Findings Of Fact Parties The Department is the state land planning agency charged with the responsibility of reviewing plans and plan amendments pursuant to Chapter 163, Part II, Florida Statutes, also known as The Local Government Comprehensive Planning and Land Development Regulation Act (Act). The Association is a non-profit Florida Corporation, whose members reside, own property, or conduct business generally within the boundaries of the City of Gainesville and specifically the College Park Neighborhood (College Park). The purpose of the Association is to maintain and improve the quality of life for the residents of College Park. The Association submitted written objections concerning the plan during the review and adoption proceedings. Further, the Association participated more in the comprehensive plan development process than any other part of the City. The City is a local government required to adopt a revised comprehensive plan pursuant to Sections 163.3164(12) and 163.3167, Florida Statutes. City Background The City is located in north central Florida and is the county seat for Alachua County. The City encompasses approximately 20,000 acres, of which approximately 3,600 acres remains vacant. The City is approximately 83%-85% "built out". The development of the remaining 15%-17% vacant and undeveloped land will be limited by constraints of soil types, floodplains and wetlands. There is an acute lack of unimproved land suitable for higher density development, necessitating the major focus of the comprehensive plan's Future Land Use Element (FLUE) upon redevelopment of underdeveloped areas of the City. As of 1991, the City had an estimated population of 92,723, with a projected population in the year 2001 of approximately 97,116. The population is more densely concentrated around the major activity centers which include the Oaks Mall area, the University of Florida (University) campus and the older central part of the City. UNIVERSITY OF FLORIDA The University and the surrounding areas, make up an area described by the plan as the University Oriented Area. The area includes the College Park neighborhood and is one of the biggest activity centers in North Central Florida. The University is the major activity generator within the City limits. The University itself occupies approximately 1,100 acres within the City limits and has an enrollment of approximately 36,000 students. The data and analysis indicates that the students and faculty of the University will play a major role in the future development of the City. The University provides on campus housing for approximately 6,800 single students in dormitories located throughout the campus. The University also provides approximately 987 units for single parent and married students. Total housing provided by the University accounts for only 18-20% of the total student population and future development of on-campus housing will be limited due to the lack of room to build future dormitory facilities. The University is heavily dependent upon "off campus" housing offered by the areas surrounding the campus to meet student housing needs. SPECIAL TRANSPORTATION AREA In order to permit further redevelopment in the University Oriented Area, the City needed a mechanism to permit that further development in view of the potential degrading of level of service standards for traffic circulation. This was particularly so since the City had experienced traffic circulation deficiencies in the University Oriented Area, including College Park. To mitigate the traffic congestion in the vicinity of the University, the City proposed to make these areas a Special Transportation Area (STA). As defined by data and analysis, an STA is a compact geographic area for which the Florida Department of Transportation (FDOT), the Florida Department of Community Affairs and the local government, in consultation with the Regional Planning Council and the Metropolitan Transportation Planning Organization, mutually agree to set specific standards for level of service standards and use and transportation services in order to reach growth management goals. By letter dated August 30, 1991, the FDOT approved an Interim STA for the central city which included the University Oriented Area and College Park. The specific strategies to be developed in the Interim STA are set forth in Traffic Circulation Element (TCE) policy 1.1.7 and read as follows: The following specific strategies and guidelines shall be applied within the Interim STA consistent with the conditions of approval by FDOT: The level of service of all arterial roadways in the Interim STA shall be evaluated using the ART by FDOT, to evaluate such traffic variables as green flow in order to determine the exact condition of each facility. This evaluation shall be done cooperatively with FDOT and the Metropolitan Transportation Planning Organization (MTPO). The City shall coordinate with the MTPO and the FDOT through the Technical Advisory Committee of the MTPO to review strategies for improved level of service such as signalization, adjustments in green dedicated turn lanes, and roundabouts. The City shall limit the development of new drive service or sales to customers while in their automobiles. In the STA, the City shall prohibit additional or expanded drive constrained roadways. Drive facilities on other roads within the STA shall be regulated by special use permit. Criteria shall include minimum separation of 400 feet for such facilities and shall provide minimal interruption of the urban streetscape. COLLEGE PARK NEIGHBORHOOD College Park consists of approximately 145 acres and is located immediately north of the University. College Park is bordered on the south by West University Avenue, on the east by NW 13th Street, on the west by NW 20th Street, and on the north by NW 5th Avenue. College Park also includes a small nine block area immediately northeast of the main boundaries. This additional area is bounded by NW 5th Avenue on the south, NW 15th Street on the west, NW 7th Avenue on the north and NW 13th Street on the east. College Park is one of the oldest residential neighborhoods in the City and has long served as a student residential area offering low to moderate apartment housing and duplex units. The area has a friendly environment for walking and biking. It has a number of crossing points to the campus and close proximity. The width of the street and the amount of on constrain the speed of the traffic to bicycling speed and walking speed so that it is compatible for walking and bicycling. The southern and eastern outermost boundaries of College Park, University Avenue and NW 13th Street respectively, consist of a mixture of commercial and institutional land uses. The western boundary, NW 20th Street, is predominantly fronted by single family residential land uses. The northern border, NW 5th Avenue, consists of single family and duplex dwellings, small apartment buildings and institutional facilities which include several churches and their ancillary buildings. Many of the single family housing units that previously existed in the core of College Park have been converted into multi- unit or garden apartment dwellings to better accommodate demands for student housing. The innermost core of College Park is almost devoid of true single family homes and the single family neighborhood character of the neighborhood has long since evolved into a student community. The large number of streets in College Park are arranged in a traditional grid pattern. Most of the streets in the neighborhood do not have curbs or gutters. COLLEGE PARK DENSITIES In 1970 the City, by ordinance, adopted the Comprehensive Development Plan for the Gainesville Urban Area (1970 Plan). The 1970 Plan had the provision of a framework for logical development decisions, both by the private and public sectors as its primary goal. The 1970 Plan in several provisions addresses the framework for allowable densities in College Park. One of those provisions, Premise C, Principle 7 provides: High density residential development should be encouraged to locate near concentrations of non-residential activities such as the University of Florida and the Central Business District, and adjacent to the major traffic arteries. Another provision, Premise B, Principle 2 provides: mixed dwelling types and housing densities should be permitted in those areas where prior planning will permit such a mixture. Prior to the 1970 Plan, the density in the innermost core of College Park was unlimited. The City Commission, in preparing the 1970 plan, determined that unlimited densities were not appropriate anywhere in the City. The actual numerical densities for College Park were established at that time by zoning regulations with the highest density being 43 units per acre in the innermost core. With the creation of the first Growth Management Act in 1975, local governments were asked to develop comprehensive plans. The City used the opportunity to enhance the existing 1970 plan. The revised plan was entitled "Gainesville Comprehensive Plan 1980 to 2000" (1980 Plan). The 1980 Plan continued to promote higher densities around the University of Florida, including College Park. The 1980 Plan also contained guiding principles which directly assisted the improvement of public facilities in College Park and incorporated recommendations made in a special neighborhood study of College Park conducted in 1975. The recommendations supported a number of zoning categories in a transitional approach, with higher densities near NW 13th Street and West University Avenue and decreasing densities moving into the core of the neighborhood. The actual densities in College Park through the zoning code followed the density transition approach with the core of the neighborhood remaining a maximum of 43 units per acre. The City also, through the revised zoning ordinance, incorporated urban design standards which contained development within the neighborhood. With the 1985 amendment of the Growth Management Act, the creation and adoption of a comprehensive plan by the City became mandatory. The City used this opportunity to improve upon the already existing 1980 Plan. In a further effort to better plan for development in College Park, the City hired renowned urban planner Andres Duany. After surveying the College Park neighborhood and interacting with the residents of the neighborhood, Duany developed the Master Plan for College Park. The Master Plan made many recommendations as to how growth should proceed within College Park. Based on the recommendations of the Master Plan, the City's 1990 comprehensive plan created a land use category for College Park which allowed up to 75 units per acre in the neighborhood core. 1990 PLAN College Park is referenced in several provisions of the 1990 plan and supporting data and analysis. In the second paragraph of the section entitled "Redevelopment" on page 38 of the Future Land Use Data And Analysis Report (accepted in evidence as Petitioner's Exhibit 1.), the following information is provided: Neighborhoods north, east, and south of the University have a large percentage of student residents, but do not accommodate a large enough share of student housing. It is especially desirable to accommodate student housing close to the University to reduce the transportation demand that student housing in outlying areas places on the City and the University. As stated earlier, students at the University of Florida are currently included in the City's population figures. As new students enroll in the University dormitories, existing students move out. These are the students that should continue to be housed near the University. Over time, this will have the effect of reducing peak hour traffic problems and help to revitalize downtown. This would also provide the density that is needed to support the mass transit system. Future Land Use Element Policy 2.4.1 of the 1990 comprehensive plan provides that the City shall prepare special area plans for certain areas of the City. Specifically, the plan in Policy 2.4.2 provides: Special Area plans for the College Park Neighborhood, . . . shall be the first priority. The Future Land Use Element goes on to specifically address development in College Park in Policies 2.4.7, 2.4.8, and 2.4.9., respectively, as follows: The City shall only allow development and redevelopment within the College Park Neighborhood that is consistent with the scale and character of the neighborhood. Residential development in the neighborhood shall be allowed in Type II buildings with 3.5 stories and Type III buildings with 2.5 stories (measured in the number of floors, each not to exceed 13 feet, floor to ceiling). * * * The following criteria shall be used to guide development in the College Park Neighborhood south of N.W. 5th Avenue: Type I buildings which allow retail, office and residential uses within four story buildings shall be allowed in areas designated Mixed Use-Low, Retail uses shall be restricted to the first 2 floors, office uses shall be allowed on all fourth floors and residential shall be allowed on the second through the fourth floor. The Type II buildings which allow office and residential uses within a 3.5 story building shall be allowed in areas designated Mixed Use-Residential, Office uses accessory to the residential use shall be restricted to the first floor. The Type III buildings which allow residential uses within a 2.5 story building shall be allowed in areas designated Residential Medium Density, Residential uses along with home occupations shall be the only uses allowed. * * * By June 1992, The City shall adopt Land Development Regulations and a Special Area Plan for the College Park Neighborhood based on a Master Plan being prepared for the neighborhood. The Special Area Plan shall be adopted by amending the Comprehensive Plan, Land Development Regulations shall establish the overall density and intensity of uses. A review of the Future Land Use Map (FLUM) indicates that the following densities and corresponding intensities are allowed in College Park: Residential Medium development is designated for land located in northern portions bordering 5th avenue at densities ranging from 8-30 units per acre. This designation also applies to predominantly all the areas in the 9 block extension of the northeast corner of College Park. Mixed Use Low Intensity development is designated along the borders of West University Avenue and NW 13th Street at a density of 8- 30 units per acre and a floor area ratio intensity of 1.00-2.00. In most areas this land use category extends into the neighborhood approximately one block. Public facilities development is designated for the one area in College Park located on NW 2nd Avenue between NW 16th Street and NW 17th Street. The maximum lot coverage in this category is 80%. Mixed use residential development is designated for the entire core area of College Park at a density of 75 units per acre with the intensity of office use not to exceed more than 10% of the total residential floor area per development. Residential low development is designated in the northwest portion of College Park at a density of 5.8 to 12 units per acre. Single family development makes up the remainder of the northwest portion of College Park at a density of 0 to 8 units per acre. The several land use designations found within the neighborhood are arranged so that the most intensive development (75 units per acre) is located in the innermost core of the neighborhood and the lesser intense development on the outermost core (8-30 units per acre). This density arrangement ensures that the adjacent neighborhoods with single family character will be buffered from the more intensive University oriented development of College Park. The major change in land use planning proposed by the 1990 plan which relates specifically to College Park is that within the mixed use residential land use category the maximum allowable densities in certain areas increased from 43 units per acre to 75 units per acre. Additionally, an intensity for commercial use of not more than 10% of the total residential floor area for the development was also added, although there is no allocation of solely commercial use in the interior of College Park. The mixed use residential category applies to approximately 36 acres within College Park. Objection to the increase in density and the addition of commercial intensity in this category forms the foundation of Petitioner's challenge. The mixed use residential category definition in FLUE Policy 2.1.1 of the comprehensive plan reads as follows: This residential district provides for a mixture of residential and office uses. Office uses that are complementary to and secondary to the residential character of the district may be allowed. An essential element of the district is orientation of structures to the street and the pedestrian character of the area. Office use as located within this district shall be scaled to serve the immediate neighborhood and pedestrians from surrounding neighborhoods and institutions. Land Development Regulations shall set the district's size; appropriate densities (up to 75 dwelling units per acre); the distribution of uses; appropriate floor area ratios; design criteria; landscaping, pedestrian, mass transit and bicycle access, and streetlighting. Land Development Regulations shall specify the criteria for the siting of public and private schools, places of religious assembly, and community facilities within this category when designated in a manner compatible with the adoption of a special area plan for that area. The intensity of office use cannot exceed more than 10 percent of the total residential floor area per development. As a review of the FLUE data and analysis reveals, land use analysis have been performed to determine the development and redevelopment possibilities within the City limits. Such analysis adequately supports the land use category designations on the FLUM. Specifically the analysis includes traffic circulation, potable water, natural groundwater aquifer recharge, sanitary sewers, stormwater and solid and hazardous waste. A plan policy is not required to contain actual data and analysis. Rather, the plan's Goals, Objectives, and Policies (GOPs) are required to be based on appropriate data and analysis. The Gainesville Urban Area Land Use Model was used to determine land use requirements. The model focused on market demand and existing and projected relationships between demand and developed space. Future land use and development was allocated by the model to nine market areas. College Park is located in Market Area 3. Data and analysis submitted by the City in support of the plan indicate that the City will require approximately 15 acres of commercial/office acreage through the year 2001. The data further indicates that there are 260 vacant acres which the FLUM designates for commercial/office usage. College Park contains approximately 5 vacant acres of land designated commercial/office land use, but no commercial/office use is required or needed in Market Area 3. The lack of projected need for the 5 acres of designated commercial/office land use in College Market would appear to suggest a conclusion that such additional commercial/office land uses should not be permitted in Area 3 and specifically College Park. However, such a conclusion ignores several other criteria which also must be factored into the analysis of the data. Much of the 260 vacant acres that could accommodate commercial/office land uses appears environmentally constrained. Therefore, in actuality many of the 260 acres will not accommodate future commercial/office development. An example of this can be seen in Market Area 5 which has a surplus of 108 vacant acres. Most of this land, however, is located near a hazardous waste Superfund site or near the airport. These areas clearly would not be appropriate for the provision of commercial/office land uses and justify planning for the accommodation of commercial/office land uses within College Park. The overall planning goals of the City include the redevelopment of urban areas and the promotion of infill and compact development. The City has made a policy decision that in order to further the regional and state planning goal of discouraging urban sprawl, commercial office development will be encouraged in College Park rather than outside of the City's central business core. Even with this new land use category, the actual increase in commercial uses will not be significantly different than what currently exists in College Park. It is not proven beyond fair debate that Policy 2.1.1 of the Comprehensive Plan and specifically the inclusion of such commercial/office land uses within College Park lacks the support of appropriate data and analysis. Traffic impacts in College Park that will be caused by the non residential uses allowed by the mixed use land use category have been analyzed by the City. The data and analysis which accompanies the TCE is replete with data concerning traffic circulation and traffic levels of service for the entire City, including College Park. The City readily acknowledges that certain areas of the City, including the University Oriented Area, have traffic circulation problems. In an effort to correct the traffic circulation deficiencies the City with the approval of FDOT created the Central City STA discussed earlier at paragraph 9. With the creation of the STA, the City analyzed the impacts of future development not only within College Park but within the entire University Oriented Community. This action establishes beyond fair debate that the City has analyzed traffic impacts. In terms of parking impacts, allowing the non-residential mixed uses will not increase the parking demands within College Park. There will be no significant increase of commercial land uses in the College Park Area over the commercial uses that already exist, absent compliance with concurrency management system requirements. If facilities are not in place at the time development of additional non-residential uses is desired, development can not proceed. Further, introduction of non-residential uses into College Park will not de-stabilize the neighborhood. Rule 9J- 5.006(4)(c), Florida Administrative Code, specifically encourages local governments to use mixed use categories, provided policies for implementing the mixed uses are included. The plan provides these in FLUE Policies 2.4.7 and 2.4.8., set forth above. These policies, combined with the requirement that any additional office use allowed in the core area of College Park be allowed only in places where people live, will directly prevent de-stabilization. Accordingly, it has not been shown to the exclusion of fair debate that allowing mixed uses in College Park will de- stabilize the neighborhood. The FLUE is required by Rule 9J-5.006(3)(c)7., Florida Administrative Code, to contain policies which implement standards or intensities of use for each land use category. In reviewing FLUE Policy 2.1.1, specifically the mixed use residential land use category, it is clear that the policy establishes a maximum density (75 units per acre) and an intensity (intensity of office use not to exceed 10% of the total residential floor area). The Mixed Use Residential Land Use category provides that the Land Development Regulations (LDRs) will control the actual implementation of such things as appropriate floor area ratios, design criteria and distribution of uses. Such language does not inappropriately defer implementation of the plan to LDRs. The Act requires that local governments adopt appropriate regulations to implement their plans. As required by Section 163.3202(2), Florida Statutes, such regulations "shall contain specific and detailed" provisions necessary to implement the adopted plan. The Plan should, and does, contain general criteria upon which LDRs will be developed. FLUE Policy 2.1.1, specifically the mixed use residential category, contains many general standards which will guide and narrow the focus of future LDRs. The City has recognized that the mixed use category criteria of FLUE Policy 2.1.1 must be implemented carefully. The plan in FLUE Policy 2.1.3 places a moratorium on zoning changes within the mixed land use categories until new LDRs are developed and the comprehensive plan amended to reflect the new LDRs. In the interim, the plan indicates that Chapter 29, City of Gainesville Code of Ordinances, shall regulate development. It is clear that Policy 2.1.1 in combination with other policies in the FLUE taken as a whole does not inappropriately defer implementation to LDRs. Increasing density from 43 to 75 units per acre in College Park will not necessarily result in overcrowding and undue concentrations of population. While the previous maximum of 43 units per acre permitted intense urban development, the increase to 75 units per acre requires compliance with design standards that were previously absent. FLUE Policy 2.4.8 establishes the design standards for use in conjunction with the 75 units per acre density. Notably, criteria in FLUE Policy 2.4.8 were incorporated into the plan at the request of the Association. Those criteria and other policies in the FLUE indicate that no undue concentration of population will be allowed. For example, as noted in Policy 2.4.7, set forth above, "[t]he City shall only allow development and redevelopment within the College Park Neighborhood that is consistent with the scale and character of the neighborhood." It has not been proven to the exclusion of fair debate that Policy 2.1.1 and the FLUE will result in overcrowding of land and undue concentration of population. Densities greater than the 75 units per acre found objectionable in College Park by Petitioner exist in several locations as illustrated by depictions on the FLUM of other neighborhoods surrounding the University which currently have densities upwards of 100 units per acre. As discussed earlier, the City is 83%-85% buildout and development on much of the remaining undeveloped land will be constrained since the land that can be developed will only accommodate low density development. To accommodate City wide future growth, the data and analysis indicates that redevelopment of already existing underdeveloped areas is necessary. Further, redevelopment and infill of areas is required to discourage urban sprawl. The data and analysis indicates that College Park is one of the few remaining underdeveloped areas where redevelopment can occur. As a result, the higher densities proposed for College Park appear justified. Just as allowing mixed uses in College Park will not result in de- stabilization, the same is true of the proposed higher densities. Although the higher density levels would, if realized, exceed the projected population for College Park, planning for this area of the City must be combined within the overall planning decisions of the City as a whole. The data and analysis clearly provides that the City has limited areas which can accommodate future high density development. The population projections for the City indicate an increase in population of approximately 10,000 people over the next 10 years. This population increase will include University students. Sound planning demands that the City not rely on the County to bear the burden of housing this future population increase and thereby promote even more urban sprawl outside of the City with further traffic problems and demands for additional services such as mass transit, police, and fire protection. Also, the higher densities in College Park are in part an effort to provide developers with an incentive to develop this area rather than the outlying urban areas. This effort is consistent with the conclusions found in the FLUE data and analysis that the FLUE must accommodate high densities close to campus. The overall impact of the increased density will be less urban sprawl, and a more efficient use of existing infrastructure. Such sound planning decisions do not show to the exclusion of fair debate that the FLUE inappropriately overallocated or that the increase in density will de-stabilize College Park. It has been alleged that FLUE Objective 2.4 and Policies 2.4.3 and 2.4.4 are not supported by data and analysis which substantiate the need for redevelopment of College Park. FLUE Objective 2.4 provides: Redevelopment shall be encouraged to promote urban infill, improve the condition of blighted areas, to reduce urban sprawl and foster compact development patterns. Policy 2.4.3 provides: Before June 1992, the City shall adopt a special area plan for the College Park neighborhood to identify the appropriate uses and intensity of uses and to provide urban design guidelines for development in the area. In the preparation of the plan the City shall consider recommendations made by the College Park Neighborhood Plan prepared by Wallace, Todd and Roberts. Policy 2.4.4 provides: The City's Future Land use Plan shall accommodate increases in student enrollment at the University of Florida and the relocation of students from the urban fringe by designating appropriate areas for high density residential development and/or appropriate mixed use development within one and half mile of the University of Florida and J. Hillis Miller Medical Center. As previously noted, the FLUE contains data and analysis which supports the allowance of mixed uses at a density of 75 units per acre within College Park. The FLUE data and analysis also justifies the City's policy decision to increase the potential for redevelopment and infill development within College Park. Housing Element (HE) data and analysis further indicates the amount of dilapidated and substandard housing conditions within College Park. As indicated by HE Map 3, the area which includes College Park contains between 16% and 30% substandard housing units. As HE Appendix C Tables 46 and 47 clearly indicate, College Park contains approximately 1,342 housing units. Of these units 23.10% are substandard or dilapidated. Based on these figures, the FLUE and HE data and analysis indicates that College Park is one of the areas in the City which should be redeveloped. It has not been shown to the exclusion of fair debate that the challenged plan provisions are not supported by data and analysis or that redevelopment is not appropriate for College Park. FLUE Policy 2.1.1 is consistent with Rule 9J- 5.006(3)(c)2., Florida Administrative Code, and provides for compatibility of adjacent land uses. The mixed use residential category and the potential densities of 75 units per acre established by the policy does not appear incompatible with the adjacent single family neighborhoods when the existing land development patterns in the area are considered. Currently, College Park is buffered from the adjacent single family neighborhoods by several churches along 5th Avenue, and J.J. Finley Elementary School. The churches make up much of the northern border of College Park. 5th Avenue itself also works as a separator between College Park and the adjacent neighborhoods. Further, although there has been no showing that the previous 43 unit per acre density caused incompatibility problems, potential compatibility issues are addressed in FLUE Policies 2.4.1, 2.4.2, 2.4.3, 2.4.7, 2.4.8, and 2.4.9. These policies interact with each other and the FLUM to form a step down in densities. This step down approach means that the lowest allowable densities in College Park will be next to the adjacent neighborhoods. The step down approach of the FLUE policies also ensures that land uses within College Park are compatible. It has not been proven to the exclusion of fair debate that FLUE Policy 2.1.1 fails to provide measures which ensure compatibility with adjacent land uses. It is alleged that Traffic Circulation Element (TCE) Policies 1.1.8 and 1.1.9 are not in compliance with Section 163.3177(3)(a), F.S., and Rules 9J- 5.007(2)(a) and (b) 9J- 5.007(3)1. and 9J-5.005(1)2., Florida Administrative Code. TCE Policy 1.1.8 provides: The City shall designate areas on the FLUM for housing, which serves the needs of employees and students within walking distance of the University. TCE Policy 1.1.9 provides: Eighteen months from the adoption of this plan the City, in cooperation with FDOT and the MTPD, shall seek permanent designation of the Central City Interim Special Transportation Area or an extension of the interim designation or the elimination of the STA. These plan provisions outline principles for correcting deficiencies in traffic circulation. TCE Policy 1.1.8 directs the City to provide housing closer to the University so that fewer trips will be entering the area from further out in the urban area, thereby eliminating some of the traffic congestion that now exists. Further, TCE Policy 1.1.9 mentions the STA which was the City and FDOT solution to the problem of correcting existing deficiencies while still allowing growth. TCE Policies 1.1.4 through 1.1.10 combine to further provide controls to prevent degradation of traffic level of service standards. It is clear beyond fair debate that TCE Policies 1.1.8 and 1.1.9 outline principles for correcting deficiencies. Degradation of level of service standards as the result of increased densities in College Park has not been shown to the exclusion of fair debate. The Mass Transit Element (MTE) data and analysis indicates that the relevant transportation bus routes for College Park include Routes 2, 5, 6, 7, 8 and 9. As shown by Table 11 of the MTE data and analysis, each of these routes currently have at a minimum a 54% excess capacity available for ridership. In fact, Route 9 has a 90% excess capacity available for ridership. While TCE Policies 1.1.8 and 1.1.9 do not specifically provide for capital improvement implementation, each plan provision does not need to trigger capital improvements or concurrency requirements. The plan however does address concurrency and the triggering of capital improvements in the Capital Improvement Element (CIE). For example, CIE Policies 1.2.1, 1.2.6 and 1.2.7 establish how capital improvements through development orders will be implemented. In part, CIE Policy 1.2.1 provides: By June 1992, the City shall issue final development orders conditioned on the following: The availability of existing public facilities associated with the adopted LOS (level of service standards); The funding of public facilities (based on existing or projected funding sources) listed in the 5 year schedule of Capital Improvements that are needed to maintain adopted level of service standards. Petitioner has alleged that FLUE Objective 1.5 and Policy 2.4.4 are not in compliance with Rules 9J-5.015(1)(a) and 9J- 5.015(2)(b), Florida Administrative Code, in that the City failed to assemble and assess data from the Alachua County School Board and the University regarding the shifting of student populations. The referenced rules require a local government to coordinate with adjacent local governments, school boards and other units of local government. Such intergovernmental coordination should address specific problems and needs within each jurisdiction and attempt to resolve the problems and needs through better plan provisions. FLUE, Objective 1.5 provides that the City will: Ensure that the future plans of state government, the School Board of Alachua County, the University of Florida, and other applicable entities are consistent with this comprehensive plan to the extent permitted by law. FLUE Policy 2.4.4 is set forth above in paragraph 49. As established by data and analysis of the Intergovernmental Coordination Element (ICE), the City coordinated planning action with the University of Florida and the Alachua County School Board. The School Board did have concerns about the City's 1990 plan designation of J.J. Finely Elementary School as a recreational facility. Through the intergovernmental coordination process, the City and School Board resolved the issue. In terms of justifying a shift of student population, the purpose of FLUE Policy 2.4.4 is not to shift student populations. Instead, the City is attempting to accommodate future population and development within College Park since the growing University population will not be completely accommodated on campus. FLUE Objective 1.5 and Policy 2.4.4 are in compliance with the intergovernmental coordination requirements of Rule 9J-5, Florida Administrative Code. MTE Goal 1 and Objective 1.4 comply with requirements of Rules 9J- 5.008(2)(b) and 9J-5.008(3)(b)1., Florida Administrative Code, and demonstrate that projected mass transportation levels of service are consistent with the proposal to locate increased student populations in College Park. MTE Goal 1 provides that the City shall: Encourage increased transit usage to reduce the impacts of private motorized vehicles on the social, cultural and natural environment, and provide basic transit for disadvantaged City residents to employment, education facilities and basic services. Objective 1.4 provides: The future land use plan shall distribute land uses in a way that promotes transit ridership. Objective 1.4 satisfies the requirements of Rule 9J- 5.008(3)(b)1., Florida Administrative Code, that the plan contain an objective to address the provision of efficient mass transit. Further, as previously noted, there is more than adequate mass transit capacity in the City's system. Petitioner has failed to prove to the exclusion of fair debate that MTE Goal 1 and Objective 1.4 do not comply with provisions of Rule 9J-5, Florida Administrative Code. Petitioner alleges that Stormwater Management Element (SME) Objective 1.3 is not in compliance with Rule 9J-5.011(2)(b)1. and 2., Florida Administrative Code, in that the plan fails to address deficiencies in stormwater and drainage in College Park or coordinate the extension of, or increase in the capacity of those facilities to meet projected future needs. SME Objective 1.3 provides: The City shall ensure that proper and adequate stormwater management facilities are provided to meet future needs. Appendix C of the SME provides a stormwater need assessment list for the City. Need number 69 of the list specifically references College Park and the need to upgrade inadequate facilities. The City made the correction of these inadequate facilities a priority. In SME Policy 1.2.2, the plan calls for a Hogtown Creek Stormwater master plan to address deficiencies. The Hogtown Creek Master Plan is further accounted for in Table 14 of the Capital Improvements Element of the Plan. Petitioner has failed to prove to the exclusion of fair debate that SME Objective 1.3 fails to address deficiencies in stormwater and drainage in College Park. A final issue raised by Petitioner is whether FLUE Objective 1.4 is in compliance with Rule 9J-5.006(3)(c)3. and 4., Florida Administrative Code, requirements for provision of adequate facilities and services to accommodate densities and intensities of residential and commercial uses in College Park with regard to drainage and stormwater management, open space and convenient on- site traffic flow and vehicle parking. FLUE Objective 1.4 reads as follows: Upon Plan adoption, the City shall ensure the provisions of services and facilities needed to meet and maintain the LOS standards adopted in this Plan. Between Plan adoption and implementation of the Concurrency Management System, the City shall adjust existing facility capacity to reflect the demand created by final development orders as they are issued. As addressed earlier, the Plan, and supporting data and analysis, make provision for adequate facilities and services to accommodate densities and intensities of residential and commercial uses in College Park with regard to these matters. Petitioner has failed to show to the exclusion of fair debate that FLUE Objective 1.4 is not in compliance. State And Regional Plans The City's comprehensive plan is consistent with, compatible with, and furthers the state comprehensive plan construed as a whole. A comprehensive plan not only has to meet the minimum criteria of Rule 9J Administrative Code and be generally found consistent with the regional policy plan, it also has to further and promote the goals within the state comprehensive plan. The promotion of infill development, maximizing existing facilities, the separation of urban and rural land uses, and downtown revitalization, are efforts in furtherance of the state comprehensive plan. Higher densities within downtown areas are generally considered to be not only sound planning principles but they achieve many of the state's goals. The plan is also consistent with, compatible with, and furthers the North Central Florida Regional Policy Plan (Regional Plan). The North Central Florida Regional Planning Council's Regional Policy Goals IV, page 1, provides that "Urban sprawl should be minimized and urban development should be directed to a designated urban development area." Regional Policy Goals 16, 4 and 11, IV.2, lists six or seven goals dealing with future development directed to urban development areas. By increasing residential densities and high intensity urban areas, the City of Gainesville Comprehensive Plan implements regional as well as state Growth Management objectives. By providing opportunities for infill development, the plan increases development of potential existing urban areas, thus discouraging urban sprawl. This also serves to encourage the redevelopment of older areas and serves to direct new population growth to areas with existing facilities, thereby promoting the full utilization of those facilities before the expansion of new facilities.
Recommendation Based on the foregoing it is RECOMMENDED that a final order be entered finding the comprehensive plan of the City of Gainesville to be in compliance. DONE AND ENTERED this 2nd day of November, 1992, in Tallahassee, Leon County, Florida. DON W.DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Fl 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of November, 1992. APPENDIX The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings. In lieu of proposed findings, Petitioner submitted a document entitled "Suggested Preliminary Finding". The document consisted of 28 pages containing unnumbered paragraphs with no citation to the record established at the final hearing, contrary to requirements of Rule 22I-6.031(3), Florida Administrative Code. Nonetheless, Petitioner's submittal has been reviewed. Many of the assertions contained in the document appeared to be a cumulative restatement of Petitioner's arguments heard at the final hearing, or proposed findings which are cumulative or subordinate to the findings of the Hearing Officer. To the extent possible, the remainder of Petitioner's suggestions have been reviewed and are addressed by the foregoing findings of fact. Respondent City's Proposed Findings. 1.-3. Accepted. 4.-6. Rejected, legal argument. 7. Accepted. 8.-9. Rejected, not supported by weight of the evidence. 10.-20 Accepted. 21. Rejected, unnecessary. 22.-24. Accepted. 25.-28. Rejected, unnecessary. 29. Accepted. 30.-34. Rejected, cumulative. 35.-45. Accepted. 46.-47. Rejected, conclusion of law. 48.-49. Rejected, unnecessary. 50.-59. Accepted. 60. Rejected, argumentative. 61.-65. Accepted. 66. Rejected, argumentative. 67.-71. Accepted. 72.-74. Rejected, argumentative. 75.-84. Accepted. 85.-86. Rejected, cumulative. 87.-90. Accepted. 91.-92. Rejected, unnecessary. Accepted. Rejected, unnecessary. 95.-96. Accepted. 97.-98. Rejected, argumentative. 99.-106. Rejected, unnecessary and cumulative. 107.-114 Accepted, not verbatim. 115. Rejected, unnecessary. 116.-135. Accepted. 136.-139. Rejected, cumulative. 140.-142. Accepted. 143.-146. Rejected, cumulative. 147.-157. Accepted. 158. Rejected, no record citation. 159.-161. Subordinate to Hearing Officer's findings. 162.-166. Adopted in substance, not verbatim. 167.-172. Adopted in substance. 173.-180. Adopted by reference. Respondent Department's Proposed Findings. 1.-26. Accepted. 27.-50. Adopted in substance, not verbatim. 51.-58. Accepted. 59. Adopted by reference. COPIES FURNISHED: Linda Loomis Shelley, Esquire Secretary Department of Community Affairs 2740 Centerview Dr. Tallahassee, Florida 32399-2100 Steven Pfeiffer, Esquire General Counsel Department of Community Affairs 2740 Centerview Dr. Tallahassee, Florida 32399-2100 Michael P. Donaldson, Esquire Assistant General Counsel Department of Community Affairs 2740 Centerview Dr. Tallahassee, Florida 32399-2100 Elizabeth A. Waratuke, Esquire Assistant City Attorney Post Office Box 1110 Gainesville, Florida 32602 Thomas D. Rider, 1624 Northwest 7th Place Gainesville, Florida 32603
The Issue The issue to be determined in this case is whether the Wellness Way Area Plan Map and Text Amendment to the Lake County Comprehensive Plan (“Remedial Amendment”) adopted through Lake County Ordinance No. 2016-1 is “in compliance,” as defined in section 163.3184(1)(b), Florida Statutes.
