an Active Residential Development Preference Planning System (hereinafter referred to as the "ARDP System"), to monitor the timing and location of residential development in the County. Section 4-2.A.8. of the Plan provides a Policy dealing with future residential land use requirements for the County. The Policy reports the over-allocation of vacant land designated for residential uses in the County and the need for the ARDP System. The Policy specifically provides, in part: While the current pattern on the Future Land Use Map will remain as is, an active residential development "125% test" will be used in conjunction with location and land suitability requirements in the review and approval of future land use and/or project requests. These requirements shall include, at a minimum, location within the Primary, or Secondary Urban Service District; consistency with the Capital Improvement Element; protection of natural resources; and adequate provision of facilities and services at the adopted level of service. The Policy goes on to provide that residential development in the County will be maintained at 125 percent capacity through the ARDP System and describes other measures to reduce the amount of excessive residential property to be developed in the County. Section 4-4.A.6. of the Plan establishes a Policy requiring that the County implement the ARDP System by May 1991. Consistent with Section 4-4.A.6. of the Plan, the County has adopted the ADRPP System. Environmental Protection Considerations in the FLUE Section 4-2.A.6.d. of the Plan recognizes that residential use of land located near or on the coast can threaten the "preservation of the very attributes of the area which make it attractive for growth." Therefore, the Policy provides that any such development is to be planned to minimize the threat by "assuring that the environmentally sensitive and threatened habitats are preserved." The Policy also provides: Certain areas in Martin County are recognized and beginning to be identified by federal, state and local programs as environmentally sensitive. These areas provide special value in producing public benefits, including: recreational opportunities, life support services, tourism, commercial and sport fishing, scenic values, water purification, water recharge and storage, and sensitive habitats critical to the survival of endangered wildlife and plants. Urban development in or adjacent to environmentally sensitive areas can significantly reduce their environmental values. Additionally, there are important public health concerns associated with development in these areas, particularly in relation to potable water and waste disposal in low lying areas. . . . Section 4-2.A.6.f. of the Plan recognizes the importance of natural vegetation. The Policy also recognizes that urban development removes or alters the County's natural vegetation. Coastal Management Element Section 8.4 of the Plan establishes the Goals, Objectives, and Policies for the Coastal Management Element of the Plan. The area subject to this Element is described on maps adopted as part of the Element, including the map depicted in Figure 8-1. The Subject Property is not located within the coastal management area established by the Element. Section 8.4.A.2.a. of the Plan provides "land use decisions guidelines" requiring a consideration of the impacts of development on fish, wildlife, and habitat, including cumulative impacts. These guidelines, however, apply to development within the coastal management area established by the Plan. Conservation and Open Space Element Chapter 9 of the Plan establishes the Conservation and Open Space Element. The Goals, Objectives, and Policies of the Element are set out in Section 9-4 of the Plan. Section 9-4.A. of the Plan establishes the following Goal: The goal of Martin County is to effectively manage, conserve and preserve the natural resources of Martin County giving consideration to an equitable balance of public and private property rights. These resources include air, water, soils, habitat, fisheries and wildlife with special emphasis on restoring the St. Lucie Estuary and the Indian River Lagoon. Section 9-4.A.2.a. of the Plan requires that the County continue to enforce and improve its Wellfield Protection Ordinance. The Wellfield Protection Ordinance is intended to regulate land use activities within the zones of influence of major wellheads. Section 9-4.A.2.b. of the Plan provides the following: New potable water wells and wellfields shall be located in areas where maximum quantities of regulated materials (e.g. hazardous and toxic materials) do not exceed the proposed criteria of the Wellfield Protection Ordinance. At the time future wellfield locations are identified, establishment of incompatible land uses within the zones of influence of such wells shall be prohibited. Objective 9-4.A.9. of the Plan provides for the protection and enhancement of wildlife and habitat. Policy 9- 4.A.9.a. of the Plan provides the following: Land use decisions shall consider the effects of development impacts on fish, wildlife and habitat and the cumulative impact of development or redevelopment upon wildlife habitat. In cases where rare, endangered, threatened or species of special concern are known to be present, a condition of approval will be that a preserve area management plan be prepared at the time of site plan submittal. . . . To ensure adequate protection, protected plants and animals, which cannot be provided with sufficient undisturbed habitat to maintain the existing population in a healthy, viable state on site, shall be effectively relocated in accordance with local, state and federal regulations. Potable Water Service Element Chapter 11 of the Plan establishes a Potable Water Service Element. The Goals, Objectives, and Policies of this Element are contained in Section 11-4. Section 11-4.A.5 of the Plan provides that, by 1991, the County was to establish programs to conserve and protect potable water resources within the County. The specific components of the programs are provided. None of those provisions are relevant to this matter. Drainage and Natural Groundwater Aquifer Recharge Element Chapter 13 of the Plan establishes a Drainage and Natural Groundwater Aquifer Recharge Element. The Goals, Objectives, and Policies of this Element are contained in Section 13-4. Section 13-4.A.1. of the Plan establishes the following Objective: Martin County will maintain existing ground water and surface water quality, improve areas of degraded ground water and surface water quality and prevent future contamination of ground water supply sources. Section 13-4.A.2. of the Plan establishes the following Objective: "Enhance the quantity of ground water recharge and maintain desirable ground water levels." The Objectives, and the Policies established to carry them out, recognize the significance of ground waterrecharge and groundwater levels in the County. Preservation of groundwater recharge and groundwater levels is a significant goal of the County. None of the Policies established to carry out the foregoing Objectives specifically eliminate the use of vacant land located near wells for residential purposes. Plan Amendment Adoption Procedures Procedures for the adoption of amendments to the Plan are established in Section 1.11, "Amendment Procedures," of the Plan. Section 1.11.C.2. of the Plan provides the following procedures for evaluating changes to the FLUM: In evaluating each land use map amendment request, staff begins with the assumption that the 1982 Land Use Map, as amended, is generally an accurate representation of the Board of County Commissioners and thus the community's intent for the future of Martin County. Based on this assumption, staff can recommend approval of a requested change providing consistency is maintained with all other Elements of this Plan if one of the following four items is found to be applicable. That past changes in land use designations in the general area make the proposed use logical and consistent with these uses and there is adequate availability of public services; or That the growth in the area, in terms of development of vacant land, redevelopment and availability of public services, has altered the character of the area such that the proposed request is now reasonable and consistent with area land use characteristics; or That the proposed change would correct what would otherwise appear to be an inappropriately assigned land use designation. That the proposed change would meet a necessary public service need which enhances the health, safety or general welfare of County residents. In the event that staff can not make a positive finding regarding any of the above items, then staff would recommend denial. (Emphasis added). The Plan requires that the Director of the County's Growth Management Department, after review of a proposed amendment, submit recommendations to the Local Planning Agency for consideration. The Local Planning Agency is required to certify its findings and recommendations to the Board of County Commissioners of Martin County (hereinafter referred to as the "Board"). Miscellaneous Provisions of the Plan. Section 4-2.A.6.e. of the Plan deals with agricultural use and vacant land. The evidence failed to prove that the amendment at issue in this case is inconsistent with this portion of the Plan. Section 4-4.A.1.a. of the Plan establishes a Policy that requires that the County revise its Land Development Regulations in existence at the time the Plan was adopted. The evidence failed to prove that the amendment at issue in this case is inconsistent with this portion of the Plan. Section 4-4.E.1. of the Plan requires that the County revise its Land Development Code by July 1990. The evidence failed to prove that the amendment at issue in this case is inconsistent with this portion of the Plan. The County's Sustainable Communities Designation Agreement. The County and the Department of Community Affairs (hereinafter referred to as the "Department"), entered into a Sustainable Communities Designation Agreement (hereinafter referred to as the "Designation Agreement"). The Designation Agreement was entered into pursuant to Section 163.3244 of the Act. Pursuant to the Designation Agreement, the Department designated the County as a "sustainable community." Among other things, the designation of the County as a sustainable community eliminates the need for the County to have the Department review and comment on amendments to the Plan that affect areas within the urban growth boundary or "Primary Urban Services District" created by the Plan. The Subject Property. The Subject Property is a