The Issue The issues in this case are whether the Small Scale Comprehensive Plan Amendment No. 05S-01 (the Plan Amendment) adopted by Polk County (County) through the enactment of Ordinance No. 05-004 is “in compliance,” as that term is defined by Section 163.3184(1)(b), Florida Statutes,1 and whether Petitioner, Citizens for Proper Planning, Inc. (CPPI), has standing as an “affected person” as defined by Section 163.3184(1)(a), Florida Statutes, in this proceeding.
Findings Of Fact The ECRA is a local special district governmental agency established pursuant to Chapter 163, Part III, Florida Statutes, and is composed of a seven-member board of directors. The boundaries of the Eloise Community Redevelopment Area include an area consisting of approximately 665 acres within the unincorporated Eloise area of Polk County (the Redevelopment Area). The Subject Property is located within the Redevelopment Area. See JE 8A. The ECRA meets once a month, except July, when they do not normally meet. Its purpose is to discuss and implement the ECRA Redevelopment Plan’s six objectives within the Redevelopment Area. The ECRA opposed the Plan Amendment by and through its attorney and submitted oral and written comments, recommendations, and objections to the County regarding the Plan Amendment during the Plan Amendment adoption proceedings. As a part of its presentation to the County regarding the Plan Amendment, the ECRA delivered to the County, ECRA Resolution No. R-05-01, objecting to the Plan Amendment. The parties agree that the ECRA has standing in this proceeding. Petitioner, Bruce Bachman (Mr. Bachman), resides in Winter Haven, Polk County, Florida. His residence is located outside of the Redevelopment Area and is approximately three (3) miles from the Subject Property. He is employed as the operator (since 1980) and general manager of Phoenix Industries, LLP, (Phoenix), located at 621 Snively Avenue, County Road (CR) 655 in Eloise, which is adjacent to and across the street from the Subject Property. Mr. Bachman has served as the Chairman of the Board of Directors of the ECRA since 1998. Phoenix operates a warehousing and distribution complex for dry, refrigerated, and frozen food products east of Snively Avenue and across the street from the Subject Property. The Phoenix property stretches north and south within an elongated area within the Redevelopment Area, and is open 24-hours a day, seven days a week.2 See JE 8A at "30". (The railroad, designated with a red line, runs north and south through the Phoenix property. JE 8A.) Phoenix has spent approximately $115,000 changing the angles of its buildings and moving docks so that trucks could maneuver on the property, and not have to enter Snively Avenue to do so. Mr. Bachman is involved with the Eloise residential area and the Redevelopment Area generally and his contributions to the Eloise area are well-noted in the record. His work with the community includes working with the students at Snively Elementary School. Individually, and on behalf of the ECRA, Mr. Bachman submitted oral and written comments, recommendations, and objections to the County during the Plan Amendment adoption proceedings. The parties agree that Mr. Bachman has standing in this proceeding. Petitioner, Johnny Brooks (Mr. Brooks), resides at 143 8th Street, Eloise, Polk County, Florida, approximately three (3) blocks southwest from the Subject Property. His home is located within the main residential component of the Redevelopment Area. He was born in Eloise (on 5th Street) and has lived, with his wife, at the 8th Street address for 41 years. Mr. Brooks also serves as Vice-Chairman of the Board of Directors of the ECRA. Although disabled, Mr. Brooks is an active member of the Eloise Community. For example, he and his wife conduct a “homework club” at the Eloise Community Resource Center (opened in 2002) located between 7th and 8th Streets and Snively Avenue, which is east and down the block from his residence. JE 8A at "2". They also use the computer lab at the resource center for adult education. They use the neighborhood Snively/Brooks Park, JE 8A at "4", approximately one block south of the Brooks' residence and west of the Snively Elementary School, JE 8A at "3", for, among other activities, Easter egg hunts and Christmas parties. Mr. Brooks is also involved in the Eloise Neighborhood Association, which offers adult computer classes, GED classes, and classes in English as a Second Language. He and his family use other resources within the Redevelopment Area, such as the Snively Elementary School, and a post office, JE 8A at "1", which is located approximately one block north of the Subject Property between 4th and 5th Streets, near Snively Avenue. Mr. Brooks attends the Eloise United Methodist Church (built in 1966-1967), which is located on land designated as Industrial (IND) on the FLUM. 3 JE 8A at "10". This church is located on the southwest side of Snively Avenue, and approximately five or six blocks south of the Subject Property and approximately two blocks south of the Snively Elementary School and the Snively-Brooks Park.4 Mr. Brooks submitted oral comments, recommendations, and objections to the County during the Plan Amendment adoption proceedings. The parties agree that Mr. Brooks has standing in this proceeding. CPPI is an