Findings Of Fact The Parties Petitioner Cemex is a Florida limited liability company doing business in Lake County. Cemex made timely objections and comments to Lake County on the Remedial Amendment. Petitioner Lake Louisa is a limited liability company that owns property in Lake County. Lake Louisa made timely objections and comments to Lake County on the Remedial Amendment. Cemex leases 1,200 acres of land in Lake County from Lake Louisa. The leased property is located within the area affected by the Remedial Amendment. Cemex proposes sand mining on the leased property and obtained all the required state permits. Prior to adoption of the Remedial Amendment, Cemex sought a conditional use permit from Lake County for its proposed sand mining. Respondent Lake County is a political subdivision of the State of Florida and adopted the Lake County Comprehensive Plan, which it amends from time to time pursuant to section 163.3184, Florida Statutes. Intervenors South Lake Crossings I, LLC; South Lake Crossings II, LLC; South Lake Crossings III, LLC; Clonts Groves, Inc.; Catherine Ross Groves, Inc.; and Cra-Mar Groves, Inc., (referred to collectively as “South Lake”) own 2,500 acres in Lake County which are subject to the Remedial Amendment. Intervenors made timely comments to Lake County on the Remedial Amendment.1/ The Wellness Way Area The Wellness Way Area comprises 15,471 acres in southeastern Lake County. It is bordered by U.S. Highway 27 to the west, the City of Clermont to the north, and Orange County to the east. Currently, the Wellness Way Area is mostly designated as agricultural with some small areas of residential and industrial uses. However, there is only one active agricultural operation. The majority of properties within the Wellness Way Area are large tracts of unused land. Directly east of the Wellness Way Area, in Orange County, is the Horizon West Sector Plan which consists of 23,000 acres and is one of the fastest growing areas in the United States. The Remedial Amendment To address DEO’s objections to the Lake County Wellness Way Sector Plan, the County adopted the Remedial Amendment which converted the Sector Plan into the Wellness Way Urban Service Area. Based on the terms of the settlement agreement, the ordinance adopting the Remedial Amendment, and Lake County’s stipulation on the record, the Wellness Way Sector Plan no longer has force or effect. The Remedial Amendment creates five future land use categories within the Wellness Way Area: Town Center and Wellness Way 1 through Wellness Way 4. Each future land use category allows a mix of uses, but with different density and intensity limits in each category. The highest density and intensity limits are in the Town Center category, located along U.S. Highway 27. The lowest limits are in the Wellness Way 4 category. The Town Center and Wellness Way 1-3 categories have identical permitted and conditional land uses. Wellness Way 4 allows fewer types of land uses and no residential land use because the land is publicly owned and contains a large wastewater reclamation facility. The new land use categories provides for a distribution of land uses by percentage of total land area within the category. In Town Center, the distribution is 25 percent non- residential, 45 percent residential, and 30 percent open space. In Wellness Way 1-3, the distribution is 10 percent non- residential, 60 percent residential, and 30 percent open space. The allowable residential density for each category differs. The Town Center has a minimum density of 6.0 dwelling units per net buildable acre (“du/ac”) and a maximum density of 25 du/ac. Net buildable acre is defined as gross acres minus wetlands, waterbodies, and open spaces. Wellness Way 1 has a minimum density of 3 du/ac and a maximum density of 20 du/ac. Wellness Way 2 has a minimum density of 2.5 du/ac and a maximum density of 15 du/ac. Wellness Way 3 has a minimum density of 2 du/ac and a maximum density of 10 du/ac. Wellness Way 4 has no density criteria because residential uses are not allowed. The allowable intensity for non-residential uses in each category also differs. The Town Center has a minimum average Floor Area Ratio (“FAR”) of 30 percent and a maximum average FAR of 200 percent. Wellness Way 1 has a minimum average FAR of 25 percent and a maximum average FAR of 200 percent. Wellness Way 2 has a minimum average FAR of 20 percent and a maximum average FAR of 200 percent. Wellness Way 3 has a minimum average FAR of 15 percent and a maximum average FAR of 200 percent. Wellness Way 4 has no intensity criteria. Implementation of the Remedial Amendment goals, objectives, and policies is to be accomplished through the review and approval of planned unit developments (“PUDs”). Despite the density allowances stated above, the total number of dwelling units that can be included in a PUD are further controlled by Policy I-8.2.1.1, which ties residential development to job creation. For each dwelling unit proposed in a PUD, a certain number of jobs must be created through the setting aside of areas for non-residential uses. The jobs-to- housing ratio assumes that one job is created for every 450 square feet of non-residential development. Each land use category has a different jobs-to-housing ratio applicable to approved PUDs. In Town Center, the jobs-to- housing ratio is 2.0 to 1.0, meaning 900 square feet of non- residential development must accompany every proposed dwelling unit. In Wellness Way 1, the jobs-to-housing ratio is 1.75 to 1.0. In Wellness Way 2, the ratio is 1.50 to 1.0. In Wellness Way 3, the ratio is 1.35 to 1.0. In the Remedial Amendment, the information and criteria for a PUD application are more detailed and extensive than under the Comprehensive Plan provisions for PUDs outside the Wellness Way Area. For example, a PUD application under the Remedial Amendment must include a report on the PUD’s impact on transportation facilities and the need for additional transportation improvements, and a detailed plan for public facilities, such as potable water, sanitary sewer, and schools. The Remedial Amendment requires each PUD to establish Wellness Way Corridors, which serve as buffers around the border to connect job hubs and neighborhoods through trails and other pedestrian facilities. Meaningful and Predictable Standards Sand Mining Approval Petitioners contend the Remedial Amendment fails to provide meaningful and predictable standards governing sand mining within the Wellness Way Area. Sand mining is listed as a conditional use in all land use categories. Comprehensive Plan Objective III-3.5 and its policies, which address sand mining, were not changed by the Remedial Amendment. They prohibit mining in environmentally sensitive areas which cannot be reclaimed, require mining within aquifer protection zones to be performed in a manner that would not negatively impact water quality, and require mining operators to demonstrate a practical and environmentally sound reclamation plan. Under the Remedial Amendment, an application for a conditional use in the Wellness Way Area must be combined with a PUD application and must comply with the detailed PUD criteria of new Policy I-8.7. By combining a conditional use application with a PUD application, Lake County can impose additional conditions designed to assure the conditional use will be compatible with the surrounding land uses. The Remedial Amendment adds more criteria and greater detail than exists currently in the Comprehensive Plan for reviewing a proposal for sand mining. Adding these review criteria is not a failure to provide meaningful and predictable standards. PUD Densities and Intensities Petitioners contend that the densities and intensities within the Wellness Way Area cannot be reasonably predicted because Policy I-8.2.1.2 permits the density and intensity of developments to exceed or fall below the required maximum and minimum densities and intensities of use so long as a PUD as a whole fits within the limits. Petitioners’ evidence on this point was not persuasive. Applying density and intensity limits to the entire area of a PUD is not unreasonable and does not fail to provide meaningful and predictable standards. Location of Future Land Uses A more persuasive argument made by Petitioners is that the land use planning flexibility in the Remedial Amendment goes too far because the location of particular land uses will not be known until PUDs are approved. Lake County’s arguments in this regard do not overcome the fact that, under the Remedial Amendment, the determination where land uses will be located in the Wellness Way Area is deferred to the PUD process. The Remedial Amendment itself does not establish the location of future land uses in the Wellness Way Area. A landowner or citizen cannot predict where future land uses will be located in the Wellness Way Area. Lake County did not present evidence to show that any other local government comprehensive plan in Florida uses a similar planning approach. There appears to be no other comprehensive plan amendment that was the subject of a DOAH proceeding which left the location of future land uses unspecified in this way. Potential PUDs Petitioners contend that the Remedial Amendment fails to provide meaningful and predictable standards because applications for development approvals in the Wellness Way Area are reviewed on a case-by-case basis for their effect on approved and “potential PUDs.” Policy I-8.7.1 provides: Until and unless a PUD is approved by the Lake County Board of County Commissioners, the property in the WWUSA area shall maintain the existing zoning (e.g. A, R-1, CFD, PUD). All applications for development approvals (i.e. lot splits, conditional use permits, variances, etc.) on any property within the WWUSA area shall be reviewed on a case-by- case basis for the effect of such development approval on adopted or potential PUDs and compliance with the general principles of the Urban Service Area. The Remedial Amendment’s requirement that development approvals account for potential PUDs makes it impossible to predict how Lake County will make a land use decision because it is impossible to know or account for an unapproved, potential PUD. This standard lacks meaning and predictability for guiding land development. Case-by-Case Approvals Petitioners assert that Policy I-8.7.1 also creates internal inconsistency because it requires all development to be approved through the PUD process, but then appears to also provide for non-PUD development approvals on a case-by-case basis. The testimony presented by Lake County seemed to support Petitioners’ claims. Exceptions can be stated in a comprehensive plan without constituting an internal inconsistency. However, the ambiguity of Policy I-8.7.1 causes it to lack meaning and predictability for guiding land development. Urban Form Guiding Principles Policy I-8.2.2 of the Remedial Amendment sets forth guiding principles for development derived from the goals, objectives, and policies for the Wellness Way Area and establishes principles to guide development. Petitioners argue that the principles are not meaningful and predictable standards for the use and development of land because they were described by a Lake County witness at the final hearing as “aspirational.” The policy itself states that, “These guiding principles shall be specifically demonstrated in the PUDs.” The plain meaning of this statement is that application of the principles is mandatory. A witness’ testimony cannot alter the plain meaning of a policy for purposes of an “in compliance” determination. Data and Analysis Planning Timeframes Petitioners contend that the Remedial Amendment is not supported by appropriate data and an analysis because they address only infrastructure needs at the time of the Wellness Way Area’s buildout in 2040; no intermediate timeframes were used. Although section 163.3177(5)(a) requires comprehensive plans to “include at least two planning periods, one covering at least the first 5-year period occurring after the plan’s adoption and one covering at least a 10-year period,” the statute is less clear on the requirements applicable to a comprehensive plan amendment. Petitioners’ evidence and argument on this claim was insufficient to meet their burden of proof. Potable Water Supply Petitioners claim the Remedial Amendment is not supported by appropriate data and an analysis to show that the demand for potable water will be met at buildout. Petitioners’ evidence was insufficient to prove this claim. Internal Consistency Goal I-8 Petitioners argue that Goal I-8 of the Remedial Amendment contains an impermissible waiver of any Comprehensive Plan goals, objectives, or policies that conflict with the Remedial Amendment. Goal I-8 provides: The following Objectives and Policies shall govern the WWUSA as depicted on the Future Land Use Map. In the event that these Goals, Objectives or Policies present either an express (direct) or implied (indirect) conflict with the Goals, Objectives and Policies that appear elsewhere in the comprehensive plan, the provision elsewhere in the comprehensive plan that is in direct or indirect conflict with a Wellness Way Goal, Objective or Policy shall not apply to the WWUSA area. All Goals, Objectives and Policies in the Lake County Comprehensive Plan that do not directly or indirectly conflict with this Goal and associated Objectives and Policies shall apply to the WWUSA area depicted in the Future Land Use Map. Goal I-8 gives no hint as to the nature or the number of potential direct or indirect conflicts that could arise. As explained in the Conclusions of Law, the goal creates an unlawful waiver of unidentified inconsistencies. Urban Service Area The Wellness Way Area is intended to be an urban service area. “Urban service area” is defined in section 163.3164(50): “Urban Service Area” means areas identified in the comprehensive plan where public facilities and services, including, but not limited to, central water and sewer capacity and roads, are already in place or are identified in the capital improvements element. The term includes any areas identified in the comprehensive plan as urban services areas, regardless of local government limitations.” Petitioners contend the Capital Improvements Element of the Comprehensive Plan is inconsistent with the Remedial Amendment because Lake County did not amend the Capital Improvements Element to address public facilities and services in the Wellness Way Area. Lake County responds that it does not own or operate the utility companies that would provide the services, but who owns and operates the utilities has no effect on the statutory requirement to do public utility planning. Lake County argues that it was sufficient for the County to simply identify the utility providers. Section 163.3164(50) requires more. It requires the identification of public facilities and services. Furthermore, section 163.3177(3)(a) requires a capital improvement element “to consider the need for and location of public facilities.” The Remedial Amendment creates an internal inconsistency in the Comprehensive Plan by providing for greater growth and a new urban service area in the Wellness Way Area without amending the Capital Improvements Element to address the greater growth or the urban service area. The Capital Improvements Element should have been amended to include some of the data and analysis that was used to support the Remedial Amendment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission issue a final order determining that the Remedial Amendment adopted by Lake County Ordinance No. 2016-1 is not in compliance. DONE AND ENTERED this 21st day of November, 2016, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of November, 2016.
The Issue The issue is whether the Land Development Code (LDC) adopted by Ordinance No. 2007-12 on August 22, 2007, as amended on February 27, 2008, is inconsistent with the effective comprehensive plan for the City of Doral (City), which is the Miami-Dade Comprehensive Development Master Plan (County Plan).
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: The Parties Section 64 is a Florida corporation. The Grand is a Florida limited partnership. Both entities are owned by the same individual. On September 25, 2001, Section 7 acquired ownership of an approximate ten-acre tract of property in the County (now the City) located along the southern boundary of Northwest 82nd Street, between 109th and 112th Avenues. See Petitioners' Exhibit 416. On December 16, 2005, title in one- half of the property was conveyed to The Grand in order to divide the property into two different ownerships. Id. It was Petitioners' intent at that time to build two hotels on separate five-acre tracts, one owned by Section 7 and the other by The Grand. The City is located in the northwestern part of Dade County and was incorporated as a municipality in June 2003. At the time of incorporation, the County's Plan and Land Use Code were the legally effective comprehensive plan and land development regulations (LDRs), respectively. On April 26, 2006, the City adopted its first comprehensive plan. After the Department determined that the Plan was not in compliance, remedial amendments were adopted on January 10, 2007, pursuant to a Stipulated Settlement Agreement. Although the Department found the Plan, as remediated, to be in compliance, it was challenged by a third party, and the litigation is still pending. See DOAH Case No. 06-2417. Therefore, the County Plan is still the legally effective Plan. See § 163.3167(4), Fla. Stat. The Department is the state land planning agency charged with the responsibility of reviewing LDRs whenever the appeal process described in Section 163.3213, Florida Statutes, is invoked by a substantially affected person. History of the Controversy When Petitioners' property was purchased in 2001, the County zoning on the property was Light Industrial (IU-1), having been rezoned by the County to that designation on October 9, 1984. See Petitioners' Exhibit 5. One of the uses permitted under an IU-1 zoning classification is a hotel with up to 75 units per acre. See Petitioners' Exhibit 6. The land use designation on the County's LUP map for the property is Low- Density Residential (LDR), with One Density Bonus, which allows 2.5 to 6 residential units per acre with the ability for a "bump-up" in density to 5 to 13 units per acre if the development includes specific urban design characteristics according to the County urban design guide book. Language found on pages I-62 and I-63 of the Future Land Use Element (FLUE) in effect at the time of the incorporation of the City (now found on pages I-73 and I-74 of the current version of the FLUE) provides in relevant part as follows: Uses and Zoning Not Specifically Depicted on the LUP Map. Within each map category numerous land uses, zoning classifications and housing types may occur. Many existing uses and zoning classifications are not specifically depicted on the Plan map. . . . All existing lawful uses and zoning are deemed to be consistent with the [Plan] unless such a use or zoning (a) is found through a subsequent planning study, as provided in Land Use Policy 4E, to be inconsistent with the criteria set forth below; and (b) the implementation of such a finding will not result in a temporary or permanent taking or in the abrogation of vested rights as determined by the Code of Metropolitan Dade County, Florida. As noted above, if there is a concern that zoning might be inconsistent with land use, using the criteria described in the provision, the County may initiate a planning study to analyze consistency and down-zone the property to a less intense use if an inconsistency is found. Although the County initiated a number of planning studies after it adopted its Plan in 1993, and ultimately down-zoned many properties, none was ever initiated by the County for Petitioners' property. Essentially, when existing uses and zoning are not depicted on the County LUP map, the language in the FLUE operates to deem lawfully existing zoning consistent with the land use designation on the property. In this case, the parties agree that the zoning of Petitioners' property is not depicted on the County LUP map. Therefore, absent a planning study indicating an inconsistency, the zoning is deemed to be consistent with the land use category. On August 22, 2007, the City adopted Ordinance No. 2007-12, which enacted a new LDC, effective September 1, 2007, to replace the then-controlling County Land Use Code. Although the LDC was adopted for the purpose of implementing the new City Plan, until the new Plan becomes effective, the LDC implements the County Plan. Amendments to the LDC were adopted by Ordinance No. 2008-1 on February 27, 2008. The LDC does not change the zoning on Petitioners' property. However, it contains a provision in Chapter 1, Section 5, known as the Zoning Compatibility Table (Table), which sets forth the new land use categories in the City Plan (which are generally similar but not identical to the County land use categories) and the zoning districts for each category. Pertinent to this dispute is an asterisk note to the Table which reads in relevant part as follows: Under no circumstances shall the density, intensity, or uses permitted be inconsistent with that allowed on the city's future land use plan. . . . Zoning districts that are inconsistent with the land use map and categories shall rezone prior to development. See Petitioners' Exhibit 27 at p. I-3. Under the Table, only residential zoning districts (with up to ten dwelling units per acre and no density bonus) are allowed in the City's proposed LDR land use category. Therefore, if or when the City Plan becomes effective, before Petitioners can develop their property, they must rezone it to a district that is consistent with the land use designation shown on the Table. There is no specific requirement in the LDC that the City conduct a planning study when it has a concern that the zoning is inconsistent with the relevant land use category in the new City Plan. Petitioners construed the asterisk note as being inconsistent with the text language on pages I-62 and I-63 of the County Plan. See Finding of Fact 5, supra. Accordingly, on August 21, 2008, Petitioners submitted a Petition to the City pursuant to Section 163.3213(3), Florida Statutes, alleging generally that they were substantially affected persons; that the LDC was inconsistent with the County Plan; that the LDC changes the regulations regarding character, density, and intensity of use permitted by the County Plan; and that the LDC was not compatible with the County Plan, as required by Florida Administrative Code Rule 9J-5.023.2 See Petitioners' Exhibit 103. The City issued its Response to the Petition on November 20, 2008. See Petitioners' Exhibit 104. The Response generally indicated that Petitioners did not have standing to challenge the LDC; that the Petition lacked the requisite factual specificity and reasons for the challenge; that the LDC did not change the character, density, or intensity of the permitted uses under the County Plan; and the allegation concerning compatibility lacked factual support or allegations to support that claim. On December 22, 2008, Petitioners filed a Petition with the Department pursuant to Section 163.3213(3), Florida Statutes, alleging that the LDC implements a City Plan not yet effective; that the LDC changes the uses, densities, and intensities permitted by the existing County Plan; and that the LDC changes the uses, densities, and intensities permitted by the not yet effective City Plan. See Petitioners' Exhibit 105. After conducting an informal hearing on April 7, 2009, as authorized by Section 163.3213(4), Florida Statutes, on July 23, 2009, the Department issued a Determination of Consistency of a Land Development Regulation (Determination). See Petitioners' Exhibit 102. See also Section 7 Tract 64 Property, Inc., et al. v. The City of Doral, Fla., Case No. DCA09-LDR-270, 2009 Fla. ENV LEXIS 119 (DCA July 23, 2009). In the Determination, the Department concluded that Petitioners were substantially affected persons and had standing to file their challenge; that the provision on pages I-62 and I-63 of the County FLUE did not apply to Petitioners' property because the uses and zoning of the property are specifically designated on the LUP map; that the law does not prohibit the Department from reviewing the LDC for consistency with the not yet effective City Plan; and that because the LDC will require Petitioners to rezone their property to be consistent with the City Plan, the challenge is actually a challenge to a rezoning action and not subject to review under this administrative process. See § 163.3213(2)(b), Fla. Stat. On August 13, 2009, Petitioners filed their Petition for Formal Proceedings with DOAH raising three broad grounds: that the LDC unlawfully implements a comprehensive plan not yet effective; that it changes the uses, densities, and intensities permitted by the County Plan and is therefore inconsistent with the County Plan; and that it changes the uses, densities, and intensities permitted by the not yet effective City Plan and is inconsistent with that Plan. See Petitioners' Exhibit 39. These issues are repeated in the parties' Stipulation. As to other issues raised by Petitioners, and evidence submitted on those matters over the objection of opposing counsel, they were tried without consent of the parties, and they are deemed to be beyond the scope of this appeal. The Objections Petitioners first contend that the LDC unlawfully implements a comprehensive plan not yet in effect, in that it was specifically intended to be compatible with, further the goals or policies of, and implement the policies and objectives of, the City Plan. See Fla. Admin. Code R. 9J-5.023. But Petitioners cited no statute or rule that prohibits a local government from adopting LDRs before a local plan is effective, or that implement another local government's plan (in this case the County Plan). While the LDC was adopted for the purpose of implementing a City Plan that the City believed would be in effect when the LDC was adopted, the City agrees that until the new City Plan becomes effective, the LDC implements the County Plan. Even though the two Plans are not identical, and may even be inconsistent with each other in certain respects, this does automatically create an inconsistency between the LDC and County Plan. Rather, it is necessary to determine consistency between those two documents, and not the City Plan. Except for testimony regarding one provision in the LDC and its alleged inconsistency with language in the County FLUE, no evidence was presented, nor was a ground raised, alleging that other inconsistencies exist. The Table note and the County Plan do not conflict. The LDC is not "inconsistent" merely because it was initially intended to implement a local plan that has not yet become effective. Petitioners next contend that the LDC changes the uses, densities, and intensities permitted by the County Plan and is therefore inconsistent with that Plan. Specifically, they contend that the note following the Zoning Compatibility Table in Chapter 1, Section 5 of the LDC is inconsistent with the language on pages I-62 and 63 (now renumbered as pages I-73 and I-74) of the County Plan. In other words, they assert that an inconsistency arises because the note requires them to down- zone their property before development, while the County Plan deems their zoning to be consistent with the County LUP map unless a special planning study is undertaken. The evidence establishes that if there is a conflict between zoning and land use on property within the City, it is necessary to defer to the language on pages I-62 and I-63 of the County FLUE for direction. This is because the County Plan is the effective plan for the City. Under that language, if no planning study has been conducted, the zoning would be deemed to be consistent with the land use. On the other hand, if a planning study is undertaken, and an inconsistency is found, the property can be rezoned in a manner that would make it consistent with the land use. Therefore, the LDC does not change the use, density, or intensity on Petitioners' property that is permitted under the County Plan. It is at least fairly debatable that there is no conflict between the Table note and the County Plan. Finally, Petitioners contend that the LDC changes the uses, densities, and intensities permitted by the not yet effective City Plan because the current industrial zoning designation will be inconsistent with the LDR land use designation. Petitioners argue that once the new City Plan becomes effective, the LDC requires them to down-zone their property before development. However, this concern will materialize only if or when the new City Plan, as now written, becomes effective; therefore, it is premature. Further, the definition of "land development regulation" specifically excludes "an action which results in zoning or rezoning of land." See § 163.3213(2)(b), Fla. Stat. Because the challenged regulation (the note to the Table) is "an action which results in zoning or rezoning of land," the issue cannot be raised in an administrative review of land development regulations. Id. The other contentions raised by Petitioner are either new issues that go beyond the scope of the Petition filed in this case or are without merit.
The Issue The issue is whether a Sarasota County plan amendment adopted by Ordinance No. 2001-76 on July 10, 2002, is in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background The County's original Plan, known as Apoxsee,2 was adopted in 1981. In 1989, the County adopted a revised and updated version of that Plan. The current Plan was adopted in 1997 and is based on an Evaluation and Appraisal Report (EAR) approved by the County on February 20, 1996. After a lengthy process which began several years earlier, included input from all segments of the community, and involved thousands of hours of community service, on February 28, 2002, the County submitted to the Department a package of amendments comprised of an overlay system (with associated goals, objectives, and policies) based on fifty- year projections of growth. The amendments were in response to Future Land Use Policy 4.7 which mandated the preparation of a year 2050 plan for areas east of Interstate 75, which had served as an urban growth boundary in the County since the mid-1970s. Through the overlays, the amendments generally established areas in the County for the location of villages, hamlets, greenways, and conservation subdivisions. On May 10, 2002, the Department issued its Objections, Recommendations, and Comments (ORC). In response to the ORC, on July 10, 2002, the County enacted Ordinance No. 2001-76, which included various changes to the earlier amendment package and generally established six geographic overlay areas in the County, called Resource Management Areas (RMAs), with associated goals, objectives, and policies in the Future Land Use Chapter. The RMAs include an Urban/Suburban RMA, an Economic Development RMA, a Rural Heritage/Estate RMA, a Village/Estate/Open Space RMA, a Greenway RMA, and an Agriculture/Reserve RMA. The amendments are more commonly known as Sarasota 2050. The revised amendment package was transmitted to the Department on July 24, 2002. On September 5, 2002, the Department issued its Notice of Intent to find the amendments in compliance. On September 26, 2002, Manasota-88, Compton, and Ayech (and four large landowners who subsequently voluntarily dismissed their Petitions) filed their Petitions challenging the new amendments. In their Pre-Hearing Stipulation, Manasota-88 and Compton contend that the amendments are not in compliance for the following reasons: vagueness and uncertainties of policies; an inconsistent, absent or flawed population demand and urban capacity allocation methodology; inconsistent planning time frames; overallocation of urban capacity; urban sprawl; failure to coordinate future land uses with planned, adequate and financially feasible facilities and services; failure to protect wetlands, wildlife and other natural resources; failure to meet requirements for multimodal and area-wide concurrency standards; failure to provide affordable housing; land use incompatibility of land uses and conditions; indefinite mixed uses and standards; lack of intergovernmental coordination; and inadequate opportunities for public participation the Amendment is internally inconsistent within itself and with other provisions of the Sarasota County Comprehensive Plan, is not supported by appropriate data and analysis and is inconsistent with the State Comprehensive Plan and the Strategic Regional Policy [P]lan of the Southwest Regional Planning Council. In the Pre-Hearing Stipulation, Ayech has relied on the same grounds as Manasota-88 and Compton (except for the allegation that the amendments lack intergovernmental coordination). In addition, she has added an allegation that the amendments fail to adequately plan "for hurricane evacuation." The Parties The Department is the state planning agency responsible for review and approval of comprehensive plans and amendments. The County is a political subdivision responsible for adopting a comprehensive plan and amendments thereto. The County adopted the amendments being challenged here. At the commencement of the hearing, the parties stipulated that Petitioners either reside, own property, or own or operate a business within the County, and that they made comments, objections, or recommendations to the County prior to the adoption of the Amendment. These stipulated facts establish that Petitioners are affected persons within the meaning of Section 163.3184(1)(a), Florida Statutes, and have standing to initiate this action. Given the above stipulation, there was no testimony presented by Manasota-88 describing that organization's activities or purpose, or by Compton individually. As to Ayech, however, she is a resident of the County who lives on a 5-acre farm in the "Old Miakka" area east of Interstate 75, zoned OUE, which is designated as a rural classification under the Plan. The activities on her farm are regulated through County zoning ordinances. The Amendment Generally Under the current Plan, the County uses a number of growth management strategies including, but not limited to: an urban services area (USA) boundary; a minimum residential capacity "trigger" mechanism, that is, a minimum dwelling unit capacity of 133 percent of housing demand projected for a ten- year plan period following each EAR, to determine when the USA boundary may need to be moved; a future urban area; and concurrency requirements. Outside the USA, development is generally limited to no greater than one residential unit per five acres in rural designated areas or one unit per two acres in semi-rural areas. The current Plan also includes a Capital Improvement Element incorporating a five-year and a twenty-plus-year planning period. The five-year list of infrastructure projects is costed and prioritized. In the twenty-plus-year list, infrastructure projects are listed in alphabetical order by type of facility and are not costed or prioritized. The construction of infrastructure projects is implemented through an annual Capital Improvement Program (CIP), with projects generally being moved between the twenty-plus-year time frame and the five-year time frame and then into the CIP. All of the County's future urban capacity outside the USA and the majority of capacity remaining inside the USA are in the southern part of the County (south of Preymore Street extended, and south of Sarasota Square Mall). As the northern part of the County's urban capacity nears buildout, the County has experienced considerable market pressure to create more urban designated land in the northern part of the County and/or to convert undeveloped rural land into large lot, ranchette subdivisions. Because of the foregoing conditions, and the requirement in Future Land Use Policy 4.1.7 that it prepare a year 2050 plan for areas east of Interstate 75, the County began seeking ways to encourage what it considers to be a "more livable, sustainable form of development." This led to the adoption of Sarasota 2050. As noted above, Sarasota 2050 consists of six geographic overlay areas in the Future Land Use Map (FLUM), called RMAs, with associated goals, objectives, and policies. As described in the Plan, the purpose and objective of the Amendment is as follows: The Sarasota County Resource Management Area (RMA) Goal, Objectives and Policies are designed as a supplement to the Future Land Use Chapter of Apoxsee. The RMAs function as an overlay to the adopted Future Land Use Map and do not affect any rights of property owners to develop their property as permitted under the Comprehensive Plan, the Zoning Ordinance or the Land Development Regulations of Sarasota County or previously approved development orders; provided, however, that Policy TDR 2.2 shall apply to land located within the Rural/Heritage Estate, Village/ Open Space, Greenway and Agricultural Reserve RMAs where an increase in residential density is sought. To accomplish this purpose and objective, the RMAs and their associated policies are expressly designed to preserve and strengthen existing communities; provide for a variety of land uses and lifestyles to support diverse ages, incomes, and family sizes; preserve environmental systems; direct population growth away from floodplains; avoid urban sprawl; reduce automobile trips; create efficiency in planning and provision of infrastructure; provide County central utilities; conserve water and energy; allocate development costs appropriately; preserve rural character, including opportunities for agriculture; and balance jobs and housing. The Amendment creates an optional, alternative land use policy program in the Plan. To take advantage of the benefits and incentives of this alternative program, a property owner must be bound by the terms and conditions in the goal, objectives, and policies. Policy RMA1.1 explains it this way: The additional development opportunities afforded by the Sarasota 2050 Resource Management Area Goal, Objectives and Policies are provided on the condition that they are implemented and can be enforced as an entire package. For example, the densities and intensities of land use made available by the Sarasota 2050 Resource Management Area Goal, Objectives and Policies may not be approved for use outside the policy framework and implementing regulatory framework set forth herein. Policy RMA1.3 expresses the Amendment’s optional, alternative relationship to the existing Plan as follows: The Sarasota 2050 Resource Management Area Goal, Objectives and Policies shall not affect the existing rights of property owners to develop their property as permitted under the Comprehensive Plan, the Zoning Ordinance, the Land Development Regulations or previously approved development orders; provided, however, that TDR 2.2 [relating to transfer of development rights] shall apply to land located within the Rural Heritage/ Estate, Village/Open Space, Greenway and Agricultural Reserve RMAs where an increase in residential density is sought. If a property owner chooses to take advantage of the incentives provided by the Sarasota 2050 RMA, then to the extent that there may be a conflict between the Sarasota 2050 Resource Management Area Goal, Objectives and Policies and the other Goal[s], Objectives and Policies of APOXSEE, the Sarasota 2050 Resource Management Area Goal, Objectives and Policies shall take precedence. The other Goals, Objectives and Policies of APOXSEE including, but not limited to, those which relate to concurrency management and environmental protection shall continue to be effective after the adoption of these Resource Management Area Goal, Objectives and Policies. Therefore, if a landowner chooses to pursue the alternative development opportunities, he essentially forfeits his current development rights and accepts the terms and conditions of Sarasota 2050. The RMAs The RMAs were drawn in a series of overlays to the FLUM based on the unique characteristics of different areas of the County, and they result in apportioning the entire County into six RMAs. They are designed to identify, maintain, and enhance the diversity of urban and rural land uses in the unincorporated areas of the County. The Urban/Suburban RMA is an overlay of the USA and is comparable to the growth and development pattern defined by the Plan. Policies for this RMA call for neighborhood planning, providing resources for infrastructure, and encouraging development (or urban infill) in a portion of the Future USA identified in the Amendment as the Settlement Area. The Economic Development RMA consists of land inside the USA that is located along existing commercial corridors and at the interchanges of Interstate 75. In this RMA, the policies in the Amendment provide for facilitating economic development and redevelopment by preparing critical area plans, encouraging mixed uses, providing for multi-modal transportation opportunities, creating land development regulations to encourage economic development, and providing more innovative level of service standards that are in accordance with Chapter 163, Florida Statutes. The Greenway RMA consists of lands outside the USA that are of special environmental value or are important for environmental connectivity. Generally, the Greenway RMA is comprised of public lands, rivers and connected wetlands, existing preservation lands, ecologically valuable lands adjacent to the Myakka River system, named creeks and flow- ways and wetlands connected to such creeks and flow-ways, lands listed as environmentally sensitive under the County’s Environmentally Sensitive Lands Priority Protection Program (ESLPPP), and lands deemed to be of high ecological value. This RMA is accompanied by a map depicting the general location of the features sought to be protected. The Rural/Heritage Estate Resource Management RMA consists of lands outside the USA that are presently rural and very low density residential in character and development and are planned to remain in that form. In other words, the RMA's focus is on protecting the existing rural character of this area. To accomplish this objective, and to discourage inefficient use of land in the area, the Amendment contains policies that will create and implement neighborhood plans focusing on strategies and measures to preserve the historic rural character of the RMA. It also provides incentives to encourage the protection of agricultural uses and natural resources through measures such as the creation of land development regulations for a Conservation Subdivision form of use and development in the area. The Agricultural Reserve RMA is made up of the existing agricultural areas in the eastern and southeastern portions of the County. The Amendment contains policies that call for the amendment of the County’s Zoning and Land Development Regulations to support, preserve, protect, and encourage agricultural and ranching uses and activities in the area. Finally, the Village/Open Space RMA is the centerpiece of the RMA program. It consists of land outside the USA that is planned to be the location of mixed-use developments called Villages and Hamlets. The Village/Open Space RMA is primarily the area where the increment of growth and development associated with the longer, 2050 planning horizon will be accommodated. Villages and Hamlets are form-specific, using connected neighborhoods as basic structural units that form compact, mixed-use, master-planned communities. Neighborhoods provide for a broad range and variety of housing types to accommodate a wide range of family sizes and incomes. Neighborhoods are characterized by a fully connected system of streets and roads that encourage alternative means of transportation such as walking, bicycle, or transit. Permanently dedicated open space is also an important element of the neighborhood form. Neighborhoods are to be designed so that a majority of the housing units are within walking distance of a Neighborhood Center and are collectively served by Village Centers. Village Centers are characterized by being internally designed to the surrounding neighborhoods and provide mixed uses. They are designed specifically to serve the daily and weekly retail, office, civic, and governmental use and service needs of the residents of the Village. Densities and intensities in Village Centers are higher than in neighborhoods to achieve a critical mass capable of serving as the economic nucleus of the Village. Villages must be surrounded by large expanses of open space to protect the character of the rural landscape and to provide a noticeable separation between Villages and rural areas. Hamlets are intended to be designed as collections of rural homes and lots clustered together around crossroads that may include small-scale commercial developments with up to 20,000 square feet of space, as well as civic buildings or shared amenities. Each Hamlet is required to have a public/civic focal point, such as a public park. By clustering and focusing development and population in the Village and Hamlet forms, less land is needed to accommodate the projected population and more land is devoted to open space. The Village/Open Space RMA is an overlay and includes FLUM designations. According to the Amendment, the designations become effective if and when a development master plan for a Village or Hamlet is approved for the property. The Urban/Suburban, Agricultural Reserve, Rural Heritage/Estate, Greenway, and Economic Development RMAs are overlays only and do not include or affect FLUM designations. For these five RMAs, the FLUM designation controls land use, and any changes in use that could be made by using the overlay policies of the Amendment that are not consistent with the land's future land use designation would require a land use redesignation amendment to the Plan before such use could be allowed. Data and analysis in support of the amendment The County did an extensive collection and review of data in connection with the Amendment. In addition to its own data, data on wetlands, soils, habitats, water supplies, and drainage with the Southwest Florida Water Management District (District) and the Florida Fish and Wildlife Conservation Commission (FFWCC) were reviewed. Data from the BEBR were used in deriving population and housing demand forecasts for the 2050 planning period. Transportation system modeling was performed using data from the local Metropolitan Planning Agency (MPA). The MPA uses the Florida State Urban Transportation Model Structure (FSUTMS), which is commonly used throughout the State for transportation modeling and planning purposes. Expert technical assistance was also provided by various consulting firms, including the Urban Land Institute, Analytica, Zimmerman/Volk Associates, Inc., Urban Strategies, Inc., Duany-Plater-Zyberk, Glatting Jackson, Fishkind & Associates, Stansbury Resolutions by Design, and Kumpe & Associates. In addition, the Urban Land Institute prepared a comprehensive report on the benefits of moving towards new urbanist and smart growth forms east of Interstate 75 and a build-out 2050 planning horizon. Finally, topical reports were prepared on each of the RMAs, as well as on public participation, financial feasibility and fiscal neutrality, market analysis, and infrastructure analysis. In sum, the data gathered, analyzed, and used by the County were the best available data; the analyses were done in a professionally acceptable manner; and for reasons more fully explained below, the County reacted appropriately to such data. Petitioners' Objections Petitioners have raised a wide range of objections to the Amendment, including a lack of data and analyses to support many parts of the Amendment; flawed or professionally unacceptable population and housing projections; a lack of need; the encouragement of urban sprawl; a lack of coordination between the future land uses associated with the Amendment and the availability of capital facilities; a flawed transportation model; a lack of meaningful and predictable standards and guidelines; internal inconsistency; a failure to protect natural resources; a lack of economic feasibility and fiscal neutrality; and inadequate public participation and intergovernmental coordination. Use of a 50-year planning horizon Petitioners first contend that the Amendment is not in compliance because it has a fifty-year planning time frame rather than a five or ten-year time frame, and because it does not have the same time frame as the Plan itself. Section 163.3177(5)(a), Florida Statutes, provides that "[e]ach local government comprehensive plan