parcel of real property located in the Hobe Sound area of unincorporated Martin County. The Subject Property consists of approximately 24.5 acres of land. The land use designation for the Subject Property on the FLUM is General Institutional. The Subject Property is undeveloped, vacant land. It is comprised of sandy soils, native upland scrub habitat with native Sand Pine groundcover. The Subject Property was described in an Executive Summary of the proposed plan amendment considered by the County as follows: The parcel is located in an area considered to be one of the last contiguous large areas of native upland scrub habitat in Florida. Groundcover is almost entirely native Sand Pine with some primitive trails and small areas of disturbed land. Endangered species found on the parcel include the Florida Scrub Jay and Gopher Tortoise. Sand Pine is considered to be endangered, unique or rare and the Comprehensive Plan policy 9- 4.A.7.f(2) states that "Where possible, increased conservation (twenty-five (25) percent of the total upland area) of native upland habitats which are determined to be endangered, unique or rare in Martin County, or regionally rare will be required by Martin County." The Subject Property is bounded on the north by Saturn Avenue, a two-lane residential street; on the south and west by undeveloped land; and on the east by U.S. Highway One, a multi- lane divided highway. The property to the north is designated Low Density Residential; the property to the east is designated for commercial uses; and the property to the south and west is designated General Institutional. While located relatively close to the Intercoastal Waterway, the Subject Property is not located on the "coast." The Subject Property was previously owned by the Hobe Sound Water Company, a privately owned water utility. At the request of Hobe Sound Water Company, the Subject Property was designated as General Institutional. No wells currently are located on the Subject Property. The Subject Property was acquired from the Hobe Sound Water Company by the Land Partnership. The undeveloped land located to the south of the Subject Property is owned by South Martin Regional Utilities (hereinafter referred to as "SMRU") and is utilized for a water plant and wells. SMRU acquired this land and the remainder of the land used by the Hobe Sound Water Company from the water company. There are five wells located on the property to the south of the Subject Property. The property to the west of the Subject Property is also owned by SMRU but is not being utilized for wells. The property acquired by SMRU was, and remains, designated as General Institutional. The Subject Property serves as a significant ground water recharge area because of the porous nature of the soils of the Subject Property. The Subject Property is located within the Primary Urban Services District of the Plan. The Subject Amendment and Its Review. The amendment at issue in this proceeding was initiated by the Land Partnership after it acquired the Subject Property from the Hobe Sound Water Company. At the time of the acquisition of the Subject Property, the Land Partnership knew or should have known that it was designated for General Institutional use. The Land Partnership requested a change in the land use designation for the Subject Property on the FLUM from General Institutional to Low Density Residential or "the most appropriate land use designation." The proposed amendment was reviewed by the staff of the County's Growth Management Department. Among other things, the staff considered whether any of the four items specified in Section 1-11.C.2 of the Plan applies to the amendment. The staff determined that the first and fourth items listed in finding of fact 41 did not apply, that the second item was somewhat applicable, and that the third item applied to the amendment. The proposed amendment was also reviewed by the Treasure Coast Regional Planning Council (hereinafter referred to as the "TCRPC"). Comments concerning the proposed amendment were prepared by the TCRPC, but were withheld because review by the TCRPC is not required due to the sustainable communities designation for the County. The draft comments of the TCRPC, however, raised objections to the proposed amendment due to concerns over the potential endangerment to the wellfields in the area and the potential destruction of critical habitat and vegetation. No copy of the TCRPC's regional plan was offered in evidence in this case. Nor did anyone associated with TCRPC testify about the draft comments. The Department also informally reviewed the proposed amendment. Rather than prepare an Objections, Comments, and Review report on the proposed amendment, the Department prepared informal comments, which it provided to the County. Those comments were responded to by the County. Hearings to consider the proposed amendment were conducted by the Local Planning Agency. On January 21, 1999, the Local Planning Agency voted to recommend that the proposed amendment not be adopted. The proposed amendment was designated Amendment No. 98-3 (hereinafter referred to as the "Amendment"). The Amendment was adopted by the Board on September 28, 1999, as a part of Ordinance No. 553. The evidence failed to prove that any relevant procedure for adopting the Amendment was violated by the County. The Amendment changed the land use designation for the Subject Property from General Institutional to Low Density Residential on the FLUM. This designation would allow the development of the Subject Property for a maximum of 122 residential units. Data and analysis supporting a potential increase of 122 units of additional residential property did not exist when County adopted the Amendment. Nor does such data and analysis exist now. ARDP System Data. Since the implementation of the ARDP System the County has been collecting and analyzing data concerning residential development in the County. No timely annual update of that data and analysis had been prepared prior to the adoption of the Amendment. The most recent data available was from 1995. During the adoption process for the Amendment, at the request of a member of the Board, an ad hoc report containing data and analysis concerning residential development in the County was prepared and presented to the Board. A full and detailed report was prepared subsequent to the adoption of the Amendment. The report, the ARDP Memorandum of June 7, 2000 (hereinafter referred to as the "ARDP Memo"), was reviewed and approved by the Board. The report was also received in evidence during this de novo proceeding and has been fully considered in preparing this Recommended Order. Pursuant to the ARDP Memo for the five-year period 2000-2004, there is a need for 6,252 residential units needed to serve population increases. The 125 percent cap of the ARDP System on new residential units allowed in the County is 7,816 units. This amounts to an additional 1,564 units authorized by the ARDP System over the actual number of units needed based upon population projections. The number of approved/unbuilt units and other offsets against the number of allowed new residential units for the County during this period totals 7,015 units. Consequently, there are 801 units (7,816 minus 7,015) available for development through the end of 2004. These available units are more than sufficient to cover the additional units which may arise as a result of the development of the Subject Property pursuant to the Amendment. For the five-year periods of 2005-2009 and 2010-2014, there are 6,314 and 6,578 units available for development through the end of these periods, respectively. Despite the foregoing, the approval of an addition of 122 units of residential property will increase an already excessive designation of property for residential use. The Impact of the Amendment. The most significant impact of the Amendment is to further increase the amount of land allocated for residential use in the County. An estate density designation, although generally used for urban fringe areas, with a density of 1 or 2 units per acre, would reduce the amount of the increase in the amount of land allocated for residential use in the County. The Amendment will also negatively impact sensitive habitat for endangered species of plants and animals. Development of the Subject Property, however, as Low Density Residential or General Institutional has the potential for the same general negative impact on sensitive habitat. That negative impact is not inconsistent with what the Plan allows. The Amendment will not have a negative impact on the role of the Subject Property as a ground water recharge area or the availability of potable water in the County. Any development of the Subject Property will be subject to County and South Florida Water Management District regulations requiring that there be no effect on the quality or quantity of ground water in and around the Subject Property as a result of development. The only action that will preserve the environmental features of the Subject Property and its role as a recharge area would be to keep the property undeveloped. Neither the current land use designation of General Institutional nor the proposed land use designation of Low Density Residential will ensure that the Subject Property remains undeveloped. An estate density designation, although generally used for urban fringe areas, with a density of 1 or 2 units per acre, would reduce the negative impacts of the environmental features of the Subject Property and its role as a recharge area. The evidence failed to prove that the Amendment constitutes "urban sprawl" as defined in the Plan. The Need for a FLUM Amendment. In order for the Amendment to be approved, since it is an amendment to the FLUM, it must be shown that one of the four items listed in Section 1.11.C.2. of the Plan is met. The evidence proved, and the parties agreed, that the first and fourth items listed in Section 1.11.C.2. of the Plan do not apply to this Amendment. The remaining two items of Section 1.11.C.2. of the Plan are: That the growth in the area, in terms of development of vacant land, redevelopment and availability of public services, has altered the character of the area such that the proposed request is now reasonable and consistent with area land use characteristics; or That the proposed change would correct what would otherwise appear to be an inappropriately assigned land use designation. While there has been an increase in the amount of development to the north of the Subject Property, the area immediately around the Subject Property has not changed. The evidence failed to prove that any change in the