organization comprised of approximately two hundred members, located throughout Polk County, Florida. CPPI has been an existing corporation since 2002. No application, request to join or payment of dues is currently required for membership. According to its executive chairperson, Jean Reed, its purpose is to "better plan for our growth in Polk County." Ms. Reed lives approximately one mile east of Eloise and four of five of the CPPI Board of Directors live within a mile of Eloise. All CPPI members live in the County. CPPI had been involved in County hearings and an administrative hearing involving a small scale comprehensive plan amendment. The organization currently encourages donations and plans to charge dues next year. CPPI submitted oral comments, recommendations and objections to the County during the Plan Amendment adoption proceedings. No evidence was presented to show that CPPI owns real property within the County. The County and the Intervenor dispute CPPI’s standing in this proceeding. The County is a political subdivision of the State of Florida, empowered to adopt, implement, and amend its Comprehensive Plan in accordance with the laws of Florida. Intervenor, Don C. Smith (Smith or Intervenor), owns the Subject Property. He purchased the Subject Property of 9.9 acres, which is part of a contiguous 20-acre site, in May of 2003. Mr. Smith learned that the Subject Property had an RL-4 land use designation just prior to his purchase of the Subject Property. The parties agree that Mr. Smith has standing in this proceeding. The Eloise Community Redevelopment Area The Redevelopment Area consists of approximately 665 acres. EE 2, Plan at 30. It is generally bounded by the CSX railroad to the north of US 17; by Lake Lulu and Shell Road on the east; by Snively Avenue (CR 655) on the south; and by Wahneta Canal and a portion of Wahneta farms on the west. JE 8A.5 (Snively Avenue is a four-lane undivided, major collector highway, but is not a buffer.) Both historically and presently, the Redevelopment Area has been composed of mixed uses in an urban area. Under the FLUM, there are eight separate land uses within the Redevelopment Area: Industrial (IND), Business Park Center (BPC- 2), High Impact Commercial (HIC), Institutional (INST-1), Community Activity Center (CAC), Residential Suburban (RS), Residential Low-1 (RL-1), and Residential Low-4 (RL-4). JE 8A. Beginning at the northern portion of the Redevelopment Area and moving from west to east, south of the CSX railroad and approximately one block south of US 17, the land uses designated on the FLUM are HIC, CAC, and HIC. Moving southward and east of Snively Avenue, the land use designation for a triangular portion of land is BPC-2. The land use designation adjacent to and immediately south of the BPC-2 designation and east of Snively Avenue is designated as IND. The IND designation covers the land in a southerly direction until Snively Avenue intersects with Croton Road. The land to the east and adjacent to the BPC-2 and IND designations is designated as RL-1. There is a small portion of land near Shell and Croton Roads at the southern boundary of the Redevelopment Area designated as Residential Suburban (RS). (The RS designation continues to the east outside of the Redevelopment Area. Lake Lulu is to the east of the eastern RL-1 and RS designations.) There is also land designated as RL-1 west of Snively Avenue, bisected by Unnamed Street, extending west of Wahneta Canal and south-southwest of the Snively Elementary School/Snively-Brooks Park area, to the southwestern boundary of the Redevelopment Area.6 The Snively Elementary School and the Snively-Brooks Park are located in the INST-1 land use designation.7 JE 8A. Approximately 150 children walk to and from this elementary school (with another 60 to middle and high schools outside the Redevelopment Area), utilizing the sidewalk bordering the western portion of Snively Avenue. The majority of the children attending the elementary school reside in the RL-4 designated area (mainly between 1st and 9th Streets). Mr. Smith agreed that the elementary school was in close proximity to the Subject Property. Mr. Smith testified that after meetings with the ECRA, he moved the fence in front of the Subject Property and business back ten feet so that the children could have more room to walk down the street. He also instructed his drivers of big trucks and heavy equipment not to enter the Subject Property during times when the children are going to and from school. There are several school crossings, crossing Snively Avenue. There is a bus stop at 5th Street and Snively Avenue for children attending middle and high school. JE 8A at "6". There are also bus stops on 7th Street and in front of the elementary school. JE 8A at "5" and "7". Except for the residential portions of the CAC and BPC-2 areas, the primary residential area of the Redevelopment Area is generally bounded by US 17 and 1st Street on the north, the Wahneta Canal on the west, and to just north of Snively Elementary School and 9th Street on the south. JE 8A; EE 2, Plan at 6 and Figure 2. The Eloise Community Redevelopment Area Uses 1. In General The Redevelopment Area, for at least the last 40 years, has supported a wide variety of industrial, commercial, institutional, and residential uses. Mr. Brooks