must include at least two planning periods, one covering at least the first 5-year period occurring after the plan's adoption and one covering at least a 10-year period." See also Fla. Admin. Code R. 9J-5.005(4). However, nothing in the statute or rule prohibits a plan from containing more than two planning horizons, or for an amendment to add an additional fifty-year planning period. Therefore, the objection is without merit. Population and housing need projections For a fifty-year plan, the County had to undertake an independent analysis and projection of future population in the County. In doing so, the County extrapolated from BEBR medium range 2030 projections and calculated a need for 82,000 new homes over the 2050 period. Examining building permit trends over the prior ten years, the County calculated a high- end projection of 110,000 new homes. The County developed two sets of estimates since it is reasonable and appropriate to use more than one approach to produce a range of future projections. The County based its planning on the lower number, but also assessed water needs relative to the higher number. The data and sources used by the County in making the population and housing need projections are data and sources commonly used by local governments in making such projections. The County's expert demographer, Dr. Fishkind, independently evaluated the methodologies used by the County and pointed out that the projections came from the BEBR mid- range population projections for the County and that, over the years, these projections have been shown to be reliably accurate. The projections were then extended by linear extrapolation and converted to a housing demand in a series of steps which conformed with good planning practices. The projections were also double-checked by looking at the projected levels of building permits based on historical trends in the previous ten years' time. These two sets of calculations were fairly consistent given the lengthy time frame and the inherent difficulty in making long-range forecasts. Dr. Fishkind also found the extrapolation from 2030 to 2050 using a linear approach to be appropriate. This is because medium-term population projections are linear, and extrapolation under this approach is both reasonable and proper. Likewise, Dr. Fishkind concluded that comparing the projections to the projected level of building permits based on historical trends is also a reasonable and acceptable methodology and offers another perspective. Manasota-88's and Compton's expert demographer, Dr. Smith, disagreed that the County’s methodology was professionally acceptable and opined instead that the mid- range 2050 housing need was 76,800 units. He evidently accepted the BEBR mid-range extrapolation done by the County for the year-round resident population of the County through 2050, but disagreed on the number of people associated with the functional population of the County. To calculate the actual number of persons in the County and the number of homes necessary to accommodate those persons, it is necessary to add the persons who reside in the County year-round (the "resident population") to the number of people who live in the County for only a portion of the year (the "seasonal population"). See Fla. Admin. Code R. 9J- 5.005(2)(e)("The comprehensive plan shall be based on resident and seasonal population estimates and projections.") The BEBR projections are based on only the resident population. The County’s demographer assigned a 20 percent multiplier to the resident population to account for the seasonal population. This multiplier has been in the Plan for many years, and it has been used by the County (with the Department's approval) in calculating seasonal population for comprehensive planning purposes since at least 1982. Rather than use a 20 percent multiplier, Dr. Smith extrapolated the seasonal population trend between the 1990 census and the 2000 census and arrived at a different number for total county housing demand. Even so, based on the fifty- year time frame of the Amendment, the 2050 housing demand number estimated by Dr. Smith (76,800 units) is for all practical purposes identical to the number projected by the County (82,000). Indeed, Dr. Fishkind opined that there is no statistically significant difference between the County's and Dr. Smith's projections. Section 163.3177(6)(a), Florida Statutes, requires that "[t]he future land use plan shall be based upon surveys, studies, and data regarding the area, including the amount of land required to accommodate anticipated growth [and] the projected population of the area." The "need" issue is also a factor to be considered in an urban sprawl analysis. See Fla. Admin. Code R. 9J-5.006(5)(g)1. (urban sprawl may be present where a plan designates for development "uses in excess of demonstrated need"). There is no allocation ratio adopted by statute or rule by which all comprehensive plans are judged. The County's evidence established that the allocation ratio of housing supply to housing need associated with the best-case scenario, that is, a buildout of existing areas and the maximum possible number of units being approved in the Villages, was nearly 1:1. Adding the total number of remaining potential dwelling units in the County at the time of the Amendment, the total amount of potential supply for the 2050 period was 82,500 units. This ratio is more conservative than the ratios found in other comprehensive plans determined to be in compliance by the Department. In those plans, the ratios tend to be much greater than 1:1. Petitioners objected to the amount of allocation, but offered no independent allocation ratio that should have been followed. Instead, Manasota-88's and Compton's expert undertook an independent calculation of potential units which resulted in a number of units in excess of 100,000 for the next twenty years. However, the witness was not capable of recalling, defending, or explaining these calculations on cross-examination, and therefore they have been given very little weight. Moreover, the witness clearly did not factor the transfer of density units or the limitations associated with the transfer of such units required by the policies in the Amendment for assembling units in the Villages. Given these considerations, it is at least fairly debatable that Sarasota 2050 is based on relevant and appropriate population and housing need projections that were prepared in a professionally acceptable manner using professionally acceptable methodologies. Land use suitability Petitioners next contend that the identification of the RMAs is not based on adequate data and analyses of land use suitability. In this regard, Section 163.3177(6)(a), Florida Statutes, requires that future land use plans be based, in part, on surveys, studies, and data regarding "the character of undeveloped land." See also Fla. Admin. Code R. 9J-5.006(2), which sets forth the factors that are to be evaluated when formulating future land use designations. The Amendment was based upon a land use suitability analysis which considered soils, wetlands, vegetation, and archeological sites. There is appropriate data and analyses in the record related to such topics as "vegetation and wildlife," "wetlands," "soils," "floodplains," and "historical and archeological sites." The data were collected and analyzed in a professionally acceptable manner, and the identification of the RMAs reacts appropriately to that data and analyses. The County's evidence demonstrated that the locations chosen for the particular RMAs are appropriate both as to location and suitability for development. It is at least fairly debatable that the Amendment is supported by adequate data and analyses establishing land use suitability. Urban sprawl and need Petitioners further contend that the Amendment fails to discourage urban sprawl, as required by Florida Administrative Code Rule 9J-5.006(5), and that it is not supported by an appropriate demonstration of need. Need is, of course, a component of the overall goal of planning to avoid urban sprawl. The emerging development pattern in the northeast area of the County tends toward large-lot development. Here, the RMA concept offers a mixture of uses and requires an overall residential density range of three to six units per net developable Village acre, whereas most of the same residential areas of the County presently appear to have residential densities of one unit per five acres or one unit per ten acres. If the Villages (and Hamlets) are developed according to Plan, they will be a more desirable and useful tool to fight this large-lot land use pattern of current development and constitute an effective anti-urban sprawl alternative. Petitioners also allege that the Amendment will allow urban sprawl for essentially three reasons: first, there is no "need" for the RMA plan; second, there are insufficient guarantees that any future Village or Hamlet will actually be built as a Village or similar new urbanist-type development; and third, the Amendment will result in accelerated and unchecked growth in the County. The more persuasive evidence showed that none of these concerns are justified, or that the concerns are beyond fair debate. The Amendment is crafted with a level of detail to ensure that a specific new urbanist form of development occurs on land designated as Village/Open Space land use. (The "new urbanistic form" of development is characterized by walkable neighborhoods that contain a diversity of housing for a range of ages and family sizes; provide civic, commercial, and office opportunities; and facilitate open space and conservation of natural environments.) The compact, mixed-use land use pattern of the Villages and Hamlets is regarded as Urban Villages, a development form designed and recognized as a tool to combat urban sprawl. "New town" is defined in Florida Administrative Code Rule 9J-5.003(80) as follows: "New town" means a new urban activity center and community designated on the future land use map and located within a rural area or at the rural-urban fringe, clearly functionally distinct or geographically separated from existing urban areas and other new towns. A new town shall be of sufficient size, population and land use composition to support a variety of economic and social activities consistent with an urban designation. New towns shall include basic economic activities; all major land use categories, with the possible exception of agricultural and industrial; and a centrally provided full range of public facilities and services. A new town shall be based on a master development plan, and shall be bordered by land use designations which provide a clear distinction between the new town and surrounding land uses. . The Village/Open Space RMA is consistent with and furthers the concept embodied in this definition, that is, the creation of an efficient urban level of mixed-use development. Urban Villages referenced in the Rule are also a category and development form expressly recognized to combat urban sprawl. The Village/Open Space RMA policies include the types of land uses allowed, the percentage distribution among the mix of uses, and the density or intensity of each use. Villages must include a mix of uses, as well as a range of housing types capable of accommodating a broad range of family sizes and incomes. The non-residential uses in the Village, such as commercial, office, public/civic, educational, and recreational uses, must be capable of providing for most of the daily and weekly retail, office, civic, and governmental needs of the residents, and must be phased concurrently with the residential development of the Village. The policies set the minimum and maximum size for any Village development. Other policies establish standards for the minimum open space outside the developed area in the Village. The minimum density of a Village is three dwelling units per acre, the maximum density is six dwelling units per acre, and the target density is five dwelling units per acre. An adequate mix of non-residential uses must be phased with each phase or subphase of development. The maximum amount of commercial space in Neighborhood Centers is 20,000 square feet. Village Centers can be no more than 100 acres, the maximum amount of commercial space is 300,000 square feet, and the minimum size is 50,000 square feet. The Town Center may have between 150,000 and 425,000 square feet of gross leasable space. Villages must have sufficient amounts of non-residential space to satisfy the daily and weekly needs of the residents for such uses. Percentage minimums and maximums for the land area associated with uses in Village Centers and the Town Center are also expressed in the policies. Hamlets have a maximum density of one dwelling unit per acre and a minimum density of .4 dwelling unit per acre. The maximum amount of commercial space allowed in a Hamlet is 10,000 square feet. The number of potential dwelling units in the Village/Open Space RMA is limited to the total number of acres of land in the Village/Open Space and Greenway RMAs that are capable of transferring development rights. Calculations in the data and analyses submitted to the Department, as well as testimony at the hearing, set this number at 47,000-47,500 units once lands designated for public acquisition under the County’s ESLPPP are properly subtracted. To take advantage of the Village option and the allowable densities associated with Villages, property owners in the Village/Open Space RMA must assemble units above those allowed by the Plan's FLUM designation by acquiring and transferring development rights from the open space, the associated greenbelt and Greenway, the Village Master Plan, and other properties outside the Village. The means and strategy by which transfer sending and receiving areas are identified and density credits are acquired are specified in the Amendment. There are three village areas (South, Central, and North) in the Village/Open Space RMA, and the amendment limits the number of Villages that may be approved in each of the areas. In the South and Central Village areas, a second village cannot be approved for fifteen years after the first village is approved. The amount of village development in the South Village must also be phased to the construction of an interchange at Interstate 75 and Central Sarasota Parkway. In the North Village area, only one village may be approved. In addition, to further limit the amount and rate of approvals and development of Villages, village rezonings and master plans cannot be approved if the approval would cause the potential dwelling unit capacity for urban residential development within the unincorporated county to exceed 150 percent of the forecasted housing demand for the subsequent twenty-year period. To evaluate the housing demand for the subsequent twenty-year period, among other things, Policy VOS2.1(a)2. sets forth the following items to be considered in determining housing demand: Housing demand shall be calculated by the County and shall consider the medium range population projections of the University of Florida’s Bureau of Economic and Business Research for Sarasota County, projected growth in the Municipalities and residential building permit activity in the Municipalities and unincorporated County. Petitioners contend that Policy VOS2.1 is an illegal population methodology. However, the County established that the Policy merely sets forth factors to be considered and does not express a specific methodology. The County’s position is consistent with the language in the policy. Petitioners also contend that the policy is vague and ambiguous because the outcome of the application of the factors is not ordained (since weights are not assigned to each factor), and because building permit activity is not a valid or proper factor to consider in making housing demand projections. The evidence establishes, however, that the factors are all proper criteria to consider in making housing projections, and that a fixed assignment of weights for each item would be inappropriate. In fact, even though Manasota- 88's and Compton's demographer stated that building permit activity is not an appropriate factor to consider, he has written articles that state just the opposite. The County also established that Sumter County (in central Florida) had examined and used building permit activity in projecting population in connection with their comprehensive plan, and had done so after consulting with BEBR and receiving confirmation that this factor was appropriate. That building permit activity demonstrated that population projections and housing demand were higher in Sumter County than BEBR was projecting at the time, and that Sumter County’s own projections were more accurate than BEBR's projections. Petitioners essentially claim that the County should only use BEBR's medium range projections in calculating future housing needs. However, the evidence does not support this contention. Future housing need is determined by dividing future population by average household size. Because BEBR's medium population projections for a county include all municipalities in the county, they must always be modified to reflect the unincorporated county. Moreover, BEBR's projections are the result of a methodology that first extrapolates for counties, but then adjusts upward or downward to match the state population projection. A projection based on this medium range projection, but adjusted by local data, local information, and local trends, is a more accurate indicator of population, and therefore housing need, than simply the BEBR county-wide medium range projection. At the same time, future conditions are fluid rather than static, and the clear objective of Policy VOS2.1 is to project housing demand as accurately as possible. Assigning fixed weights to each factor would not account for changing conditions and data at particular points in time and would be more likely to lead to inaccurate projections. As specified in Policy VOS2.1, the factors can properly serve as checks or balances on the accuracy of the projections. Given that the clear intent of Policy VOS2.1 is to limit housing capacity and supply, accurately determining the housing demand is the object of the policy, and it is evident that the factors should be flexibly applied rather than fixed as to value, weight, or significance. There is also persuasive evidence that the RMA amendments can be reasonably expected to improve the Plan by providing an anti-sprawl alternative. Florida Administrative Code Rule 9J-5.006(5)(k) directly addresses this situation in the following manner: If a local government has in place a comprehensive plan found in compliance, the Department shall not find a plan amendment to be not in compliance on the issue of discouraging urban sprawl solely because of preexisting indicators if the amendment does not exacerbate existing indicators of urban sprawl within the jurisdiction. (emphasis added) Petitioners did not offer persuasive evidence to refute the fact that the RMAs would improve the existing development pattern in the County. While Petitioners alleged that the Amendment allows for the proliferation of urban sprawl in the form of low-density residential development, the evidence shows, for example, that the County's current development pattern in the USA has an overall residential density between two and three units per acre. The Rural Heritage/Estate and Agricultural Reserve RMAs may maintain or reduce the existing density found in the Plan by the transfer of development rights. The three to six dwelling units per net developable residential acre required for Village development in the Village/Open Space RMA, coupled with the Amendment's specific policies directing the location of higher density residential uses, affordable housing, and non- residential uses, provide meaningful and predictable standards for the development of an anti-sprawl land use form. They also provide a density of focused development that diminishes, rather than exacerbates, the existing potential for sprawl found in the Plan. In reaching his opinions on urban sprawl, Manasota- 88's and Compton's expert indicated that he only assessed the question of sprawl in light of the thirteen primary indicators of sprawl identified in Florida Administrative Code Rule 9J- 5.006(5)(g). Unlike that limited analysis, the County's and the Department's witnesses considered the sprawl question under all of the provisions of Chapter 163, Florida Statutes, and Florida Administrative Code Chapter 9J-5 and concluded that the Amendment did not violate the urban sprawl prohibition. As they correctly observed, there are other portions of the law that are critically relevant to the analysis of sprawl in the context of this Amendment. Urban villages described in Florida Administrative Code Rule 9J- 5.003(80) are a category and development form expressly designed to combat urban sprawl. In addition, Florida Administrative Code Rule 9J-5.006(5)(l) recognizes urban villages and new towns as two "innovative and flexible" ways in which comprehensive plans may discourage the proliferation of urban sprawl. The more persuasive evidence establishes that the Village form contained in the Amendment will discourage urban sprawl. The types and mix of land uses in the amendment are consistent with Florida Administrative Code Chapter 9J-5 and will serve to discourage urban sprawl. Therefore, it is at least fairly debatable that the Amendment does not exacerbate existing indicators of urban sprawl within the County and serves to discourage the proliferation of urban sprawl. It is also beyond fair debate that the Amendment describes an innovative and flexible planning and development strategy that is expressly encouraged and recognized by Section 163.3177(11), Florida Statutes, and Florida Administrative Code Rule 9J-5.006(5)(l) as a means to avoid and prevent sprawl. Natural resource protection and wetlands impacts Petitioners next allege that the Amendment fails to protect natural resources, as required by Florida Administrative Code Rules 9J-5.006(3)(b)4. and 9J-5.013(2)(b) and (3)(a) and (b). At a minimum, by providing for a Greenway area, clustering of development, large open space requirements, wildlife crossings, floodplain preservation and protection, greenbelts and buffers, transfers of development rights placing higher value on natural resources, best management practices, and the encouragement of development in the RMA pattern, the RMA plan creates a level of natural resource protection greater than the County’s existing Plan. Though Petitioners disagreed with the extent and breadth of the protections afforded by the Amendment, they could only point to one area where protections may not be as significant as in the Plan: wetland impacts in Villages where the Village Center is involved. On this issue, Policy VOS1.5 provides that: The County recognizes that prevention of urban sprawl and the creation of compact, mixed-use development support an important public purpose. Therefore, the approval of a Master Development Plan for a Village may permit impacts to wetlands within the Village Center itself only when it is determined that the proposed wetland impact is unavoidable to achieve this public purpose and only the minimum wetland impact is proposed. Such approval does not eliminate the need to comply with the other wetland mitigation requirements of the Environmental Technical Manual of the Land Development Regulations, including the requirement for suitable mitigation. The Board of County Commissioners will review such proposals on a case-by-case basis as part of the Master Development Plan review process. Contrary to Petitioners' claims, the Policy does not encourage wetland destruction. Impacts to wetlands with appropriate mitigation are allowed under this policy only when the impact is "unavoidable" and "the minimum impact is proposed." The term "unavoidable impact" is not an ambiguous term in the area of wetland regulation. It is not unbridled in the context of the policy, nor is it ambiguous when properly viewed in the context of the overriding concern of the amendment to "preserve environmental systems." The term "unavoidable impact" is used and has application and meaning in other wetland regulatory programs, such as the federal Clean Water Act and the regulations implementing that law. Regulations based on "unavoidable impacts," both in this policy as well as in the state and federal regulations, can be applied in a lawfully meaningful way. Considering the policies regarding environmental systems, habitats, wildlife, and their protection, especially when read in conjunction with the protections required in the Plan, the Amendment as a whole reacts appropriately to the data and can be expected to afford protection of natural resources. The Greenway RMA was based on data and analyses that generated a series of environmental resource overlays, that when completed, comprised the Greenway RMA. The overlays layered public lands, rivers and connected wetlands, preservation lands, ecologically valuable lands associated with the Myakka River system, named creeks and flow-ways, wetlands connected to such creeks and flow-ways, lands listed as environmentally sensitive under the County’s ESLPPP, lands deemed to be of high ecological value, and appropriate connections. The evidence establishes that the staff and consultants reviewed and consulted a wide range of professionally appropriate resources in analyzing and designating the Greenway RMA. Manasota-88 and Compton also contend that the Greenway RMA is inadequate in the sense that the RMA does not include all appropriate areas of the County. This claim was based on testimony that the Greenway did not include certain areas west and south of Interstate 75 in the Urban/Suburban and Economic Development RMAs, as well as a few conservation habitats (preserve areas) set aside by Development of Regional Impacts or restricted by conservation easements. However, the preserve areas and conservation easement properties will be preserved and maintained in the same fashion as the Greenway, so for all practical purposes their non-inclusion in the Greenway is not significant. The area located south of Interstate 75 was found to be the Myakka State Forest, which is in the planning jurisdiction of the City of North Port. Manasota-88's and Compton's witness (an employee of the FFWCC) also advocated a slightly different greenway plan for fish and wildlife resources, which he considered to be a better alternative than the one selected by the County. The witness conceded, however, that his alternative was only one of several alternative plans that the County could properly consider. In this regard, the County’s Greenway RMA reacts to data on a number of factors, only one of which is fish and wildlife. One important factor disregarded by the witness was the influence of private property rights on the designation of areas as greenway. While the FFWCC does not factor the rights of property owners in its identification of greenways, it is certainly reasonable and prudent for the County to do so. This is because the County’s regulatory actions may be the subject of takings claims and damages, and its planning actions are expected to avoid such occurrences. See § 163.3161(9), Fla. Stat. Petitioners also alleged that the lack of specific inclusion of the term "A-E Flood Zone" in the Greenway designation criteria of Policy GS1.1 does not properly react to the data and analyses provided in the Greenway Final Support Document. (That policy enumerates the component parts of the Greenway RMA.) Any such omission is insignificant, however, because in the Greenway RMA areas, the A-E Flood Zone and the areas associated with the other criteria already in Policy GS1.1 are 90 percent coterminous. In addition, when an application for a master plan for a Village is filed, the master plan must specifically identify and protect flood plain areas. At the same time, through fine tuning, the development review process, the open space requirements, and the negotiation of the planned unit development master plan, the remaining 10 percent of the A-E Flood Zone will be protected like a greenway. Greenway crossings The Greenway RMA is designed in part to provide habitat and corridors for movement of wildlife. In the initial drafts of the Amendment, future road crossings of the Greenway were located to minimize the amount of Greenway traversed by roads. After further review by the County, and consultation with a FFWCC representative, the number of crossings was reduced to eleven. The road crossings in the Amendment are not great in length, nor do they bisect wide expanses of the Greenway. All of the proposed crossings traverse the Greenway in areas where the Greenway is relatively narrow. Of the eleven crossings in the Greenway, three crossings presently exist, and these crossings will gain greater protection for wildlife through the design requirements of Policy GS2.4 than they would under the current Plan. Petitioners also expressed concerns with the wording of Policy GS2.4 and contended that the policy was not specific enough with regard to how wildlife would be protected at the crossings. The policy provides that Crossings of the Greenway RMA by roads or utilities are discouraged. When necessary to ensure the health, safety and welfare of the citizenry, however, transportation corridors within the Greenway RMA shall be designed as limited access facilities that include multi-use trails and prohibit non- emergency stopping except at designated scenic viewpoints. Roadway and associated utility corridors shall be designed to have minimal adverse impacts to the environment, including provisions for wildlife crossings based on accepted standards and including consideration of appropriate speed limits. Accordingly, under the policy, wildlife crossings must be designed to facilitate minimal adverse impacts on wildlife, and such designs must be "based on accepted standards." While Petitioners contended that what is required by "accepted standards" is vague and ambiguous, the County established that this language, taken individually or in the context of the policies of the Amendment, is specific and clear enough to establish that a crossing must be properly and professionally designed for the target species that can be expected to cross the Greenway at the particular location. It was also appropriate to design the crossing at the time of the construction of the crossing to best react to the species that will be expected to cross. Although Petitioners disagreed that the policy was acceptable, their witness agreed that it is essential to know what species are inhabiting a particular area before one can design a wildlife crossing that will protect the wildlife using the crossing. He further acknowledged that he typically designs crossings for the largest traveling species that his data indicates will cross the roadway. In deciding where to locate roads, as well as how they should be designed, crossings for wildlife are not the only matter with which the local government must be concerned. Indeed, if it were, presumably there would likely be no roads, or certainly far fewer places where automobiles could travel. To reflect legitimate planning, and to reasonably react to the data gathered by the local government, the County’s road network should reflect recognition of the data and an effort to balance the need for roads with the impacts of them on wildlife. The Amendment achieves this purpose. In summary, Petitioners have failed to show beyond fair debate that the crossings of the Greenway do not react appropriately to the data and analyses, or that the policies of the crossings are so inadequate as to violate the statute or rule. Transportation planning Manasota-88 and Compton next contend that the data and analyses for the transportation planning omit trips, overstate the potential intensity and density of land uses, and understate trips captured in the Villages. The transportation plan was based on use of the FSUTMS, a model recommended by the State and widely used by transportation planners for trip generation and modeling for comprehensive plan purposes. In developing the transportation plan, the County relied upon resources from the Highway Capacity Manual, the Transportation Research Board, and the Institute of Transportation Engineers. It also reviewed the data and analyses based on the modeling performed in September 2001 in the Infrastructure Corridor Plan, an earlier transportation plan used by the County. To ensure that the 2001 model was still appropriate for the Amendment, the County conducted further review and analyses and determined that the modeling was reasonable for use in connection with the Amendment even though the intensity of development eventually provided for in the Villages was less than had been analyzed in the model. The evidence supports a finding that the data was the best available, and that they were evaluated in a professionally acceptable manner. The evidence further shows that the Amendment identifies transportation system needs, and that the Amendment provides for transportation capital facilities in a timely and financially feasible manner. Transportation network modeling was performed for the County both with and without the 2050 Amendment. Based on the modeling, a table of road improvements needed to support the Amendment was made a part of the Amendment as Table RMA-1. Because the modeling factored more residential and non- residential development than was ultimately authorized by the Amendment, the identification of the level of transportation impacts was conservative, as were the improvements that would be needed. Manasota-88 and Compton correctly point out that the improvements contained in the Amendment are not funded for construction. Even so, this is not a defect in the Amendment because the improvements are not needed unless property owners choose to avail themselves of the 2050 options; if they do, they will be required to build the improvements themselves under the fiscal neutrality provisions of the Amendment. Further, the County’s CIP process moves improvements from the five-to-fifteen year horizon to the five-year CIP as the need arises. Thus, as development proposals for Villages or Hamlets are received and approved in the areas east of I-75, specific improvements would be identified and provided for in the development order, or could be placed in the County’s appropriate CIPs, as needed. The improvements necessary under the Amendment can be accommodated in the County’s normal capital improvements planning, and the transportation system associated with the Amendment can be coordinated with development under the Amendment in a manner that will assure that the impacts of development on the transportation system are addressed. It is noted that the Amendment requires additional transportation impact and improvement analysis at the time of master plan submittal and prior to approval of that plan. Accordingly, the Amendment satisfies the requirements of Chapter 163, Florida Statutes, and Florida Administrative Code Chapter 9J-5 for transportation planning. The County used the best available data and reacted to that data in a professionally appropriate way and to the extent necessary as indicated by the data. As noted above, the transportation impacts and needs were conservatively projected, and the County was likely planning for more facilities than would be needed. It is beyond fair debate that the Amendment is supported by data and analyses. Utilities Manasota-88 and Compton also contend that the Amendment is not in compliance because the policies relating to capital facilities are not supported by data and analyses, and that there is a lack of available capital facilities to meet the demand. The County analyzed data on water supplies and demands and central wastewater facilities needs under the Amendment. The data on water supplies and demands were the best available data and included the District water supply plan as well as the County's water supply master plan. The data were analyzed in a professionally acceptable manner and the conclusions reached and incorporated into the Amendment are supported by the analyses. The utilities system for water and wastewater has been coordinated in the Amendment with the County’s CIP in a manner that will ensure that impacts on the utilities are addressed. The County established that there are more than adequate permittable sources of potable water to serve the needs associated with the Amendment, and that the needed capital facilities for water and wastewater can reasonably be provided through the policies of the Amendment. The evidence showed that the Amendment provides for capital facilities for utilities in a timely and financially feasible manner. The total water needs for the County through the year 2050 cannot be permitted at this time because the District, which is the permitting state agency, does not issue permits for periods greater than twenty years. Also, there must be a demonstrated demand for the resources within a 20- year time frame before a permit will issue. Nonetheless, the County is part of a multi-jurisdictional alliance that is planning for long-term water supplies and permitting well into the future. It has also merged its stormwater, utilities, and natural resources activities to integrate their goals, policies, and objectives for long-term water supply and conservation purposes. No specific CIP for water or wastewater supplies and facilities was adopted in the Amendment. The County currently has water and wastewater plans in its Capital Improvement Element that will accommodate growth and development under the land use policies of the Plan. From the list contained in the Capital Improvement Element an improvement schedule is developed, as well as a more specific five-year CIP. Only the latter, five-year program identifies funding and construction of projects, and the only projects identified in the Capital Improvement Element are projects that the County must fund and construct. Because of the optional nature of the Amendment, supplies and facilities needed for its implementation will only be capable of being defined if and when development under the Amendment is requested. At that time, the specific capital facility needs for the development can be assessed and provided for, and they can be made a part of the County’s normal capital facilities planning under the Plan's Capital Facilities Chapter and its related policies. Policy VOS 2.1 conditions approval of Village development on demonstrating the availability and permitability of water and other public facilities and services to serve the development. Further, the Amendment provides for timing and phasing of both Villages and development in Villages to assure that capital facilities planning, permitting, and construction are gradual and can be accommodated in the County's typical capital improvement plan programs. Most importantly, the fiscal neutrality policies of the Amendment assure that the County will not bear financial responsibility for the provision of water or the construction of water and wastewater capital facilities in the Village/Open Space RMA. Supplies and facilities are the responsibility of the developers of the Villages and Hamlets that will be served. Additionally, Policy VOS3.6 requires that all irrigation in the Village/Open Space RMA (which therefore would include Villages and Hamlets) cannot be by wells or potable water sources and shall be by non-potable water sources such as stormwater and reuse water. The supplies and improvements that will be associated with the optional development allowed by the Amendment have been coordinated with the Plan and can be accommodated in the County's normal capital improvement planning. Through the policies in the Amendment, the water and wastewater facility impacts of the Amendment are addressed. Indeed, due to the fiscal neutrality policies in the Amendment, the County now has a financial tool that will make it easier to fund and provide water and wastewater facilities than it currently has under the Plan. Finally, to ensure that capital facilities are properly programmed and planned, the Amendment also contains Policy VOS2.2, which provides in pertinent part: To ensure efficient planning for public infrastructure, the County shall annually monitor the actual growth within Sarasota County, including development within the Village/Open Space RMA, and adopt any necessary amendments to APOXSEE in conjunction with the update of the Capital Improvements Program. It is beyond fair debate that the capital facilities provisions within the Amendment are supported by adequate data and analyses, and that they are otherwise in compliance. Financial feasibility and fiscal neutrality The Capital Improvement Element identifies facilities for which a local government has financial responsibility, and for which adopted levels of service are required, which include roads, water, sewer, drainage, parks, and solid waste. Manasota-88 and Compton challenge the "financial feasibility" of the Amendment. As noted above, there is significant data and analyses of existing and future public facility needs. The data collection and analyses were conducted in a professionally acceptable manner. The evidence shows that as part of its analyses, the County conducted a cost-benefit analysis of the Village development and determined that Village and Hamlet development can be fiscally neutral and financially feasible. Dr. Fishkind also opined that, based upon his review of the Amendment, it is financially feasible as required by the Act. Policy VOS2.9 of the Amendment provides in part: Each Village and each Hamlet development within the Village/Open Space RMA shall provide adequate infrastructure that meets or exceeds the levels of service standards adopted by the County and be Fiscally Neutral or fiscally beneficial to Sarasota County Government, the School Board, and residents outside that development. The intent of Fiscal Neutrality is that the costs of additional local government services and infrastructure that are built or provided for the Villages or Hamlets shall be funded by properties within the approved Villages and Hamlets. Policies VOS2.1, VOS2.4, and VOS2.9 provide that facility capacity and fiscal neutrality must be demonstrated, and that a Fiscal Neutrality Plan and Procedure for Monitoring Fiscal Neutrality must be approved at the time of the master plan and again for each phase of development. In addition, under Policy VOS2.9, an applicant's fiscal neutrality analysis and plan must be reviewed and approved by independent economic advisors retained by the County. Monitoring of fiscal neutrality is also provided for in Policy VOS2.2. Finally, Policy VOS2.10 identifies community development districts as the preferred financing technique for infrastructure needs associated with Villages and Hamlets. The evidence establishes beyond fair debate that the policies in the Amendment will result in a system of regulations that will ensure that fiscal neutrality will be accomplished. Internal inconsistencies Manasota-88 and Compton further contend that there are inconsistencies between certain policies of the Amendment and other provisions in the Plan. If the policies do not conflict with other provisions of the Plan, they are considered to be coordinated, related, and consistent. Conflict between the Amendment and the Plan is avoided by inclusion of the following language in Policy RMA1.3: If a property owner chooses to take advantage of the incentives provided by the Sarasota 2050 RMA, then to the extent that there may be a conflict between the Sarasota 2050 Resource Management Area Goal, Objectives and Policies and the other Goal[s], Objectives and Policies of APOXSEE, the Sarasota 2050 Resource Management Area Goal, Objectives and Policies shall take precedence. The other Goals, Objectives and Policies of APOXSEE including, but not limited to, those which relate to concurrency management and environmental protection shall continue to be effective after the adoption of these Resource Management Area Goal, Objectives and Policies. As to this Policy, Manasota-88's and Compton's claim is really nothing more than a preference that the Plan policies should also have been amended at the same time to expressly state that where there was a conflict between themselves and the new Amendment policies, the new Amendment would apply. Such a stylistic difference does not amount to the Amendment's not being in compliance. Therefore, it is fairly debatable that the Amendment is internally consistent with other Plan provisions. Public participation and intergovernmental coordination Petitioners next contend that there was inadequate public participation during the adoption of the Amendment as well as a lack of coordination with other governmental bodies. Ayech also asserted that there were inadequate procedures adopted by the County which resulted in less than full participation by the public. However, public participation is not a proper consideration in an in-compliance determination. In addition, the County has adopted all required procedures to ensure public participation in the amendment process. The County had numerous meetings with the municipalities in the County, the Council of Governments (of which the County is a member), and meetings and correspondence by and between the respective professional staffs of those local governments. The County also met with the Hospital Board and the School Board. The evidence is overwhelming that the County provided an adequate level of intergovernmental coordination. Regional and state comprehensive plans Petitioners have alleged violations of the state and regional policy plans. On this issue, Michael D. McDaniel, State Initiatives Administrator for the Department, established that the Amendment was not in inconsistent with the State Comprehensive Plan. His testimony was not impeached or refuted. Petitioners' claim that the Amendment is not consistent with the regional policy plan is based only on a report prepared by the Southwest Florida Regional Planning Council (SWFRPC) at the Amendment’s transmittal stage. There was no evidence (by SWFRPC representatives or others) that the report raised actual inconsistencies with the SWFRPC regional policy plan, nor was any evidence presented that the SWFRPC has found the amendment, as adopted, to be inconsistent with its regional plan. There was no persuasive evidence that the Amendment is either in conflict with, or fails to take action in the direction of realizing goals or policies in, either the state or regional policy plan. Other objections Finally, all other objections raised by Petitioners and not specifically discussed herein have been considered and found to be without merit. County's Request for Attorney's Fees and Sanctions On April 5, 2004, the County filed a Motion for Attorneys Fees and Sanctions Pursuant to F.S. § 120.595 (Motion). The Motion is directed primarily against Ayech and contends that her "claims and evidence were without foundation or relevance," and that her "participation in the proceeding was 'primarily to harass or cause unnecessary delay, or for frivolous purpose.'" The Motion also alleges that Manasota-88 and Compton "participated in this proceeding with an intent to harass and delay the Amendment from taking effect." Replies in opposition to the Motion were filed by Petitioners on April 12, 2004. The record shows that Ayech aligned herself (in terms of issues identified in the Pre-Hearing Stipulation) with Manasota-88 and Compton. While her evidentiary presentation was remarkably short (in contrast to the other Petitioners and the County), virtually all of the issues identified in the parties' Pre-Hearing Stipulation were addressed in some fashion or another by one of Petitioners' witnesses, or through Petitioners' cross-examination of opposing witnesses. Even though every issue has been resolved in favor of Respondents (and therefore found to be either fairly debatable or beyond fair debate), the undersigned cannot find from the record that the issues were so irrelevant or without some evidentiary foundation as to fall to the level of constituting frivolous claims. Accordingly, it is found that Petitioners did not participate in this proceeding for an improper purpose.
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 Sarasota County plan amendment adopted by Ordinance No. 2001-76 on July 10, 2002, is in compliance. DONE AND ENTERED this 14th day of May, 2004, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 2004.
The Issue The issue is whether the Evaluation and Appraisal Report (EAR) amendments for the Bay County (County) Comprehensive Plan (Plan) are in compliance.