character of the area surrounding the Subject Property "has altered the character of the area such that the proposed request is now reasonable and consistent with area land use characteristics. . . ." The second item listed in Section 1.11.C.2. of the Plan has not been met. The County's determination that the remaining item, that the proposed change would correct what appears to be an inappropriately assigned land use designation, is based upon the fact that the current owner, the Land Partnership, is not the type of entity the Plan identifies as an appropriate owner of General Institutional property. Section 4-4.M.1.h. of the Plan provides the following concerning the ownership of General Institutional designated property: Except for investor owner public water and sewer systems and private cemeteries, Institutional land shall be owned by public agencies or non-profit service providers. As a consequence of the foregoing, the only use to which the Land Partnership may put the Subject Property under its current land use classification would be as a cemetery, public water, or sewer system. The latter two uses are not practicable uses for the Subject Property. Although the fact that the Land Partnership knew or should have known of the land use category of the Subject Property and the limitation of the uses to which it could put the property before it purchased it, it still appears reasonable to conclude that the third item of Section 1.11.C.2. of the Plan applies to the Amendment. I. Petitioners' Challenge. On October 28, 1999, the Alliance and Ms. Merrill, jointly filed a Petition for Administrative Hearings with the Division challenging the Amendment pursuant to Section 163.3244(5)(a), Florida Statutes. Petitioners requested a formal administrative hearing pursuant to Sections 163.3187(3)(a) and 120.57, Florida Statutes. On February 1, 2000, Petitioners filed an Amended Petition for Administrative Hearing. Pursuant to the Amended Petition, Petitioners alleged that the Amendment is inconsistent with the requirements of Sections 163.3177 and 163.3180 of the Act, the TCRPC's strategic regional policy plan, and portions of Chapter 9J-5, Florida Administrative Code. Petitioners also alleged in the Amended Petition that the Amendment is inconsistent with Sections 163.3161, 163.3167, 163.3194, and 163.3244 of the Act. These allegations are not relevant to the determination of whether the amendment is "in compliance" as those terms are defined in the Act.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administrative Commission enter a final order finding that the Amendment is not "in compliance" as defined in Section 163.3184(1)(b), Florida Statutes. DONE AND ENTERED this 27th day of February, 2001, in Tallahassee, Leon County, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of February, 2001. COPIES FURNISHED: Virginia P. Sherlock, Esquire Howard K. Heims, Esquire Littman, Sherlock & Heims, P.A. Post Office Box 1197 Stuart, Florida 34995 David A. Acton Senior Assistant County Attorney Martin County Administration Center 2401 South East Monterey Road Stuart, Florida 34996-1197 Raymond W. Royce, Esquire Carrie Beth Baris, Esquire Holland & Knight LLP 625 North Flagler Drive, Suite 700 West Palm Beach, Florida 33401-3208 Steven M. Seibert, Secretary Department of Community Affairs Suite 100 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Cari L. Roth, General Counsel Department of Community Affairs Suite 315 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Barbara Leighty, Clerk Growth Management and Strategic Planning The Capitol, Suite 2105 Tallahassee, Florida 32399 Charles Canaday, General Counsel Office of the Governor The Capitol, Suite 209 Tallahassee, Florida 32399-0001
The Issue The issue in this case is whether it should be determined that the Highlands County Comprehensive Plan, as amended, was in compliance with Chapter 163, Fla. Stat. (1993), as of the adoption of the County Ordinance 94-1 on March 2, 1994.
Findings Of Fact Adoption History Highlands County adopted its first Comprehensive Plan with a land use map in 1991. The Department of Community Affairs (the DCA or Department) took the position that the initial comprehensive plan was not in compliance. On September 15, 1993, the County adopted an amended comprehensive plan. (County Exhibit 6) The DCA took the position that the amended comprehensive plan, in particular its natural resources element, did not adequately protect areas of important plant and animal habitat from agricultural land uses. (County Exhibit 8). Highlands County adopted remedial amendments on March 2, 1994. (County Exhibit 9) On March 16, 1994, DCA published a Cumulative Notice of Intent to find the Highlands County Comprehensive Plan and Remedial Comprehensive Plan Amendments in compliance. (County Exhibit 13) The Petition for Administrative Hearing by Heartland Environmental Council, Inc. (HEC) was filed on or about April 6, 1994. The HEC Petition was signed by Kris Delaney, as its president. The parties' Prehearing Stipulation filed on October 17, 1994, eliminated several of the issues initially raised in the HEC Petition. The Lake Wales Ridge Highlands County is special because of the presence of a feature known as the Lake Wales Ridge, which is only between five and 14 miles wide but stretches for about 100 miles in a north-south orientation through the County. Most of the Ridge is contained within Highlands County, but smaller portions extend into neighboring counties. The Lake Wales Ridge had its beginnings when the sea covered much of what is now the Florida peninsula. A paleo beach and dune system was formed at the edge between the sea and the Ridge. When the waters receded, it left behind a ridge of relatively high ground characterized by generally coarse sands. These sands, which began as beach sand, have been weathered for millions of years, rendering them very sterile and low in nutrients. Water passes very quickly through these sands, making the soil and environment resemble those occurring in much drier places. Although created through the same processes, the Ridge contains many different unique and specialized habitats. Because of these habitats, the Ridge is a national "hot spot" for endemism. This means that many different species of organisms occur in this relatively small area; many of these species occur exclusively or primarily on the Ridge. At least two dozen plant species are found exclusively or primarily on the Ridge, and it is believed that many species have yet to be discovered. In more recent times, the high and dry Ridge also has attracted a disproportionate share of the residential, commercial and agricultural development in the County. Development pressures have conflicted with the habitat needs for the survival of many of the plant and animal species that occurred on the Ridge. Urban and citrus development tend to obliterate habitat; they also compete for available water supply. In addition, as the Ridge has developed, the natural fires that served an important role in maintaining the special habitats of the Ridge were suppressed. More recently, although man has come to understand the importance of fire to these habitats and the species that thrive in them, the increasing presence of man's development has made fire management more problematic and, in some cases, impossible. With more and more development, the habitats of the Ridge with their many endemic plant and animal species have come under increasing pressure. The most widespread kind of natural habitat on the Ridge is called scrub. Scrub consists mainly of scrub oak and shrubs adapted to dry, low nutrient conditions. Scrub contains a disproportionate share of the threatened and endangered plant and animal species on the Ridge. These include the Florida scrub jay, the gopher tortoise, the sand skink, the scrub lizard and the Florida mouse. Natural scrub habitat is rapidly disappearing from the Ridge. By 1981, about 64 percent of the scrub on the southern Ridge had been severely altered. Along the central Ridge, losses were even greater--about 74 percent. By 1991, losses were estimated to be approximately 70 to 90 percent. Sandhill is the rarest natural community in the County. It is the historic high pineland community dominated by long leaf pines. (A vegetative community known as southern sandhill is not dominated by long leaf pines and is not true sandhill; it actually is a type of scrub.) Only about one percent of the original true sandhill still existed as of March, 1994. Although altered by fragmentation and fire suppression, the remaining sandhill still supports several important endemic plant and animal species, such as the gopher tortoise, Sherman's fox squirrel, and a plant called the clasping warea. A type of natural habitat unique to Highlands County portion of the Ridge is cutthroat seep. Cutthroat seeps occur where groundwater near and at surface elevation flows rapidly through areas usually adjacent to true wetlands, keeping the area wet but not ponded. These areas are dominated by cutthoat grasses, which require periodic burning to maintain their dominance. Drainage related to development lowers the water table and otherwise interrupts the needed lateral flow of water, allowing the invasion of woody species. In addition, development makes fire management more problematic and, in some cases, impossible. The most effective protection of cutthroat seep requires preservation of relatively large parcels, approximately ten acres or more. Smaller parcels are harder to fire manage. In addition, smaller parcels could be subjected to inadvertent hydrologic interruption from nearby development. There are about 18 plant species that occur only on the Ridge. Forty plant species occur only in Florida scrub and occur on the Ridge. Twenty-two plants on the Ridge are federally listed as either endangered or threatened. The Florida scrub jay is a federally listed endangered species that occurs only in peninsular Florida. The scrub jay also serves as an indicator species--management for scrub jay habitat will meet the habitat requirements of most other species that occur in scrub habitat. Scrub jays require the presence of scrub oak, as well as bare ground and low growing scrub. Periodic fire is necessary to maintain this mix. Scrub jays are very territorial. The tend to stay on one specific site. Scrub jays are monogamous, pairing to breed for life. Juveniles help feed and protect younger birds before dispersing to find a territory of their own. Dispersal distance typically is less than a mile. Each family group occupies a relatively large area--approximately 25 acres. Large sites are necessary to maintain