and Mr. Smith testified that the Redevelopment Area has supported these mixed uses and has historically been defined by the interrelationship of these various uses with the predominant industrial activities within its boundaries. In the past, the established residential area (RL-4) was once a successful working-class neighborhood which primarily provided homes to those workers who were employed in the citrus plants located within the industrial classified areas. That residential area is now blighted and provides housing for low and moderate income families. Though well established, the RL-4 residential area contains a substantial number of vacant lots within that residential designated area. 2. Redevelopment Area Problems and Redevelopment During the early 1980’s, Eloise was a troubled community, suffering, for example, from theft and vandalism. The community had difficulty finding minority contractors willing to work at Phoenix because of the problems associated with the community. By the early 1990s, the residential area of the Redevelopment Area had deteriorated to such an extent that the Housing and Neighborhood Development Division (HND), an agency of the County, became actively involved in the redevelopment of the community. In 1992, the Eloise Neighborhood Association was formed. In 1996, a Neighborhood Revitalization/Redevelopment Plan was commissioned by HND. This plan was prepared by County staff. Also in 1996, the HND and the Eloise Neighborhood Association prepared the Eloise Neighborhood Revitalization/Redevelopment Plan, which “focused on the 138 acres generally bounded by the CSX Railroad on the east, the railroad and US 17 on the north, the Wahneta Canal on the west, to just south of the Snively Elementary School. Its recommendations included improved social services, land use changes, housing programs and infrastructure improvements.” In 1998, a Declaration of Slum and Blight was adopted by the Board through Resolutions Nos. 98-08 and 98-66, which, respectively, made a finding of blighting conditions in Eloise and adopted a redevelopment plan for Eloise. As a result, the ERCA was created pursuant to Section 163.356, Florida Statutes, to rehabilitate, conserve, and/or redevelop the Redevelopment Area. In 2000, the Board, pursuant to Section 163.360, Florida Statutes, adopted Ordinance No. 00-33, approving of the Eloise Redevelopment Plan as the Community Development Plan for the Redevelopment Area. It was the purpose and intent of the Board that the Eloise Redevelopment Plan be implemented in the Redevelopment Area. The Board made numerous findings in Ordinance No. 00- 33 including a determination that “[t]he Plan conforms to the general plan of the county as a whole” and that “[t]he Plan conforms to the Polk County Comprehensive Plan.” The Board also determined that “[t]he need for housing accommodations has increased in the area.” The Eloise Redevelopment Plan has not been adopted as part of the County's Comprehensive Plan. Thus, the Plan Amendment need not be consistent with the Eloise Redevelopment Plan to be “in compliance.” The May 2000, Eloise Redevelopment Plan describes the then existing ownership patterns such that “[t]he existing Eloise residential neighborhood between 1st and 9th Streets is subdivided into platted, fifty-foot wide lots. Most are 100-125 feet in depth. Lots along 9th Street abutting the school are platted as 70-foot wide lots. The ownership pattern in this area typically follows the lot lines. Most are individually owned lots. (See Figure 6).” EE 2, Plan at 16. Particularly relevant here, it is also stated: “Lots 33 and 34 [part of the Subject Property] are each approximately 9 acres and are owned by Alterman Transport Corporation (ATC). The site is currently used for storage and, in the past, was zoned GI [General Industrial] and R-3. In the current Comprehensive Plan, however, this site is planned for Residential Suburban (RS) to be compatible with the surrounding neighborhood. The trucks are a legal-nonconforming use and may continue but any future development shall comply with the RS land use district.” EE 2, Plan at 16. The Eloise Redevelopment Plan also recommended that the Alterman Trucking Annex, also known as the Alterman Transportation Corporation, be developed for up to 75 single- family homes by the end of 2004. EE 2, Plan at 32; JE 3 at 3 of (The Subject Property was also formerly known as the Alterman Motor Freight Terminal. JE 2, 8/10/2004 site map.) In 2001, the County also changed the classification of the Subject Property from RS to RL-4 pursuant to Ordinance No. 01-45. See Finding of Fact 54. In addition to the creation of the ECRA, the County, through the HND, has attempted to revitalize the Redevelopment Area. Since 1993, HND has spent approximately $4.4 million dollars in these efforts. These funds have been spent on community policing ($424,790), slum and blight clearing ($47,428), housing rehabilitation ($186,807), parks and recreation ($149,982), water/sewer/drainage ($1,094,677), construction of the Eloise Community Center ($2,147,037), replacement of five homes ($314,138), and rehabilitation and repair of five homes ($46,819). As part of the Eloise Redevelopment Plan, many additional infrastructure improvements have been proposed, such as fire hydrants, turnaround areas for emergency