Findings Of Fact The Parties Diane C. Brown resides and owns property within the County, and she submitted written and oral comments to the County during the adoption process of Ordinance No. 09-36. The County is a local government that administers its Plan and adopted the Ordinance which approved the changes being contested here. The Department is the state land planning agency charged with the responsibility for reviewing plan amendments of local governments, such as the County. The EAR Process The County's first Plan was adopted in 1990 and then amended through the EAR process in 1999. As required by law, on September 5, 2006, the County adopted another EAR and in 2007 a Supplement to the EAR. See County Ex. 1C and 1D. The EAR and Supplement were found to be sufficient by the Department on December 21, 2007. See County Ex. 1E. After the EAR-based amendments were adopted by the County and transmitted to the Department for its review, the Department issued its Objections, Recommendations and Comments (ORC) report. After making revisions to the amendments in response to the ORC, on October 20, 2009, the County enacted Ordinance No. 09-36, which adopted the final version of the EAR-based amendments known as "Charting Our Course to 2020." See County Ex. 1B. On December 15, 2009, the Department issued its notice of intent determining that the EAR-based amendments were in compliance. See County Ex. 1F. Notice of this determination was published in the Panama City News Herald the following day. See County Ex. 1G. The EAR is a large document comprised of five sections: Overview Special Topics; Issues; Element Reviews; Recommended Changes; and a series of Maps. Section 163.3191(10), Florida Statutes, requires that the County amend its comprehensive plan "based" on the recommendations in the report; subsection (2) also requires that the County update the comprehensive plan based on the components of that subsection. The EAR-based amendments are extensive in nature, and include amendments to all 13 chapters in the Plan. However, many provisions in the 1999 version of the Plan were left unchanged, while many revisions were simply a renumbering of a provision, a transfer of a provision to another element, a change in the format, or an otherwise minor and non-substantive change. Although the EAR discusses a number of issues and concerns in the first three sections of the report, the EAR- based amendments must only be based on the recommended changes. See § 163.3191(10), Fla. Stat. Therefore, it was unnecessary for the County to react through the amendment process to the discussions in the Issues and Element Reviews portions of the EAR. For example, the EAR discusses air quality and mercury but made no specific recommendations to amend the Plan to address either subject. Also, nothing in chapter 163 or Department rules requires that the County implement changes to the Plan that parrot each specific recommendation to the letter. So long as the revisions are "based" on an area of concern in the recommendations, the statutory requirement has been satisfied. Section Four of the EAR contains the "Recommended EAR- Based Actions and Corrective Measures Section 163.3191(2)(i)." See County Ex. 1C, § 4, pp. 1-9. Paragraph (2)(i) of the statute requires that the EAR include "[t]he identification of any actions or corrective measures, including whether plan amendments are anticipated to address the major issues identified and analyzed in the report." Section Four indicates that it was intended to respond to the requirements of this paragraph. Id. at p. 1. Finally, the only issue in this proceeding is whether the EAR-based amendments are in compliance. Therefore, criticisms regarding the level of detail in the EAR and Supplement, and whether the County adequately addressed a particular issue in those documents, are not relevant. A determination that the EAR was sufficient in all respects was made by the Department on December 21, 2007. In her Amended Petition, Petitioner raises numerous allegations regarding the EAR-based amendments. They can be generally summarized as allegations that various text amendments, including entire elements or sub-elements, are inconsistent with statutory and rule provisions or are internally inconsistent with other Plan provisions, and that the County failed to properly react to changes recommended in the EAR. Because this is a challenge to an in-compliance determination by the Department, Petitioner must show that even though there is evidence to support the propriety of these amendments, no reasonable person would agree that the amendments are in compliance. See Conclusion of Law 90, infra. Objections Administrative Procedures - Chapter 1 Petitioner contends that new policy 1.4.1(4) is inconsistent with sections 163.3181 and 187.201(25)(a) and (b)6., which generally require or encourage effective citizen participation, and rule 9J-5.004, which requires a local government to adopt procedures for public participation. She also contends the County should not have deleted policy 1.4.2, which required the County to provide notices (by mail and sign postings) beyond those required by chapter 163. The new policy simply provides that notice of public hearings be provided for in accordance with chapter 163. There is no statutory or rule requirement that more stringent notice requirements be incorporated into a plan. The new notice requirements are consistent with the above statutes and rule. It is fairly debatable that the changes to the Administrative Procedures part of the Plan are in compliance. Future Land Use Element (FLUE) - Chapter 3 Petitioner has challenged (a) one policy that creates a new planning area; (b) the County's failure to adopt new energy standards in the FLUE; and (c) the adoption of new development standards for two land use categories in Table 3A of the FLUE. Table 3A describes each land use category in the Plan, including its purpose, service area, designation criteria, allowable uses, density, intensity, and development restrictions. See County Ex. 1A, Ch. 3, pp. 3-5 through 3-17. These contentions are discussed separately below. Southport Neighborhood Planning Area New FLUE policy 3.4.8 creates the Southport Neighborhood Planning Area (Southport), a self-sustaining community with a functional mix of uses. See County Ex. 1A, Ch. 3, pp. 3-20 and 21. The effect of the amendment is simply to identify Southport as a potential planning area that includes a mixture of uses. This follows the EAR recommendations to create "new areas where residents are allowed to work, shop, live, and recreate within one relatively compact area while preserving the rural and low density land uses in the area[,]" and to create "higher density rural development." County Ex. 1C, § 4, p. 2. Southport is located north of the greater Panama City area in an unincorporated part of the County near or adjacent to the proposed new intersection of County Road 388 and State Road 77. Southport is also identified in new policy 3.2.5(8) as a Special Treatment Zone (STZ) that is designated as an overlay on the Future Land Use Map Series. Id. at p. 3-5. (There are seven STZs in the Plan that act as overlay districts on the FLUM. Overlays do not convey development rights.) Petitioner contends that policy 3.4.8 is inconsistent with sections 163.3177(6)(a) and (d), (8), and (9)(b) and (e), and rules 9J-5.005(2), (5), and (7), 9J-5.006(5), and 9J-5.013. More precisely, Petitioner generally contends that the amendment will encourage urban sprawl; that there is no need for the additional development; that there are no central water and wastewater facilities available to serve that area; that there is no mechanism for monitoring, evaluating, and appraising implementation of the policy; that it will impact nearby natural resources; that it allows increased density standards in the area; and that it is not supported by adequate data and analysis. Most of the data and analysis that support the establishment of the new planning area are in the EAR. They are found in the Introduction and Overview portion of Section One and the FLUE portion of Section 3 of the Element Reviews. The County Director of Planning also indicated that the County relied upon other data as well. Although the new policy allows an increase in maximum residential density from five to 15 dwelling units per acre, paragraph (b) of the policy specifically requires that "all new development [be] served by central water and sewer." Petitioner's expert opined that the new community will create urban sprawl. However, Southport is located within the suburban service area of the County, which already allows densities of up to five dwelling units per acre; it is currently developed with low-density residential uses; and it is becoming more urban in nature. Given these considerations, it is fairly debatable that Southport will not encourage urban sprawl. The new STZ specifically excludes the Deer Point Reservoir Protection Zone. Therefore, concerns that the new policy will potentially threaten the water quantity and quality in that reservoir are not credited. In addition, there are other provisions within the Plan that are designed to protect the reservoir. Petitioner criticized the County's failure to perform a suitability analysis before adopting the amendment. However, a suitability study is performed when a land use change is proposed. Policy 3.4.8 is not an amendment to the FLUM. In fact, the Plan notes that "[n]othing in this policy shall be interpreted as changing the land use category of any parcel of the [FLUM]." County Ex. 1A, Ch. 3, p. 3-21. In determining the need for this amendment, the County took into consideration the fact that except for the Beaches STZ, the EAR-based amendments delete residential uses as an allowed use in commercially-designated lands. The number of potential residential units removed from the commercial land use category far exceeds the potential number of residential units that could be developed at Southport. Thus, the new amendment will not result in an increase in residential units. Petitioner also contends that the County should have based its needs analysis using Bureau of Economic and Business Research (BEBR) estimates. The County's population projections are found in the Introduction portion of the EAR and while they make reference to BEBR estimates, they are not based exclusively on those data. See County Ex. 1C, § 1, pp. 2 and 3. However, there was no evidence that the estimates used by the County are not professionally acceptable. Where there are two acceptable methodologies used by the parties, the Department is not required to evaluate whether one is better than the other. See § 163.3177(10)(e), Fla. Stat. ("the Department shall not evaluate whether one accepted methodology is better than another"). The County's estimates are professionally acceptable for determining need. The other objections to the amendment have been considered and found to be without merit. Therefore, it is at least fairly debatable that the amendment is in compliance. Neighborhood Commercial - Table 3A The purpose of this commercial category is to "provide areas for the convenience of residential neighborhoods so as to generate a functional mix of land uses and reduce traffic congestion." County Ex. 1A, Ch. 3, p. 3-15. Allowable uses include, among others, supermarket centers, restaurants, public facilities, and other similar uses. The County amended the intensity standard for this category by allowing development that is "[n]o more than 50-feet in height." Id. Petitioner asserts that the new 50-foot height limitation for commercial buildings results in the amendment being inconsistent with rule 9J-5.006 because it is not based on adequate data and analysis. Petitioner further argues that the standard is internally inconsistent with FLUE objective 3.9 and policy 3.9.1 and Housing Element objective 8.5, which relate to compatibility. Finally, Petitioner alleges that it will cause unsustainable density in the category and create new demands for public services. The EAR contains a section that analyzes data regarding residential development in commercial land use categories. See County Ex. 1C, § 2. There is, then, data and analysis that support the amendment. The 50-foot height limitation actually limits the intensity that would normally be allowed under current Land Development Regulations (LDRs) if this limitation were not in the Plan. Therefore, it will not increase the intensity of development within this district. Because the Plan specifically provides that the category is for "areas [with] low-intensity commercial uses that will be compatible with adjacent or surrounding residential uses," and such uses must be located "outside subdivisions . . . unless intended to be included in the subdivisions," compatibility issues with adjacent residential areas should not arise. Petitioner failed to establish beyond fair debate that the amendment is not in compliance. Seasonal/Resort - Table 3A This land use category is designed for transient occupancy (temporary seasonal visitors and tourists) under chapter 509, rather than permanent residents. It is limited to areas with concentrations of accommodations and businesses that are used in the tourist trade. See County Ex. 1A, Ch. 3, p. 3- The category includes a new intensity standard for buildings of "[n]o more than 230-feet in height." Id. Petitioner contends that this intensity standard is inconsistent with section 163.3177(6)(d), (8), and (9) and rules 9J-5.005(2) and (5), 9J-5.006, and 9J-5.013. These provisions require that an amendment protect natural resources, that it be based on the best available data and analysis, and that it be internally consistent with other Plan provisions. Petitioner also points out that the land use category is located in or adjacent to the Coastal High Hazard Area, that the amendment allows an increase in density, and this results in an inconsistency with statutes and rules pertaining to hurricane evacuation zones. Prior to the adoption of the EAR-based amendments, there was no intensity standard in the Plan for this land use category and all development was governed by LDRs. Pursuant to a recommendation by the Department in its ORC, the new standard was incorporated into the Plan. Before making a decision on the specific height limitation, the County considered existing condominium construction on the beach, current LDR standards for the district, and whether the new standard would create an internal inconsistency with other Plan provisions. Therefore, it is fair to find that adequate data were considered and analyzed. The new height limitation is the same as the maximum height restriction found in the Seasonal Resort zoning district, which now applies to new construction in the district. Because condominiums and hotels that do not exceed 230 feet in height are now allowed within the district, and may actually exceed that height if approved by the County, the amendment is not expected to increase density or otherwise affect hurricane evacuation planning. Historically, transient visitors/tourists are the first to leave the area if a hurricane threatens the coast. Petitioner also contends that the amendment will create compatibility problems between existing one- or two-story residential dwellings in the district and high-rise condominiums, and that the County failed to adequately consider that issue. However, before a condominium or other similar structure may be built, the County requires that the developer provide a statement of compatibility. It is fairly debatable that the new intensity standard is in compliance. Energy Issues Petitioner alleges that the new amendments do not adequately address energy issues, as required by section 163.3177(6)(a). That statute requires, among many other things, that the FLUE be based upon "energy-efficient land use patterns accounting for existing and future electric power generation and transmission systems; [and] greenhouse gas reduction strategies." However, amendments to objective 3.11 and policy 3.11.5, which relate to energy-efficient land use patterns, adequately respond to these concerns. See County Ex. 1A, Ch. 3, pp. 3-27 and 3-28. In addition, new Transportation Element policy 4.10.3 will result in energy savings and reduce greenhouse gases by reducing idle times of vehicular traffic. See County Ex. 1A, Ch. 4, p. 4-12. It is fairly debatable that the energy portions of the Plan are in compliance, and they promote energy efficient land use patterns and reduce greenhouse gas emissions, as required by the statute. Transportation Element - Chapter 4 The EAR contains 14 recommended changes for this element. See County Ex. 1C, § 4, pp. 2-4. Item 2 recommends generally that bike paths be installed in or next to certain areas and roadways. Id. at p. 2. Petitioner contends that this recommendation was not implemented because it is not included in the Recreation and Open Space Element. However, one section of the Transportation Element is devoted to Bicycle and Pedestrian Ways and includes objectives 4.14 and 4.15 and policies 4.14.1 and 4.15.1, which respond to the recommendation. See County Ex. 1A, Ch. 4, pp. 4-14 and 4-15. In addition, the General Strategy portion of the element requires the County to install alternative transportation systems where a demonstrated need exists. Id. at p. 4-1. Petitioner contends that by limiting bike paths only to where there is a demonstrated need, the County has not fully responded to the recommendation. This argument is illogical and has been rejected. It is fairly debatable that the above amendments are in compliance. Groundwater Aquifer Recharge - Chapter 5F As required by section 163.3177(6)(c), the County has adopted a natural groundwater aquifer recharge element. See County Ex. 1A, Ch. 5F. The goal of this sub-element, as amended, is to "[s]afeguard the functions of the natural groundwater recharge areas within the County to protect the water quality and quantity in the Floridan Aquifer." County Ex. 1A, Ch. 5, p. 5F-1. The EAR contains three recommended changes for this part of the Plan: that the County update its data and analysis to identify areas of high and/or critical recharge for the Floridan aquifer; that it include in the data and analysis an examination of existing LDRs which affect land uses and development activities in high recharge areas and note any gaps that could be filled through the LDRs; and that it include within the data and analysis a study of potential impacts of increased development in high recharge areas, including reasonable development standards for those areas. See County Ex. 1C, §4, pp. 4-5. Petitioner contends that "the objectives and policies pertaining to protecting water recharge areas" are inconsistent with sections 163.3177(6)(d) and 187.201(7) and rules 9J-5.5.011 and 9J-5.013, which require that the Plan protect groundwater; that they violate section 163.3177(8) and rule 9J-5.005(7), which require measurable objectives for monitoring, evaluating, and appraising implementation; and that the County violated section 163.3191(10) by failing to respond to the recommended changes in the EAR. In response to the EAR, in July 2009, the County prepared a watershed report entitled "Deer Point Lake Hydrologic Analysis - Deer Point Lake Watershed," which was based on a watershed management model used by County expert witness Peene. See County Ex. 4. The model used for that report is the same model used by the Department of Environmental Protection (DEP) and the United States Army Corps of Engineers. The study was also based on data and analysis prepared by the Northwest Florida Water Management District. The purpose of the analysis was to look at potential future land use changes in the Deer Point watershed and assess their ultimate impact upon the Deer Point Reservoir, which is the primary public water supply for the County. The model examined the entire Deer Point watershed, which is a much larger area than the Deer Point Lake Protection Zone, and it assumed various flows from rain, springs, and other sources coming into the Deer Point Reservoir. The study was in direct response to a recommendation in the EAR that the County undertake a study to determine if additional standards were needed to better protect the County's drinking water supply and the St. Andrews estuary. See County Ex. 1C, § 4, p. 5. Another recommendation was that the study be incorporated by reference into the data and analysis of the Plan and be used as a basis for any amendments to the Plan that might be necessary. Id. at p. 6. Pursuant to that recommendation, the report was incorporated by reference into Objective 5F.1. See County Ex. 1A, Ch. 5, p. 5F-1. The evidence supports a finding that the report is based on a professionally accepted methodology and is responsive to the EAR. The model evaluated certain future land use scenarios and predicted the level of pollutants that would run off of different land uses into the Deer Point Reservoir. Based on this analysis, Dr. Peene recommended that the County adopt certain measures to protect the groundwater in the basin from fertilizers, stormwater, and pesticides. He also recommended that best management practices be used, that septic tanks be replaced, and that any new growth be on a centralized wastewater treatment plant. Petitioner's expert criticized the report as not sufficiently delineating the karst features or the karst plain within the basin. However, the report addresses that issue. See County Ex. 4, p. 2-36. Also, Map 13 in the EAR identifies the Karst Regions in the County. See County Ex. 1C, § 5, Map 13. One of the recommendations in the EAR was to amend all goals, policies, and objectives in the Plan "to better protect the Deer Point watershed in areas not included within the Deer Point Reservoir Special Treatment Zone, and [to] consider expanding the zone to include additional areas important to preserving the quantity and quality of water entering the reservoir." County Ex. 1C, § 4, p. 6. Besides amending the sub-element's goal, see Finding of Fact 31, supra, the County amended objective 5F.1 to read as follows: By 2010 protect groundwater resources by identifying and mapping all Areas of High Aquifer Recharge Potential to the Floridan Aquifer in Bay County by using the data and analysis contained in the Deer Point Lake Hydrologic Analysis - Deer Point Watershed, prepared by Applied Technology and Management, Inc., dated July 2009. In addition, policy 5F-1.1 requires that the County use "the map of High Aquifer Recharge Areas to establish an Ecosystem Management overlay in the Conservation Element where specific land use regulations pertaining to aquifer water quality and quantity shall apply." Also, policy 5F-1.2 requires the identification of the Dougherty Karst Region. Finally, the EAR and Map 13A were incorporated by reference into the Plan by policy 1.1.4.4. These amendments sufficiently respond to the recommendations in the EAR. While Petitioner's expert criticized the sufficiency of the EAR, and he did not believe the report adequately addressed the issue of karsts, the expert did not establish that the study was professionally unacceptable or otherwise flawed. His criticism of the County's deletion of language in the vision statement of the sub-element that would restrict development density and intensity in areas known to have high groundwater aquifer potential is misplaced. An amendment to a vision statement is not a compliance issue, and nothing in the EAR, chapter 163, or chapter 9J-5 requires the County to limit "density and intensity" in high aquifer recharge areas. On this issue, the EAR recommended that the County's drinking water supply be protected by using "scientifically defensible development standards." County Ex. 1C, § 4, p. 5. The amendments accomplish this result. Petitioner also contends that while new policy 5F.3 and related policies are "good," the County should have collected additional data and analysis on the existence of swallets, which are places where streams flow underground. Again, nothing in chapter 163 or chapter 9J-5 requires the County to consider swallets. Also, a contention that policy 5F3.2 allows solid waste disposal facilities in high recharge areas is without merit. The policy requires that the County continue to follow chapter 62-7 regulations (implemented by DEP) to protect water quality of the aquifers. In addition, a moratorium on construction and demolition landfills has been adopted, and current LDRs prohibit landfills within the Deer Point Reservoir Protection Zone. Petitioner also criticized the sufficiency of policy 5F.4, which requires the implementation of LDRs that limit land uses around high aquifer recharge areas. The evidence establishes that the new policy is sufficient to achieve this purpose. It is at least fairly debatable that the new amendments protect the natural resources, are based on the best available data and analysis, include measurable objectives for overseeing the amendments, and respond to the recommended changes in the EAR. Conservation Element - Chapter 6 The purpose of this element is to conserve the natural resources of the County. Petitioner contends that "many of the amendments [to this chapter] are not consistent with applicable rules and statutes, and that a number of recommendations in the EAR pertaining to the Conservation Element were not implemented as required by Section 163.3191(10)." These contentions are discussed below. Air pollution While the EAR discusses air pollution, there were no specific recommendations to amend the plan to address air quality. See County Ex. 1C, Element Reviews, Ch. 6, pp. 1 and Petitioner contends, however, that current Plan objective 6.3, which was not amended, is not protecting air quality and should have been revised to correct major air quality problems in the County, including "the deposition of atmospheric mercury caused by fossil fuel burning power plants and incinerators." Objective 6.3 requires the County to maintain or improve air quality levels, while related policies 6.3.1 and 6.3.2 require that the County's facilities will be constructed and operated in accordance with state and federal standards. The policies also require that the County work through state and federal agencies to eliminate unlawful sources of air pollution. Notably, the County does not regulate emissions or air pollution, as that responsibility lies within the jurisdiction of other state and federal agencies. It is fairly debatable that the County reacted to the EAR in an appropriate manner. Policies and Objectives in Chapter 6 Petitioner contends that policy 6.1.1 is inconsistent with section 163.3177(8) and rule 9J-5.005(2) because: it is not supported by adequate data and analysis; it does not implement the EAR recommendations, as required by section 163.3191(10); it is inconsistent with section 163.3177(9)(b) and (f) because it results in "inconsistent application of policies intended to guide local land use decision[s]"; it is inconsistent with sections 163.3177(6)(d) and 187.201(9) and (10) and rule 9J- 5.013 because it fails to adequately protect natural resources, including isolated wetlands; and it is internally inconsistent with other Plan provisions. Policy 6.1.1 provides that as a subdivision of the State, the County "will, to the maximum extent practicable, rely upon state laws and regulations to meet the conservation goals and objectives of this Plan." Item 9 in the recommended changes recommends that the County should resolve the ambiguities and inconsistencies between various policies and objectives which rely on the jurisdiction of state laws and regulation on the one hand, and objective 6.11 and implementing policies, which appear to extend wetland jurisdiction to all wetlands, including isolated wetlands not regulated by the Northwest Florida Water Management District. See County Ex. 1C, § 4, p. 6. The real issue involves isolated wetlands, which at the time of the EAR were not regulated by the Northwest Florida Water Management District. The EAR did not recommend a specific solution, but only to resolve any apparent "ambiguity." Through amendments to policy 6.11.3, which implements objective 6.11, the County reacted to the recommendation. These amendments clarify the Plan and provide that wetlands in the County will be subject to the Plan if they are also regulated by state and federal agencies. Any ambiguity as to the Plan's application to isolated wetlands was resolved by the adoption of new rules by the Northwest Florida Water Management District, which extend that entity's jurisdiction to isolated wetlands. See Fla. Admin. Code Ch. 62-346. This was confirmed by County witness Garlick, who explained that the Plan now defers to the wetland regulations of state and federal agencies. Therefore, any inconsistencies or ambiguities have been resolved. Petitioner contends that objective 6.2 and implementing policy 6.2.1 are inconsistent with statutes and a rule which require protection of natural resources because they focus on "significant" natural resources, and not all natural resources. With the exception of one minor change to the policy, the objective and policy were not amended, and the EAR did not recommend that either be revised. Also, testimony established that existing regulations are applied uniformly throughout the County, and not to selected habitat. Finally, the existing objective and related policies already protect rare and endangered species in the County. Objective 6.3 requires that the County "maintain or improve air quality levels." For the reasons cited in Finding of Fact 45, the objective is in compliance. Objective 6.5 requires the County to maintain or improve estuarine water quality consistent with state water quality standards, while policy 6.5.1 delineates the measures that the County will take to achieve that objective. See County Ex. 1A, Ch. 6, pp. 6-4 and 6-5. Except for one minor change to paragraph (3) of the policy (which is not in issue), neither provision was revised. Also, the EAR did not recommend any changes to either provision. Notwithstanding Petitioner's contention to the contrary, the County was not required to revise the objective or policy. Policy 6.5.2 requires that the County "protect seagrass beds in those areas under County jurisdiction" by implementing certain enforcement measures. County Ex. 1A, Ch. 6, p. 6-5. The policy was only amended in minor respects during the EAR process. Petitioner contends that the County failed to amend the policy, as required by the EAR, and this failure results in no protection to natural resources. However, the EAR only discusses the policy in the Issues section. See County Ex. 1C, § 2, p. 7. While the EAR emphasizes the importance of seagrass beds to marine and estuarine productivity, it has no recommended changes to the objective or policy. Even so, the County amended policy 6.5.2(5) by requiring the initiation of a seagrass monitoring program using Geographic Information System (GIS) mapping by 2012. See County Ex. 1A, Ch. 6, p. 6-6. It is at least fairly debatable that the objective and policy are in compliance. Objective 6.6 requires the County to "protect, conserve and appropriately use Outstanding Florida Waters, Class I waters and Class II waters." County Ex. 1A, Ch. 6, p. 6-6. Its purpose is to ensure the quality and safety of the County's primary drinking water supply. Id. The objective was not amended and remains unchanged since 1999. Except for a recommendation that the County give a land use designation to water bodies, there were no recommended changes for this objective or related policies in the EAR. Because land use designations are for land, and not water, the County logically did not assign a land use to any water bodies. Petitioner contends that the objective and related policies are not based on the best available data and analysis and are not measurable, and that they fail to protect Lake Powell, an Outstanding Florida Water, whose quality has been declining over the years. Because no changes were recommended, it was unnecessary to amend the objective and policies. Therefore, Petitioner's objections are misplaced. Notably, the Plan already contains provisions specifically directed to protecting Lake Powell. See, e.g., policy 6.6.1(1), which requires the County to specifically enforce LDRs for Lake Powell, and objective 6.21, which requires the County to "[m]aintain or improve water quality and bio-diversity in the Lake Powell Outstanding Florida Water (OFW)." County Ex. 1A, Ch. 6, pp. 6-6 and 6-24. Petitioner's expert also criticized the objective and related policies on the ground the County did not adequately identify karst areas in the region. However, nothing in the EAR, chapter 163, or chapter 9J-5 requires the County to collect new data on the existence of karst areas. Petitioner also points out that objective 6.6 and policy 6.6.1 are designed to protect Deer Point Lake but were not amended, as required by the EAR, and they fail to adequately protect that water body. For the reasons expressed in Finding of Fact 55, this contention has been rejected. Objective 6.7, which was not amended, provides that the County "[c]onserve and manage natural resources on a systemwide basis rather than piecemeal." County Ex. 1A, Ch. 6, p. 6-8. Related policies, which were not amended except in one minor respect, require that the County implement programs in "Ecosystem Management Areas." These areas are illustrated on Map 6.1 of chapter 6. Petitioner contends that even though they were not amended, the objective and policies are not supported by adequate data and analysis, they fail to contain measurable standards, and they are not responsive to a recommendation in the EAR. Because no changes were made to these provisions, and the EAR does not recommend any specific changes, the contentions are rejected. The 17 water bodies comprising the Sand Hill Lakes are identified in policy 6.9.1. Policy 6.9.3, which also implements objective 6.9, continues the practice of prohibiting development with a density of greater than one unit per ten acres on land immediately adjacent to any of the Sand Hills Lakes outside designated Rural Communities. See County Ex. 1A, Ch. 6, p. 6- (The three Rural Communities in the County have been designated as a STZ and are described in FLUE policy 3.4.4.) The policy has been amended by adding new language providing that "[p]roposed developments not immediately adjacent to, but within 1320 feet of a Sand Hill Lake, and outside of a designated Rural Community, will provide, prior to approval, an analysis indicating that the development will not be too dense or intense to sustain the lake." Id. Other related policies are unchanged. The amendment was in response to a recommendation in the EAR that all goals, objectives, and policies be amended to more clearly define the area around the Sand Hill Lakes within which densities and intensities of land must be limited to ensure protection of the lakes. See County Ex. 1C, § 4, p. 6. Petitioner contends that the amended policy is inconsistent with various statutes and rules because it contains no specific standards for site suitability assessment and does not restrict density bordering on the lake; it does not implement the EAR; it is not based on EAR data and analysis; and it does not contain procedures for monitoring and evaluating the implementation of all policies. Policy 6.9.3 applies to agricultural areas outside of rural communities where the maximum density is now one dwelling unit per ten acres, and to properties that are designated as agriculture timber, which allows one dwelling unit per 20 acres. Contrary to Petitioner's assertion, it does not change the established densities on those land use categories. Before a property owner can convert a land use affected by the policy, the applicant will be required to provide an analysis that the new development will not be too intense or dense to sustain the lake. It is at least fairly debatable that the amendment responds to the EAR recommendation, that it will not increase density, that it is based on sufficient data and analysis in the EAR, and that adequate standards are contained in the policies to ensure proper implementation. Objective 6.11 requires the County to "[p]rotect and conserve wetlands and the natural functions of wetlands." County Ex. 1A, Ch. 6, p. 6-14. A challenge to an amendment to policy 6.11.3(3), which relates to setbacks or buffers for wetlands, has already been addressed in Case No. 10-0859GM. Policy 6.11.3 provides that in order "[t]o protect and ensure an overall no net loss of wetlands," the County will employ the measures described in paragraphs (1) through (6) of the policy. Petitioner contends that by using the standards employed by state and federal agencies for wetlands in paragraph (2), the County has abdicated its responsibility to protect natural resources. However, as previously discussed, the recent assumption of jurisdiction over isolated wetlands by the Northwest Florida Water Management District allows the County to extend these measures to all wetlands in the County. Petitioner also contends that the term "no net loss" in policy 6.11.3 is not measurable. Through its GIS system, though, the County can monitor any loss of wetlands. This was confirmed by County witness Garlick. In addition, the County will know at the development order phase whether any federal or state agency requires mitigation to offset impacts to wetlands. It is at least fairly debatable that the amendments to policy 6.11.3 will protect all wetlands, including isolated wetlands. Objective 6.12 requires that by the year 2012, the County will "develop a GIS layer that provides baseline information on the County's existing wetlands. This database will be predicated on the USFWS [United States Fish and Wildlife Service] National Wetlands Inventory (Cowardin et al 1979) hierarchy of coastal and inland (wetlands) represented in North Florida. This inventory shall be developed through a comprehensive planning process which includes consideration of the types, values, functions, sizes, conditions and locations of wetlands." County Ex. 1A, Ch. 6, p. 6-15. Related policies 6.12.1, 6.12.2, and 6.12.3 require that the County (a) use the GIS database to identify, classify, and monitor wetlands; (b) adopt LDRs which further the objective and policies; and (c) track in the GIS database the dredge and fill permits issued by DEP. Id. Petitioner criticizes the County's decision to wait until 2012 to develop a GIS layer; contends that policy 6.12.2 improperly defers to LDRs; asserts that the policy lacks meaningful standards; and contends it is not responsive to the EAR. The evidence presented on these issues supports a finding that it is at least fairly debatable that the amendments are in compliance. The EAR-based amendments deleted objective 6.13, together with the underlying policies, which related to floodplains, and created new provisions on that subject in the Stormwater Management Sub-Element in Chapter 5E. This change was made because the County concluded that floodplain issues should more appropriately be located in the stormwater chapter. The natural resource values of floodplains are still protected by objective 5E-9 and related policies, which require that state water quality standards are maintained or improved through the County's stormwater management programs. See County Ex. 1A, Ch. 5E, p. 5E-7. Also, "flood zones" are retained as a listed "significant natural resource" in Conservation Element policy 6.2.1. See County Ex. 1A, Ch. 6, p. 6-3. It is at least fairly debatable that the transfer of the floodplain provisions to a new element does not diminish protection of that resource. Finally, Objective 6.21 (formerly numbered as 6.23) requires the County to "[m]aintain or improve water quality and bio-diversity in the Lake Powell Outstanding Florida Water (OFW)." Except for renumbering this objective, this provision was not amended, and there is no specific recommendation in the EAR that it be revised. Therefore, the contentions that the existing policy are not in compliance are not credited. Coastal Management Element - Chapter 7 The recommended changes for this element of the Plan are found on pages 7 and 8 of Section 4 of the EAR. In her Proposed Recommended Order, Petitioner contends that the entire element is inconsistent with section 163.3191(10) because the County did not follow the recommendations in items 1, 2, and 4. Those items generally recommended that the County update the data and analysis supporting the element to reflect current conditions for, among other things, impaired waters. This was done by the County. Accordingly, the County adequately responded to the recommendations. Petitioner also contends that policy 7.1.1 improperly deferred protection of coastal resources to the LDRs. The policy reads as follows: 7.1.1: Comply with development provisions established in the [LDRs] for The Coastal Planning Area (Chapter 10, Section 1003.2 of the Bay County [LDRs] adopted September 21, 2004) which is hereby defined as all land and water seaward of the landward section line of those sections of land and water areas seaward of the hurricane evacuation zone. County witness Crelling established, however, that there are numerous other policies in the element that govern the protection of natural resources. Petitioner contends that no changes were made to provide additional guidance in policy 7.2.1 (formerly numbered as 7.3.1) to improve estuarine water quality even though multiple water bodies are listed as impaired. Except for a few clarifying changes, no revisions were made to the policy. Policy 7.2.1 does not reduce the protection for impaired waters. The minor rewording of the policy makes clear that the protective measures enumerated in the policy "will be taken" by the County to maintain or improve estuarine water quality. It is fairly debatable that the element and new objectives and policies are in compliance. Petitioner contends that amended objective 7.2 (formerly numbered as 7.3) will lead to less protection of water quality. The objective requires the County to "[m]aintain or improve estuarine water quality by regulating such sources of pollution and constructing capital improvements to reduce or eliminate known pollutants." County Ex. 1A, Ch. 7, p. 7-2. Its purpose is to regulate all known potential sources of estuarine pollution. The evidence fails to establish that the amended objective will reduce the protection of water quality. Policy 7.3.1 was amended to delete the requirement that areas with significant dunes be identified and mapped and to provide instead that the County may impose special conditions on development in dune areas as a part of the development approval process. See County Ex. 1A, Ch. 7, p. 7-4. This change was made because the EAR recommended that a requirement to map and identify dune systems be deleted due to the "extremely dynamic nature of beach and dune systems." County Ex. 1C, § 4, p. 7. A similar provision in the Conservation Element was transferred to the Coastal Management Element to respond to the recommended change. The County adequately responded to the recommendation. Petitioner contends that amended policy 7.3.2 (formerly numbered as 7.4.1) does not include sufficient standards to protect significant dunes. The amended policy requires that where damage to dunes is unavoidable, the significant dunes must be restored and revegetated to at least predevelopment conditions. It is at least fairly debatable that the standards in the policy are sufficient to protect dunes. In summary, the evidence does not establish beyond fair debate that the revisions to chapter 7 are not in compliance. Housing Element - Chapter 8 Petitioner contends the entire element is inconsistent with section 163.3191(10) because the County failed to react to recommendations in the EAR; and that new objective 8.16 and related policies 8.16.1, 8.16.2, and 8.16.3 are inconsistent with section 163.3177(9)(e) and rules 9J-5.005(6) and (7) because they fail to identify how the provisions will be implemented and thus lack specific measurable objectives and procedures for monitoring, evaluating, and appraising implementation. Petitioner focused on item 4 in the Recommended Changes for the Housing Element. That recommendation reads as follows: 4. The revised data and analysis should also include a detailed analysis and recommendations regarding what constitutes affordable housing, the various state and federal programs available to assist in providing it; where it should be located to maximize utilization of existing schools, medical facilities, other supporting infrastructure, and employment centers taking into consideration the costs of real property; and what the likely demand will be through the planning horizon. The objectives and policies should then be revised consistent with the recommendation of the analysis, including the creation of additional incentives, identification on the Future Land Use Map of areas suited for affordable housing, and, possibly amending the County Land Development Regulations to require the provision of affordable housing if no other alternatives exist. County Ex. 1C, § 4, p. 8. Item 1 of the Recommended Changes states that "[t]he County should implement those policies within the Housing Element which proactively address affordable housing, and in particular Policy 8.15.1 outlining density bonuses, reduced fees, and streamlined permitting, to provide incentives for the development of affordable housing." Id. Policy 8.15.1 was amended to conform to this recommendation. The new objective and policies address incentives for the development of affordable housing. While item 4 is not specifically addressed, the new objective and policies address the County's housing concern as a whole, as described in the Recommended Changes. Also, the new objective and policies contain sufficient specificity to provide guidance to a user of the Plan. It is fairly debatable that the element as a whole, and the new objective and policies, are in compliance. Intergovernmental Coordination Element - Chapter 10 Although discussed in the Element Reviews portion of the EAR, there are no recommended changes for this element. See County Ex. 1C, § 3, pp. 1-5. Petitioner contends that because the County deleted objective 10.5, the entire element conflicts with the EAR recommendations, and it is inconsistent with two goals in the state comprehensive plan, sections 163.3177(6)(h)1. and (9)(b) and (h), and rules 9J-5.015 and 9J-5.013(2)(b)8. The deleted provision required the County to "establish countywide resource protection standards for the conservation of locally significant environmental resources." Besides deleting this objective, the County also deleted objective 10.1, which provided that the County "will take the lead role toward the creation of an 'intergovernmental forum' as a means to promote coordination between various jurisdictions and agencies." County Ex. 1A, Ch. 10, p. 10-1. To support her argument, Petitioner relies upon a concern in the Issues part of the EAR that states that "countywide resource protection standards have not been established" and that "consistency of regulation between jurisdictions" must be observed. See County Ex. 1C, § 2, p. 45. Mr. Jacobson, the County Planning and Zoning Director, pointed out that the County currently has numerous interlocal agreements with various municipalities and does not require authorization from the Plan to adopt these agreements. Objective 10.5 was deleted because the County cannot implement its regulations in the various municipalities, and protection of natural resources is addressed in other portions of the Plan. He also noted that the "intergovernmental forum" discussed in deleted objective 10-1 is not required by any statute or rule. It is at least fairly debatable that the element is in compliance and does not violate any statute or rule. (i) Capital Improvements Element - Chapter 11 Petitioner contends that the County failed to implement three recommended changes in the EAR and therefore the entire element is in violation of section 163.3191(10). Those recommendations include an updating of information on the County's current revenue streams, debts, commitments and contingencies, and other financial matters; a revision of policy 11.6.1 to be consistent with Recreation and Open Space Element policy 9.71 with regard to recreational levels of service (LOS); and the development of a five-year schedule of capital improvements. See County Ex. 1, § 4, p.9. Policy 11.6.1 has been substantially revised through the EAR process. Table 11.1 in the policy establishes new LOSs, including one for local parks, regional parks, and beach access points. The County has also adopted an updated five-year Capital Improvement Plan. See County Ex. 36. That exhibit includes a LOS Analysis for recreational services. The same exhibit contains a breakdown of financial matters related to capital improvements. It is fairly debatable that the element is in compliance. Petitioner also contends that objective 11.1 and policy 11.1.1 are not in compliance. Both provisions remain unchanged from the 1999 Plan, and the EAR did not recommend that either provision be amended. The contention is therefore rejected. Other Issues All other issues not specifically addressed herein have been considered and found to be without merit, contrary to the more persuasive evidence, or not subject to a challenge in this proceeding.
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 EAR-based amendments adopted by Ordinance No. 09-36 are in compliance. DONE AND ENTERED this 30th day of June, 2011, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 2011.
The Issue The issue to be determined in this proceeding is whether a small scale development amendment to the future land use map of the City of Jacksonville's 2030 Comprehensive Plan, adopted by Ordinance No. 2019-750-E on February 25, 2020 (the Ordinance), is "in compliance," as that term is defined in section 163.3184(1)(b), Florida Statutes.