a viable scrub jay population. Population viability models indicate that 150-200 individuals are needed for a population to persist for 200 years. Using this standard, fewer than ten potentially secure populations of scrub jay exist. It is believed that as much as 750 acres of scrub oak may be required to give a such a population a 90 percent chance of survival for 100 years. Development destroys scrub jay habitat. In addition, nearby development not only makes fire management difficult, if not impossible, it increases scrub jay mortality from feral cats and dogs and from motor vehicles. In the Base Documents supporting the Highlands County Plan, as amended, the County recognized the unique and sensitive natural resource represented by the Lake Wales Ridge. The Base Documents acknowledged that, before the comprehensive plan was adopted, the County did not have a "formal mechanism to examine the effects of proposed development and agricultural uses on natural vegetation and wildlife." The Base Documents also acknowledged that the Ridge required "more stringent controls and greater incentives for resource protection." Conservation, Use, and Protection of Natural Resources Natural Vegetation and Wildlife Subelement [sic] Highlands County has adopted, as the Natural Vegetation and Wildlife Subelement [sic] of its Natural Resources Element, Objective 3 providing that the County shall protect and acquire native vegetative communities which are endemic to Central Florida and shall restrict activities known to adversely affect the endangered and threatened species and their habitat. Under that Objective, Highlands County has adopted a number of Policies. Highlands County's approach to conservation, use, and protection of natural resources under Objective 3 and its policies is to identify, evaluate, and protect natural resources on a site-by-site basis. (County Exhibit 6, Pages NRE-10 through NRE-25, inclusive, and County Exhibit 9) The review procedures prepared by Petitioner's representative, Kris Delaney, for the Central Florida Regional Planning Council (CFRPC) also used a site-by-site approach. (Petitioner Exhibit 56) Kris Delaney is the immediate past president of HEC and was described by Petitioner's counsel as its main representative. Highlands County's approach to evaluation of natural resources also is comparable to the review processes adopted by federal statute and state law for the protection of threatened and endangered species. Site specific evaluation was necessary due to the variety of protected species needs, site conditions, and legal constraints. Under Policy 3.1, A., Highlands County has adopted a number of source documents to identify endangered or threatened species, including species of special concern. Under Policy 3.1, B., Highlands County has adopted a number of documents as guidelines for establishing mitigation, on-site protection, and remedial actions for the protection of habitats and listed species in the County's land development regulations. Under Policy 3.2, Highlands County adopted a Conservation Overlay Map series to be used as a general indicator for the presence of xeric uplands, wetlands, cutthroat seeps, historical and archeological resources, cones of influence for potable wells, and aquifer recharge areas. (See Findings 52-59, infra, for a detailed description and explanation of these maps.) Whenever a particular site is in an area where one of those resource categories is mapped on the Conservation Overlay Map series or are otherwise known to occur, Policy 3.3 of the Natural Resources Element requires the applicant to submit to the Highlands County Planning Department a preliminary field investigation report prepared by a County-approved professional, firm, government agency, or institution. If that field investigation determines that any of those resources actually exist on the site, an Environmental Impact Report is required of the applicant. Those Environmental Impact Reports (EIR's) must also be prepared by a County approved-professional, firm, agency, or institution. Policy 3.3, E., specifies the content of the EIR: (1) maps and a description of natural vegetative communities occurring on the proposed development site in terms of their habitat functions and significance; (2) maps and a description of the aforementioned natural resource categories which may be impacted by the proposed development; (3) an assessment of the potential impacts which would be sustained by a natural resource as a result of the proposed development; (4) an evaluation of water quality inputs and outputs; recommendations for appropriate mitigation and on-site protection measures; recommended land maintenance and management procedures to assure the continued viability or function of the natural resource after development; and a list of agencies which may have permit requirements pertaining to the proposed development. Under Policy 3.3, F., the application package and the EIR are transmitted for review and comment to the agencies listed in the Environmental Impact Report as having permit requirements and to the Highlands County Natural Resources Advisory Committee. Responsive comments and recommendations which are received are forwarded to the County employee or board having decision-making authority concerning the applicable permit and included in the County records pertaining to the project. Under Policy 3.3, G., after receiving the application packet, the EIR, and the comments and recommendations from other permitting agencies and the Highlands County Natural Resources Advisory Committee, the County evaluates and determines the permit conditions required to: (1) protect and preserve the water quality or natural functions of flood plains and drainage ways, potable water wells, and wetlands; (2) protect and preserve the function of native vegetative communities which are endemic to Central Florida or the habitats of endangered species, threatened species, or species of special concern; (3) preserve and protect historical and archeological resources; (4) establish measures to protect life and property from flood hazard; and (5) establish land maintenance and management procedures for the natural resource to assure its continued viability or function after development. Policy 3.3, G., further requires that the County's final development order must be conditioned upon adequate avoidance, preservation, mitigation, or remedial actions for the protection of the aforementioned resources and must be consistent with the wetlands, flood plain, aquifer recharge, water quality, and cultural resource protection measures set forth within the policies of the Comprehensive Plan. It also requires the County to require that the necessary state and local permits be obtained as a condition of approval for the project's final development order. In determining the appropriate conditions for the County's final development order, Policy 3.3, B., states that avoidance and preservation of the resource shall be the first choice for protecting the resource. Acquisition, conservation easements or dedications, and site design methods (including clustering development to the portion of the site where the resource does not exist or, if that is not possible, to the least environmentally sensitive portion of the site), are among the methods allowed to accomplish that purpose. Appropriate buffers between the development and the resource are also required. Policy 3.3, C., also provides that a mitigation fee may be imposed by the Board of County Commissioners for small, isolated tracts containing less significant habitat and that the mitigation fees collected would be used to fund off-site mitigation in order that preservation of equal or greater habitat type, function, and quantity can be achieved. This is consistent with the "Review Procedure for Special Habits: Xeric Uplands" prepared by Kris Delaney for the CFRPC which provides that "[L]ocal government may wish to establish procedural relationship with such agencies and, based on locally determined criteria, a minimum parcel size requiring review." Similarly, Policy 3.4 provides an environmental mitigation fee alternative for construction of single-family residences on preexisting lots of records to the extent consistent with state and federal regulations. These mitigation fee provisions are consistent with existing state and federal programs for protection of threatened and endangered species and species of special concern (Petitioner Exhibit 53, Pages 58 through 60; Petitioner Exhibit 56, Page 25, Level III, G.1 (cont.); and Petitioner Exhibit 78, Page 16) Policy 3.15 identifies several mitigation options which are consistent with those found in the "Review Procedure for Special Habitats: Xeric Uplands" prepared by Kris Delaney for the CFRPC. Policy 3.5, A., requires the County to institute an ongoing program to define, identify, and conserve its native vegetative communities and the habitats of endangered or threatened species and species of special concern and states that the conservation program must include the following implementation measures: (1) acquisition of lands using public funds and grants; (2) lease of land; (3) tax abatement; (4) land swaps and transfers of title; (5) establishment of conservation or open space easements; (6) density bonuses for cluster development; (7) density bonuses for development that preserves habitat and avoids impact on endangered or threatened species, including species of special concern; (8) density transfers for conservation set-asides to buildable portions of sites; and (9) mitigation fees and mitigation fee credits. Under Policy 3.5, B., the County has established as the top priority of its conservation program working with public and private agencies to acquire and preserve in their natural state: (1) scrub or sand hill habitats (xeric uplands); (2) endemic populations of endangered or threatened species, including species of special concern; (3) wetlands, cutthroat grass seeps, and estuaries; (4) important aquifer recharge areas; and (5) unique scenic or natural resources. In Policy 3.6, the County specifically references the "Review Procedure for Special Habitats: Xeric Uplands" prepared by Kris Delaney for the CFRPC as the model for its development review process for coordination with local, state, and federal regulatory agencies. Policy 3.6(g) specifically provides for coordination with local, state, and federal agencies concerning native vegetative communities or habitat areas spanning more than one local jurisdiction. Policy 3.7 establishes funding sources for the County's conservation trust fund and requires that the fund be used exclusively for the