vehicles and fire trucks, storm water installation, and sewer for the Residential Area of Eloise between 1st and 9th Streets and between Snively Avenue and the canal. The proposed projects for water, sewer, and storm water include 350 parcels to be served in this Residential Area. The construction of the Eloise Community Center has been the most costly expense in these efforts. After the County obtained this parcel from Phoenix Industries, it was discovered that the land was contaminated and more than $400,000 was spent on environmental clean-up costs for this property. The ECRA and the County have made progress in the area of code enforcement. Furthermore, crime has been cut in half and a drinking ordinance was passed by the County upon request of the ECRA and the Eloise Neighborhood Association. Eloise, with the County's cooperation, also initiated a Community- Oriented Policing program. There has been an increase in construction in the area, both on the residential and commercial/industrial side of Snively Avenue. The ECRA has also been working on a beautification strategy. For example, Phoenix spent $35,000 for landscaping, removing barbed wire, installing an irrigation system, and installing an attractive entrance to its facilities. Further beautification is planned for other areas along Snively Avenue, the main gateway to the area from US 17, and improvements to Snively Elementary School, for which the ECRA allocated up to $10,000. Currently, the socio-economic status of the families living within the residential portion of the Redevelopment Area is low and moderate income. But, as noted above, the area is being revitalized, including the addition of several Habitat for Humanity-built homes. Mr. Bachman confirmed that "[t]hings have changed now," including the employment of minorities and an increase in diversity at the elementary school. The Subject Property The Subject Property is located within the Redevelopment Area on the southwest side of Snively Avenue between 5th and 6th Streets. JE 8A. The Subject Property consists of approximately 9.9 acres, which is part of a 20-acre parcel owned by Mr. Smith. Tr. 261. (There is a vacant parcel not subject to the Plan Amendment, also acquired by Mr. Smith at the same time, adjacent to and west of the Subject Property, which appears to be within a flood zone area. JE 8A at “46”. The canal serves as the western border for this parcel.) Currently, there are ten to eleven residences along 5th Street, north of the Subject Property, and ten residences between the Subject Property and 6th Street, south of the Subject Property. See EE 7. There does not appear to be any appreciable distance between these residences and the Subject Property. Aside from the residential homes north and south of the Subject Property, there are also retail, auto repair, and other commercial uses which border on Snively Avenue. See, e.g., IE 1, aerial with 15 photographs; JE 3 at 5 of 27; Tr. 295-297; JE 8A. According to Mr. Smith, he requested the land use designation change to cure the non-conforming status of the Subject Property. All operations on the Subject Property had ceased for less than one year when he purchased the Subject Property. The Subject Property has historically and, except as noted above, continuously been utilized since the late 1960’s for industrial-type purposes, including motor freight activities which include loading and unloading citrus trucks, racking, truck repair, and truck weighing. These activities would not necessarily be restricted to an Industrial land use designation;8 the current use of the Subject Property as a motor freight terminal is also permitted within a BPC-2 land use designation. There has been no substantial change in the use of the Subject Property since 1980.9 Mr. Brooks testified that while he was growing up in Eloise, the Subject Property "was primarily truck parking for the citrus plant." He "worked for the scale house back in the late 60's before the plant went down and all [they] did was like park the trucks there for unloading and which would be in the citrus plant itself." However, he never knew the Subject Property "to be an industrial park itself," during the late 1960's. Historically, Mr. Snively, who died in 1957, owned several different businesses across the street from the Subject Property, including a fresh fruit packing house, JE 8A at "20", juice plant, JE 8A at "21", concentrate plant, JE 8A at “22”. The plant closed in 1969 or 1970. In and around 1972, during the summer, Mr. Smith worked for the Snively operation when they parked their citrus trucks on the Subject Property and then for the Alterman operation on-site when he loaded and unloaded trucks. Under the County's zoning ordinance adopted in November 1970, the Subject Property, along with the Phoenix Industries Property, its adjoining property, and the property southeast and adjacent to Snively Elementary School, were zoned as General Industrial (GI). Like the Subject Property, this industrial area is located east and immediately adjacent to property classified as residential (RS) (although the property is presently undeveloped). By an amendment to the FLUM adopted by Ordinance No. 91-06 on April 19, 1991, the Subject Property was classified as RS, rather than IND.10 At the same time, the Phoenix Industries Property, its