Findings Of Fact The following Findings of Fact are based on the stipulations of the parties and the evidence adduced at the final hearing. The Parties and Standing Petitioner Livingston is a Florida resident, who lives at 1507 Alexandria Place North, Jacksonville, Florida 32207. Livingston appeared at the adoption hearings for the Ordinance and submitted comments and objections on the record. Livingston is an affected person under section 163.3184(1)(a). Petitioner Gopal is a Florida resident, who lives at 1535 Alexandria Place North, Jacksonville, Florida 32207. Gopal appeared at the adoption hearings for the Ordinance, and submitted comments and objections on the record. Gopal is an affected person under section 163.3184(1)(a). Right Size is a Florida not-for-profit corporation that conducts business in the City, and its corporate address is 1507 Alexandria Place North, Jacksonville, Florida 32207. The specific purpose of Right Size, as stated in its Articles of Incorporation filed February 11, 2020, is to support, protect and preserve the historic character and beauty of San Marco, a historic residential neighborhood south of downtown Jacksonville and the St. Johns River. Officers of Right Size appeared at the adoption hearings for the Ordinance and submitted comments and objections on the record. Right Size is an affected person under section 163.3184(1)(a). Respondent City is a municipal corporation of the state of Florida and is responsible for enacting and amending its comprehensive plan in accordance with Florida law. The City provided timely notice to the parties and the process followed the provisions of the City's Ordinance Code and part II of chapter 163. The Ordinance relates to 2.87 acres of property located at 2137 Hendricks Avenue and 2139 Thacker Avenue (Property). The Property is located within the City's jurisdiction. Intervenor Harbert is an Alabama limited liability company, registered to do business in Florida. Harbert is an applicant of record for the small scale development amendment and currently has the Property under a purchase contract pending the effective adoption of the Ordinance. Harbert is an affected person and intervenor under section 163.3187(5)(a). Intervenor South Jax is a Florida not-for-profit corporation and is the owner of record of the Property that is the subject of the Ordinance. South Jax is also an applicant of record for the small scale development amendment. South Jax is an affected person under section 163.3184(1)(a). The Property and Surrounding Parcels The Property occupies the majority of one block in the San Marco neighborhood of the City. It is bounded on the north by Alford Place, on the east by Mango Place, on the south by Mitchell Avenue, and on the west by Hendricks Avenue (State Road 13). Hendricks Avenue is classified as an arterial road. The Property is currently home to The South Jacksonville Presbyterian Church. The southern portion of the Property, comprising 1.89 acres, is currently designated Residential Professional Institutional (RPI) on the City's Future Land Use Map series (FLUM) of the Future Land Use Element (FLUE) in the 2030 Comprehensive Plan (Comp Plan). The northern portion of the Property, comprising 0.98 acres, is currently designated Community/General Commercial (CGC) on the FLUM. The southern portion of the Property is currently zoned Commercial Residential Office (CRO) on the City's zoning map. The northern portion of the Property is zoned Commercial Community/General-1 (CCG-1) on the City's zoning map. The FLUM shows that the Property is currently in the City's Urban Development Area (UDA), and abuts the boundary line of the City's Urban Priority Development Area (UPDA) to the north. The parcel to the north of the Property was the subject of a small scale FLUM amendment in 2014 (Ordinance 2014-130-E). It is known as East San Marco, currently has a Comp Plan FLUM designation of CGC, and is in the UPDA that permits development of up to 60 residential units per acre (ru/acre). Ordinance 2014-130-E for East San Marco included a FLUE text change, i.e., a site specific policy/text change under section 163.3187(1)(b). FLUE Policy 3.1.26 exempts East San Marco from specified UPDA characteristics. The East San Marco property was recently rezoned from Planned Unit Development (PUD) to PUD (Ordinance 2019-799-E) for a mixed-use project known as the East San Marco development. The PUD provides that the maximum height for commercial buildings is 50 feet not including non- habitable space, and 48 feet for multifamily units. Located south of the Property across Mitchell Avenue are parcels developed for single family residential use and currently designated as Low Density Residential (LDR) on the FLUM. These properties are zoned Residential Low Density-60 (RLD-60) on the City's zoning map. Located east of the Property across Mango Place are parcels developed with a mix of single family residential and office uses and designated as a mix of CGC and RPI on the FLUM. These properties have a mix of zoning including CCG-1, Residential Medium Density-A (RMD-A), and Commercial Office (CO). Located west of the Property at Hendricks Avenue/San Marco Boulevard are parcels developed with multifamily, restaurant and retail commercial uses and designated as a mix of Medium Density Residential (MDR) and CGC on the FLUM. These properties are zoned RMD-D and CCG-1. Intervenors intend to develop the Property with a mixed-use project that will include 133 multifamily residential units and a parking garage. The existing church sanctuary will remain in use at the northeast corner of Hendricks Avenue and Mitchell Avenue. The Ordinance On August 27, 2019, Intervenors applied for a small scale development amendment proposing to change the Property from RPI and CGC to CGC, and to extend the UPDA to include the Property. On the same date, Intervenors also filed a companion rezoning application seeking to change the zoning on the Property from CRO and CCG-1 to PUD. The rezoning application was processed concurrent with the small scale development amendment application. The City's professional planning staff collected and reviewed data and information related to the small scale development amendment application, the Property, and the surrounding areas. The staff also conducted a site visit. The staff further sought review by, and received input from, a number of different City and state agencies and organizations regarding the proposed Ordinance. On October 28, 2019, the City held a citizens' information meeting to discuss the proposed Ordinance. The meeting was attended by approximately nine residents. After reviewing and analyzing the data and information gathered, City professional planning staff determined that the Ordinance was consistent with the Comp Plan and furthers the goals, policies, and objectives of the Comp Plan. The determination was memorialized in a staff report recommending approval of the Ordinance. The staff report was prepared for consideration by the City's Planning Commission prior to its regular meeting on January 23, 2020. At its January 23, 2020, meeting, the Planning Commission held an approximately two and one-half hour hearing on both the Ordinance and the PUD. At the conclusion of the hearing, the Planning Commission recommended approval of the Ordinance by a unanimous vote. The staff report and the Planning Commission's recommendation were forwarded to the City Council's Land Use and Zoning (LUZ) Committee. The LUZ Committee held public hearings addressing the Ordinance on December 3, 2019; January 22, 2020; February 4, 2020; and February 19, 2020. Certain concerns were raised by citizens at public hearings both before and during the February 19, 2020, LUZ Committee meeting. In response, the LUZ Committee requested that Mr. Killingsworth draft a site specific policy/text amendment to adopt limitations on the number of residential units, the non-residential floor area permitted on the Property, and the maximum height of structures on the Property, with measurable criteria for determining the height of structures within the proposed use on the Property. During the February 19, 2020, public hearing, the LUZ Committee recommended addition of FLUE Policy 4.4.16, a site specific policy/text amendment, which states: Multi-family residential uses shall be limited to 133 units. Non-residential floor area shall be limited to 96,000 square feet (garage, all floors) and 25,000 +/- square feet (existing church, all floors). To ensure compatibility with adjacent uses and to protect neighborhood scale and character through transition zones, bulk, massing, and height restrictions, new building height shall be limited to the calculated weighted average, not to exceed 35 feet, across the length of the development from Alford Place to Mitchell Avenue as follows: A sum of the height to the predominant roof line (ridge or parapet wall) of that portion of a building multiplied by the length of that portion of a building divided by the overall length of that portion of a building divided by the overall length of permissible building within the minimum setback. After approximately six hours of testimony and discussion, the LUZ Committee unanimously recommended approval of the Ordinance with the site specific policy/text amendment. The City Council held public hearings to address the Ordinance on November 26, 2019; December 10, 2019; January 28, 2020; February 11, 2020; and February 25, 2020. After approximately five and a half hours of testimony and discussion, the City Council adopted the Ordinance on February 25, 2020, by a vote of 17 to one. There was significant citizen input regarding the Ordinance throughout the hearing process. This included emails and letters to City staff, to Planning Commissioners and City Council members, and submittal of verbal and written comments at the hearings. Petitioners' and Right Size's Objections Following their filing of the Petition and other stipulations mentioned above, Petitioners and Right Size jointly presented their case during the final hearing. They argued that the Ordinance was not "in compliance" because: (i) it created internal inconsistencies based upon Comp Plan Policies 1.1.20A, 1.1.20B, 1.1.21 and 1.1.22; (ii) it was not based on relevant and appropriate data and an analysis by the City; (iii) it did not react to data in an appropriate way and to the extent necessary indicated by the data available at the time of the adoption of the Ordinance; and (iv) subsection (c) of FLUE Policy 4.4.16 related to height failed to establish meaningful and predictable standards for the use and development of land and provide meaningful guidelines for the content of more detailed land development and land use regulations. Each argument is generally addressed below. However, the primary underlying premise of Petitioners' and Right Size's challenge was that the Ordinance would allow a density in excess of 40 ru/acre and permit a height in excess of 35 feet. Internal Consistency In the Amended Joint Pre-hearing Stipulation, as modified by the Notice of Narrowing Issues for Hearing, Petitioners and Right Size identified specific policies in the Comp Plan, which they assert rendered the Ordinance inconsistent with the Comp Plan. FLUE Policy 1.1.20A states that "[e]xtensions of the Development Areas will be noted in each land use amendment where an extension is needed or requested concurrent with a Future Land Use Map Amendment. In addition, plan amendments shall meet the requirements as set forth in Policy 1.1.21 and 1.1.22." The definitional section of the FLUE explains that the City is divided into five tiers of Development Areas which include the UPDA and the UDA. These areas are depicted on the City's FLUM series and control "the density, development characteristics, and other variables within plan categories." The first sentence of Policy 1.1.20A affords applicants the ability to request an extension of a development area concurrent with a land use amendment application. Consistent with the policy, the small scale development amendment application included a request for an extension of the UPDA. The request was submitted concurrent with the request to designate the Property as CGC on the FLUM. The adopted Ordinance makes note of the extension of the UPDA as required by Policy 1.1.20A. The second sentence of Policy 1.1.20A requires that when an amendment application includes a request to extend a development area, the City must ensure consistency with Policies 1.1.21 and 1.1.22. The City's analysis is reflected in the staff report, which finds that the amendment application meets Policies 1.1.20, 1.1.20A, and 1.1.20B. Petitioners and Right Size did not offer any testimony regarding consistency with Policy 1.1.20A. Their expert, Mr. Atkins, testified that he was familiar with Policy 1.1.20A, but did not explain how or why the Ordinance was internally inconsistent with Policy 1.1.20A. Instead, Mr. Atkins testified about data and analysis regarding Policy 1.1.21. Petitioners and Right Size did not prove beyond fair debate that the Ordinance was inconsistent with Policy 1.1.20A. FLUE Policy 1.1.20B states: Expansion of the Development Areas shall result in development that would be compatible with its surroundings. When considering land areas to add to the Development Areas, after demonstrating that a need exists in accordance with Policy 1.1.21, inclusion of the following areas is discouraged; Preservation Project Lands Conservation Lands Agricultural Lands, except when development proposals include Master Planned Communities or developments within the Multi-Use Future Land Use Category, as defined in this element. The following areas are deemed generally appropriate for inclusion in Development Areas subject to conformance with Policy 1.1.21: Land contiguous with the Development Area and which would be a logical extension of an existing urban scale and/or has a functional relationship to development within the Development Area. Locations within one mile of a planned node with urban development characteristics. Locations within one-half mile of the existing or planned JTA RTS. Locations having projected surplus service capacity where necessary facilities and services can be readily extended. Public water and sewer service exists within one-half mile of the site. Large Scale Multi-Use developments and Master Planned Communities which are designed to provide for the internal capture of daily trips for work, shopping and recreational activities. Low density residential development at locations up to three miles from the inward boundary of the preservation project lands. Inward is measured from that part of the preservation project lands closest to the existing Suburban Area such that the preservation lands serves to separate suburban from rural. The development shall be a logical extension of residential growth, which furthers the intent of the Preservation Project to provide passive recreation and low intensity land use buffers around protected areas. Such sites should be located within one- half mile of existing water and sewer, or within JEA plans for expansion. After the City makes a determination that there is a need for the expansion of a Development Area pursuant to Policy 1.1.21, the City next looks to see if the property is discouraged under Policy 1.1.20B. The subject Property does not fall into one of the discouraged lands. The City's expert, Ms. Reed, explained that if the questions of need and discouraged lands are satisfactorily answered, the Policy then describes lands that are generally deemed appropriate for inclusion in a particular Development Area. The first question is whether the Property is contiguous to the UPDA and whether the extension is logical. The staff report notes that the Property is immediately adjacent to the UPDA to the north and that an extension of the boundary is logical because it permits an infill project. Ms. Reed and Ms. Haga testified that the proposed extension of the UPDA to include the Property is also logical because there is a functional relationship to the proposed mixed-use development to the north. The next question is whether the Property is within one mile of a planned node with urban development characteristics. Petitioners and Right Size stipulated that the Property is within a node which was confirmed by Mr. Atkins. The next criterion under Policy 1.1.20B is whether there are mass transit services available near the Property. The staff report notes that mass transit Routes 8 and 25 are available at the Property and this fact was confirmed by Ms. Reed. The fourth and fifth criteria under Policy 1.1.20B address whether there is sufficient water, sewer and other services available to serve the Property. The City requested information from various agencies and utilized the responses to analyze the impact of the Ordinance. The City sought confirmation from the Jacksonville Electric Authority, Transportation Planning, the Duval County School Board, Florida Department of Transportation, and the Concurrency and Mobility Management System Office to determine whether the systems serving the Property, i.e. water, sewer, schools, and roads, had available capacity to serve the site if the UPDA was expanded to include the Property. All the agencies consulted responded that there was sufficient capacity available. In addition, Ms. Reed testified that the Ordinance met Policy 1.1.20B because there is capacity for water and sewer, there is transit available, the area is very walkable, and there is access to a lot of neighborhood services nearby. Ms. Reed and Ms. Haga persuasively testified that the Ordinance met the criteria for land deemed appropriate for inclusion in the UPDA as set forth in Policy 1.1.20B. Petitioners and Right Size did not offer any evidence regarding the consistency of the Ordinance with Policy 1.1.20B and their expert did not offer any opinions or otherwise discuss consistency of the Ordinance with Policy 1.1.20B. Petitioners and Right Size did not prove beyond fair debate that the Ordinance was not consistent with FLUE Policy 1.1.20B. FLUE Policy 1.1.21 requires the City to analyze need for all land use map amendments. The Policy states: Future amendments to the Future Land Use Map series (FLUMs) shall include consideration of their potential to further the goal of meeting or exceeding the amount of land required to accommodate anticipated growth and the projected population of the area and to allow for the operation of real estate markets to provide adequate choices for permanent and seasonal residents and business consistent with FLUE Policy 1.1.5. The projected growth needs and population projections must be based on relevant and appropriate data which is collected pursuant to a professionally acceptable methodology. In considering the growth needs and the allocation of land, the City shall also evaluate land use need based on the characteristics and land development pattern of localized areas. Land use need identifiers include but may not be limited to, proximity to compatible uses, development scale, site limitations, and the likelihood of furthering growth management and mobility goals. Petitioners and Right Size stipulated that they did not object to a density on the Property of 40 ru/acre or 114 total units, but object to the additional 19 units permitted by the Ordinance. Petitioners' and Right Size's expert, Mr. Atkins, testified that need to expand the UPDA to encompass the Property was not demonstrated, and that need for the "additional number of units" was not demonstrated. The City's experts, Ms. Reed and Mr. Killingsworth explained that Table L-20 of the FLUE identifies land use categories and their projected need at the end of the 2030 planning horizon. Mr. Killingsworth testified that Table L-20 demonstrates that at the end of the planning horizon the RPI land use will be at 119 percent of need, while the CGC land use will be at 84 percent of need. This indicates a need for additional CGC designated lands by 2030, as well as an over-abundance of RPI-designated lands. Since the Ordinance includes a request to change existing RPI-designated lands to CGC, it addresses both the need to increase CGC-designated lands and to decrease RPI-designated lands. Mr. Killingsworth testified that Table L-20 was prepared by the City to comply with section 163.3177(6), which requires all local governments to project need and to assure that there is market availability to respond to such need. The Table, along with the underlying data and analysis used to support it, was reviewed by the Florida Department of Community Affairs (n/k/a the Department of Economic Opportunity) and found to comply with state law. Mr. Killingsworth also testified that the City considered testimony by the San Marco Merchants Association, local residents, and the applicant presented during the hearings. The testimony demonstrates that the Ordinance would address current economic and housing needs in the area. Mr. Killingsworth opined that the testimony and Table L-20 demonstrate a need for the Ordinance to accommodate anticipated growth and the projected population of the area. With regard to the land use need identifiers of proximity, compatibility, and scale, Mr. Killingsworth testified that "compatibility" as defined in the FLUE "doesn't mean you have to have the same uses adjacent to each other, it doesn’t mean that you have to have the same density adjacent to each other." Instead it means that "those uses have to operate in conjunction with each other and there has to be [ ] some sense to the scale, the mass, and bulk of the structure." See Tr. at pg. 203, lines 11-17. Mr. Killingsworth also testified that although the City's analysis was that the Ordinance met the land use need identifiers, the limitations included in the site specific policy/text amendment were an additional way to ensure compatibility with adjacent uses with regard to use, scale, and height. The CGC portion of the Property is currently permitted to be developed up to 40 ru/acre. The site specific policy/text amendment limits the Property to a total of 133 residential units (or approximately 46 ru/acre), which the City Council determined is compatible, particularly given the fact that the East San Marco property directly north of the Property can be developed with up to 60 ru/acre. The Comp Plan FLUE does not establish height limitations for any of the land use categories, including CGC and RPI. Mr. Killingsworth testified that the s ite specific policy/text amendment provides for standards related to height that are otherwise not in the FLUE. The East San Marco project to the north has a height limit of 50 feet, and the low density residential neighborhood to the south has a height limit of 35 feet. Mr. Killingsworth opined that the limitation in the site specific policy/text amendment, restricting the height on the Property to an average of 35 feet, allows for an appropriate transition between the uses to the north and the uses to the south, thus ensuring compatibility. Petitioners and Right Size did not prove beyond fair debate that the Ordinance was not consistent with FLUE Policy 1.1.21. FLUE Policy 1.1.22 states: "Future development orders, development permits and plan amendments shall maintain compact and compatible land use patterns, maintain an increasingly efficient urban service delivery system and discourage urban sprawl as described in the Development Areas and the Plan Category Descriptions of the Operative Provisions." Petitioners' and Right Size's expert Mr. Atkins testified that he did not review Policy 1.1.22. However, in an abundance of caution, the City and Intervenors presented evidence to establish that the Ordinance was consistent with Policy 1.1.22. Mr. Killingsworth pointed to the definition of compact development from the FLUE, which includes the efficient use of land primarily by increasing intensity, density, and reducing surface parking. He testified that the Ordinance accomplished these criteria. Mr. Killingsworth testified that the height averaging in the site specific policy/text amendment assisted with ensuring compatibility, and that the proposed development's mix of commercial, residential, and institutional uses on a small site met the definition of compact development. Ms. Reed testified that the Property is in an area with full urban services, has access to transit, and fronts on an arterial roadway. Furthermore, it promotes a compact and compatible land use pattern through redevelopment and infill. Petitioners and Right Size did not prove beyond fair debate that the Ordinance was not consistent with FLUE Policy 1.1.22. Data and Analysis The parties agreed in the Amended Joint Pre-Hearing Stipulation that the facts remaining for adjudication with regard to "data and analysis" were exclusively related to subsection (c) of Policy 4.4.16, the site specific policy/text amendment that addressed only building height. However, Petitioners' and Right Size's expert Mr. Atkins did not discuss data and analysis specifically related to subsection (c) of Policy 4.4.16. Mr. Atkins testified about data and analysis related to the Ordinance generally. The City addressed the data and analysis supporting the Ordinance, and the City's response to that data and analysis. The City considered data from professionally accepted sources and applied an analysis based on established procedures set forth in the Comp Plan. The process of data collection began with the submittal of the application, which included a survey, a legal description and an owner's affidavit. Mr. Killingsworth testified that chapter 640 of the City's Ordinance Code sets out the process by which FLUM amendment applications are processed and reviewed by the planning staff. Section 650.404(b) requires that the City hold a Citizens Information Meeting that allows receipt of additional data from the affected community. Ms. Reed explained that all amendments are evaluated based upon standards and methodologies established in the FLUE for the assessment of data and analysis, which includes public facilities, school impacts, population, and development impacts. The City planning staff collected background data for the initial analysis of the Ordinance. The background section of the staff report goes through an analysis of the characteristics of the site, including the location, acreage, and surrounding uses; describes the site in general; identifies the Council district; identifies the Planning District; and notes if there are any applicable vision plans. The City planning staff also did research on applications and amendments that have occurred in proximity to the Property. The background information is part of the data and analysis that the City used to determine whether the Ordinance Amendment was consistent with the City's policies. In addition, FLUE Policy 1.2.16 requires the City to assume maximum development potential when analyzing the impacts of amendments to the FLUM unless there is a site-specific policy limiting density or intensity. In this instance, the staff report was completed prior to the addition of the site specific policy/text amendment to the Ordinance, which specifically limits the density and intensity permitted on the Property. The City's staff followed the guidelines of Policy 1.2.16 and utilized the maximum development potential for the Property in reviewing the application, i.e., 2.87 acres of CGC designated property in the UPDA. Ms. Reed testified that the site specific policy/text amendment "added parameters and limitations that were not there before, so it really lessened the impact based on what we analyzed versus what was ultimately approved." See Tr. at pg. 291, lines 8-17. Under Policy 1.2.16, the City developed a table entitled "Development Standards for Impact Assessment," which is used to collect and analyze specific impact data. The data gathered by the City for the table included the analyses provided by various advising agencies and entities. The data and analyses provided by the other agencies and entities are summarized in the table in the staff report. The table also includes a section where the City staff identifies and reviews other appropriate plans and studies. These plans and studies have not been adopted into the City's Comp Plan, but they are utilized as data and analysis when the planning staff reviews a FLUM amendment. The staff report identifies three plans applicable to the site, the Southeast Jacksonville Vision Plan, the North San Marco Action Plan, and the Strategic Regional Policy Plan. Ms. Reed explained that the Ordinance was consistent with the Southeast Jacksonville Vision Plan which provides for new development along Hendricks Avenue compatible with existing neighborhoods. The staff report notes that design details can be addressed in the companion PUD rezoning application. Likewise, the staff report concludes that the Ordinance is generally consistent with the features of the North San Marco Action Plan and that design details would be handled through the PUD review and implementation. Finally, Ms. Reed explained that the City found that the Ordinance would achieve the Strategic Regional Policy Plan's goals of improving quality-of-life with appropriate infill and redevelopment and by providing diverse housing options. Additional evidence and testimony offered by the applicant and the citizens during the Planning Commission, LUZ Committee, and City Council hearings was collected and analyzed by the City prior to final action on the amendment application. The additional data and information gathered during the many different hearings on the Ordinance resulted in the recommendation of the LUZ Committee to add the site specific policy/text amendment to the Ordinance. The site specific policy/text amendment limits the development potential on the Property. Mr. Killingsworth testified that the site specific policy/text amendment was a direct result of the City's analysis of input from the public related to intensity, density, and compatibility. Ms. Reed testified that "all of these things were considered together as a whole in order to come up with a recommendation, both in the staff report and final approval by Council as amended." Petitioners and Right Size did not prove beyond fair debate that the Ordinance was not supported by data and analysis, and that the City's response to that data and analysis was not appropriate. Meaningful and Predictable Standards Section 163.3177(1) requires that a Comp Plan "establish meaningful and predictable standards for the use and development of land and provide meaningful guidelines for the content of more detailed land development and use regulations." Petitioners' and Right Size's expert, Mr. Atkins, opined that subsection (c) of the site specific policy/text amendment is "vague in its application and certainty in its outcome," in that "[t]here is no defined limit of what the height might be in violation of the requirements of section 163.3177(1)." Mr. Atkins acknowledged that the Comp Plan FLUE does not otherwise address height and that "[i]t all seems to be handled at the PUD or LDR level." This fact was confirmed by the City's expert, Mr. Killingsworth. Mr. Killingsworth explained that the objective of the site specific policy/text amendment, as a whole, is to establish a maximum development potential or otherwise restrict development on the Property consistent with Objective 4.4 of the FLUE. The density limitations, combined with the height limitation, restrict the development potential on the Property. Mr. Killingsworth testified that subsection (c) represents a policy statement by the City Council that height should be no more than an average of 35 feet, and it provides guidance as to how the height is to be calculated, which will ultimately be implemented in the LDRs and the PUD. Subsection (c) provides more specificity regarding height than would otherwise be achieved through a Comp Plan land use category without a site specific policy/text amendment. Mr. Killingsworth also testified that although the height limitation in subsection (c) may not dictate that the higher heights should be on the northern portion of the Property and transition to the lower heights on the southern portion of the Property, the PUD and the development of the Property will need to comply with other parts of the Comp Plan that require a transition between uses. Petitioners and Right Size did not prove beyond fair debate that the Ordinance does not guide future development decisions in a consistent manner, and does not establish meaningful and predictable standards for the use and development of land. Ultimate Findings Petitioners and Right Size did not prove beyond fair debate that the Ordinance is not in compliance. All other contentions not specifically discussed have been considered and rejected. The City's determination that the Ordinance is in compliance is fairly debatable.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity enter a final order finding Ordinance No. 2019-750-E "in compliance," as defined by section 163.3184(1)(b). DONE AND ENTERED this 10th day of August, 2020, in Tallahassee, Leon County, Florida. S FRANCINE M. FFOLKES 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 August, 2020. COPIES FURNISHED: Sidney F. Ansbacher, Esquire Upchurch, Bailey and Upchurch, P.A. Post Office Drawer 3007 St. Augustine, Florida 32085-3007 (eServed) Frank D. Upchurch, Esquire Upchurch, Bailey and Upchurch, P.A. Post Office Drawer 3007 St. Augustine, Florida 32085-9066 (eServed) Emily Gardinier Pierce, Esquire Rogers Towers, P.A. 1301 Riverplace Boulevard, Suite 1500 Jacksonville, Florida 32207 (eServed) Courtney P. Gaver, Esquire Rogers Towers, P.A. 100 Whetstone Place, Suite 200 St. Augustine, Florida 32086 (eServed) T.R. Hainline Jr., Esquire Rogers Towers, P.A. 1301 Riverplace Boulevard, Suite 1500 Jacksonville, Florida 32207 (eServed) Jason R. Teal, Esquire Office of General Counsel City of Jacksonville 117 West Duval Street, Suite 480 Jacksonville, Florida 32202 (eServed) Paul M. Harden, Esquire The Law Firm of Paul M. Harden, Esquire 501 Riverside Avenue, Suite 901 Jacksonville, Florida 32202 (eServed) Gary K. Hunter, Jr., Esquire Hopping, Green & Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314 (eServed) Mohammad O. Jazil, Esquire Hopping Green & Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314 (eServed) Craig D. Feiser, Esquire City of Jacksonville Office of General Counsel 117 West Duval Street, Suite 480 Jacksonville, Florida 32202 (eServed) Trisha Bowles, Esquire City of Jacksonville Office of the General Counsel 117 West Duval Street, Suite 480 Jacksonville, Florida 32202-5721 (eServed) Ken Lawson, Executive Director Department of Economic Opportunity Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed) Mark Buckles, Interim General Counsel Department of Economic Opportunity Caldwell Building, MSC 110 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed) Janay Lovett, Agency Clerk Department of Economic Opportunity Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed)
The Issue The issue is whether Polk County's small scale development amendment (CPA2003S-02) adopted by Ordinance No. 03-03 on January 22, 2003, as later amended by Ordinance No. 03-19 on March 15, 2003, is in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background Berry is the owner of a tract of land located on the southwest corner of the intersection of Eagle Lake Loop Road (County Road 540-A) and Pollard Road in Section 16, Township 29, Range 26 in the eastern part of unincorporated Polk County, Florida. The property lies south of the City of Winter Haven, east-southeast of the City of Eagle Lake, less than a mile south of Lake Eloise (on which Cypress Gardens is located), and west of U.S. Highway 27. Because Berry owns property within the County, and submitted oral and written comments to the County prior to the adoption of the challenged amendment, it has standing to participate in this action. On July 19, 2002, Berry filed an application with the County Planning Department seeking to change the land use on 9.99 acres (or just below the threshold of 10.0 acres for a small scale amendment) from RL-1 to Neighborhood Activity Center (NAC) to include approximately 4.95 acres of various neighborhood specialty shops such as a grocery store, drug store, convenience store, and dry cleaners, with the remaining acreage used as a mini-warehouse self-storage facility. In September 2002, Berry amended its application by seeking to change 3.93 acres from RL-1 to CC and 6.06 acres from RL-1 to BPC-1. The application was assigned Case File No. CPA2003S- 02. Under the County's review process, the application is first reviewed by the County Development Review Committee (Committee), then by the County Planning Commission (CPC), which either accepts or rejects the Committee's recommendation, and finally by the Board of County Commissioners (Board), which either adopts the amendment, adopts the amendment as amended by the Board, or rejects the amendment. After conducting a preliminary review of the application, on September 16, 2002, the Committee conducted a public hearing and voted to recommend approval. The matter was then transmitted to the CPC, which conducted a meeting on October 9, 2002, and recommended that the Board approve the amendment. On January 22, 2003, by a 3-2 vote, the Board adopted CPA2003S-02 changing the designation on the FLUM of the County Comprehensive Plan (Plan) as proposed by Berry. This was confirmed by the County's adoption of Ordinance No. 03-03. On February 21, 2003, Petitioners filed their Petition challenging the Berry amendment. The matter was again placed on the Board's agenda on March 19, 2003, after the County discovered that Ordinance No. 03-03 had inadvertently changed the land use on the entire parcel to CC rather a mix of CC and BPC-1. In addition, there were minor errors in the legal description of both the 3.93 and 6.06-acre parcels. Accordingly, Ordinance No. 03-19 was enacted to correct those errors. A second Petition for Formal Administrative Proceedings (with essentially the same allegations, but also adding an allegation that the same property had been improperly subject to two small scale amendments within a 12- month period) was filed by Petitioners on March 19, 2003, challenging the action taken in Ordinance No. 03-19. At the outset of the final hearing, Petitioners voluntarily dismissed two allegations contained in their Petition. In their Proposed Recommended Order, Petitioners have further narrowed the issues by addressing only the following allegations: that the property which is the subject of this proceeding exceeds 10.0 acres in size and therefore cannot qualify as a small scale amendment; and that the amendment violates Future Land Use Element (FLUE) Policies 2.102-A1, 2.113-B-3, 2.113-B-4, 2.110-C3, and 2.113-B-1 and is thus internally inconsistent with the Plan. These issues will be discussed separately below. All other allegations contained in the second Petition and the parties' Pre-Hearing Stipulation are deemed to have been withdrawn or abandoned. Because the change in the FLUM was filed and approved as a small scale plan amendment under Section 163.3187(1)(c), Florida Statutes (2003),1 a compliance review of the amendment was not made by the Department of Community Affairs (DCA). See § 163.3187(3)(a), Fla. Stat. Standing of Petitioners Durham is a realtor/developer who owns property within 250 feet of Berry's property and resides at 10 Lake Eloise Lane, Southeast, Winter Haven, Florida. He made oral and written comments to the County prior to the adoption of the amendment. As such, he qualifies as an affected person under Section 163.3184(1)(a), Florida Statutes, and has standing to bring this action. CPPI began as an association in November 2002 and was later incorporated in February 2003. Presently, it has around 100 members, all of whom reside in the County. According to its chairperson, its purpose is to "help educate and inform residents of Polk County . . . towards growth matters that may affect their daily lives." The organization "encourages donations" from its members; it was scheduled to have conducted its first annual meeting on January 10, 2004; and members prepared and circulated petitions opposing the amendment to residents of the area in December 2002 and January 2003. At least one member of CPPI made written and oral comments on its behalf to the County prior to the adoption of the amendment in March 2003. There is no evidence, however, that CPPI (as opposed to its individual members) owns property or owns or operates a business within the County. Therefore, it lacks standing to file a petition. The land and surrounding uses Berry owns a triangle-shaped parcel of land (the parent parcel) totaling around 14 acres which fronts on Eagle Lake Loop Road (a 24-foot wide urban collector road) to the north, Pollard Road (a local road) to the east, and a CSX railroad track, with right-of-way, on its western side. (Pollard Road dead ends at Eagle Lake Loop Road, and another collector road, Eloise Loop Road, continues to the north from the intersection). Pollard Road provides access to eight nearby single-family homes, which lie south of the Berry property and front on Pollard Road, and eventually terminates at the City of Winter Haven's Sewage Treatment Plant (an institutional use), which lies slightly more than a mile south of the site. To the west of the site directly across the railroad tracks and fronting on Eagle Lake Loop Road is additional property owned by Berry and on which were once located the original Berry corporate offices. The Berry office buildings are now used, at least partially, by other tenants. Although the land across the railroad tracks is classified as Residential Suburban (RS), the property can be used for offices since the buildings were constructed, and office use began, prior to the adoption of the Plan. Directly across Pollard Road to the east is a vacant 10-acre tract of land owned by the Baptist Ridge Association, which intends to construct a church on the property. Berry's property is now classified as RL-1, a land use classification which "is characterized by single-family dwelling units, duplex units, and small-scale multi-family units." Since at least the 1950s, however, or long before the County adopted its Plan, the property has been used primarily for agriculture purposes (citrus groves); therefore, Berry is grandfathered to continue this non-conforming use on its property. Presently, the entire tract of land is undeveloped and largely covered by an orange grove, which Berry describes as "past maturation and is declining." Citrus trucks and trailers have been parked on the extreme northwestern corner of the parent parcel and are used in conjunction with the citrus operation. Except for the former Berry offices, a nearby beauty salon operating out of a house, and a convenience store about three-quarters of a mile away, which all began operation before the Plan was adopted and are grandfathered as non- conforming uses, and the City of Winter Haven's large tract of institutional land to the south, all of the property within slightly less than a one-mile radius of the Berry property is classified in various residential land use categories with only residential uses. The Amendment As noted above, Berry has owned the subject property for many years. In 1987, Berry (then under the name of Jack M. Berry, Sr.) made application with the County for a zoning change on the property from Rural Conservation (RC) to Commercial (C-3) to allow typical commercial uses. The application was ultimately denied by the County on the ground, among others, that the zoning district being proposed was inconsistent with the Plan, "given the residential development pattern in the area." At least partly on the theory that the area has changed substantially in the last 15 years, Berry has filed (and the County has approved) an application seeking to change the land use on the property to commercial uses. Berry has carved out of the parent parcel two smaller parcels totaling 9.99 acres in size and seeks to change the land use on the northern parcel (3.93 acres) to CC and the land use on the southern parcel (6.06 acres) to BPC-1. The remaining land in the parent parcel, which consists of a 0.43-acre triangle-shaped parcel on the northwestern corner of the parent parcel and now used by citrus trucks, and a vacant 2.74-acre triangle-shaped parcel on the southern end, will remain R-1. (However, all parties agree that if the amendment is approved, these remaining parcels will be unsuitable for residential development.) In addition, strips of land ranging from 22 to 28 feet in width which front on Eagle Lake Loop Road and Pollard Road will be dedicated to the County for right-of-way and have not been included in the 9.99-acre amendment. Presumably, the proposed change is being done in this manner so that the total acreage is less than 10.0 acres, which qualifies the application to be processed as a small scale development amendment rather than a regular plan amendment and subject to DCA review and approval. If the change is approved, the northern part of the parcel (3.93 acres) will be changed to CC to develop convenience commercial uses. Under the Plan, the most typical tenant in this category is a convenience store, while other typical tenants include laundry, dry cleaning, barber, restaurant, gas station, and office uses. The southern (and larger) portion of the tract will be changed to BPC-1. The most typical tenant in this category is "[o]ne or more light- assembly plants, or warehouse facilities," which include a mini-warehouse storage facility. Other typical tenants described in the Plan are offices, distribution centers, research and development firms, and high-density residential, with proper buffering. (Berry says it intends to build a mini-warehouse facility on the southern parcel; however, any of the above described uses could be placed on the property if the change is approved.) Petitioners' Objections In broad terms, Petitioners have contended that the small scale amendment actually involves a use of more than 10 acres since the strips of land being dedicated as right-of-way to the County must be counted as a part of the land being amended. They also contend that the plan amendment violates five FLUE policies and is therefore internally inconsistent with the Plan. A small scale development amendment can only be adopted if "[t]he proposed amendment involves a use of 10 acres or fewer." See § 163.3187(1)(c)1., Fla. Stat. The parties have agreed that the legal description of the parcel subject to the change includes only 9.99 acres, or less than the 10-acre threshold. However, prior to the development of the site, Berry intends to dedicate to the County two strips of land, one fronting on Eagle Lake Loop Road (28 feet wide), and the other on Pollard Road (22 feet wide), for future right-of-way for some public purpose. Petitioners contend that the right-of-way constitutes essential infrastructure for the development and must be included as a part of the amendment. If this land is added to the amendment, the total acreage would obviously exceed 10.0 acres. The dedicated land is not "essential infrastructure" needed for the development activities on the land, since two roadways (Eagle Lake Loop Road and Pollard Road) already exist on the northern and eastern boundaries of the property, and they are sufficient in size to provide ingress to, and egress from, the property. Instead, the County will "bank" the land in the event some form of right-of-way activity is needed in the future. It is noted that Eagle Lake Loop Road was recently widened to 24 feet, and it is not anticipated that a further widening will occur for a number of years. There is nothing in the Plan which requires an applicant for an amendment to include all of its property in a proposed amendment, or prevents an applicant from leaving a residual piece of property out of the application. Therefore, Berry was not required to include in the amendment the right- of-way or the two smaller residual pieces of property that will remain R-1. Finally, assuming arguendo that Petitioners' contention is correct, that is, that an applicant must include right-of-way land dedicated to the local government in the total acreage calculation, Berry could still lawfully comply with the 10-acre threshold by simply reducing the other acreage being changed to CC or BPC by the amount of land being dedicated to the local government for right-of-way. Therefore, it is found that Berry has not improperly excluded from the amendment land necessary for essential infrastructure so as to violate Section 163.3187(1)(c)1., Florida Statutes, as alleged by Petitioners. Policy 2.102-A1 requires compatibility between adjacent uses. More specifically, it provides that: Land shall be developed so that adjacent uses are compatible with each other, pursuant to the requirements of other Policies in this Future Land Use Element, so that one or more of the following provisions are accomplished: there have been provisions made which buffer incompatible uses from dissimilar uses; incompatible uses are made to be more compatible to each other through limiting the intensity and scale of the more intense use; uses are transitioned through a gradual scaling of different land use activities through the use of innovative development techniques such as a Planned Unit Development. Therefore, as the Plan is now written, so long as Berry develops the land in a manner which accomplishes at least one of the three "provisions" in paragraphs a - c of the policy, so as to make the adjacent uses compatible, the proposed land use change is permissible. As noted above, except for a few non-conforming uses adjacent to, or near the property, virtually all of the area around the Berry property is designated for residential use. The area to the north and northeast is developed with up-scale (with some homes ranging to as high as $1 million in value), low density, large lot, single-family residential subdivisions, including Harbour Estates, Cedar Cove, Cypress Cove, Gaines Cove, and Valhalla. To the east of the site are more subdivisions, including Eloise Place, Skidmore, Cypress Point, Lake Eloise Estates, Eloise Pointe Estates, a mobile home park, and Little Lake Estates. The lands to the south are primarily agriculture and in active citrus groves, with eight single-family homes on Pollard Road. Finally, a church will be built on the property directly across the street from the Berry property at the southeast corner of the intersection of Eagle Lake Loop Road and Pollard Road. The County Planning Director agrees that a convenience store (which is an authorized use on CC land), standing alone, is incompatible with adjacent single-family residences. Given this acknowledgement, and the fact that a non-binding, proposed site plan submitted by Berry with its application does not provide for any buffering between the commercial uses and the residential areas, Petitioners contend that none of the conditions required for compatibility in paragraphs a through c have been met, and thus the policy has been violated. The County has made clear, however, that when a final site plan is submitted, there must be "provisions [in the site plan] . . . which buffer incompatible uses from dissimilar uses," as required by the policy. Assuming that this is done at the site plan stage, at least one of the three provisions will be accomplished, thereby satisfying the compatibility requirement. This being so, the plan amendment does not violate the policy and in this respect is not internally inconsistent with the Plan. Petitioners next contend that the amendment is inconsistent with Policy 2.110-C3, which contains locational criteria for CC property. One such criterion requires that "Convenience Centers shall be located at the intersections of arterial and/or collector roads." Because the property is at a T-shaped intersection (as opposed to a traditional cross intersection with four directions for traffic to move off the site), Petitioners assert that the property is not located at an "intersection" within the meaning of the policy. Eagle Lake Loop Road, on which the northern boundary of the property fronts, is designated as an urban collector road. That road forms an intersection with Pollard Road (a local road) and Eloise Loop Road (also an urban collector road), which meets Eagle Lake Loop Road from the north at the intersection, and then makes a 90 degree turn to the east. (When Eagle Lake Loop Road continues to the east beyond the intersection, it turns into Eloise Loop Road, and later into Thompson Nursery Road, until it eventually intersects with U.S. Highway 17.) There is no dispute that the two collector roads (Eagle Loop Lake Road and Eloise Loop Road) form a T intersection, rather than a traditional cross intersection. For many years, however, the County has considered a T intersection and a cross intersection to be the same in terms of satisfying Plan requirements. Indeed, at the present time, at least four other CC designated properties within the County are located at T intersections. The County's interpretation of the policy is consistent with sound planning principles, is reasonable and logical, and is more persuasive than the contrary view offered by Petitioners. Accordingly, it is found that the amendment does not conflict with Policy 2.110- C3. Petitioners also contend that the amendment is inconsistent with Policy 2.113-B-3, which provides that "Business-Park Centers shall be located with consideration being given to regional transportation issues, and should be located at the intersections of arterial roads, and preferably on a fixed-route mass-transit line." (Emphasis added.) The use of the word "should" (rather than "shall") is intended to state a preference, but not an absolute requirement, that BPC lands be located at the intersections of arterial roads. According to the County's Planning Director, this is because "most cases that come [before the County] don't meet the ideal situation" of satisfying every requirement, and the County has used this permissive language to give itself some degree of flexibility in handling cases that do not meet every Plan requirement. Therefore, even though it is preferable that BPC land be located at the intersection of arterial roads, this requirement is not mandatory, and the County has the flexibility to approve a BPC land use change at property not sited at the intersection of arterial roads. In contrast to the permissive language described above, Policy 2.113-B-4 provides that development within a Business-Park Center shall conform to certain development criteria, including one that Business-Park Centers shall have frontage on, or direct access to, an arterial roadway, or a frontage road or service drive which directly serves an arterial roadway. Business-Park Centers shall incorporate the use of frontage roads or shared ingress/egress facilities wherever practical. In this case, the closest arterial roadway to Berry's property is State Road 17 to the west, which is four miles away, while State Road 60, another arterial roadway, is approximately six miles to the south. These arterial roads must be accessed, at least at the beginning of the trip, by Eagle Lake Loop Road, a two-lane, 24-foot wide urban collector that runs through predominately residential neighborhoods with some homes having fences within a foot or two from the road. The County interprets the requirement that BPC land have "direct access to an arterial road" to be satisfied if the property fronts on a collector road, which then provides access to an arterial road. Under the County's interpretation, the requirement is met since Eagle Lake Loop Road provides access (albeit 4 to 6 miles away) to State Roads 17 and 60. The County says it has consistently interpreted this provision in this manner for at least ten years, and has approved other applications for changes to BPC when those parcels were located on urban collector roads. (The distance between these other BPC parcels and the arterial roads is not of record, however.) While Policy 2.113-B-1 provides that Business-Park Centers are "not intended to accommodate major commercial or other high-traffic producing facilities," they "are intended to promote employment opportunities within the region by allowing for the establishment of office parks, research and development parks, areas for light-industrial facilities, distribution centers, and mixed-use employment parks." The same policy provides that they must have a usable area of 10 acres or more, have a service-area radius of 20 miles or more, be supported by a population of 150,000 or more people, and have a gross leasable area of 500,000 to 2,000,000 square feet. Given this description of their purpose and characteristics, and the wide range of commercial activities that are allowed on Business-Park Center lands, it is not surprising that Policy 2.113-B-3 provides that BPC lands should be located "at the intersections of arterial roads, and preferably on a fixed-route mass-transit line," while Policy 2.113-B-4 requires that they "have direct frontage on, or direct access to, an arterial roadway, or a frontage road or service drive which directly serves on an arterial roadway." When reading these provisions as a whole, it is unreasonable to conclude, as the County does, that "direct access" contemplates a drive of over 4 miles, partly on a narrow two- lane road, in order to reach an arterial road. Accordingly, on this issue, Petitioners' evidence is the most persuasive, and it is found that the plan amendment conflicts with Policy 2.113-B-4 and in this respect is internally inconsistent with the Plan. Policy 2.110-C3 sets forth the following location criteria for Convenience Centers: LOCATION CRITERIA Convenience Centers shall be located at the intersections of arterial and/or collector roads. There shall be the following traveling distance, on public roads, between the center of Convenience Center and the center of any other Convenience Center, or other higher- level Activity Center, Linear Commercial Corridor, or Commercial Enclave providing for the same convenience shopping needs: One (1) mile within the UDA and UGA Two (2) miles within the SDA and UEA This required separation may be reduced if: The higher-level Activity Center, Linear Commercial Corridor or Commercial Enclave within the required distance separation is over 80 percent developed; or the proposed Convenience Center market- area radius, minimum population support is over 5,000 people. Petitioners contend that this policy has been violated in two respects: the Berry property is not located at the intersection of arterial roads; and there is an existing convenience center located within 0.8 mile of the Barry property, and Berry cannot qualify for a reduction in the required separation, as described in paragraphs a and b. For the reasons stated in Findings of Fact 30-32, it is found that the Berry property is located at the intersection of two collector roads (Eagle Lake Loop Road and Eloise Loop Road) and that a T intersection satisfies the requirements of the policy. As to the second contention, the Berry property is located within an UGA (Urban Growth Area), and an existing convenience store is located at the intersection of Rifle Range Road and Eagle Lake Loop Road, or less than a mile west of Berry's property. The land use on the property on which the store sits was recently changed (in December 2003) to BPC, which does not allow a convenience store. However, the store is a non-conforming use, having been located at that site before the Plan was adopted. The locational requirement in Policy 2.110-C-3 that CC lands within the UGA be located at least a mile apart is not the least bit vague or ambiguous: CC designated lands (and not individual convenience stores, as Petitioners suggest) must be separated by at least a mile, unless one of the two criteria for reducing this separation is met. Because there is no CC land within a one-mile radius of the Berry land, the policy has not been violated. Policy 2.113-B-1 sets forth the following relevant characteristic for Business-Park Centers: General characteristics of Business-Park Centers are: Usable Area 10 acres or more There is no dispute that the useable area for the BPC land is only 6.06 acres, or approximately 60 percent of the required acreage. Petitioners contend that the amendment violates the foregoing policy because the useable area on Barry's property is much less than "10 acres or more." While the former County Planning Director conceded that the 10-acre usable area requirement is "mandatory," he justified the amendment on the ground that the 6.06 acres "approximates" 10 acres, and thus satisfies the policy. In the same vein, the current County Planning Director asserted that if Berry was proposing a stand-alone BPC, it would have been required to have 10 usable acres. In this case, though, he pointed out that the Berry property will be used for a nonresidential mixed use (BPC and CC) totaling almost 10 acres, and therefore Berry has satisfied the requirement. The Planning Director admitted, however, that nothing in the Plan specifically allows this type of exception. He justified the County's action on the theory that the Plan "doesn't anticipate every situation that comes in," and "interpretations have to be made of the comprehensive plan and how it's applied." The requirement that Business-Park Centers have a usable area of 10 or more acres is clear and unambiguous, was characterized as being "mandatory," and is not subject to any exceptions in the Plan. This being so, the County's interpretation is found to be unreasonable and contrary to the plain language in the policy, and in this respect the plan amendment is internally inconsistent with the Plan.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order determining that the small scale development amendment (CPA2003S-02) adopted by Polk County by Ordinance No. 03-03, as amended by Ordinance No. 03-19, is not in compliance. DONE AND ENTERED this 24th day of February, 2004, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 2004.