acquisition of the priorities listed in Policy 3.5, B., or the enhancement of other publicly- owned conservation-valued lands, as determined by the Board of County Commissioners. To discourage clearing of land prior to environmental review, the County adopted Policy 3.13, which requires property owners to obtain a County land clearing permit prior to land clearing. Issuance of the land clearing permit is conditioned upon completion of the environmental review process adopted in Policy 3.3. If property is cleared without a County land clearing permit, no development orders may be issued for that site for a period of three years after such clearing. Under Policy 3.13, C., of the Plan, as amended, no land clearing permit is required for "any agricultural activity not requiring a Highlands County land development order conducted by a lawfully operating and bona fide agricultural operation" on property "designated by the Future Land Use Map as either General or Urban Agriculture . . .." Under the policy, such operations are "encouraged to implement a Soil and Water Conservation District approved conservation plan, including the use of Best Management Practices, as applicable to the specific area being cleared, and [to secure all other permits required by State and federal agencies exercising jurisdiction over the natural resources referred to in Policy 3.2 and found on said property]." [Emphasis added.] In addition, Policy 3.9 of the Natural Resources Element provides for encouraging agricultural uses which are compatible with wildlife protection and water quality outputs, implementation of erosion control and Best Management Practices. Highlands County also has adopted many other policies in the Natural Vegetation and Wildlife Subelement [sic] of the Natural Resources Element for the protection of natural resources, including: Policy 3.8, providing for the removal and control of exotic plant species; Policy 3.10, requiring the County to incorporate the protection and conservation measures adopted under the Natural Vegetation and Wildlife Subelement [sic] into all County surface water management plans, public works projects and infrastructure improvement plans; Policy 3.11, encouraging the expansion of wildlife/greenbelt corridors; Policy 3.12, encouraging the creation of parks for the protection, preservation, and conservation of natural resources; Policy 3.14, requiring setbacks from environmentally sensitive land; Policy 3.16, providing for transfers of density and density bonuses to encourage preservation of environmentally sensitive lands and listed species through the use of planned unit developments; Policies 3.17 through 3.19, providing for the appointment, functions and responsibilities of the Highlands County Natural Resource Advisory Committee; Policy 3.20, providing for the adoption of a five-year acreage target for acquisition of natural resource lands; and Policy 3.21, providing for a buffer around Highlands Hammock State Park, publicly-owned conservation lands, and conservation lands being considered for acquisition with public funds. Wetlands Subelement [sic] Highlands County has adopted, as the Wetlands Subelement [sic] of its Natural Resources Element, Objective 4 providing for the protection of wetlands systems and their ecological functions to ensure their long term, economic, environmental, and recreational value and to encourage restoration of wetlands systems to a functional condition. Under Objective 4 of the Natural Resources Element, Highlands County has adopted a number of policies to protect wetlands systems. Policy 4.1 provides for the protection of ecological functions of wetlands systems by the County through actions such as supporting the restoration of wetlands systems, protecting the natural functions and hydrology of wetlands systems by buffering against incompatible land uses and mitigating development impacts, providing for clustering and open space buffering, intergovernmental cooperation, and the acquisition of wetlands systems, including cutthroat grass seeps. In Policy 4.2, Highlands County adopted definitions for wetlands and cutthroat seeps which are required to be mapped according to Policies 3.2 and 4.3. In Policies 4.4 through 4.7, the County provided for the adoption of land development regulations which: encourage the restoration of wetlands systems; provide that development orders in cutthroat seeps be conditioned upon the issuance of wetlands permits by the Army Corps of Engineers, the Florida Department of Environmental Protection, and the South and Southwest Florida Water Management Districts, as their jurisdictions apply, as a condition of approval of the project's final development order or land clearing permit; prevent the net loss or alteration of wetlands on a County-wide basis; and require conservation easements and delineation on final plats for wetland and cutthroat grass seep areas used for mitigation purposes. State and Federal Protections State and federal permitting processes protect threatened and endangered species and species of special concern found in Highlands County. See Conclusions 125-130 and 140-147, infra. The review processes required to obtain the state and federal permits pertaining to threatened and endangered species require site-specific review, comparable to obtaining environmental clearance from the County under Policy 3.3 of the Natural Resources Element. In view of the diversity of threatened and endangered species and species of special concern and their habitat needs, variations in quantity and quality of resources existing on site, and statutory and constitutional property rights protection, the County has chosen not to establish fixed set asides for every resource under every circumstance on a County-wide basis. By including in its permitting process notification to federal and state agencies having permitting responsibilities, Highlands County will be providing valuable assistance to state and federal environmental protection by bringing those agencies in at an early stage of the review process. Moreover, the County's requirements that the necessary federal, state, and local permits be obtained as a condition of approval for a project's final development order will assist those federal and state agencies in enforcing environmental permits in Highlands County. Measuring Success of Protection Measures Extensive work by federal and state agencies has been devoted to identifying and studying threatened and endangered species, both plant and animal. Threatened and endangered species and the habitats necessary for their survival exist throughout the State of Florida. Listed species found in Highlands County are also found in other areas of the State of Florida. The amount and land-cover types of conservation areas have been extensively studied for the entire State of Florida. The percentage of conservation lands in Highlands County (9.4 percent) exceeds the statewide median for the portion of conservation lands within individual counties (8.6 percent). The land cover types for the entire State of Florida have been identified and quantified by location and number of acres and the amounts of those habitats in conservation lands have also been determined. Likewise, for every county, the land cover types have been located, identified, mapped, and acreage determined for "natural" upland cover types, "natural" wetland cover types, and "disturbed" cover types. The "natural" upland cover type category includes coastal strand, dry prairie, pine lands, sand pine scrub, sand hill, xeric oak scrub, mixed hardwood-pine forest, hardwood hammocks and forest, and tropical hard wood hammocks. "Natural" wetland cover types include coastal salt marshes, fresh water marsh and wet prairie, cypress swamp, mixed hardwood swamp, bay swamp, shrub swamp, mangrove swamp, and bottomland hardwood forest. "Disturbed" cover types include grass land and agriculture, shrub and bush land, exotic plant communities and barren and urban land. Open water areas were also identified, located, mapped, and the acreage areas determined. The amounts of land in each of those land cover categories has been tabulated by county and for the State as a whole. The amount of land in each of those categories located in conservation lands has also been tabulated for each county and for the State as a whole. The tabulation for land cover types for Highlands County and the amount of conservation lands for each cover type are as follows: "Natural" upland cover types - coastal strand (0/0), dry prairie (427/112), pine lands (167/41), sand pine scrub (14/3), sand hill (0/0), xeric scrub oak (112/12), mixed hardwood-pine forest (4/0), hardwood hammocks and forests (46/5), tropical hardwood hammocks (0/0); "Natural" wetland cover types - coastal salt marshes (0/0), freshwater marsh and wet prairie (129/34), cypress swamp (21/8), mixed hardwood swamp (41/5), bay swamp (17/0), shrub swamp (21/5), mangrove swamp (0/0), bottomland hardwood forest (0/0); Open water (202/1); and "Disturbed" cover types - grass land and agriculture (1086/15), shrub and brush land (271/18), exotic plant communities (0/0), barren and urban land (307/11) Within the parenthesis above, the first number represents the total area in square kilometers and the second number represents the conservation lands in that category, also in square kilometers. There are approximately 247 acres per square kilometer. For Highlands County, these identified land cover types cover 2,866 square kilometers of which, 270.8 square kilometers are conservation lands. In addition to mapping those important habitat areas in each county in the State of Florida, the threatened and endangered species and species of special concern found in those habitat areas have also been identified. Those habitat areas and the threatened and endangered species and species of special concern which they support have been specifically identified and mapped for Highlands County. Since the land cover types in Highlands County have been identified, located, mapped, and quantified and the threatened and endangered species and species of special concern, both plant and animal, supported by those land cover types have been identified, Highlands County has the ability to objectively measure the success of its adopted Goals, Policies, and Objectives in protecting natural resources. Data and Analysis and Maps Eugene Engman, AICP, a planner/economist, was the principal author of the conservation element and Base Documents of supporting data and analysis for the County's 1991 Plan. The Base Documents indicate extensive analysis of the County's natural resources, including: surface waters; floodplains; mineral