The Issue Whether Amendment 99-1-NOI-5017-(A)-(I), Ordinance Number 509, to the Town of Juno Beach's (Town) Comprehensive Plan (Comprehensive Plan) is "in compliance" as defined in chapter 163, Part II, Florida Statutes, and as alleged in the Petition for Formal Administrative Hearing.
Findings Of Fact Patterson, Bisbee, and McLeod Petitioners, Dr. Patricia M. Patterson and James M. Bisbee, are husband and wife and have resided at 431 Olympus Drive, Town of Juno Beach, Florida, since February, 1999. Dr. Patterson is a Professor of Public Administration at the Florida Atlantic University. Prior to occupying this residence, Dr. Patterson investigated the neighborhood and wanted to reside in an ungated, single-family neighborhood. Dr. Patterson describes her neighborhood as the Ridge Area, which has a southern border of Olympus Drive or south to a new development, a western border of U.S. Highway 1 (U.S. 1), an eastern border of Ocean Drive or A1A, and a northern boundary of the Ocean View Methodist Church (Church). The linear Ridge bisects this area, running approximately north and south. See (Town's Exhibit 1A); (Petitioners' Exhibits 9A & 9B). The top of the Ridge consists predominantly of single- family residences. There is a significant increase in elevation from the U.S. 1 corridor, east to the top of the Ridge. The Patterson/Bisbee residence is located on the top of the Ridge, toward the middle of Olympus Drive. Mr. McLeod resides in a single-family residence, east and adjacent to the Patterson/Bisbee residence. There is a rental, single-family home immediately adjacent to the west of the Patterson/Bisbee residence. The lots to the west of the rental property are vacant and include the corner property (+/-.34 acre) subject to the Plan Amendment, which is at the bottom of the hill on the U.S. 1 side. Shortly after they moved into their new residence, Dr. Patterson learned from a neighbor that a Key West-style home was proposed to be built on a portion of the vacant lot. Dr. Patterson attended the Town's Land Planning Agency (LPA) April 1999, meeting and learned that there was a proposal to change a portion of the use of the vacant lot to "commercial." She learned that an application was filed on behalf of the Town's former Mayor and a former Councilman. Dr. Patterson expressed concern that the area should remain residential and not be changed to commercial. Dr. Patterson appeared at the May 1999, Town Council meeting and objected to the proposal on behalf of herself and Mr. Bisbee. Dr. Patterson also furnished the members of the Town Council with a letter dated May 17, 1999, which set forth her objections to the proposed changes. Dr. Patterson also attended part of the November 1999 Town Council meeting. Mr. Baird appeared before the LPA and the Town Council on behalf of Mr. McLeod. Dr. Patterson objects to the proposed Plan Amendment to the Town's Comprehensive Plan based on the proposed "commercial" use of the site, rather than the architectural style of the building proposed by Celestial. The Petitioners are "affected persons" as defined in Section 163.3184(1)(a), Florida Statutes, and have standing to participate as parties in this proceeding. Celestial Celestial is a partnership, which owns property and conducts a business in the Town of Juno Beach, Florida. In or around March of 1999, Celestial, the applicant, submitted an Application for an amendment to the Town of Juno Beach Comprehensive Plan. Celestial proposed to re-designate a +/-.34 acre portion (the Property) of a +/-.57 acre parcel owned by Celestial. The entire +/-.57 acre parcel is vacant property at the northeast corner of U.S. 1 and Olympus Drive. Celestial sought to amend the Town's Future Land Use Map (FLUM) from the existing "low density residential" classification to the "commercial" classification for the western or corner portion, which is approximately +/-.34 acre. Celestial proposes to build a two (2)-story structure, with a professional office with residential units on the second level. The structure would be of an architectural style that will be compatible with surrounding, existing residential developments. Celestial has standing to participate as a party in this proceeding. Section 163.3184(1)(a), Florida Statutes. The Town The Town is a local government subject to the provisions of the Local Government Comprehensive Planning and Land Development Regulation Act (Act), Chapter 163, Part II, Florida Statutes. On November 17, 1999, the Town adopted Ordinance Number 509 as an amendment to the Town's Comprehensive Plan. The Town also adopted Ordinance Number 510, which rezones the Property to "commercial office." The Department The Department is the state land planning agency, having authority to administer and enforce the Act. Among other responsibilities of the Department under the Act, the Department has the responsibility to review comprehensive plan amendments submitted by local governments and to determine if the plan amendments are in compliance with the Act. Section 163.3184(8), Florida Statutes. The Department reviewed the Plan Amendment and determined that it was "in compliance" pursuant to Sections 163.3184, 163.3187, and 163.3189, Florida Statutes. The Town of Juno Beach, the Property, and the "Neighborhood" The Town is a small coastal community consisting of approximately 903 acres. The Town is located along the U.S. 1 corridor in Northern Palm Beach County, with municipalities, Jupiter and Tequesta to the north, and Palm Beach Gardens, North Palm Beach, Lake Park, and Riviera Beach to the south. The Town is bounded on the east by the Atlantic Ocean. The U.S. 1 corridor was the subject of a study, conducted by the Treasure Coast Regional Planning Council in 1999, which became known as "Seven Cities: Northern Palm Beach County US 1 Corridor Study." "[T]he 16-mile corridor is primarily a four-lane facility involving a mixed bag of landscape and lighting treatments, roadway designs, land uses, access management, and drainage infrastructure. Conditions in the corridor range from urban to rural, from healthy to blighted. Long range transportation plans have called for the corridor to be widened to six lanes over times, but the need for this widening has been called into question." "Juno Beach's segment of US 1 is a long expanse with a variety of situations, ranging from the semirural or naturalistic sea scrub landscape to suburban areas of shopping malls & hotels, to strategically located vacant parcels ideal for infill development. The planning team recommends that each of these areas have its own distinct planning approach for improvement over time." Several recommendations are made for the Town, including the provision of "[a] variety of uses" for the town center location at the intersection of Donald Ross Road and U.S. 1, north of the Property, "including adding 'in-town' residential options: apartments above shopfronts, rowhouses along intimate streets, live/work loft combinations and so on would complement Juno Beach other excellent housing offerings." The Study also generally encourages attractive building facades with doors and windows facing the street, as opposed to "[b]lank, windowless facades facing streets [which] are absolutely deadening to the scene for pedestrians and motorists alike." There seems to be some criticism of the existence of "halfhearted 'buffer' of landscaping between the highway and a 'sound wall,'" in the Town area, which does appear along U.S. 1, north and south of the Property. The lands contiguous to the +/-.34 acre Property, on the north and east, are designated "low density residential," on the Town's FLUM. The land to the immediate east of the subject property is vacant and owned by Celestial. See Finding of Fact 3. The land to the immediate north is developed with a single-family home. A four-lane divided highway (U.S. 1), with a 120-foot right-of-way, is located to the west of the vacant Property, and extends from the Town's southern boundary to its northern boundary. There are approximately 24,000 daily trips of traffic passing the Property on U.S. 1. The speed limit on U.S. 1 is fifty (50) miles-per-hour, a speed not consistent with low residential development. The southern and western borders of the Town consist of lands owned by Palm Beach County and maintained as conservation areas. The land immediately to the west of the Property from U.S. 1 is designated "commercial" on the Town's FLUM and is called Seminole Plaza (Seminole), a 65,400-square foot, fairly large-scale, shopping center with various commercial and professional tenants, located on approximately five (5) acres. The property west of U.S. 1, north and south of Seminole, is owned and maintained by Palm Beach County as conservation areas. A short distance south of Seminole are Florida Power and Light's Juno Beach Offices and West Offices, both of which are office developments approved for land totaling over sixty (60) acres. To the immediate south of the Property is Olympus Drive. The land across Olympus Drive, to the immediate south of the Property, is designated "low density residential," and is developed as a Planned Unit Development (P.U.D.) consisting of single-family homes. This is the "Seaside" area and is bounded on the north by a white picket fence, which does not provide access to "Seaside." Pedestrian and vehicle traffic enter the Seaside development from the east along Ocean Drive or A1A. The southeast corner of Olympus Drive and U.S. 1, which is directly across from the Property, is within Seaside. There is no residential development on the southeast corner. Rather, the corner is developed with a concrete cul-de-sac. This parcel is not eligible for residential development under the Town's zoning code. The Town presented a composite exhibit of photographs of various commercial and other non-residential uses which are interspersed in the vicinity of the Property. The photographs were overlaid onto an aerial photograph of the general area between Donald Ross Road to the north of the Property, and Juno Road, to the south of the Property. The Property is located approximately mid-point between these roads. This visual depiction of the area demonstrates the variety of the uses and structures, which have developed along this segment of the U.S. 1 corridor within the Town, as well as the impact of that highway upon the development in the vicinity of the Property. The developments, north and south of the Property, include office buildings, the Church, an automotive repair business (e.g. Goodyear), motels (e.g. Hampton Inn) and a golf course. For example, the two-story, 9,000 square foot Juno Beach Professional Office Building, is located four-tenths of a mile north of the Property, east and fronting U.S. 1, and between a duplex and a single-family house. (This house has a yellow retaining wall directly fronting U.S. 1.) The Church is directly east of the office building. There are several vacant lots south and east of U.S. 1, designated "low density residential," which are undeveloped. There is a vacant, two (2) acre, commercially-designated parcel, two-tenths of a mile to the south of the Property on the east side of U.S. 1. Compare with Findings of Fact 1-3. Amendment to the Town's Comprehensive Plan In April of 1999, Celestial filed a revised Application requesting an amendment to the Town's Comprehensive Plan, changing the FLUM classification of the Property from "low density residential" to "commercial." Among other things, Celestial advised that its Application was for a low-density project on the northeast corner of U.S. 1 and Olympus Drive. Celestial further stated that the proposed commercial (mix-use) land is compatible with the commercial uses adjacent to and across from U.S. 1 from the Property and that the residential component of the mixed-use proposal will be compatible with the residential uses to the north, east, and south of the Property. Celestial did not request a change to the Town's "commercial" FLUM designation. Several documents were attached to the Application including a vegetation survey with indicated that the Property had no environmental constraints which would prohibit its development. Other correspondence included with the Application indicate that all major utilities including telephone, electric, water, and sanitary sewer, would be provided. The described project also met the Traffic Performance Standards of Palm Beach County. Further, the Florida Department of Transportation concluded that the placing the drive on Olympus Drive would better serve the development for the convenience and safety of the proposed access. On April 19, 1999, the Town of Juno Beach Planning and Zoning Board considered the proposed Plan Amendment to the Town's Comprehensive Plan's FLUM. Mr. Peduto, Director of Planning and Zoning, reviewed the Application, coordinated the review by other governmental entities, prepared the staff report, and recommended approval of the Plan Amendment. The report describes the proposal and sets forth an analysis which included, in part, the following: The proposal meets the adequate facilities standards and is not in the Coastal High Hazard area, as defined by the Treasure Coast Regional Planning Council (TCRPC) and State of Florida. The proposed change is an appropriate classification for the subject property. The proposed project is an "infill" development, as opposed to "sprawl" development. Infill development is supported by the TCRPC Strategic Regional Policy Plan. Sprawl, which is typical through "Euclidean" planning, creates isolated uses through non-flexible zoning districts, and also through "single-use" structures. The opposite of this is more "neo-traditional" planning, which encourages multi-use structures and is more community oriented, creating more livable, healthy and sustainable communities and neighborhoods. This is why infill development becomes so important to revitalizing and recreating community in a town's neighborhoods. The Town of Juno Beach has expressed through historical efforts and its Comprehensive Plan (as well as its Zoning Code) that it envisions a sustainable community atmosphere. Mixed-use projects play an important role in this long term, committed effort. While remaining consistent with the Comprehensive Plan and Zoning Code, the subject property is an ideal location to further express this effort. The subject property is located along an "urban principal arterial" highway, within an older residential neighborhood. Just south of the subject property [across Olympus Drive] is an newer residential neighborhood [Seaside]. West of the subject property is a commercial plaza (Seminole Plaza) with various commercial uses, from office uses to restaurant, retail, service oriented, medical and private educational uses. Further east is a large public recreational area and the Juno Beach Town Center. In the general area there is an existing mixed use which functions as an important community/neighborhood element in this section of the town. As part of the revitalization process of this overall area of town, the proposed project and petition brings an element of balance between newer residential and older residential, introduces a mixed-use and creates an ideal "bridge" between the western commercial uses and eastern residential, community and recreational uses. The proposed project meets the standards set forth by the Goals, Objectives and Policies in the adopted Town of Juno Beach Comprehensive Development Plan. The report also indicated that "[t]he Comprehensive Plan directly encourages mixed-uses throughout the document," and cited to several Objectives and Policies. The report confirmed that utilities and service providers have sufficient capacity to serve the Property for a potential project within the proposed designation/classification; that there are no environmental concerns concerning the entire +/-.57 acre site including the Property (+/-.34 acre); that the existing level of service standards of the adjacent U.S. 1 will not be adversely impacted by the proposed change of land use; that water and wastewater facilities exist nearby the site and will be able to provide for appropriate services to the site; that solid waste removal services will also be provided; and that all specific drainage designs must be acceptable to the Town engineer upon submittal of any site plan. The report concluded that the Plan Amendment is consistent with the Town's Comprehensive Plan and, in part, that the proposed change is "an appropriate land use classification for the subject property, providing for an appropriate use of the property considering existing, surrounding uses and land uses " The Town's Planning and Zoning Board considered the Application. Numerous local residents, including Dr. Patterson and Attorney Thomas Baird representing Petitioner McLeod, opposed the Application. A motion to approve the Application to amend the Comprehensive Plan's FLUM failed with a 3 to 2 vote. Further, a motion to approve a request for a change in zoning from the existing designation of residential single-family to the designation of commercial office was not approved by a vote of 3 to 2. On or about May 12, 1999, Celestial submitted a "memorandum on proposed land use changes" to the Town, which provided a historical analysis of the development of the Town, including but not limited to changed circumstances around Olympus Drive and U.S. 1. The Town Council (Council) of the Town of Juno Beach met on May 26, 1999, to consider Ordinance Number 509 which provided the amendment vehicle to the Town's Comprehensive Plan requested by Celestial. This was the first reading and public hearing for this Ordinance. Several area residents and others were in attendance. The results were mixed with some residents speaking in favor and some against approval of Ordinance Number 509. After some discussion by the Council members, and responses from the Town planner and Celestial's representative, the Council approved Ordinance Number 509 on first reading by a vote of 4 to 1. The Council also discussed, on first reading and during a public hearing, Ordinance Number 510, which proposed to approve a rezoning request for the Property to "commercial office." Attorney Tom Baird, on behalf of Petitioner McLeod, opposed the rezoning request. Dr. Patterson also opposed the request. "Town Planner Peduto pointed out the property that was annexed into town with a residential zoning designation, surrounded on three sides by residential and rezoned to Commercial. This parcel is known as Dr. Hinman's Building, Juno Beach Professional Building. He also pointed out another parcel on U.S. 1 surrounded by residential that was given a commercial land use classification and commercial general zoning designation upon its recent annexation into the town." The minutes indicate that the Council was aware that the Planning and Zoning Board had recommended denial. The Council had before it the Town's Staff Report and Recommendation, which was previously presented to the Town's Planning and Zoning Board in substantially the same form. See, e.g., Finding of Fact 30. The Council unanimously approved Ordinance Number 510 on first reading. On or about August 5, 1999, the Town submitted numerous documents to the Department of Community Affairs, including but not limited to, the Town's Staff Report and Recommendation and proposed Ordinance Number 509. The Town requested no formal review. By letter dated September 3, 1999, the Florida Department of Transportation advised the Department that it did not recommend a formal review of the proposed amendment. By letter dated September 16, 1999, the Department of Environmental Protection offered no comments to the Department. The staff at the Treasure Coast Regional Planning Council (TCRPC) submitted a memorandum dated September 17, 1999, for the Council members. The TCRPC is required to review the Plan Amendment prior to formal adoption by the Town Council. The TCRPC stated, in part, in its evaluation: The Town indicates that the proposed amendment is consistent with the Town Comprehensive Plan. The proposed development represents infill. Mixed-use projects of the nature are intended to play an important role in the Town's efforts to create a sustainable community. The amendment is consistent with several objectives of the Town Comprehensive Plan and also with the SRPP which encourages infill development and multi-use structures. The Town indicates that the proposed development will bring a balance between newer and older residential areas and creates a good transition between commercial and residential uses. All urban services are available to the site, there are no level of service concerns, and an environmental survey indicates that there are no environmental concerns relating to development of the site. According to the TCRPC, the proposed Plan Amendment would not have adverse effects on significant regional resources or facilities. The TCRPC concluded that "[b]ased on the lack of extrajurisdictional impacts or effects on significant regional resources and facilities, [TCRPC] does not recommend that the amendment be formally reviewed." However, the [TCRPC] noted: According to the SRPP, a mix of uses on a single property is desirable. However, the first mixed-use development in an area which has previously been devoted entirely to residential use can create controversy and result in opposition from nearby property owners. According to the Town, this has been the case for the subject amendment. Some of this controversy can be avoided and property owner objections lessened by creating a very fine-grained plan. The Town's comprehensive plan contains only a single commercial FLUM category. Therefore, neighbors are understandably concerned about what the type of commercial use might occupy the subject property. During the preparation of its Evaluation and Appraisal Report, the Town should consider the preparation of a more fine-grained plan for those parts of town where the "richness" of the urban fabric is important to protect, preserve, and enhance. On September 17, 1999, the Department advised the Town of its determination that the proposed Plan Amendment should be formally reviewed for consistency. On October 26, 1999, the South Florida Water Management District advised the Department that the District had no water resources related comments regarding the Town's proposed Plan Amendment. No state, regional, or local governmental entity requested review of the Plan Amendment. On November 12, 1999, the Department advised the Town that the Department had no objection to the proposed Plan Amendment. This letter served as the Department's Objections, Recommendations, and Comments (ORC) report. On October 27, 1999, Celestial provided the Town with a Supplemental Memorandum regarding land use changes in the Town since 1990. On November 17, 1999, the Council met to consider Ordinance Numbers 509 and 510 for second reading and received a Staff Report and Recommendation, authored by Mr. Peduto, which contained similar data and analysis from the prior report. See, e.g., Finding of Fact 30. The Town's staff also prepared a report and recommendation regarding the rezoning request/petition, Ordinance Number 510. During the hearing held regarding Ordinance Number 509, the report and recommendation, with backup, and the file for both this hearing and from the previous approval hearing, were entered into the record. During the hearing, the Council was apprised, in part, that the Planning and Zoning Board had recommended denial, by a three-to-two vote, "based on traffic concerns." The minutes further reflect that "[t]he [t]own traffic consultant agrees to the traffic studies from the applicant and the County. He reviewed other areas in [t]own that similar re-zoning occurred located on a local collector, abutted by residential and located on a major thoroughfare." During the public hearing, attorney Baird, representing Petitioner McCloud, advised the Council that Ordinance Number 509 needed to be corrected in the second "WHEREAS" clause stating that the land planning agency had recommended that the Town not adopt the ordinance. "He said the primary reason (to not approve the ordinance) is that the land use classification was incompatible with the residential neighborhood." Several persons opposed the Ordinance, whereas others favored the Ordinance. The Council received numerous letters both for and against Ordinance Number 509. The Council also received petitions for and against the Ordinance. After discussing the issue, the Council approved Ordinance Number 509 by a vote of 4 to 1. The Council also considered Ordinance Number 510 and after considering information both for and against, the Council voted 5 to 0 to approve Ordinance Number 510. On November 23, 1999, the Town submitted the adopted Plan Amendment to the Department. On January 7, 2000, the Department completed its review of the adopted Plan Amendment, Ordinance Number 509, and "determined that it meets the requirements of Chapter 163, Part II, Florida Statutes (F.S.), for compliance, as defined in Subsection 163.3184(1)(b), F.S." Petitioners' Objections to the Plan Amendment Petitioners claim that the Plan Amendment, as applied to the Property, is inconsistent with and, therefore, does not further the "Goal," Objective 1, and Policy 1.3, of the FLUE of the Comprehensive Plan. Petitioners also claim that the Plan Amendment is inconsistent with and fails to comply with Rules 9J-5.005(2)(a) and 9J-5.006(4)(c), Florida Administrative Code, and Section 163.3177(6)(a), Florida Statutes. Petitioners' claim that the Town has approved the Plan Amendment, which approves a mixed-use, without any specific provision in the Comprehensive Plan for a mixed-use designation. Petitioners further claim that the Plan Amendment is not supported by sufficient data and analysis, nor is the analysis professionally acceptable. Petitioners' inconsistency and incompatibility arguments focus primarily on Petitioners' description of the relevant "neighborhood." Mr. James Fleischmann testified on behalf of Petitioners as to his definition of the relevant "neighborhood." Mr. Fleischmann and Dr. Patterson carved out the area east of U.S. 1 and west of A1A and bordered on the north by the Church and on the south by the Seaside area, designated "low density residential," as the appropriate "neighborhood." They opined that any non-residential development within this area was inconsistent with this "neighborhood." See also Findings of Fact 1-3. The "Goal" of the Town's Comprehensive Plan Future Land Use Element (FLUE) provides: A Town characterized by a community spirit that: recognizes its historical development patterns and styles; maintains its established neighborhoods in a safe, secure, beautified, and efficient manner by providing for both vehicular and pedestrian movement in, and around, town; which promotes future growth and development that is creative and enhances historical values and architectural styles that are indigenous to Juno Beach; which protects natural environmental features; and which reflects those development values by well defined neighborhoods and public areas that create an overall continuity to the Town while providing effective and efficient community services. There is no definition of "neighborhood" in the Town's Comprehensive Plan, Chapter 163, Florida Statues, or Rule 9J-5, Florida Administrative Code. Mr. Fleischmann provided his definition based upon his experience and expertise. Mr. Fleischmann did not rely on any specific portion of the Town's Comprehensive Plan in defining his view of the relevant "neighborhood." Mr. Fleischmann testified that all of his opinions concerning compatibility and internal Comprehensive Plan inconsistency in this case are based upon his definition of the relevant "neighborhood." U.S. 1 is a major, four-lane highway, which accommodates traffic at speeds, which are incompatible with a low-density residential neighborhood. It was not unreasonable for the Town to consider that the "neighborhood" area is not as limited or restricted as proposed by Mr. Fleischmann. In fact, Seminole, across U.S. 1 from the Property, actually serves the identified "neighborhood" east of U.S. 1. The data and analysis presented in this hearing, most of which was presented to the Town Council, demonstrates that the area in proximity to the Property has changed over the years, including but not limited to the expansion of U.S. 1 and the development of Seminole directly across from the Property. The weight of the evidence demonstrates that approval of the Plan Amendment will not cause the "neighborhood," as defined by Mr. Fleischmann, to be unsafe, insecure, or not beautified, nor will it impede vehicular and pedestrian movement in and around the Town. The data and analysis presented in this record do not support Petitioners' argument that the Plan Amendment is inconsistent with the "Goal." Also, the analysis was performed in a professional manner. Objective 1 of the FLUE of the Comprehensive Plan provides: To manage growth and development through the preparation, adoption, implementation, and enforcement of land development regulations which: coordinate future land uses with the appropriate topography, some of the conditions and the availability of the facilities and services; prevent, eliminate, or reduce uses inconsistent with the Land Use Goal, Future Plan, and Future Land Use Map; and which require redevelopment, renewal or renovation, where and when necessary through the establishment of standards or for density and intensity of land development. This Objective requires only the adoption of land development regulations to implement its provisions. The record is clear that the Plan Amendment, as a future land use amendment, is not a land development regulation. Petitioners also contend that the Plan Amendment is inconsistent with Policy 1.3 of the FLUE and Rule 9J- 5.006(3)(c)(2), Florida Administrative Code. See Conclusion of law 87. Policy 1.3 states: "Implementing ordinances, regulations and requirements regarding the development of land shall consider adjacent land uses and promote compatibility with those uses." Mr. Fleischmann claimed that he was unaware of any analysis of compatibility in the Staff Report and Recommendation presented to the Town Council in support of the Plan Amendment. However, Mr. Peduto, in the staff report, analyzed the relationship of the Plan Amendment to the surrounding properties, and stated, in part: "[T]he proposed project and petition bring an element of balance between newer residential, older residential and existing commercial, introduces a mixed- use and creates an ideal transition between the western commercial uses and eastern residential, community, and recreation uses." Mr. Peduto also considered the issue of compatibility and stated: "[The Plan Amendment] is an appropriate land-use classification for the subject property, providing for an appropriate use of the property considering existing, surrounding uses and land uses " Petitioners next contend that the Plan Amendment is not in compliance with Section 163.3177(6)(a), Florida Statutes, and Rule 9J-5.006(4)(c), Florida Administrative Code, because the "commercial" FLUM land-use category is not a "mixed-use" category, does not contain a percentage mix of uses, and does not contain densities and intensities of use for all identified land uses. The Town's Comprehensive Plan has numerous future land use classifications, including a classification called "commercial." This definition provides: Land Uses and activities within land areas which are predominantly related to and used for the sale, rental, and distribution of products; the provision or performance of business, personal and professional services. However, in order to allow for mixed uses, a maximum of 75 percent of the total gross floor area on the site may be used for residential development, not to exceed a density of 22 dwelling units per gross acre. The land uses allowed in the "commercial" category include mixed uses, such as residential and commercial. These general descriptions are consistent with the requirements of Section 163.3177(6), Florida Statutes, and the definitions in Rules 9J-5.003(21)("commercial uses") and 9J- 5.003(108)("residential uses"), Florida Administrative Code. The mix of uses is established within the description of the "commercial" land use category itself. A maximum of seventy-five percent (75%) of the total gross floor area on-site may be residential, with the remainder being commercial. The residential density is also established in the definition of "commercial" for a maximum of twenty-two (22) units per gross acre. Further, it appears the intensity standard for allowable commercial uses is found in FLUE Object 1, Policy 1.13 b. of the Town's Comprehensive Plan which provides: "The Building Site Area Requirements, as established in the CG-Commercial General and CO-Commercial Office zoning districts, shall provide the basis for intensity of use and be the development criteria standards for general commercial and commercial office development, respectively, in Juno Beach." The definition of "commercial" includes, and authorizes a "mixed-use" of the Town's property, including the Property, which is the subject of the Plan Amendment. Petitioners also claim that the Plan Amendment is not supported by data and analysis as required by Rule 9J- 5.005(2)(a), Florida Administrative Code. Mr. Fleischmann opined that based upon his examination of the record as it existed on November 19, 1999, the data submitted to the Town was insufficient and the analysis not professionally acceptable. Conversely, the data available to the Town and the evidence presented at the de novo hearing, is adequate to support a finding that the Town's decision to change the land use category for the Property from "low density residential" to "commercial" is at least fairly debatable. Mr. Fleischmann's disagreement with Mr. Peduto and the Town staff's analysis of the facts is not conclusive. Mr. Fleischmann offers a different opinion, which failed to overcome the data and analysis of record in this case. Petitioners also argue that the Plan Amendment could not be approved without the Town, and the Department's, requiring an analysis of a "worst case scenario." However, Mr. Wilburn's testimony in this regard is persuasive in that this analysis is normally employed in the planning field for a FLUM amendment only in terms of analyzing the five areas that a local government is required to set level of service standards, i.e., roads, water, sewer, recreation, and open space. It is not appropriate to use a "worst case scenario" when reviewing issues of compatibility. Importantly, the record indicates that there is no issue raised in this case regarding the sufficiency of the existing or proposed level of service standards. The Town Council held two public hearings regarding the Plan Amendment, heard from the public, including Petitioners, and was presented with adequate data and analysis to reasonably conclude that the Plan Amendment was consistent with its Comprehensive Plan and the relevant statutes and rules at issue in this case. In summary, the Plan Amendment's change of the FLUM land use category for the Property is fairly debatable, particularly in light of the historical development occurring within the Town, and the changing conditions affecting the U.S. 1 corridor in the vicinity of the Property. Based upon the totality of the circumstances and factors presented in this case, the Plan Amendment is consistent with the Act.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued concluding that the Town of Juno Beach's Comprehensive Plan Amendment, Ordinance Number 509, is "in compliance" as defined in chapter 163, Part II, Florida Statutes, and rules promulgated thereunder. DONE AND ENTERED this 5th day of March, 2001, in Tallahassee, Leon County, Florida. CHARLES A. STAMPELOS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of March, 2001. COPIES FURNISHED: Thomas J. Baird, Esquire Thomas J. Baird, P.A. 11891 U.S. Highway One Suite 105 North Palm Beach, Florida 33408-2864 Daniel K. Corbett, Esquire 300 Mercury Road Juno Beach, Florida 33408 W. Jay Hunston, Jr. Esquire Gregory S. Kino, Esquire Boose Casey Ciklin Lubitz Martens McBane & O'Connell 515 North Flagler Drive Northbridge Center-19th Floor, Suite 190 West Palm Beach, Florida 33401-4330 Shaw P. Stiller, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Steven M. Seibert, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 100 Tallahassee, Florida 32399-2100 Cari L. Roth, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 100 Tallahassee, Florida 32399-2100
The Issue The issues are (1) whether the City of Lake Worth (City) followed required statutory and rule procedures in adopting the height restrictions on pages 22 and 23 of the Future Land Use Element (FLUE) of the Evaluation and Appraisal Report (EAR) amendments, and (2) whether the adoption of the EAR-based amendments by the City more than 120 days after receiving the Department of Community Affairs' (Department's) Objections, Recommendations, and Comments (ORC) report renders them not in compliance.
Findings Of Fact The Parties Sunset is a Florida limited liability company whose principal address is 5601 Corporate Way, Suite 111, West Palm Beach, Florida. It owns property located at 826 Sunset Drive South within the City. See Sunset Exhibit 3. The property is currently classified on the FLUM as County Medium Residential 5.1 There is no factual dispute that Sunset is an affected person and has standing to participate in this proceeding. Ms. Hayes-Tomanek owns property within the City. She submitted comments regarding the height restrictions during the public hearing on October 20, 2009, adopting the EAR amendments. See City Exhibit 6, Minutes, p. 7. The City is a local government that administers the City's Plan. The City adopted the EAR-based amendments which are being contested here. The Department is the state land planning agency charged with the responsibility of reviewing plan amendments of local governments, such as the City. The Amendments On October 1, 2008, the City's EAR-based amendments were passed on first reading and transmitted to the Department. See Joint Exhibit 2. These amendments did not include any height-based restrictions on the three categories of residential property in the Plan: Single-Family, Medium-Density, and High- Density. These three categories make up around 75 percent of the City's total land area. According to Sunset's expert, height restrictions for those categories (which are less stringent than those later adopted and being challenged here) were then in the City's zoning ordinances. On January 14, 2009, the Department issued its ORC report regarding the EAR-based amendments. See Joint Exhibit 3. Objection 4 in the report stated in part that the "City has not adequately established its mixed use districts . . . because the mixed used categories do not establish the types of non- residential uses or the appropriate percentage distribution among the mix of uses, or other objective measurement. In addition, the General Commercial, Industrial, Public, Public Recreation and Open Space Future Land Use categories do not include the densities and intensities of use for these categories." Id. Sunset's expert points out that the ORC report, and in particular Objection 4, did not recommend any changes to the residential categories of property. Accompanying the ORC report was a document styled "Transmittal Procedures," which stated, among other things, that "[u]pon receipt of this letter, the City of Lake Worth has 120 days in which to adopt, adopt with changes, or determine that the City will not adopt the proposed EAR-based amendments." Id. The 120-day period expired on May 14, 2009. See Sunset Exhibit 15. The City initially scheduled an adoption hearing on May 5, 2009. See Sunset Exhibit 8. For reasons not of record, the EAR amendments were not considered that day. On June 25, 2009, then City Commissioner Jennings wrote Bob Dennis, Department Regional Planning Administrator, and asked whether the City could incorporate certain substantive changes into its EAR amendments between the first (transmittal) and second (adoption) readings. Among others, she asked if the following change to the EAR amendments could be made: Establish or change the maximum building heights in various land use classifications. During the master plan process, the city received public input regarding maximum building heights . . . . The height changes vary from a 10' reduction to a 25' reduction in different land use categories. The letter included an outline of the proposed changes in seven land use categories, including the three residential categories. See City Exhibit 2. In her deposition, Commissioner Jennings stated that around the time of the transmittal hearing in January 2008 she had requested that new height restrictions be incorporated into the EAR amendments, but based on conversations with City staff, she was under the impression that these changes could not be made at that time. See City Exhibit 9. By letter dated July 29, 2009, the Department, through its Chief of Office of Comprehensive Planning, responded to Commissioner Jennings' inquiry as follows: The proposed maximum building height changes identified in your letter are for the Single Family Residential, Medium Density Multi-family Residential, High Density Multi-family Residential, Mixed Use, Downtown Mixed Use, Transit Oriented Development, and the General Commercial land use categories. Contrary to the [FLUM] revisions discussed above, the City did transmit proposed amendments to Future Land [Use] Policy 1.1.3, including new and revised Sub-policies 1.1.3.1 through 1.1.3.11 concerning these land use classifications. Height limitations were proposed for the Mixed Use and Downtown Mixed Use land use categories. In addition, the Department's ORC Report includes an objection that the Mixed Use, Downtown Mixed Use, Transit Oriented Development, General Commercial, Industrial, Public, Recreation and Open Space land use classifications do not establish adequate densities and intensities of use for these categories. In preparing this letter, the Department notes that an intensity standard of 0.1 F.A.R. (floor area ratio) was proposed for the Recreation and Open Space category. To address the Department's objection, the Department recommended the City include densities and intensities for the listed land use categories and specify the percentage distribution among the mix of uses in the mixed use categories. Appropriate intensity standards for non-residential uses include a height limit and maximum square footage or a floor area ratio. Because the City transmitted amendments that included revisions to the residential and several non- residential land use categories and because the Department's ORC Report identified the need to include density and intensity standards for the mixed use categories and several non-residential land use categories, it would be acceptable for the City to revise the proposed height limitations previously submitted or to include height limitations for the other land use categories. As noted above, height alone is not a density or intensity standard. (Emphasis added) City Exhibit 3. This determination by the Department was just as reasonable, or even more so, than the contrary view expressed by Sunset's expert. After receiving this advice, the City conducted a number of meetings regarding the adoption of the EAR-based amendments, including a change in the height restrictions. On September 2, 2009, a Board meeting was conducted regarding the proposed new height restrictions. The Board voted unanimously to adopt the changes. The Minutes of that meeting reflect that a "special workshop" would be conducted by the Commission at 6:00 p.m., September 14, 2009, "to address height and intensity" changes to the EAR amendments. See City Exhibit 4, Minutes, p. On October 11, 2009, a "special meeting" of the Commission was conducted. Finally, on October 20, 2009, the City conducted the adoption hearing. There is no dispute that Petitioners appeared and presented comments in opposition to the proposed changes. By a 3-2 vote, Ordinance No. 2008-25 was adopted with the new height restrictions described on Table 1, pages 22 and 23 of the FLUE.2 See Joint Exhibit 4; Sunset Exhibit 6. This was 279 days after the City received the ORC report. The adopted amendments were then submitted to the Department for its review. Notices for each hearing (but not the special workshop) were published in a local newspaper. See City Exhibits 4, 5, and 6. Each advertisement indicated that one of the purposes of the meetings was to consider the "City's EAR- Based Amendments." No further detail regarding the EAR amendments was given. Sunset's expert acknowledged that local governments do not always provide more specificity than this in their plan amendment notices but stated he considers it to be a good planning practice to provide more information. On December 30, 2009, the Department issued its Notice of Intent to find the amendments in compliance. See City Exhibit 5. The following day, a copy of the Notice of Intent was published in The Lake Worth Herald. On January 19, 2010, Sunset timely filed a petition contending that certain procedural errors were committed by the City during the adoption process. This petition was twice amended prior to hearing. A petition was filed by Ms. Hayes-Tomanek on April 5, 2010. Petitioners' Objections Petitioners first point out that the City did not follow the requirement in section 163.3184(7)(a) that it "shall" adopt the amendments no more than 120 days after receipt of the ORC report. They contend that because the City failed to do so, this requires a determination that the EAR-based amendments are not in compliance. At hearing, Sunset also relied upon (for the first time) Florida Administrative Code Rule 9J-11.009(8)(e), which provides that "[p]ursuant to Section 163.3191(10), no amendment may be adopted if the local government has failed to timely adopt and transmit the evaluation and appraisal report- based amendments." The parties agree that the City did not adopt the EAR- based amendments until 279 days after receipt of the ORC report. According to the Department's Regional Planning Administrator, Bob Dennis, the Department took no action after the 120 days had run because the statute "gives no guidance as to what happens when a local government does take more than the prescribed time in the statute." See City Exhibit 8. He also indicated that the Department has no policy relative to this situation. Sunset's expert agreed that there is no penalty in the statute in the event a local government takes more than the prescribed time. Richard Post, a Department Planning Analyst, noted that local governments sometimes take longer than the statutory time periods to "send in adopted amendments, and the Department has taken no particular posture regarding their tardiness." See City Exhibit 7. He further noted that if a filing is late, as it was here, it does not affect the Department's review. As a safeguard, if an adopted amendment is transmitted to the Department after the statutory time period, it is reviewed by a planner to determine whether the information is still relevant and appropriate or has become "stale" and out-of-date. In this case, the Department reviewed the adopted amendments and, notwithstanding the passage of 279 days since the ORC report was received by the City, the amendments were found to be in compliance. For the reasons expressed in Endnote 3, infra, rule 9J-11.009(8)(e) does not prohibit the City from adopting the challenged amendments.3 While Petitioners stated that they have suffered prejudice because the new height restrictions will adversely impact the use of their property, there was no evidence that the delay in adopting the amendments affected their ability to participate in the planning process. Petitioners also contend that the City failed to follow statutory and rule procedures when it added the height restrictions between the first and second readings of the amendments. By the City doing so, Petitioners argue that rule 9J-5.004 was violated, which requires that the City "adopt procedures to provide for and encourage public participation in the planning process, including consideration of amendments to the . . . evaluation and appraisal reports[,]" and procedures to assure that the public is noticed regarding such changes and has the opportunity to submit written comments. Petitioners further argue that subsections 163.3191(4) and (10) were violated by this action. The first subsection requires the local planning agency (the Planning & Zoning Board) to prepare the EAR report (as opposed to the amendments) in conformity with "its public participation procedures adopted as required by s. 163.3181[,]" while the second subsection requires that the City adopt the EAR-based amendments in conformity with sections 163.3184, 163.3187, and 163.3189. They also argue that the notice of the adoption hearing violated section 163.3184(15) because it failed to describe the changes being made to the original EAR-based amendments. Finally, they contend the new height restrictions were not responsive to the ORC report.4 Petitioners do not contend that the City has failed to adopt adequate public participation procedures, as required by rule 9J-5.004. Rather, they contend that the participation procedures were violated, and that members of the public and other reviewing agencies, such as the Treasure Coast Regional Planning Council, were not given an opportunity to provide input on the new height restrictions. The record shows that, notwithstanding the content of the notice in the newspaper, both Petitioners were aware of new height restrictions being considered by the City prior to their adoption, and both were given the opportunity to participate at the adoption hearing. There is no dispute that Sunset submitted written or oral comments to the Commission prior to the adoption of the new height restrictions. Likewise, Ms. Hayes-Tomanek has closely followed the planning process for years (mainly because she wants the density/intensity standards on her property increased) and became aware of the new height restrictions well before they were adopted. The record further shows that the new height limitations were discussed by City officials before June 2009, when Commissioner Jennings authored her letter to the Department, and that written input on that issue was received from 239 residents. See Sunset Exhibit 9; City Exhibit 9. It is fair to construe these comments from numerous citizens as "public input." Even if there was an error in procedure, there is no evidence that either Petitioner was substantially prejudiced in the planning process. Finally, Petitioners' assertion that the new height restrictions are not responsive to the ORC report has been considered and rejected. See Finding of Fact 9, supra; City Exhibits 7 and 8.5
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 EAR-based amendments adopted by Ordinance No. 2008-25 are in compliance. DONE AND ENTERED this 24th day of March, 2011, in Tallahassee, Leon County, Florida. S R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of March, 2011.
The Issue The issue in this case is whether Ft. Myers' comprehensive plan, as amended, is not in compliance for the reasons set forth in the prehearing stipulation, as amended during the final hearing.
Findings Of Fact Background The City of Ft. Myers, (Ft. Myers) adopted its comprehensive plan on February 13, 1989. The Department of Community Affairs (DCA) issued a Notice of Intent to find the plan not in compliance. Among other things, DCA alleged that the plan improperly omitted the Mid-Point Bridge and was inadequate in terms of intergovernmental coordination, at least with regard to the bridge. The City of Cape Coral (Cape Coral) and Lee County filed petitions to intervene. The petitions challenged the Ft. Myers plan based on its omission of the Mid-Point Bridge. DCA and Ft. Myers subsequently reached a settlement. On August 20, 1990, Ft. Myers adopted plan amendments pursuant to the settlement agreement. The plan, as amended, will be referred to as the Plan. DCA issued a Notice of Intent to find the plan amendments in compliance, but Lee County and Cape Coral, finding the plan amendments unsatisfactory, continued to prosecute their challenge to the Plan. Ft. Myers and Cape Coral are two of the three municipalities located in Lee County. /2 The two cities are divided by the Caloosahatchee River, which forms the western end of the Okeechobee Waterway. This waterway links the Gulf of Mexico to Lake Okeechobee, via the Caloosahatchee River, and Lake Okeechobee to the Atlantic Ocean. In the eastern part of Lee County, the Caloosahatchee River runs from east to west. In this area, the river is spanned by the State Road 31 Bridge and, further downstream, the Interstate 75 bridge. In the vicinity of Interstate 75, about two miles northeast of the city limits of Ft. Myers, the river widens, makes a slow turn, and takes a northeast-to-southwest course. Except for a railroad bridge about one mile downstream from the Interstate 75 bridge, the next bridge is the Edison Bridge, which is about 5 1/2 miles downstream from the Interstate 75 bridge. The Edison Bridge serves old U.S. 41. The southern landfall of this bridge runs into the northern end of the central business district of Ft. Myers. The Edison Bridge, which is presently two lanes, is planned to be widened to six lanes in the near future. About 1/2 mile downstream of the Edison Bridge is the Caloosahatchee Bridge, which serves new U.S. 41. The southern landfall of the Caloosahatchee Bridge, which is sometimes called the 41 Bridge, also runs into the central business district of Ft. Myers. The Caloosahatchee Bridge is four lanes. About seven miles downstream from the Caloosahatchee Bridge is the Cape Coral Bridge, which is the last bridge before the mouth of the river. The Cape Coral Bridge was recently expanded to four lanes. The proposed Mid-Point Bridge would be located 3.4 miles upstream from the Cape Coral Bridge and 3.8 miles downstream from the Caloosahatchee Bridge. At this point, the river runs more in a north-to-south direction. The bridge would connect central Cape Coral with south Ft. Myers. The Mid-Point Bridge project would include an east-west road corridor on both sides of the river. The corridor would connect Everest Parkway on the Cape Coral or west side of the river with Colonial Boulevard on the Ft. Myers or east side of the river. Everest Parkway is presently only about 12,000 feet long. The corridor would connect Everest Parkway with Miracle Parkway to the west, turn north at Malatcha Pass (the western boundary of Cape Coral), and extend to New Burnt Store Road. Everest Parkway and most of Miracle Parkway are four-lane divided collectors for which Cape Coral has jurisdiction. Colonial Boulevard is an arterial consisting of six lanes from McGregor Boulevard east to U.S. 41 and four lanes from U.S. 41 east to Interstate 75. The State had jurisdiction over all of Colonial Boulevard, but the County now has jurisdiction over the segment between McGregor Boulevard and U.S. 41. The west terminus of Colonial at McGregor Boulevard is about one- quarter mile east of the river. About 2000 feet east of McGregor is Summerlin Road. The next major intersection is U.S. 41, which is about 4000 feet east of Summerlin and less than 1.2 miles east of McGregor Boulevard. The Edison Mall, which is a major regional shopping mall, is less than one-half mile north of this intersection on the east side of U.S. 41. The next major intersection on Colonial is Metro Parkway, which is 1.3 miles east of U.S. 41. A little over 3.1 miles east of Metro Parkway is Interstate 75 where an interchange exists. From west to east, the major north-south roads are McGregor Boulevard, for which capacity improvements are constrained by historic and scenic factors; U.S. 41, which crosses the Caloosahatchee Bridge; Fowler Street and Evans Avenue, which are a one-way pair between the Edison Bridge and Colonial; Metro Parkway, which is proposed to be extended north to cross the proposed Metro Bridge; and Interstate 75, which is considerably east of the downtown area. Cape Coral is a relatively new community whose predominant land uses are residential. The relevant road network in Cape Coral consists of two major east-west roads: Pine Island Road, which is about four miles north of Everest, and Cape Coral Parkway, which is about three miles south of Everest. The major north-south roads are, from east to west, Del Prado Boulevard (at which point Everest presently ends), Country Club Boulevard, and Santa Barbara Boulevard. In contrast to Cape Coral, Ft. Myers has been more or less continuously occupied since the construction of a fort by the same name in 1850 between the Second and Third Seminole Wars. In 1887, Thomas A. Edison built his home alongside the Caloosahatchee River between the central business district and what is now Colonial Boulevard. Edison's home is located on McGregor Boulevard, which is attractively lined by Royal Palm trees. Aided by the arrival of Henry Plant's Coast Railroad in 1904 (and presumably a bridge to go with it), Ft. Myers began to grow rapidly in the early 1900's. The Colonial Boulevard area was not developed until the Florida land boom in the 1920's. Although the structures of historical interest are north of Colonial Boulevard, seven sextant structures on Rio Vista Way were constructed during the 1920's and 1930's and exemplify the prevailing Mediterranean revival architectural style. Running toward the river, Rio Vista Way intersects McGregor Boulevard about 250-500 feet of north of the western end of Colonial Boulevard. Data and Analysis February, 1989, Data and Analysis At the time of the adoption of the plan, Ft. Myers prepared a 45-page volume entitled "Traffic Circulation Data and Analysis." The document was dated August, 1988, and revised February, 1989. This document will be referred to as the 1989 Data and Analysis. The 1989 Data and Analysis reviews the city's current situation with respect to transportation facilities, especially roads. Table 1 of the document is a chart of daily traffic volumes based on Florida Department of Transportation traffic estimates issued April 10, 1987 Table 1 projects the peak hour level of services for various road segments for 2010. According to Table 1, by 2010, all of U.S. 41 is projected to be at level of service F, except for a segment south of downtown that is projected to deteriorate only to level of service D. All of Colonial Boulevard is projected to be at level of service F, except for the short segment between McGregor Boulevard and Summerlin Road, which is projected to deteriorate only to level of service C. McGregor Boulevard and Fowler Street are projected to be level of service F, except for the segment of Fowler Street beginning at the river, which is projected to be level of service E. Among the road segments already exceeding level of service standards are Colonial Boulevard west of U.S. 41 (level of service E) and McGregor Boulevard (level of service F). The 1989 Data and Analysis notes that the "intensified urbanization of Fort Myers will continue, and congestion problems will worsen." 1989 Data and Analysis, page 7. The 1989 Data and Analysis summarizes the "three major areas of major capacity deficiencies" as follows: Firstly, Fort Myers' downtown is the economic hub of Lee County and development attracts approximately 38,800 daily trip ends. [Fort Myers Downtown Plan, July 1986.] Second, the Edison Mall area which due to the major regional shopping mall is a main attractor of traffic congestions. Finally, McGregor Boulevard, the renowned historic and scenic highway, has capacity constraints. Id. at page 9. Map B in the 1989 Data and Analysis depicts future roadways and classifications. In addition to the existing Interstate 75, railroad, Edison, and Caloosahatchee bridges, the map shows the Metro Bridge. This bridge, which will be located just over one mile upstream from the Edison Bridge, will allow Metro Parkway to cross the river and intersect with Interstate 75 in north Lee County. According to the Future Land Use Map (FLUM), Metro Parkway presently extends from south of Colonial Boulevard to about two miles north of Colonial. Map B depicts Metro Parkway as continuing north until it meets the proposed landfall of the southern end of the proposed Metro Bridge. The proposed alignment of Metro Parkway between its present northern terminus and the proposed bridge takes it through economically distressed areas east of the railroad tracks and central, downtown area. Map F in the 1989 Data and Analysis depicts graphically travel desires lines for 1980 and 2010. The travel desires map shows the general direction and approximate volume of trips between 13 centroids for 1980 and 2010. The centroids aggregate up to 396 travel analysis zones. The 1989 Data and Analysis explains that the travel desires map "was produced as part of the MPO 2010 Needs plan update . . .." 1989 Data and Analysis, page 19. The 1980 travel desires line signifying the greatest number of trips runs in at northeast-southwest direction between south Ft. Myers near the river to north Ft. Myers a couple of miles inland. Other major 1980 travel desire lines cross the river in the vicinity of the Caloosahatchee, Edison, and proposed Metro Bridges cross the river between the center of Cape Coral and north Ft. Myers and connect north Ft. Myers to a point well east of Interstate 75 in the area of Lehigh Acres. The projected travel desires lines signifying the most travel in 2010 are the above-described line between south and north Ft. Myers and a line between south Ft. Myers and a point about six miles due south. The latter travel line depicts considerably less traffic in 1980. Compared to the two most significant 2010 travel lines, the travel lines crossing the river are projected to increase at a lesser rate. Table 3 in the 1989 Data and Analysis contains 1987 Traffic Counts. The table, which is derived from Lee County data, projects when various road segments will deteriorate to seasonal level of service E. Table 3 projects that Colonial Boulevard between Summerlin Road and U.S. 41 and Colonial east of Metro Parkway will deteriorate to peak season level of service E by 1988 and 1992, respectively. McGregor was already at an average level of service of E by 1987. Segments of Metro Parkway south and north of Colonial are projected to reach level of service E by 1991 and 1989, respectively. Also, U.S. 41 at the river is projected to deteriorate to level of service E by 1992. Other relevant segments are projected to be at seasonal level of service D or better. Map G in the 1989 Data and Analysis graphically depicts 1980 and 2010 levels of population and employment by area. In general, Map G shows that, in 1980 and 2010, Cape Coral experienced and is projected to continue to experience considerably greater population than employment opportunities. North and south Ft. Myers' figures show a much better balance between population and jobs. Addressing Map B in, the 1989 data and Analysis, which depicts future roadways, the 1989 Data and Analysis states: The City's Major Thoroughfare Plan (Map H[)] /4 has been developed to coordinate with the Metropolitan Planning Organization, State and County plans to the greatest extent possible. The most significant deviations from these plans are the terminus of the Evans/Fowler one-way pair and the exclusion of a "mid- point bridge." The proposal by other agency plans of a "mid-point bridge," at its current proposed location, conflicts overwhelmingly with other goals, objectives, and policies of the Comprehensive Plan. Conflicts with Land Use, Historic, and Community Appearance elements and internal conflicts with the Traffic Circulation element precludes the City from supporting the proposed bridge alignment. The present and future land use pat1terns have been coordinated to the greatest extent feasible with the Major Thoroughfare Plan. 1989 Data and Analysis, page 36. The 1989 Data and Analysis does not explain how the Major Thoroughfare Plan ``coordinates'' with the plans of the Metropolitan Planning Organizations' State, and County plans. Maps A and B of the 1989 Data and Analysis depict, respectively, present and future roads. Tables in the 1989 Data and Analysis following the Major Thoroughfare Plan--2010 list transportation projects included in the list of one organization or entity but excluded from that of another. Mentioning the Mid-Point Bridge and approaches, Table 12 states "The City of Fort Myers is adamantly opposed to this project on the basis of it being inconsistent with the City's Comprehensive Plan." The 1989 Data and Analysis concludes with a discussion of "issues and opportunities." This discussion mentions the maintenance or provision of "adequate road capacity for future traffic needs" and the preservation and protection of the "quality of residential areas, major activity centers, and recreation and environmental resources." Nothing in the 1989 Data and Analysis expressly incorporates by reference other sources of data or analysis in support of the plan's treatment of the Mid-Point Bridge or any approach. Setember, 1990, Data and Analysis An updated version of the 1989 Data and Analysis was issued. The new version bears the date, "August 1988," but also states that it was "updated September 1990." This document will be referred to as the 1990 Data and Analysis. Table I in the 1990 Data and Analysis is based on the same Florida Department of Transportation estimates issued April 10, 1987, on which Table 1 in the 1989 data and Analysis was based. The above-noted segments are all projected to reach the same level of service, except that all segments of U.S. 41 are projected to reach level of service F by 2010. Other differences between the 1989 Data and Analysis and 1990 Data and Analysis appear fairly minor. /6 Table IV updates the 1987 Traffic Counts in the 1989 Data and Analysis with 1988 Traffic Counts, which are, also from Lee County. The differences as to when relevant road segments are projected to deteriorate to peak season level oil service E are as follows: Colonial Boulevard east of Metro Parkway, which is now projected to reach level of service E in 1993 instead of 1992; Metro Parkway north and south of Colonial, which are no longer "projected" to deteriorate to level of service E in 1988; and Colonial Boulevard just west of U.S. 41, which is now projected not to reach level of service E within the applicable timeframe instead of reaching it in 1988. There is no difference in the discussions in the 1989 Data and Analysis and 1990 Data and Analysis concerning the differences between the road network portrayed by the Major Thoroughfare Plan--2010 and the road networks portrayed by the plans of the Metropolitan Planning Organization, State, /7 and County. The conflict concerning the Mid-Point Bridge and corridor remains unresolved. Nothing in the 1990 Data and Analysis expressly incorporates by reference other sources of data or analysis in support of the plan's treatment of the Mid-Point Bridge or any approach. The MPO Plans and Environmental Fact Statement Other sources of data and analysis existing in February, 1989, pertain to the Mid-Point Bridge and transportation planning issues. Much of these data nd analysis are associated with the work of the Lee County Metropolitan Planning Organization (MPO) and of Lee County and its consultants in the preparation of an environmental impact statement for the Mid-Point Bridge and corridor. When adopting the Plan, Ft. Myers representatives were aware of the data and analysis used or prepared by the MPO and the data and analysis used to prepared by Lee County and its consultants in connection with the environmental impact statement. Required by federal law, a metropolitan planning organization coordinates transportation planning in areas governed by more than one local jurisdiction to ensure that federal and state transportation funds are spent effectively. The MPO consists of 12 voting members: five Lee County Commissioners, the Mayor and two City Council members of Ft. Myers, the Mayor and two City Council members of Cape Coral, and the Mayor or a City Council member of Sanibel. The MPO is also served by a Technical Advisory Committee (TAC), which consists largely of planning and engineering employees of each of the member jurisdictions. The TAC analyzes data and presents to the MPO for consideration. The MPO prepared its initial transportation plan in 1974. The MPO first included the Mid-Point Bridge in its 1978 transportation plan. The MPO later dropped the Mid-Point Bridge project, but reinstated it in 1983. The Mid-Point Bridge remained in the MPO's transportation plans until March, 1991. At an early stage, Lee County was opposed to the bridge, but later reversed its position. The positions of Cape Coral and Ft. Myers appear to have remained constant. In 1987, the MPO began to run computer simulations of various transportation improvements. These modeling runs, or assignments, were integral to the preparation of the MPO 2010 Needs Plan (Needs Plan) and MPO 2010 Financially Feasible Plan (Financially Feasible Plan). Although some text is associated with these plans, they generally consist of two maps of road networks with indications as to the number of lanes and type of facility (e.g., freeway or collector). The Needs Plan depicts the system needed "to accommodate projected travel demand efficiently and conveniently at acceptable levels of service, but unconstrained by cost considerations." Financially Feasible Plan. Based upon cost-benefit analyses, the Financially Feasible Plan prioritizes the facilities shown in the Needs Plan. It is arguable whether the Financially Feasible Plan depicts road improvements that are, in fact, financially feasible. The plan concedes that the MPO has proposed improvements whose cost nearly doubles projected available revenues: The estimated $993 million cost of the Financially Feasible Plan, while $442 million less than that of the 2010 Needs Plan, still exceeds projected financial resources from traditional or existing Sources by -some $313 million. In order to pay for the implementation of the Financially Feasible Plan, a number of options for raising additional revenue available under current Florida law have been identified. Financially Feasible Plan. Although a number of the revenue options involve Ft. Myers, such as through the use of impact fees or local option gas taxes and infrastructure sales taxes, the proposed Mid-Point Bridge and corridor would not Ft. Myers to contribute directly to its cost. The record does not address whether the commitment of Lee County to the project prevents the County from sharing in other transportation expenses otherwise borne to a greater extent by Ft. Myers. Lee County intends to pay for the Mid-Point Bridge and the corridor between Del Prado-Boulevard and Interstate 75. The Lee County schedule of capital improvements, which are contained in the Lee County plan, includes the $168.4 million cost of the Mid-Point Bridge and corridor from Del Prado to Interstate 75. The capital improvement schedule identifies the revenue source as toll revenue bond proceeds. Cape Coral intends to pay for the corridor west of Del Prado Boulevard. The Cape Coral schedule of capital improvements includes $17.8 million for the design and construction of the east-west expressway from Del Prado to Santa Barbara and includes another $6.9 million for related right-of- way acquisition. The Cape Coral plan, as amended August 27, 1990, identifies impact fees and gas taxes as sources for the needed revenue, although later amendments identify other sources as well. In running computer simulations, the MPO used the Florida Standard Model to process socioeconomic data inputs and project levels of service for various network alternatives. The TAC validated the modeling by comparing projections to current travel conditions. The MPO or TAC approved the model after reviewing the validation results. After approving the model, the MPO and TAC unanimously approved the socioeconomic data in December, 1986. In addition to the specified transportation network, the data inputs include such socioeconomic data as projected populations, numbers of housing units by type, pp categories by type, and school enrollments. Generally, each TAC member supplied the socioeconomic data for the jurisdiction represented by that member. Decisions concerning the evaluation of data were by majority vote. The TAC and its outside consultant, Wilbur Smith and Associates, selected alternatives to test, although it appears that the TAC had considerable discretion in `the choice of alternatives. The socioeconomic data were correlated to applicable land uses, which were derived from land use plans then in effect for the various jurisdictions. None of these land use plans contained the comprehensive revisions required by the 1985 Local Government Comprehensive Planning and Land Development Regulation Act (the Act). By running traffic simulation models, Wilbur Smith and Associates determined the relationship of population to employment for 1980 and projected the relationship to 2010. This work was reflected in Map G of the 1989 Data and Analysis and 1990 Data and Analysis. Wilbur Smith and Associates then simulated the travel projected to occur in the area and the routes to accommodate such travel. This work eventually was incorporated into the travel desires map, which, is Map F of the 1989 Data and Analysis and 1990 Data and Analysis. The modeling process is iterative. The first network model led was the existing and committed road network, as of February, 1987. This system, as expected, was grossly inadequate to handle projected growth through 2010. The existing and committed network consisted of, the following committed projects: the Edison Bridge six-laning, the cape Coral Bridge four-laning, an extension of Colonial Avenue, and multi-laning of State Road 80. The next network modelled was the MPO 2000 Long Range Transportation Plan. The predecessor to the 2010 Needs Plan, the 2000 Long Range Transportation Plan, which included the Mid-Point Bridge, provided an ample road network. A total of 15 assignments were run prior to the preparation and adoption of the Needs Plan. The computer modelling represents the first time that the MPO undertook such work on its own or with an outside consultant. By the latter half of 1987, the TAC and Wilbur Smith and Associates had prepared Assignment D, which included much of what was eventually included in the Needs Plan. Assignment D became a base against which other alternatives were tested. At the request of Ft. Myers, the TAC and Wilbur Smith and Associates ran an assignment without the Mid-Point Bridge. This assignment included the Iona Cove Bridge expanded to four lanes and served by a freeway. /8 As ultimately adopted in the Needs Plan, the Iona Cove Bridge and Southern Corridor would consist of a two-lane bridge downstream from the Cape Coral Bridge and about 2 1/2 miles upstream from the mouth of the Caloosahatchee River. On the Cape Coral side, the Southern Corridor would connect indirectly to the Cape Coral Parkway well west of the Cape Coral Bridge. On the Ft. Myers side, the Southern Corridor would be a new four-lane expressway in south Lee County that, from west to east, would intersect Metro Parkway and then Interstate 75. As a two-lane expressway, the Southern Corridor would turn north, passing south of the regional airport, and teirminate at Lehigh Acres in east Lee County. The simulation without the Mid-Point Bridge was Assignment G. Due to faulty data inputs, 9 possibly concerning one or more developments of regional impact in south Lee County, the MPO reran the requested alternative as Assignment J. Assignment J is the only valid assignment excluding the Mid-Point Bridge except for the initial run of the base network. Table A-I of Technical Report 3, which was prepared by Wilbur Smith and Associates, compares projected traffic volumes on various road segments based on Assignment D and Assignment J. In Assignment D, the Iona Cove Bridge would be a two-lane facility with expressway approaches, rather than freeway approaches. Treating the Edison, Caloosahatchee, and Metro Bridges as a single corridor with a capacity of 138,000 trips per day, Table A-I projects that these bridges would handle, under Assignment D, 142,864 trips per bay and, under Assignment J, 153,605 trips per day. The respective volume to capacity ratios are 1.04 and 1.11. The Mid-Point Bridge in Assignment D would have a capacity of 76,000 trips per day and would carry 36,542 for a volume to capacity ratio of 0.48. The Cape Coral Bridge, with a capacity of 33,600, is projected to serve 34,565 trips per day under Assignment D and 43,778 trips per day under Assignment J. The respective volume to capacity ratios are 1.03 and 1.30. Table A-I considers a group of three north-south roads in Ft. Myers, including U.S. 41, in three segments as they travel south from the river. The range of volume to capacity ratios, under Assignment D, from 0.76 to 1.00 and, under Assignment J, from 0.84 to 1.06. Table A-I reports the results for 18 other segments in Cape Coral or Ft. Myers. All but four of these segments are below a volume to capacity ratio of 0.95 under Assignment D. With Assignment J, eight segments exceed 1.0 and two more exceed 0.95. The MPO adopted the Needs Plan on January 21, 1988. After running 14 more assignments, the MPO adopted the Financially Feasible Plan on November 17, 1988. The more elaborate Needs Plan contains a four-lane Metro Bridge with Metro Parkway as, a divided six-lane arterial south of the bridge and a four-lane expressway to U.S. 41 north of the bridge. The Caloosahatchee Bridge remains four lanes, as would be the proposed Mid-Point Bridge. To the west, Everest Parkway is a four-lane freeway to Del Prado Boulevard, then Everest turns into a four-lane expressway as it is extended west to join the existing Miracle Parkway. As the new expressway turns north toward New Burnt Store Road, it is reduced from four to two lanes. To the east of the Mid-Point Bridge, the Needs Plan converts Colonial Boulevard to a four-lane freeway with a pair of one-way service roads and elevated interchanges at Summerlin Road, U.S. 41, and Metro Parkway. The one-way service roads continue east to the vicinity of Interstate 75, but Colonial becomes a four-lane expressway east of Metro. The Financially Feasible Plan retains the four- lane Metro Bridge, but reduces the capacity of the adjoining corridor to the north. Mid-Point Bridge remains four lanes, but, on the Cape Coral side, the expressway is reduced from four lanes to two lanes at Santa Barbara Boulevard rather than at New Burnt Store Road. To the east of the Mid-Point Bridge, Colonial remains unchanged from the Needs Plan. The Financially Feasible Plan eliminates the Iona Cove Bridge and the eastern half of the Southern Corridor. The southern half of the expressway is shown, but is reduced to two lanes and ends west of Interstate 75. Another important source of data and analysis relating to the Mid- Point Bridge and approaches is a draft environmental impact statement prepared by Lee County for the Mid-Point Bridge and corridor. The Draft EIS considers the proposed Mid-Point Bridge in the context of two alternatives: "no action" and the construction of the Iona Cove Bridge and Southern Corridor. Exhibit 7 of the Draft EIS /10 portrays the Colonial corridor east of the Mid-Point Bridge. Consistent with the MPO Needs Plan's depiction of elevated interchanges at Summerlin, U.S. 41, and Metro Parkway, Exhibit 7 also shows overpasses at McGregor, Fowler, Evans, and the railroad track. By the summer of 1987, Lee County had retained Greiner, Inc. as a consultant to assist in the preparation of the Draft EIS. Cape Coral, which joined Lee County in proposing the project, hired Kimley-Horn & Associates, Inc. to assist in projecting transportation planning impacts west of Del Prado Boulevard. The Coast Guard, which served as the lease agency, approved the final environmental impact statement in September, 1990 (EIS). Greiner retained Wilbur Smith and Associates as a subconsultant to perform traffic modeling for roads east of Del Prado, and Kimley Horn performed modeling for Cape Coral for roads west of Del Prado. Either Griner or Wilbur Smith and Associates prepared Exhibit 5 /11 in the Draft EIS. Exhibit 5 identifies various existing and proposed river crossings, supplies actual 1986 traffic volumes, and projects traffic volumes for 2010 if no action were taken, if the Mid-Point Bridge were constructed, and if the Iona Cove Bridge and Southern Corridor were built. For 2010 projections, Exhibit 5 presumed that the Edison Bridge would be six lanes, Caloosahatchee Bridge would be four lanes, Cape Coral Bridge would be four lanes, and Metro Bridge would be added. For 1986, Exhibit 5 shows the Edison Bridge as handling 19,700 trips daily for a level of service of E, the Caloosahatchee Bridge as handling 45,800 trips daily for a level of service of D, and the Cape Coral Bridge as handling 45,400 trips daily for a level of service F. If no action were taken, Exhibit 5 projects that, by 2010, average daily trips and levels of service will be: Edison Bridge 59,400 and C; Caloosahatchee Bridge 59,500 and E; and Cape Coral Bridge (which was widened after 1986) 65,950 and If the Mid-Point Bridge were built and the Iona Cove Bridge were not, Exhibit 5 projects that, by 2010, average daily trips and levels of service will be: Edison Bridge 53,140 and B; Caloosahatchee Bridge 52,400 and D; Mid-Point Bridge 47,400 and C; and Cape Coral Bridge 41,870 and C. If the Iona Cove Bridge were built and the Mid-Point Bridge were not, Exhibit 5 projects that, by 2010, average daily trips and levels of service will be: Edison Bridge 56,427 and C; Caloosahatchee Bridge 56,250 and D; Cape Coral Bridge 45,740 and D; and Iona Cove Bridge 34,600 and B. Composite Exhibit 4 of the Draft EIS /12 projects average annual daily traffic for over 100 road links /13 mostly on the Ft. Myers side of the river and bounded on the east by Interstate 75 and the south by the Southern Corridor. The projections address alternatives of no-action, the Mid-Point Bridge, and the Iona Cove Bridge. Twenty of the Ft. Myers links most directly affected the addition or deletion of the Mid-Point Bridge yield 537,398 trips under the no-action alternative, 614,280 trips under the Mid-Point Bridge alternative, and 522,425 trips under the Iona Cove Bridge alternative. /14 With the Mid-Point Bridge, the new elevated freeway is projected to receive about one-third and two-thirds more traffic than Colonial presently experiences just west of Metro Parkway and just west of U.S. 41, respectively. With the Mid-Point Bridge, the projected number of trips on these two links are, respectively, 40,900 and 52,700. Just west of Summerlin, the traffic volume on Colonial increases from 6400 to 43,300 trips. Even if the three Colonial links are excluded from the 20 links, the total volume remains greatest under the Mid- Point Bridge and corridor alternative, which is projected to have 477,380 trips. For the remaining 17 links, the no-action alternative generates 469,038 trips and the Iona Cove Bridge and Southern Corridor alternative generates 455,345 trips. Analyzing the same data, Transportation Planner and Engineer Marty Wells, who is an employee of Gorove-Slade, testified on behalf of Ft. Myers that he examined the links identified by the Draft EIS that are in the City limits. These links yield the following volumes under the three alternatives: no action--1.84 million trips; Mid-Point Bridge and corridor-- 2.1 million trips; and Iona Cove Bridge and Southen Corridor-- 1.8 million trips. May 15 Transcript, pages 29 et seq. Using existing data, Mr. Wells also calculated the capacities for these links. Based on the volumes in the preceding paragraph, the overall volume-to-capacity ratios for Ft. Myers' links are as follows for the three alternatives: no action--0.60; Mid-Point Bridge and corridor--0.68; and Iona Cove Bridge and Southern Corridor--0.59. In other words, the Mid-Point Bridge and corridor, if built, would mean that overall traffic would absorb 68% of the capacity of Ft. Myers links most affected by the proposed project. The no-action alternative, on the other hand, would mean that overall traffic would absorb only 60% of the capacity of the same links. Table 415 of the Draft EIS reports other variables among the three alternatives. The first is that total daily river crossings in 2010 are greatest if the Mid-Point Bridge is built. The Mid-Point Bridge alternative generates 196,110 river crossings daily. The Iona Cove Bridge alternative generates 193,020 daily river crossings, and the no-action alternative generates only 186,090 daily river crossings. Under total vehicle hours of operation, Table 4 projects for 2010 the following figures: no-action alternative-- 656,902 hours; Mid-Point Bridge alternative--638,433 hours; and Iona Cove Bridge alternative--660,483 hours. Total vehicle miles are projected as follows: no-action alternative--14,466,600; Mid-Point Bridge alternative--14,437,100; and Iona Cove Bridge alternative--15,013,456. Table 5 of the EIS compares the Mid-Point and Iona Cove alternatives. These data were available by February, 1989. The Mid-Point Bridge and corridor would require 8.8 miles of corridor and 1.5 miles of bridge over the river, reduce vehicle miles traveled from the no-action alternative, by 30,000 daily, bypass wetlands, cost about $170 million, and require the relocation of 100-350 residences, 2' 6-56 businesses, and 1-4 nonprofit operations. The Iona Cove Bridge' and Southern Corridor would require 19.3 miles of corridor and 2.4 miles of bridge over the river, increase vehicle miles traveled from the no-action alternative by 550,000 daily, require the removal of 10-30 acres of wetlands, cost about $266 million, and require the relocation of 317-361 residences and 10 businesses. Table 5 of the EIS concludes that the Mid-Point Bridge would result in "more efficient distribution of traffic across combined bridges," and the Iona Cove Bridge would result in "[s]omewhat less efficient distribution of traffic across combined bridges." Table 5 reports that the "Mid-Point Bridge alternative "[c]omplies with existing land use plan; supports existing business communities," and the Iona Cove Bridge alternative would be "[non-compliant with land use plan; bypasses existing business communities." The Draft EIS concludes that the Iona Cove Bridge alternative is not a "reasonable or feasible" alternative to the Mid-Point Bridge alternative. The, EIS later cautions, however, that the Iona Cove Bridge alternative may have a role in the "very long term" transportation network. After rejecting the Iona Cove Bridge alternative, the Draft EIS reports that the "`No Action' Alternative is the base caste against which the [Mid Point Bridge project) is compared in order to determine the benefits and impacts of the project." The EIS reveals more of the analysis undertaken by the Coast Guard in reaching its latter conclusion that the no- action alternative "is not a reasonable alternative." EIS, page 171. To the extent that any data are implicit in such analysis, the data were available in February 1989. Offering a somewhat `expanded version of a discussion of community impact contained in the Draft EIS, the EIS notes that the State of Florida has designated as an "historic highway" McGregor Boulevard from U.S. 41 to College Parkway, which leads to the Cape Coral Bridge. The EIS acknowledges that Lee County and Ft. Myers have ordinances similar to state law with one key difference. The County ordinance specifically allows construction of an overpass for the Mid-Point Bridge corridor, and the City ordinance specifically prohibits such crossings. The EIS observes that litigation is pending over the controversy concerning the McGregor overpass, which would require the removal of about seven Royal Palms along McGregor according to the EIS. EIS, page 2-41. In a similar vein, the EIS reports that the Colonial corridor would mean, due in large part to the existing Colonial arterial, little community- disruption from "proximity" effects, such as "air and noise pollution, visual impacts, access changes, and other considerations." EIS, page 2-37. The EIS anticipates that 75 acres would be required for additional right-of-way along Colonial Boulevard. Id. at page; 2-38. The EIS considers in some detail the impact of noise pollution. The corridor would result in noise levels in excess of those set for residential use and would affect 26 dwelling units along the Colonial corridor. EIS, page 4-56 and Tables 35 and 36. Sound barriers are not technically feasible for the road surface between the river and McGregor and Summerlin and U.S. 41. EIS, page 4-57. For the remainder, cost barriers are implicitly deemed cost ineffective. The EIS envisions a 288'-330' right-of-way along Colonial Boulevard. The right-of-way would be within about 150' of Rio Vista Way. The corridor would be elevated 22'-24'. Turning to the Cape Coral side of the project, the EIS states: It is envisioned that a direct east-west roadway corridor [on the Cape Coral side of the river would enhance future residential development in the area. EIS, page 4-2. The EIS generally fails to address any need for the development in Cape Coral of commercial, industrial, recreational, or institutional uses. The EIS contains detailed comments from Ft. Myers' counsel with an appendix containing, among other things, comments from Ft. Myers' transportation consultant, Gorove-Slade Associates, Inc. Ft. Myers' counsel submitted these comments to the Coast Guard on September 22, 1989, and the EIS also contains the Coast Guard's undated responses. One suggestion of the Gorove-Slade representative is that reversible lanes on the existing bridges could accommodate the present and future demand. The Gorove-Slade letter suggests that reversible lanes are feasible as long as the directional imbalance on a bridge is "normally 2:1 to 3:1." The Gorove-Slade letter asserts that the imbalance is 67/33, which is of course within the above-stated range. Rejecting the suggestion of reversible lanes, the Coast Guard first erroneously concludes that the 67/33 split is not greater than 2:1. Then the Coast Guard states that the more recent directional imbalance is 58/42. The source of the Coast Guard's data is undisclosed. However, the evidence is abundant that the cross-river traffic is at least 2:1 toward Ft. Myers on weekday mornings and 2:1 toward Cape Coral on weekday afternoons. Even Lee County's witness, Ronald Talone, who was formerly employed in the Lee County Planning Department, testified to a 67/33 split based on data that Lee County had collected./ 16 The Coast Guard response also relies upon "potential shifts in land use patterns [in connection with) land use plans, which were the basis for [the Draft EIS] analysis. The results show an overwhelming need for the Midpoint Bridge Corridor." EIS, page 151. The basis for this statement apparently is the work of Lee County's consultant, who replicated future land uses under the settlement agreement between DCA and Lee County. However, this work was "unofficial" and offered only "initial results." EIS, page 159. The EIS notes that the settlement between Lee County and DCA required the county to reduce densities in outlying areas, such as those served by the Southern Corridor proposed by Ft. Myers. The reductions reportedly were as much as 10,000 percent, "further reducing the travel production/attraction base in those areas." EIS, page 160. The consultant also considered the plans of "cities in the region." EIS, page 146. However, it is unlikely that the consultant considered the plans adopted pursuant to the Act. It is difficult to determine the extent to which any traffic modeling in this case was informed by the future land use designations contained in the plans of Lee County, Cape Coral, and Ft. Myers under the Act. If not done, it is impossible to determine the impact of changed future land uses, which could result in large changes in the distributions of new residents. /17 However, later modeling--presumably incorporating changed future land uses--reportedly did not generate significantly different traffic volumes, at least for the various river crossings. Such later modeling includes that performed by Gorove- Slade for Ft. Myers. Focusing directly on land use planning concerns, the Coast Guard explains one of the reasons why it did not oppose the Mid-Point Bridge proposed by Lee County and Cape Coral: The concept of intentionally prohibiting construction of a bridge to force development on one side of a river is inappropriate and contrary to urban development concepts. In this instance, the no-bridge alternative would not stimulate development, given the interdependent nature of the Lee County economy. EIS, page 151. Lee County did not attempt to tell the city governments to change their Future Land Use elements, as the Fort Myers comments suggest that Cape Coral be instructed to do. * * * Alternative land use planning is not the purview of the transportation planner and is outside the scope of the project to plan this single bridge crossing. Instead, a project such as this is required to accept the adopted land use plans and the projected travel demand based on them. EIS, pages 169 and 171. Alluding to the land-use planning responsibilities placed upon local governments by the Act, the Coast Guard notes: Since the publication of the [Draft EIS], an important event has taken place in regard to this specific issue, rendering [a fatteners'] comment obsolete. The top state land planning agency, the Department of Community Affairs, found the Fort Myers' Comprehensive Plan to be non-compliant with state land planning guidelines because it prohibited the Midpoint Bridge, which is include in the plans of the county, the region, /18 and the City of Cape Coral. Administrative hearing procedures were scheduled to settle the issue but, instead of defending its opposition to the bridge, the city elected to remove the wording obstructing the project from the Comprehensive Plan. Instead, the city agreed to enter binding arbitration on the issue. Id. at page 153. Specifically addressing urban sprawl, the Coast Guard response states: Lee County Future Land Use plans since 1984 have aimed at containing urban sprawl through encouraging compact development patterns. The 1984 Lee Plan was based upon an urban service area concept, which focused future growth on the existing urbanized areas and their environs through a combination of land use categories, density allocations, infrastructure policies, and environmental protection standards. The 1989 Lee Plan continued to stress the importance of existing and permitted urban areas as the focal points for more intensive future growth. The major existing and permitted urban areas in Lee County, in terms of size, are clearly Cape Coral, Fort Myers (including its Urban Reserve area for future growth), and Lehigh Acres. . . . Both the 1984 and 1989 Lee Plans recognized these three major urban areas as givens, where preexisting investments and governmental approvals dictated the need for public services and infrastructure. Together, they constitute a tier of urban areas extending across the northern central part of the county, which is served by the east-west alignment of the Midpoint Bridge Corridor as extended to connect with Lee Boulevard in Lehigh Acres, as shown on the [Financially Feasible Plan]. The logic of connecting the population concentrations of Fort Myers and Cape Coral, the two largest urban areas in the County, with a primary east-west route is clear; with the extension to Lee Boulevard in Lehigh Acres, the logic of the Midpoint Bridge is even stronger. EIS, page 168. Summarizing its findings as to the planning decisions made by Lee County, the EIS concludes: The 1989 Lee Plan builds upon the 1984 Lee Plan. It was adopted as a result of the mandatory process of participation and review. It contains a responsible strategy for managing the large and rapid growth of the county. It sets forth numerous policies for providing the infrastructure necessary to support future populations, for projecting the sensitive natural environment, for paying for future public facilities, for maintaining a reasonable and compact, future land use pattern, and for buildings the necessary transportation network to allow its citizens to move efficiently between their homes, work, recreation, and shopping destinations. It is not a utopian document based upon unsubstantiated opinions, but a practical guide to development based upon the best available data and information. Following the amendments from the Stipulated Agreement, [the 1989 Lee Plan) will be fully consistent with Florida law and an even more effective guide for future development, in terms of reducing sprawl, protecting the environment, maintaining desirable land use patterns, and providing orderly expansion of roads and infrastructure. EIS, pages 169-70. Other Sources of Data and Analysis The Regional Comprehensive Policy Plan of the Southwest Florida Regional Planning Council (Regional Plan) contains land use analysis. Prepared no later than May 21, 1987, when the current version of the Regional Plan was adopted, the land use analysis was in existence at the time of the adoption of the Plan. In its analysis of the regional issue of Balanced and Planned Development under Land Use, the Regional Plan notes: The growth that has occurred [during the recent period of rapid growth that the region has experienced] can also", be considered "imbalanced." This imbalance is of two natures: inadequate development of certain common aspects of urban areas and inadequate distribution