deposits; areas with erosion problems; and fisheries, wildlife habitat and vegetative communities. The Conservation Overlay Maps The Base Documents also contain a "methodology for conservation designation," that applies to areas identified as areas of outstanding natural resources and to areas containing special habitat (high quality scrub habitat, cutthroat grass seeps with predominantly native vegetation, and forested wetlands on and near the Ridge). With respect to the latter, it was not Engman's intention to map all vegetative communities on and near the Ridge; oak hammock and palm hammock, for example, was not mapped. It also was not Engman's intention to map the entire County. Engman did not believe that mapping of high quality scrub habitats, seeps and wetland forest was required, but he mapped them at no charge to the County to enable the County to better protect endangered species and other resources on and near the Ridge where most the special habitat and most development coincided. Following the methodology, Engman and his colleagues prepared the Resource Base Maps--County Exhibit 40. They consisted of 27 USDA Soil Conservation Service (SCS) quadrangle maps, two with acetate overlays. The quad maps themselves show some resources indicated by a separate legend available from the SCS. In addition, Engman and his colleagues indicated the location of scrub habitats, seeps and wetland forest through use of an additional legend they wrote on the quad maps. Some legends applied to more than one quad map. In addition to the SCS quad maps themselves, Engman and his colleagues used the Soil Survey field notes of Lew Carter of the SCS, 1985 infrared aerial photographs, and local knowledge of the Dr. James Layne of the Archbold Research Station, Lew Carter of the USDA Soil Conservation Service, Mike Sawyer of the Florida Division of Forestry, and County sources. The Base Documents also contains a Generalized Soils Map which references as its source "USDA/SCS, Soil Survey of Highlands County, Florida, July, 1989." The Base Documents also contained two maps at the scale of one inch equals three miles--one mapping outstanding natural resources, and the other mapping special habitat. These two maps were then combined into a third map at the scale of one inch equals five miles. This third map was designated the Conservation Overlay Map in the Base Documents. Each quarter section (160 acres) of the County that contained any of the identified resources depicted on the Resource Base Maps was depicted as "Conservation" on the Conservation Overlay Map. The Conservation Overlay Map advised that: "This map is for comprehensive planning purposes only. Specific locations are identifiable on the Resource Base Maps located in the Office of the County Planning Director." No duplicates or copies of the Resource Base Maps--County Exhibit 40-- were made before the final hearing in this case. They were available to the public during the development of the 1991 Plan, and they were forwarded to the County Planning Department when Engman's work was finished. There, they remained available for use by the County Planning Department in implementing the Plan, and remained available for public inspection, except for a period of approximately one year when they were misplaced and could not be located. FLU-54, the Conservation Overlay Map in the Future Land Use Map series, is the same map that is contained in the Base Documents as the Conservation Overlay Map. The Future Land Use Map Series In addition to FLU-54, the Future Land Use Map Series in the adopted plan, as amended through 1993, contained a Future Land Use Map Set of three large maps--a one inch equals two miles base map, and two one inch equals one/half mile maps--together with several letter-size maps at one inch equals five miles (one is at one inch equals four miles), which are FLU-55 through FLU- 62. The adopted plan, as amended through 1994, contained the same text as the plan as amended through 1993, along with an updated Future Land Use Map Set of six large color sheets. The base map is at a scale of one inch equals two miles and is a colorized version of the base map contained in the 1993 version of the plan; the other five maps are color insets from the base map at a scale of one inch equals one quarter mile. The rest of the Future Land Use Map Series is the same as in the Plan as amended through 1993. In addition to the FLU-54 Conservation Overlay Map, the future land use map series included: a Generalized Soils Map which identifies its source as "USDA/SCS, Soil Survey of Highlands County, Florida, July, 1989"; Highland's County Peat Deposits, whose source is "Adley Associates, Inc. September, 1988"; Wetlands 600, whose legend identifies "wetlands" and "ridge," and whose source is "Adley Associates, Inc. September, 1988"; Floodplains, whose legend identifies "floodplains" and "ridge," and whose source is "Adley Associates, Inc. September, 1988"; Water and Canal Map 500, whose legend identifies "generalized interim well protection zones (cones of influence) for potable water supply wells" and whose source is "Adley Associates, Inc., Highlands County Building and Zoning Department and DER," and which is dated December, 1990; Future Traffic Circulation Map State Roads, which depicts various types of roads and whose source is "Highlands County Engineering Department and FDOT"; Future Traffic Circulation Map County Roads, which depicts various types of roads and whose source is "Highlands Co. Engineering Department and FDOT"; Future Traffic Circulation Map County Roads, which depicts various types of roads and whose source is "Highlands Co. Engineering Dept. (9/88) and FDOT (11/90)"; and Modified Community Parks which depicts existing and proposed parks and "existing urban land use" and whose source is "Adley Associates, Inc. April, 1990". FLU-55, the Generalized Soils Map, was prepared using the 1989 USDA SCS Soil Survey. Major field work for the USDA/SCS Soil Survey was completed in 1986. It is the same map as the Generalized Soils Map contained in the Base Documents. FLU-57 maps wetland features which are not depicted on either the Resource Base Maps (County Exhibit 40) or the Conservation Overlay Map. The 1989 USDA SCS Soil Survey was used to identify wetlands on FLU-57. HEC's Contentions HEC contended that the maps in the Plan, as amended, were deficient. It became apparent during the course of the final hearing that HEC considered the FLU-54 Conservation Overlay Map in the Plan, as amended, to be the only map pertinent to the designation of conservation lands. HEC contended that FLU-54 is too small, not clear and legible enough, and inadequate for its purposes. It appeared that HEC learned of the existence of the Resource Base Maps (County Exhibit 40) during the final hearing. HEC contended that the Resource Base Maps were deficient because they were not based on the appropriate and best available data. As a result, HEC contended, the Base Resource Maps and FLU-54 Conservation Overlay Map "missed" some significant resources. Kris Delaney quickly reviewed the Resource Base Maps during the course of the final hearing and testified that on the Frostproof, Lake Arbuckle, Sebring, and Fort Kissimmee quad sheets some "significant areas of native vegetation were not shown on the mylar overlays." Delaney's observations regarding the five allegedly-inaccurate mylar quad map overlays were made with reference to the USDA Soil Conservation Service Soil Survey and what he believed was a wetland symbol on the underlying quad map. But it is not clear that Delaney understood the legend to the Resource Base Maps. Furthermore, he was not offered as an expert in photogrammetry, geography, or surveying, and the specifics of his personal knowledge of the areas in dispute were not made clear. Another HEC witness, Dr. Menges, testified to his opinion that the Base Resource Maps and FLU-54 Conservation Overlay Map did not map all native vegetative communities throughout the County. He testified that, to map native vegetative communities on a species-specific basis, Steve Christman's 1988 report for the Florida Game and Fresh Water Fish Commission would provide the best available data. (He also mentioned data from the Florida Natural Areas Inventory, but it was not clear that those data were not used or how available those data were.) However, it was not clear from the evidence that the Christman report was not used as a data source. In addition, Menges conceded that "the primary source for the distribution of (native vegetative) communities" (in Highlands County) would be the "Soil Conservation Service Survey map," and it is clear that the County's consultants used this data source, together with other soil survey information and aerial photography, as was appropriate. It should not be surprising that the Base Resource Maps and FLU-54 Conservation Overlay Map did not map all native vegetative communities throughout the County. As previously, stated, the effort was limited to high quality scrub habitat, cutthroat grass seeps with predominantly native vegetation, and forested wetlands on and near the Ridge. There was no intention to map all native vegetative communities throughout the County. Regardless of the alleged deficiencies with the Resource Base Maps and the FLU-54 Conservation Overlay Map, HEC did not take into account all of the maps in the Future Land Use Map series in contending that the mapping was deficient. HEC did not recognize that Policy 3.2 provides for the use of the "adopted Conservation Overlap Map series contained in the Future Land Use Element" as the "general indicator" for the resources described in the policy. The Future Land Use Map series includes not only FLU-54 and the Resource Base Maps (County Exhibit 40) but also: FLU-55 (the Generalized Soils Map), FLU-57 (the Wetlands 600 map), FLU-58 (the Floodplains map), and FLU-59 (the Water and Canals Map 500). HEC also did not recognize that the environmental clearance procedures under Policies 3.3 and 3.13 are triggered not only if the presence of the resources described in Policy 3.2 is mapped on the Conservation Overlay Map (which includes not only FLU-54, but also the Resource Base Maps), but also if they are known to occur by reference to any of the maps in the Future Land Use Map series, or are otherwise known to occur. The references acknowledged by the County in Policy 3.1 can serve as the source of knowledge of where the resources described in Policy 3.2 occur. It is not beyond debate that these sources of information, taken together, are adequate for purposes of indicating the existence of the resources described in Policy 3.2 and triggering environmental clearance review under Policy 3.3. HEC did not establish beyond debate that the County did not use appropriate or the best available data, that the County did not apply the data in a professional manner, or that the Plan, as amended, did not react to the data in an appropriate way. Future Land Use Element Residential Land Use Density In Agricultural Land Use Categories HEC presented no credible testimony or evidence to substantiate its allegation that the land use densities for agriculture and urban agriculture encourage "urban sprawl" or are not supported by adequate data. No expert testimony in land use planning was offered, although HEC had identified such potential experts on its witness list. The Base Documents stated that agricultural density was at 1 unit/acre prior to the adoption of the Plan and recommended that the density be decreased to 1 unit/10 acres. The draft of the Base Documents recommended a density of 1 unit/ 5 acres. The Plan established the General Agriculture land use category as the predominant land use for rural areas. It has the lowest development potential of all adopted land use categories. The General Agriculture land use category has a density range of one unit per ten acres. The Urban Agriculture land use category was established as a transitional zone between urbanized and rural lands. The Urban Agriculture land use category has a density range of one unit per five acres. (County Exhibit 6, Pages FLU-6 and FLU-7 There was no evidence to prove that lesser densities are required to discourage urban sprawl, to protect natural resources, to protect agricultural lands, or for any other reason. Population Accommodation Data and Analysis HEC did not present any population accommodation analysis. There was no competent evidence presented in this case as to the population accommodated in the year 2000 under either the Plan as amended and adopted on March 2, 1994, or the Plan as amended and adopted on September 15, 1993. HEC pointed to a projection in the Housing Element in the County's Plan indicating a need for 10,075 new housing units to accommodate 16,977 new residents by the year 2000. HEC also pointed to data and analysis indicating that there are approximately 108,000 residential lots in existing subdivisions of 100 lots or more in the County that potentially could be developed to accommodate new housing units. But HEC did not establish that it is realistic to project maximum development in those subdivisions at one unit per lot; nor did HEC establish the extent of vested rights to development in those subdivisions. Protection of Water Quality and Quantity The Base Documents contain extensive data and analysis of County geology and soils, including water supply considerations, and recharge. Aquifer recharge in Highlands County occurs primarily on the Lake Wales Ridge. Contamination of groundwater has been documented from hazardous waste associated with landfills, agricultural use of the pesticides EDB (ethylene dibromide) and Bromicil, and leaking underground storage tanks. Of these, only the agricultural pesticide use is documented to have impacted potable water supplies. EDB, the primary source of contamination noted, has not been used since 1983. While the presence of Bromacil is also noted, the number of wells is not mentioned. Moreover, the evidence does not mention a single health- related case. Where EDB contamination has been found, the State of Florida has paid the cost of connecting to public water supplies or installing carbon filters. There is no evidence that stormwater management activities has caused groundwater contamination. Highlands County has adopted a number of objectives and policies in both the Infrastructure Element and the Natural Resources Element of the Plan, as amended, intended to protect potable water wells, conserve potable water resources, and reduce the risk of groundwater contamination. Objective 6 under the Potable Water Subelement [sic] of the Infrastructure Element is to ensure public health by protecting the water quality of potable wells. Among the policies adopted to implement that objective is Policy 6.4, adopting stringent restrictions on activities within a 600 feet radius around public potable water wells. Highlands County also adopted Objective 7 and Policies 7.1 through 7.3 under the Potable Water Subelement [sic] to establish minimum design and construction requirements for all potable water wells to protect and assure delivery of potable water. Highlands County has also adopted a number of other objectives and policies under the Natural Resources Element intended to protect groundwater quality, including: prohibiting the location of hazardous waste treatment facilities in the County; requiring cooperation with the DEP "DRASTIC" program; prohibiting discharges of untreated stormwater and waste material into underground formations; adopting stormwater quality and quantity standards; mapping wellhead protection zones; and encouraging implementation of best management practices for agricultural operations in the County. HEC did not prove beyond fair debate that, taken together, the Goals, Objectives, and Policies of the Plan, as amended, do not ensure the protection and conservation of potable water supplies.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Community Affairs enter a final order determining that the Highlands County Plan adopted through County Ordinance 91- 1, as amended by County Ordinances 93-16 and 94-1, is "in compliance." DONE and ENTERED this 15th day of October, 1996, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 15th day of October, 1996.
The Issue The issue in this case is whether comprehensive plan future land use map amendment (FLUMA) 07-L25, adopted by Marion County Ordinance 07-31 on November 20, 2007, which changed the FLUM designation on 378 acres of Urban Reserve and on 17.83 acres of Rural Land to Medium Density Residential, is "in compliance," as defined in Section 163.3184(1)(b), Florida Statutes.1
Findings Of Fact The parcel that is the subject of the FLUMA at issue (the Property) is approximately 395.83 acres in size. The existing FLUM designation for 378 acres of the Property is Urban Reserve, and the remaining 17.3 acres are designated as Rural Land. Both designations allow a maximum of 1 dwelling unit per 10 acres. The FLUMA would change the designation of the entire parcel to Medium Density Residential (MDR). MDR generally allows up to four dwelling units per acre. However, Future Land Use Element (FLUE) Policy 12.5.k, which also was adopted as part of County Ordinance 07-31, limits the maximum density on the Property to two dwelling units per acre. FLUE Policy 12.5.k also requires: that development on the Property "be served by central potable water and central sanitary sewer services available concurrent with development" and be a Planned Unit Development "to address site design, buffering, and access issues"; and that NW 90th Avenue be reconstructed from U.S. Highway 27 north to the north-eastern corner of the Property and that all traffic facility improvements needed at the NW 90th Avenue/U.S. 27 intersection, including signalization if approved by the Florida Department of Transportation, be constructed prior to the issuance of any certificates of occupancy for the Property. Finally, with respect to the 17.3 acres formerly designated as Rural Land, FLUE Policy 12.5.k defers compliance with the County's Transfer of Development Rights (TDR) Program until application for assignment of a zoning classification for the land. Petitioners' Challenge Intervenors own the Property. Petitioners own property nearby in Marion County. Intervenors and Petitioners commented on the proposed FLUMA between transmittal to DCA and adoption by the County. Petitioners contend: The FLUMA is not consistent with the stormwater drainage, retention, and management policies contained in Policies 1.1.a. and 1.1.d. of the Natural Groundwater Aquifer Recharge Sub-Element of the Infrastructure Element of the Comprehensive Plan. MDR is not suitable or compatible with existing and planned development in the immediate vicinity, as required by FLUE Policy 12.3 of the Comprehensive Plan. The Board of County Commissioners failed to evaluate the FLUMA's impact on “the need for the change” as provided in FLUE Policy 12.3 of the Comprehensive Plan. The FLUMA fails to take into account its impact on “water quality and quantity, the availability of land, water and other natural resources to meet demands, and the potential for flooding,” as required by Section 187.201(15)(b)6., Florida Statutes. The FLUMA is not consistent with Transportation Policy 1.0 of the Comprehensive Plan, which states: "Marion County shall create and maintain transportation facilities that operate in a safe and efficient manner within an established level of service." The FLUMA is not consistent with the State's Comprehensive Plan in that it does not "ensure that new development is compatible with existing local and regional water supplies," as required by Section 187.201(7)(b)5., Florida Statutes. The FLUMA does not direct development away from areas without sediment cover that is adequate to protect the Floridan Aquifer and does not prohibit non-residential uses within 200 feet of a sinkhole, solution channel, or other karst feature, in violation of FLUE Policy 4.2 of the Comprehensive Plan. The FLUMA does not comply with Section 187.201(7), Florida Statutes, concerning the protection of surface and ground water quality in the State. Recharge Sub-Element Policy 1.1.a. and d. Policy 1.1 of the Natural Groundwater Aquifer Recharge Sub-Element of the Infrastructure Element of the Marion County Comprehensive Plan provides in part: The County’s land development regulations shall implement the following guidelines for stormwater management consistent with accepted engineering practices by October 1, 2007: Stormwater retention/detention basin depth will be consistent with the water management district's storm water requirements for Karst Sensitive Areas so that sufficient filtration of bacteria and other pollutants will occur. Avoidance of basin collapse due to excessive hydrostatic pressure in Karst Sensitive Areas shall be given special consideration. * * * d. Require the use of swales and drainage easements, particularly for single family residential development in Karst Sensitive Areas. These are requirements for land development regulations (LDRs); they do not apply to comprehensive plan amendments. In any event, the evidence did not prove that the site is unsuitable for the density allowed under the adopted FLUMA due to karst features. The admissible evidence