of certain types of urban areas. A lack of manufacturing is sometimes considered an indication of the urban inadequacies. More commonly, the problem is described as a lack of suitable jobs within industrial, office, education, and research facilities. The uneven distribution of urban uses is best (but not solely) depicted by an aerial view of the Region's major subdivisions, entire townships devoted to residential uses. Such areas have only limited commercial uses, few of the necessary public use site's, and high demand for transportation improvements for access to other areas. This lack of diversity is the result of private sector planning, namely large development projects, and traditional zoning techniques which discourage the use of planned unit developments by making them special exceptions and by segregating uses into separate zoning categories instead of using a performance zoning approach. Regional Plan, page 16-2. Another source of data and analysis is the Cape Coral comprehensive plan. Both the operative provisions and data and analysis provide a potential source of data and analysis in support of the Ft. Myers Plan. Adopted on February 13, 1989, the Cape Coral plan was in existence when the Ft. Myers plan was adopted. Amended August 27, 1990, the Cape Coral plan amendments were likely available, given noticed and public participation requirements, when Ft. Myers amended, its plan one week earlier. Cape Coral's Transportation Data and Analysis discloses that the city's strategy through 2000 is to direct future growth into the Infill and Transition areas. The Infill Area is located in Cape Coral's southeast quadrant, which has historically served as the growth center from which new growth emanated. The eastern two miles off Everest Parkway run through the Infill Area, dividing its northern third from its southern two-thirds. The Transition Areas is a band of land north and west of the Infill Area. Although Everest Parkway presently ends at the west limit of the Infill Area, the southern end of the Transition Area encompasses about 1 1/3 miles of the proposed Everest Parkway extension. Cape Coral's Transportation Data and Analysis rejects the MPO data concerning population projections for Cape Coral. The differences are significant. Rejecting the MPO projection as "lack[ing] any credibility, and . . . of no value as a planning tool," Cape Coral projects that its population would reach 100,000 persons by 2000, not 2010. Transportation Data and Analysis, pages 6-7. Cape Coral also contests other important socioeconomic data on which the MPO models rely, such as where Cape Coral residents actually reside or will reside. The MPO study "projected" that about 70% of-the population "lives" in the Infill and Transition Areas. The Cape Coral existing land use map provides that at least 90% of the population lives in these two areas. Cape Coral's Transportation Data and Analysis notes that the present location of commercial/office and other employment activities in Cape Coral is generally along the most heavily traveled roads, especially the Del Prado Boulevard, Cape Coral Parkway, and the Downtown Business District. This "strip commercial development" has engendered traffic congestion along these critical arterials. Without its own data or analysis as to employment trends, Cape Coral adopts the MPO data and analysis concerning, employment trends. This includes a projection that total employment within Cape Coral will increase from an estimated 8000 persons in 1980 to over 27,000 persons, presumably by 2000. Also, the ratio of Cape Coral residents to jobs in Cape Coral is expected to decrease from 4.2:1 in 1980 to 3.7:1 in 2000. The data and analysis add: "If the City commercial acreage estimates are realized, however, an even more favorable ratio would result." Transportation Data and Analysis, page 9. In any event, "Employment growth is expected to increase twice as fast as residential growth." Id. at page 8. Cape Coral's Transportation Data and Analysis acknowledges a clear directional flow or modal split of cross- river traffic: Until [the Cape Coral Bridge) is widened to four lanes (scheduled by the County for 1989), mile long traffic queues will continue to exist on the Cape Coral side of the bridge during the morning peak period and on the Fort Myers side during the afternoon peak. Transportation Data and Analysis, page 20. Through 2000, the destination of tries will remain largely outside the City of Cape Coral. Lacking "high intensity employment centers, airports or other facilities that attract County residents [to Cape Coral], the prime reason for travel into Cape Coral by nonresidents is to provide services, such as construction. Transportation Data and Analysis, page B-2. But this factor is relatively insignificant, as the data and analysis predict that, by 2000, there will be twice the number of trips to points outside the city than to points within the city. Transportation Data and Analysis, page 44. In the meantime, however, intensive growth will outstrip the capacity of Cape Coral's internal parkway system, id. at page 49, and Cape Coral's strategy in "road programming has been to the major roads into the two new proposed County Bridges". Id. at page 60. The Cape Coral plan contains operative provisions that, to some extent, address the historic absence of employment and regional shopping opportunities in the city. These provisions generally involve the attempt to deal with vacant, platted land and promote a mixture of uses in the city. /19 The Lee County plan was most recently amended on September 17, 1990. Based on the above mentioned notice and participation requirements, it is likely that all provisions were in existence when Ft. Myers adopted its amendments on August 20, 1990. The Lee County plan contains a number of provisions encouraging the development and redevelopment of mixed uses. /20 Lee County's traffic circulation element policy 21.1.1 adopts the Financially Feasible Plan with five minor changes. /21 Policy 21.1.3 is for the county's current Thoroughfare Alignment Project to reexamine the transportation model used to generate the MPO plans. Concerning the Mid-Point Bridge and associated corridor, the Lee County traffic circulation element states in relevant part: GOAL 24: MAJOR INTRA-COUNTY TRANSPORTATION CORRIDORS. To provide for efficient intra- county vehicular traffic by planning an integrated system of transportation corridors, possibly of limited access design, that connect urban centers within the county. OBJECTIVE 24.1 MID-POINT CORRIDOR. Create a new east-west transportation corridor, possibly of limited access design, across central Lee Counts in order to alleviate existing congestion of traffic crossing the Caloosahatchee River. POLICY 24.1.1: The county will continue the planning, feasibility determination, and environmental impact assessment for the Mid-Point Bridge. POLICY 24.1.2: The construction of this east-west transportation corridor will be coordinated through the Metropolitan Planning Organization to ensure system-wide continuity. POLICY 24.1.3: Due to the public need to provide this critically important corridor so as to solve roadway deficiencies affecting most of Lee County, and due to the admitted impossibility of devising any alignment, which would not generate at least some negative impacts, it is declared as the policy of Lee County that once the best alignment is selected this policy shall preempt any other perceived conflicting portion of the Lee Plan and such conflicts, real or perceived, shall not be construed so as to require or justify blocking the construction of this facility. POLICY 24.1.4: Because of the high priority Lee County placed on the planning and construction of this transportation corridor, permitting efforts shall be initiated by the year 1989, if feasible, and construction shall begin, if possible, by the year 1993. * * * The Lee County intergovernmental coordination element provides, in relevant part: GOAL 28: INTERGOVERNMENTAL COORDINATION. Lee County shall participate in and share the leadership of all necessary and desirable programs in coordinating the transportation planning and improvements of routes within or affecting Lee County. OBJECTIVE 28.1: PLANNING. Lee County will continue to plan cooperatively with its municipalities, surrounding counties, and FDOT. POLICY 28.1.1: The county will participate in the MPO and Regional Planning Council planning processes for system-wide facility needs. POLICY 28.1.2: The County will use informal mediation whenever possible to resolve disputes before other formalized processes are pursued. * * * Various other sources of data and analysis were in existence when the Plan was adopted. As Colonial proceeds east of McGregor, the prevailing and planned land uses are predominantly commercial, and the existing commercial uses are dependent upon direct access to Colonial Boulevard. The addition of an elevated freeway or expressway would tend to reduce business for some of these roadsides commercial uses due to, among other factors, the presence of one-way service roads in place of two-way traffic, less on-site parking, and less visibility from the road. However, the record establishes no more than a temporary reduction in commercial property values. It is unclear whether, in the longer term, commercial uses, especially the older ones along the western part of Colonial, would be impaired by a freeway. The record does not preclude the possibility that the corridor could lead to commercial revitalization, especially at the Summerlin, U.S. 41, and Metro Parkway interchanges. The existing and planned land uses on both sides of McGregor north and south of Colonial are low density residential. The record establishes that the elevated freeway would, through noise and visual impact, have a negative impact upon these and possibly other residential areas. However, the record does not establish the extent of such an impact. The record does not establish that the freeway would impair access between points within the affected area. Presently, motorists, pedestrians, and bicyclists must cross Colonial, which is an at-grade six-lane arterial west of U.S. 41. Accessibility with the Mid-Point Bridge corridor would depend upon a variety of factors, such as the design of the service roads and three interchanges, the sign of the other overpasses, the traffic on the service roads, and the traffic on the north- south roads in the vicinity of the corridor. Provisions of Ft. Myers Plan Traffic Circulation Element (TCE) Objective 1 is "To meet the transportation needs of the incorporated area through a balanced system of roadway, rail, air, boating, public transportation, and bicycle and pedestrian facilities." TCE Objective 2 is, "To maintain or provide adequate road capacity to meet present and anticipated future traffic needs." TCE Policy 2.4 is: "New roadway corridors will be provided when justified by needs where feasible, and when exiting corridors cannot meet the need. TCE Policy 2.6 is: "The City will obtain traffic counts and intersection studies to determine current service levels." Standard 2.6.3 mentions capacity constraints on McGregor Boulevard and all roads in the downtown area; for those, the peak hour, peak season acceptable level of service is "Maintain and improve." The downtown area is limited to the immediate vicinity of the Caloosahatchee and Edison Bridges. TCE Objective 5 is: "To preserve the integrity and quality of residential areas, major activity centers, and recreational and environmental resources." TCE Policy 5.1 is: "Proposed transportation improvements will be coordinated with existing land uses and the Future Land Use Map." TCE Action 5.1.1 is: "Changes to the Future Functional Classification Map (Map F) that would change proposed rights-of-way requirements, will be developed in accord with adjacent land uses as well as bin accord with the City's overall needs." TCE Action 5.1.2, which was amended at least to add the language concerning the Mid-Point Bridge, states: No new transportation corridors or improvements will be permitted which could preclude those indicated on the Major Thoroughfare Map (Map G)--unless, with respect to the Mid-Point Bridge and elevated limited access expressway system proposed by Lee County and Cape Coral, the result of the binding conflict resolution process described in the Goals, Policies and Objectives of the Intergovernmental Coordination Element is that the Bridge should be constructed. Any proposed amendment to the Thoroughfare Plan must be consistent with all Traffic Circulation policies as well as other Comprehensive Plan Elements. TCE Policy 5.2 is: "Any transportation improvements proposed for McGregor Boulevard shall consider its qualities as a special historic and scenic corridor." Action 5.2.1 provides that, except under certain conditions, there shall be no new street connections, road connections, road intersection, or the widening of any existing, intersections and no overpasses or underpasses, made either with, under, or over McGregor Boulevard or any alteration of the physical dimensions, appearance, or location of this corridor . . . However, new street connections, road connections, road intersections, or widening of any existing intersections and overpasses or underpasses may be made either with, under, or over McGregor Boulevard or alteration of the physical dimensions, appearance, or location of this corridor with respect to the Mid-Point Bridge and elevated limited access expressway system proposed by Lee County and Cape Coral, if the result of the binding conflict resolution process described in the Goals, Policies and Objectives of the Intergovernmental Coordination Element is that the Bridge should be constructed. At least the language following the ellipses is the result of a plan amendment. TCE Policy 5.3 is: "Transportation improvements proposed in or near residential arenas will contain appropriate mitigation measures." TCE Objective 6 is: "To obtain the cooperation and active participation of all responsible governments in the coordinated implementation of the metropolitan transportation plan." TCE Policy 6.1 is: "All proposed major transportation improvements, including all improvements which extend beyond the limits of the City, will be coordinated with the other affected jurisdictions prior to City approval of the improvement." TCE Action 6.1.1 is: "The City will participate in the committees of the Metropolitan Planning Organization to ensure that this policy is met." TCE Policy 6.2 is: "The City will actively participate in the development and review of transportation improvements proposed by other jurisdictions." TCE Action 6.2.1 is: "The City will participate in the County's Planning Technical Advisory Committee to ensure that this policy is met." Intergovernmental Coordination Element (ICE) Goal 2, which, together with its objectives and policy, was added by amendment, states in its entirety: It is the goal of the City of Fort Myers to resolve the conflict with Lee County. and the City of Cape Coral concerning the Mid-point Bridge through ban independent, objective, equitable, efficient and binding process as an alternative to the litigation in Lee County vs. City of Fort Myer, Circuit Court Case No. 88-5598 CA-RWP pending in the 20th Judicial Circuit for Lee County, that will ensure that all relevant factors and concerns are fairly and objectively evaluated. Objective 1. In order to achieve the City's goal of resolving the conflict over the proposed Mid-Point Bridge, it is the objective of the City of Fort Myers to abate the pending litigation between the County and the City in regard to the Mid-Point Bridge and to enter into a binding conflict resolution process that will provide a balanced determination of the need for and appropriateness of the proposed Mid-Point Bridge in terms of the following factors: county-wide transportation needs; the comparative effectiveness and cost benefit of reasonable alternative transportation solutions; social, cultural economic and environmental impacts on the City of Fort Myers and Lee County; and long-term financial feasibility and cost-effectiveness. Policy 1.1 It is the policy of the City of Fort Myers in regard to the conflict over the proposed Mid-Point Bridge to submit the conflict to a conflict resolution process that contains the, following elements: An objective, independent decision maker who has substantive, and/or technical familiarity with land use and transportation issues; A fair and reasonable opportunity for all affected persons including the City of Fort Myers to submit substantive information in regard to the merits of the proposed Mid- Point Bridge; A resolution of the conflict and the merits of the proposed Mid-Point Bridge based on the following principles: the proposed Mid-Point Bridge should not be constructed if it can be reasonably demonstrated that implementation of the comprehensive plans of Lee County, the City of Fort Myers and the City of Cape Coral will result in a shift in land use patterns, transportation management systems, or increased modal splits that will reduce the projected number of rivers crossings so that there is no need for the proposed Mid-Point Bridge; the proposed Mid-Point Bridge should not be constructed if peak hour levels of service on existing and committee river crossings, with or without operational improvements such as reversible lanes, will provide an acceptable level of service; the proposed Mid-Point Bridge should not be constructed if there are reasonable alternatives that have the following characteristics: reduced or equal costs; equal or superior transportation capacity too serve county wide transportation needs; arid reduced social, cultural, economic or environmental impacts on the residents of the City of Fort Myers. For the purposes of this paragraph, reasonable alternatives Shall include, but not be limited to, river crossings at other locations, a county-wide beltway or circumferential road system and non-geometric improvements such as transportation management systems, reversible lanes and the like. 4) Any determination-of fact shall be based on a standard of preponderance of the evidence. The Future Land Use Element (FLUE) Objective 1 is: "Coordinate land development with the public and private provision of community services and facilities, soil suitability, and topography." FLUE Objective 2 is: "Protect distinct functional areas from intrusion and encroachment of incompatible uses." FLUE Objective 3 is: "Protect significant natural and historic resources from intrusion and encroachment of incompatible uses." FLUE Objective 4 is: "Ensure a balanced distribution and allocation of the various land uses in newly developing areas." FLUE Objective 5 is: "Revitalize declining areas through rehabilitation, redevelopment, and infill strategies as appropriate." Map C, which accompanies the FLUE, designates the following corridors as part of the "corridor improvement strategy": U.S. 41 on both sides of Colonial, Evans Avenue north of Colonial to the river, Fowler south from the river but only about halfway to Colonial, and three east-west routes including Palm Beach Boulevard, which runs along the river, from Interstate 75 to the proposed landfall of the Metro Bridge. Map C designates the following corridors as part of the "corridor conscious" development strategy. Less in need of redevelopment than those named in the preceding paragraph, the corridor conscious corridors include Colonial Boulevard, Winkler Avenue, Summerlin Road south of Colonial Boulevard, Metro Parkway north and south of Colonial and in the vicinity of the Metro Bridge, and Palmetto, Marsh and Ortiz Avenues on both sides of Colonial. FLUE Policy 5.2 is for the central business district to be "redeveloped as the pre-eminent regional center." Provisions of Regional Plan Goal 19, Regional Issue B, of the Regional Plan concerns transportation and growth management. Policy 1 is: All regional transportation systems should be designed, upgraded or maintained to enable roadways to operate at, or above, a service level acceptable to the agency with land use authority, with operational maintenance responsibility, and with the affected surrounding local government, when such standards incorporate the minimum standards set by the agency having operational, and maintenance responsibility for that public facility, unless designated a special transportation area by those agencies and governments. Policy 3.d. is that transportation improvements are to be "related to seasonal and area needs in order to minimize disruption of the existing road network during periods of highest use." Policy 6 is: "Transportation plans should preserve, to the greatest extent possible, the integrity of residential areas." Policy 9 is: `"Transportation investments should be directed in such a way so that they contribute to efficient urban development." Goal 20, Regional Issue A, of the Regional Plan addresses intergovernmental coordination. The policies suggest the improvement of intergovernmental coordination through the use of interlocal agreements, technical assistance, and solicitation of review and comments. Regional Issue D speaks in stronger terms, but only requires, by 1996, that "each jurisdiction will have enacted the appropriate administrative arrangement to ensure coordination occurs." Pursuant to this Issue, Policy D states: "Mediation of jurisdictional disputes should be pursued by local governments as a first alternative to judicial action." Goal 16 of the Regional Plan concerns land uses. Regional Issue A relates to balanced and planned development. The first policy is: "The plans of all jurisdictions should promote balanced and planned development." Policy 3.e. suggests that comprehensive plans "ensure existing urban areas are protected from the adverse impacts of future growth." Policy 3.i. suggests that plans "provide for effective intergovernmental coordination methods for siting public and private locally unpopular land uses." Policy 3.1. suggests that plans "provide for new central business districts, as needed by urban growth." Policy 9 states: Comprehensive plans and land development regulations should provide incentives to develop and redevelop land downtown including allowing mixed uses, higher densities, shared parking, and improved vehicular access. Regional Issue C, which concerns the problem of already-platted, vacant lands in the region, contains Policy 3, which states: "Additional urban uses and protection of threatened resources within existing platted areas should be pursed through reassembly or other techniques." Policy 8 adds: "Each local government should provide alternatives to traditional development of platted lands." The Regional Plan does not recommend the construction of the Mid- Point Bridge. Map IV-10 of the volume entitled, "Description of the Region," identifies the bridge and corridor as a regional roadway "not yet constructed." Neither the map nor the surrounding text suggests that the Regional Planning Council has determined that the bridge and corridor should be built. /22 Ultimate Findings of Fact Sorting Data and Analysis TCE Policies 5.1, 5.2, and 5.3, and the implementing actions thereunder, prohibit the construction of the Mid-Point Bridge and corridor unless this alternative is selected pursuant to the binding arbitration described in ICE Goal 2. Lee County is unwilling to agree to the conditions set forth in ICE Goal 2. The refusal is justified because, for reasons set forth below, the offer to arbitrate contains an unreasonable condition. The Plan's treatment of the Mid-Point Bridge and corridor can be characterized as an intentional omission of these improvements from any road network for the city, and the Plan's offer to arbitrate, in effect, leaves the resolution of the Mid-Point Bridge dispute to the courts or voters. However, Lee County and Cape Coral have failed to prove by a preponderance of the evidence that the omission of the Mid-Point Bridge and corridor from the Plan is not supported by data and analysis. The data and analysis contained in the 1989 Data and Analysis and 1990 Data and Analysis are sparse in terms of support for the omission or inclusion of the bridge and corridor. Ft. Myers failed to incorporate into its data and analysis, verbatim or by reference, the best "available existing data, which were those generated by Lee County bin preparing the EIS, especially Composite Exhibit 4 of the EIS. However, the 1989 Data and Analysis and 1990 Data and Analysis contain analysis in support of the omission of the Mid-Point Bridge and corridor. The analysis consists mostly of consideration of the effect of the proposed project on various provisions of the Plan and the conclusion that the project would be inconsistent with these provisions. The Ft. Myers' planning strategy emphasizes more than the preservation of the historic and aesthetic values of McGregor Boulevard and nearby Rio Vista Way. The analysis justifies the omission of the ride and corridor by at least implicitly construing the Plan as part of an urban containment strategy that, if successful, benefits the region by promoting existing, close-in commercial uses and promoting the attractiveness of Ft. Myers as a place to live. This analysis finds some support in the data concerning the noise and visual impact of the corridor upon nearby residential areas. The most important sources of data and analysis in support of the omission of the Mid-Point Bridge and corridor are the Draft EIS and EIS, especially Composite Exhibit 4. Although Ft. Myers was aware of these data, it failed to include and analyze them, in the 1989 Data and Analysis or 1990 Data and Analysis. The most likely explanation for this omission is that the exclusion of the bridge and corridor was a foregone conclusion at the beginning of the planning process, and, until plan litigation became imminent Ft. Myers felt no need to explicate its opposition to the project. However, for reasons set forth in the Conclusions of Law, the sources of data and analysis available to support the plan are not limited to those identified or even actually relied upon by Ft. Myers in the plan-adoption process. The data and analysis contained in the Draft EIS and EIS support the exclusion of the Mid-Point Bridge and corridor because this project would tap, to some degree, latent travel demand and would result, to , a significant extent, in more traffic on Ft. Myers' roads. The corridor would also displace, at least in the short term, viable commercial uses whose proximity to downtown Ft. Myers and nearby residential areas is useful in maintaining a mixture of uses in Ft. Myers. The data and analysis do not, however, address the possibility of renewed commercial development along the corridor. It is therefore impossible to determine if the data and analysis suggesting the possible displacement of existing commercial uses are offset by data and analysis indicative of a possible revitalization of aging commercial uses. In short, data and analysis exist to support a decision by Ft. Myers to omit the bridge and corridor, and data and analysis also exist to support a decision by Ft. Myers to include the bridge and corridor, had it wished to do so. Little, if any, data and analysis exist that comprehensively net the benefits of the Mid-Point Bridge alternative against the benefits of the no-action or Iona Cove Bridge alternative. In large part, the conflict is between transportation and land use strategies whose competing sets of underlying data and analysis have not been evaluated in a process designed to identify the superior data and analysis from an appropriately broad perspective. In such a proceeding, no deference could be given to the planning preference of any individual local government. This is the first shortcoming of the EIS process in which due deference to the prerogative of local governments in local land use planning provided a procedural advantage to the proponents of the project, Lee County and Cape Coral. In any event, the conclusions of the EIS are supported by its data and analysis to the extent that the Coast Guard concludes that the decision of Lee County and Cape Coral to build the bridge is reasonable. The conclusions of the EIS that the other alternatives, especially the no-action, are unreasonable from a regional perspective, if even relevant to the present case involving only Ft. Myers' Plan, are based predominantly upon transportation considerations. These conclusions clearly are not based upon a comprehensive, objective, and informed review of comprehensive land use strategies, of which transportation strategies are a part. To the extent that the EIS concludes that the no-action alternative is an unreasonable land use strategy, such a conclusion is unsupported even by the data and analysis contained in the EIS. To some extent, Lee County and especially Cape Coral, although responsible for preparing nearly all of the relevant data in this case, have not sufficiently focused their data and analysis so as to justify a finding that the Plan's omission of the bridge and corridor is not supported by the data and analysis. The Lee County and Cape Coral data and analysis supporting the Mid-Point Bridge and corridor justify a transportation strategy linking more efficiently the bedroom communities to the east and west with each other and to shopping and jobs. By contrast, the omission of the bridge and corridor is based on more comprehensive land use planning considerations. Data and analysis supporting the exclusion of the Mid-Point Bridge and corridor address an overall land use strategy, to which transportation planning is properly subordinated. To some extent, the differing emphases reflect that Ft. Myers is a more established community than the fast- growing Cape Coral and Lee County. To some extent, the increased emphasis upon overall land use planning by Ft. Myers, as opposed to the focus upon transportation planning by Cape Coral in particular, may reflect varying planning philosophies. Cape Coral has suffered from the lack of an effective land use strategy to overcome the burdens of urban sprawl, which has engendered a monolithic land use dominated by low-density residential. The Cape Coral plan and data and analysis point to some improvement dealing with this problem. But to meet the burden of showing that the Ft. Myers strategy, which excludes the bridge and corridor, is supported by data and analysis, Cape Coral must offer data and analysis more effectively addressing land use planning issues, rather than merely transportation planning issues. Cape Coral cannot meet its burden in this case by presenting data and analysis supporting a transportation strategy of linking its internal parkways to bridges and building more bridges. Although such data and analysis may support Cape Coral's planning solutions, they are not so compelling as to displace the data and analysis presently supporting Ft. Myers' land use strategy of preserving a viable mixture of uses. The support for Ft. Myers' land use strategy excluding the Mid-Point Bridge and corridor is not overwhelming in terms of data and analysis. The increased traffic on city roads, noise pollution, and the visual impact support the decision. Other factors, such as impaired physical accessibility, commercial decline, and the extent of the negative impact upon residential integrity, do not so clearly support the decision. Even if present conditions clearly were to support the decision to exclude the bridge and corridor, changing conditions could later deprive Ft. Myers' decision of support from the data and analysis. New developments, such as Omni Park, could leave Colonial and nearby collectors, as well as McGregor, choked in traffic during nonpeak season, nonpeak hours. The decline of commercial uses along the western part of Colonial may in time require revitalization through redevelopment If so, imaginative planning solutions may :,"identify corridor-connected uses whose scale and type promote, rather than threaten, Ft. Myers' status as a viable mixed-use center. If sufficiently compelling under then-existing conditions, such solutions may even compel a bridge and corridor. But the data and analysis do not portray these conditions presently. Internal Consistency Lee County and Cape Coral have failed to prove to the exclusion of fair debate that TCE Action 5.2.1 is inconsistent with FLUE Objective 1. TCE Action 5.2.1 prohibits the construction of the Mid-Point Bridge and corridor unless this alternative is selected pursuant to the binding arbitration described in ICE Goal 2. FLUE Objective 1 is, to coordinate land development with the adequate provision of facilities, which include roads. FLUE Objective 1 and its policy cluster require adequate levels of service for facilities (presumably for which concurrency is required), the availability of land for public facilities, development patterns that maximize, the use of existing public facilities, and coordination with Lee County and the Florida Department of Transportation regarding tide intensity of land uses and their location relative to collectors and arterials. There is nothing inherently contradictory between TCE Action 5.2.1 and FLUE objective 1. FLUE Objective 1 does not require the construction of the Mid-Point Bridge and corridor, just as it does not require that downtown segments of U.S. 41 or Fowler be widened to 12 lanes if there is sufficient traffic demand. FLUE Objective 1 does not requiring reducing the planning exercise to promising invariably to widening existing roads or building new roads in urban areas upon the identification of traffic congestion. Taking a wider view, FLUE Goal 1 is to ensure the achievement of acceptable "general patterns and relationships (distribution, allocation, and intensity) of all land uses" in the city. The record does not establish that the omission of the Mid-Point Bridge and corridor is inconsistent with FLUE Objective 1. Lee County and Cape Coral have failed to prove to the exclusion of fair debate that TCE Objective 5, Policy 5.1, Actions 5.1.1 and 5.1.2, Policy 5.2, Action 5.2.1, ICE Goal 2, Objective 2, and Policy 1.1, on the one hand, are inconsistent with TCE Objective 6, Policy 6.1, Auction 6.1.1, Policy 6.2, and Action 6.2.1, on the other hand. TCE Objective 5, Policy 5.1, Actions 5.1.1 and 5.1.2, Policy 5.2, Action 5.2.1, ICE Goal 2, Objective 2, and Policy 1.1 will bet referred to as Modified TCE Objective 5. Modified TCE Objective 5 prohibits the construction of the Mid-Point Bridge and corridor unless this alternative is selected pursuant tot the binding arbitration described in ICE Goal 2. ICE Goal 2, Objective 2, arc Policy 1.1 set the conditions of such arbitration. With one exception, these conditions are reasonable. The goal to obtain a fair, objective, and binding resolution of the bridge dispute outside of court is salutary. The objective is also reasonable, assuming that the reference to the socioeconomic and environmental, impacts on Ft. Myers and Lee County includes Cape Coral. Policy 1.1 establishes specific conditions. The first calls for an objective, disinterested decision-maker with expertise in land use and transportation planning. The second condition ensures that all parties have a chance to be heard. The fourth condition provides that the standard of proof is the preponderance of the evidence. These conditions are obviously reasonable. The substantive guidelines for the decision-maker are set forth in ICE Policy 1.1(3). The first guideline prohibits the bridge if the land use plans of Cape Coral, Ft. Myers, and Lee County can be implemented so as to reduce the number of river crossings by shifting land use patterns, introducing or expanding transportation management systems, or increasing modal splits. The second guideline prohibits the bridge if existing and committed river crossings will provide an acceptable level of service regardless of operational improvements such as reversible lanes. In general, these conditions are reasonable. The effectiveness of transportation management systems and operational improvements, especially reversible lanes, should be considered as relatively inexpensive alternatives to the construction of a new bridge and corridor. Changing land use patterns presumably requires each local government to address through comprehensive planning any deficiencies that it may suffer in terms of a lack of mixed land uses. The guideline does not specify the extent to which a local government must remediate a lack of mixed uses. For example, it might be effective but prohibitively costly for Cape Coral to solve its mixed land use problems by purchasing and reassembling vacant and developed platted land suitable for commercial or industrial development. The reasonableness of the guideline of changing land use patterns depends upon its interpretation. The third guideline, prohibits the construction of the Mid-Point Bridge if "reasonable" alternatives exist at reduced or equal costs, with equal or superior transportation capacity to serve County-wide transportation needs, and with reduced socioeconomic and environmental impacts on Ft. Myers residents. The factors of reduced or equal costs and equal or superior transportation capacity are reasonable and address regional concerns. The guideline focusing on the socioeconomic and environmental impacts of Ft. Myers' residents exclusively undermines the viability of ICE goal 2 and Ft. Myers' putative "offer" to submit to binding arbitration. Just as it is reasonable for Ft. Myers to concern itself exclusively with the socioeconomic and environmental welfare of itself and its residents, so it is reasonable for Lee County and Cape Coral to concern themselves with the socioeconomic and environmental welfare of themselves and their residents. This guideline is unreasonable and effectively relegates the parties to whatever judicial or political solutions that may be available. Notwithstanding the failure of the offer to arbitrate, Modified Objective 5 is not inconsistent with TCE Objective 6 and its policies and actions. The latter provisions do not preclude the judicial option for this longstanding dispute. TCE Objective 6 is to obtain the cooperation of all governmental entities in the implementation of MPO plan. Except for TCE Policy 6.1, the policy and actions under this objective require merely participation in transportation planning processes. The arbitration process described in Modified TCE Objective 5 does not preclude participation in transportation planning processes; Modified TCE objective 5 merely identifies one approach to resolving disputes not resolved by normal transportation planning processes. Policy 6.1 requires the "coordination" of "major transportation improvements" with other affected governmental entities. The simple resolution of this issue is that the policy requires coordination only of projects that Ft. Myers proposes to undertake, not of projects sponsored by other entities that Ft. Myers proposes to ignore or resist. Even if the omission of a project sponsored by others triggers the coordination requirement of Policy 6.1, Modified TCE Objective 5 is not inconsistent with such a requirement. Coordination does not require the successful achievement of a consensus for each transportation project that each local government or regional entity may propose. "Coordinate" means: To place in the same order, class, or rank. To arrange in the proper relative position. To harmonize in an action or effort. American Heritage Dictionary. In this case, Ft. Myers participated in the normal transportation planning processes. Consensus was reached as to a considerable number of road projects, although the Mid-Point Bridge and corridor are extremely large projects in the County. "Coordinate" does not mean "approve," and Ft. Myers is not required by TCE Policy 6.1 to obtain the approval of all other governmental entities for projects proposed by Ft. Myers or to give its approval for projects proposed by any or even all of the others. The facts of this case do not reveal a series of disputes involving numerous proposed road projects. The three local governments have not had systemwide impasse that defeats their ability to design and implement a coordinated transportation network. Although the Mid-Point project is of considerable magnitude, the Major Thoroughfare Plan--2010 does not prevent the transportation plans of Lee County and Cape Coral from working. The size of a project proposed by a majority of area local governments does not alone compel a lone opponent to capitulate to attain intergovernmental coordination. Neither does the inclusion of the Mid-Point Bridge and corridor in the financially Feasible Plan compel Ft. Myers to accede to the project or risk inconsistency with the intergovernmental coordination provisions of its Plan. The MPO's data and analysis support its adoption of the Mid-Point Bridge and corridor. But the purpose of the MPO is not to restate the positions of its constituent members and, even if they are supported by data and analysis, thereby compel dissenters to conform their plans to the plans of the majority. The MPO has served a valuable purpose in this case by collecting and disseminating important data and providing the parties with a forum in which to exchange their data and analysis; inform and, if necessary, revise their positions; and, if possible, form a consensus. Like Lee County and Cape Coral, Ft. Myers participated in this process in good faith and thereby engaged in intergovernmental coordination. The unreasonableness of requiring local governments invariably to conform their plans to those of the MPO is illustrated by another factor in this case. The Financially Feasible Plan describes a road network that is financially feasible only if existing available revenues are nearly doubled. The present facts do not support a construction of intergovernmental coordination that mandates strict compliance with a Financially Feasible Plan that requires local governments to raise additional revenues. Lee County and Cape Coral have failed to prove to the exclusion of fair debate that Modified TCE Objective 5 is inconsistent with TCE Objective 1. TCE Objective 1 is to meet the city's transportation needs through a "balanced system" of road, rail, air, boat, bicycle, pedestrian, and public transportation. For the reasons set forth above, the preclusion of the Mid-Point Bridge and corridor does not preclude the attainment of such a balanced system. Lee County and Cape Coral have failed to prove to the exclusion of fair debate that Modified TCE Objective 5 is inconsistent with TCE Objective 2, Policies 2.4 and 2.6, and Standard 2.6.3. TCE Objective 2 is to "maintain or provide adequate road capacity to meet present and anticipated future needs." Policy 2.4 is to construct new roadway corridors when existing corridors cannot meet the need. Policy 2.6 is for the city to "pursue acceptable level of service standards for its roadways, and coordinate the standards with Lee County and the Florida Department of Transportation." Standard 2.6.3 acknowledges constraints on capacity improvements for McGregor and the central business district and adopts a peak season, peak hour level of service for these roads of "maintain and improve." The record fails to establish that the omission of the Mid-Point Bridge and corridor is inconsistent with these provisions. The evidence shows that traffic would actually increase on city roads with the Mid-Point Bridge. Consistency with Regional Plan Lee County and Cape Coral have failed to prove by a preponderance of the evidence that the TCE, in omitting the Mid-Point Bridge and corridor, is not consistent with the Regional Plan. The record fails to establish that the omission of the Mid-Point Bridge and corridor is inconsistent with the Regional Plan considered as a whole. The Plan's treatment of the bridge and corridor is consistent with provisions in the Regional Plan regarding balanced land uses and intergovernmental coordination. Consistency with Other Minimum Criteria For the reasons set forth above, Lee County and Cape Coral have failed to prove by, a preponderance of the evidence that the Plan is not consistent with the criterion of, "to the maximum extent feasible as determined by the local government," analysis compatible with the plans of the Florida Department of Transportation and MPO, as well as the criteria of analysis of projecting levels of service for roads based on the FLUM, the need for new roads, and the adopted level of service standards and plans of the Florida Department of Transportation and MPO. Lee County and Cape Coral have failed to prove by a preponderance of the evidence that TCE Policies 5.1, 5.2, and 5.3, with their implementing actions, in omitting the Mid-Point Bridge and corridor, are not consistent with the criteria of an objective coordinating transportation planning with the metropolitan planning organization and a future traffic circulation map showing the location of arterial and limited access facilities. The issue of coordination has already been addressed. The Major Thoroughfare Plan--2010 is consistent with the latter criterion. Lee County and Cape Coral have failed to prove by a preponderance of the evidence that the FLUE or TCE Action 5.2.1 is not consistent with the criterion of discouraging the proliferation of urban sprawl. The strategy of urban containment is not limited to planning for undeveloped or underdeveloped areas. The maintenance of existing mixed-use centers also assists in deterring urban sprawl. By preserving and enhancing close-in residential areas, some of the pressure toward urban sprawl may be alleviated. The omission of the Mid-Point Bridge and corridor may be viewed as part of a reasonable planning strategy designed to promote the mixture of uses presently characterizing the city. For the reasons set forth above, Lee County and Cape Coral have failed to prove by a preponderance of the evidence that the ICE is not consistent with the criteria of establishing principles and guidelines to be used in attaining coordination with the plans of adjacent municipalities and the county, ensuring coordination in setting level of service standards for public facilities with any governmental entity with operational or maintenance responsibility for such facility, and resolving conflicts with other local governments through the Regional Planning Council's informal mediation process.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Administration Commission enter a final order determining that the Ft. Myers plan, as amended, is in compliance with Chapter 163, Part II, Florida Statutes, and Chapter 9J-5, Florida Administrative Code. ENTERED this 7 day of January, 1992, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7 of January, 1992.