presented by Petitioners regarding stormwater management in karst topography generally related to flooding problems on the property contiguous to the Property, and to a karst feature referred to as the “63rd Street Sinkhole,” which is located in the general vicinity of the Property. Fay Baird, an expert hydrologist called by Petitioners, testified that the 63rd Street Sinkhole allows stormwater run- off to enter the upper aquifer. Ms. Baird testified generally of the problems and concerns regarding development and stormwater management systems in karst topography. She testified that the Property should be properly inventoried, that specific karst features should be identified, and that any stormwater system designed or developed should take into account karst features to protect against groundwater contamination and flooding. She testified that she had not been on the Property, had not seen or reviewed core borings or other data to determine the depth and nature of the sub-surface, and was not in a position to provide opinions as to whether or not a particular stormwater management system would or could adequately protect against her concerns. Intervenors’ expert, Richard Busche, testified that a stormwater management plan like the one recommended by Ms. Baird was being developed. Compatibility under FLUE Policy 12.3 FLUE Policy 12.3 provides in pertinent part: Before approval of a future land use amendment, the applicant shall demonstrate that the proposed future land use is suitable, and the County will review, and make a determination that the proposed land use is compatible with existing and planned development in the immediate vicinity . . . . Petitioners argued that the proposed MDR development of the Property is incompatible with surrounding agricultural uses. Actually, the Property is surrounded by a mixture of agricultural and residential uses, including residential subdivisions, a golf course, and scattered large-lot residential and equestrian uses. The properties immediately to the south and east of the Property are developed residential properties and are designated MDR. Before the FLUMA, most of the Property was designated Urban Reserve under the County's Comprehensive Plan. Such land "provides for expansion of an Urban Area in a timely manner." FLUE Policies 1.24.B and 2.18. "For an Urban Reserve Area to be designated an Urban Area, it must be compact and contiguous to an existing Urban Area, and central water and sewer must be provided concurrent with development within the expanded area." FLUE Policy 2.18. The Property is compact and is contiguous to existing Urban Area designated MDR. This indicates that the County already has planned for timely conversion of the Urban Reserve land on the Property to urban uses, including MDR. It also means that the County already has determined that at least certain urban uses, including MDR, are compatible with adjacent agricultural uses. The Property is in the receiving area under the County's Farmland Preservation Policy and TDR Program in FLUE Objectives 13.0 and 13.01 and the policies under those objectives. This means that the County already has determined that residential density can be transferred to the Property from the Farmland Preservation sending areas to increase residential density up to one dwelling unit per acre. See FLUE Policy 13.6. This would constitute Low Density Residential, which is an urban use under the County's Comprehensive Plan. See FLUE Policy 1.24.A. By establishing the Farmland Preservation Policy and TDR Programs, the County already has determined that Low Density Residential is compatible with adjacent Rural Land. In addition, Low Density Residential clearly is compatible with MDR. Although not raised in the Petition, Petitioners argued that the Urban Reserve and Farmland Preservation eastern boundary was improperly moved west to NW 90th Avenue. However, that change was made prior to the adoption of Ordinance 07-31 and the FLUMA at issue in this case and is not a proper subject of this proceeding. Demonstration of Need under FLUE Policies 13.2 and 12.3 FLUE Policy 13.2 provides: The Transfer of Development Rights program shall be the required method for increasing density within receiving areas, unless, through the normal Comprehensive Plan Amendment cycle, an applicant can both justify and demonstrate a need for a Future Land Use Map (FLUM) amendment. FLUE Policy 12.3 provides: Before approval of a future land use amendment, . . . the County . . . shall evaluate its impact on: The need for the change; The availability of facilities and services; The future land use balance; and The prevention of urban sprawl as defined by Rule 9J-5.006(5)(g), Florida Administrative Code. The evidence proved that the County interprets FLUE Policy 12.3 to require need and future land use balance to be assessed within the planning districts it has established. There is no need for additional MDR in the County's Planning District 5, where the Property is located. To accommodate the projected population increase in Planning District 5 by 2010, which is the planning horizon for the County’s Comprehensive Plan, an additional 644 dwelling units are needed. There are 1,893 vacant acres of MDR available in Planning District 5. At four units per acre allowed in MDR, the County has an available supply of 7,572 MDR dwelling units in Planning District 5. In the absence of a need in Planning District 5, the County relied on a need demonstration prepared for the Intervenors by Fishkind and Associates.6 Besides being a County-wide analysis instead of a planning district analysis, the Fishkind analysis assumed a planning horizon of 2015, rather than the 2010 horizon established in the Comprehensive Plan. Finally, the Fishkind analysis applied an allocation factor to the total projected need for residential use, most of which already is supplied, resulting in a projection of residential far in excess of the incremental need for additional residential land by 2015, much less by 2010. The result of the Fishkind approach was to allocate enough land for residential use to meet the County-wide projected incremental need for additional residential land use for approximately 45 years, which is five times the calculated incremental need for 2015. Even assuming that a County-wide demonstration of need complied with Marion County's Comprehensive Plan, this is much too high an allocation ratio to use to meet the incremental need projected for a 2015 plan, much less for a 2010 plan. The expert for Intervenors, Stanley Geberer, defended the Fishkind analysis in part by stating that it was comparable to demonstrations of need accepted by DCA in other cases. However, there was no evidence that the facts of those other cases were comparable to the facts of this case. Mr. Geberer also asserted that holding the County to its 2010 planning horizon would make it impossible for the County to plan for the future. However, nothing prevents the County from revising its Comprehensive Plan to plan comprehensively for a longer timeframe. There was no evidence of any other circumstances that would demonstrate a need for the FLUMA at issue in this case. State Comprehensive Plan Policy 187.201(15)(b)6. Petitioners did not prove that the FLUMA fails to take into account its impact on "water quality and quantity, the availability of land, water and other natural resources to meet demands, and the potential for flooding." To the contrary, the evidence was that those items were taken into account as part of the FLUMA. (However, as to the FLUMA's impact on the availability of land to meet demands, see "Demonstration of Need under FLUE Policies 13.2 and 12.3," supra.) Transportation Element Objective 1.0 Transportation Element Objective 1.0 provides: Marion County shall create and maintain transportation facilities that operate in an efficient and safe manner within established levels of service. Petitioners presented no expert testimony or admissible evidence that the FLUMA will change established levels of service or result in transportation facilities operating in an unsafe or inefficient manner. Intervenors presented the testimony of Jonathan Thigpen, an expert traffic engineer, who prepared and submitted to the County a Traffic Impact Study and testified that the FLUMA would not change established levels of service or result in transportation facilities operating in an unsafe or inefficient manner. The ultimate need for transportation improvement, such as turn lanes and traffic lights to mitigate the impacts of development under the FLUMA, will be determined at later stages of development. Petitioners suggested that the FLUMA will result in delays caused by additional traffic, frustrate drivers waiting to turn east on U.S. 27, and induce large numbers of them to seek an alternative route to the north through agricultural areas, some of which have inadequate slag roads. However, Petitioners failed to prove that this result is likely. State Comprehensive Plan Policy 187.201(7)(b)5 Petitioners presented no evidence that the designation of MDR on the Property is incompatible with existing local and regional water supplies. The evidence was that adequate local and regional water supplies exist. Even if they did not exist, the consequence would be less development than the maximum allowed by the FLUMA. FLUE Policy 4.2 FLUE Policy 4.2 provides in pertinent part: In order to minimize the adverse impacts of development on recharge quality and quantity in high recharge Karst sensitive and springs protection areas, design standards for all development shall be required and defined in the LDRs to address, at a minimum, the following: * * * f. Directing development away from areas with sediment cover that is inadequate to protect the Floridian [sic] Aquifer. * * * h. Prohibiting nonresidential uses within 200 feet of a sinkhole, solution channel, or other Karst feature. This policy sets forth requirements for the content of LDRs, not FLUMAs. Petitioners presented no evidence that sediment cover on the Property is inadequate to protect the Floridan Aquifer or that any non-residential uses would be constructed within 200 feet of a sinkhole, solution channel, or other karst feature under the FLUMA. Marion County has adopted amendments to its Comprehensive Plan to protect springs and karst features.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department determine the FLUMA at issue in this case to be not "in compliance" and take further action as required by Section 163.3184(9)(b), Florida Statutes. DONE AND ENTERED this 4th day of February, 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 4th day of February, 2009.