adjoining property, and the property immediately adjacent to Snively Elementary all maintained their Industrial classification. The May 2000 Eloise Redevelopment Plan recommended, in part, consideration of "a plan amendment from RS to RL-4 for the properties north of Snively [Elementary] School and west of Snively Avenue" which included the Subject Property. EE 2, Plan at 38. On July 11, 2001, the County adopted Ordinance No. 01- 45, which changed the land use designation on the FLUM from RS to RL-4, for all of the property (including the Subject Property) between 1st Street and just south of 9th Street and between Snively Avenue on the east and the canal on the west. EE 1 at map page 2. The land use designation for the Snively- Brooks Park was also changed to INST-1 from IND. Other land use designations were changed pursuant to Ordinance No. 01-45. EE 1. See also Tr. 130-136, 139-140. The FLUM changes implemented strategies set forth in the Eloise Redevelopment Plan and adopted recommended changes to the FLUM. See Tr. 163. The RL-4 designated property is located immediately adjacent to and on the north, west, and south sides of the Subject Property. JE 8A. Across Snively Avenue from the RL-4 property is the industrial area which was previously used in the citrus industry and which is currently used by Phoenix warehousing and trucking activities. JE 8A. "The purpose of the [RL-4] District is to provide areas for low density residential needs of residents in urban areas who desire areas with smaller lots, a minimum of 6,000 square feet." § 204A7., Land Development Code (LDC). The County and Mr. Smith contend that the Subject Property was mistakenly or erroneously classified as RS in 1991 and RL-4 in 2001. However, the preponderance of the evidence indicates that no mistake or error was made in 1991 or 2001 based, in part, on the chronology of events regarding the land use changes mentioned above. Merle H. Bishop, A.I.C.P., the current Director of Growth Management for the County, has been an employee of Polk County for 30 years, and was involved in the adoption of the original Comprehensive Plan in 1991. In preparing land use designations for the initial FLUM, he used aerial photographs primarily and the existing zoning at the time. Since that time, he and staff have discovered errors in mapping the land uses of property, including industrial. Typically, the errors have been corrected when presented to the Board for comprehensive plan changes to the FLUM. Mr. Bishop testified that pursuant to a policy in the Comprehensive Plan, the County desired to “recognize industrial uses.” Tr. 444-445. According to Mr. Bishop, an active industrial use would only be eliminated with good reason, i.e., such as it was a remote and isolated industrial use. Tr. 455. According to Mr. Bishop, the Subject Property, the southern parcel by the elementary school, and the Phoenix Industries property made up a major industrial use area. Tr. 456. Although Mr. Bishop stated the Subject Property "would have been" designated as Industrial in 1991 given its use, Tr. 511-512, Mr. Bishop could not "say whether or not [they] missed this on the map when [they] mapped it. I mean it appears -- I mean, when you look at the map, it's very general; or whether there was an intention to not map it." Tr. 483-484. Mr. Bishop did not testify persuasively that the Board, in 1991 or in 2001, erroneously designated the Subject Property as RS and then RL-4. The February 2, 2005, staff report, mentions the applicant’s contention that a mapping error occurred, but implicitly rejects this argument. JE 3 at 11 and 12 of 27. Staff stated: The site has recently changed ownership and the current property owner wants the non-conforming uses to become conforming uses. Recognizing the existing use will enable to [sic] owner to continue utilizing the site as it has historically been used and allow the redevelopment of the property as needed. In addition, the use has remained the same since the early 1970’s according to the applicant. The applicant also states that Policy 2.113-A2 of the Comprehensive Plan states that the [FLUM] Series shall include all major existing industrial areas; since the property has historically been used for industrial uses, the recognition of the site will correct the County’s mapping error. On the other hand, staff and the ECRA has [sic] indicated, for this and the prior requested land use change (CPA 04A-05), that the impacts to the residential neighborhood is [sic] more significant than the redevelopment of the site for commercial or industrial uses. The County worked with the residents, business owners, and land owners in the area to develop a redevelopment plan, in which, the site was intentionally made non-conforming by the community and the County in order to create separation between the industrial uses across the street from the residential uses on the west side of CR 655 (Rifle Range Road [sic]). Therefore, the applicant’s primary argument for recognizing the historical use is not relevant. JE 3 at 12 of 27. Mr. Bishop was not directly involved with the staff review although he participated at the pubic hearing before the Board. If the Subject Property were vacant, Mr. Bishop would not recommend an Industrial land use designation. He supports the land use change because of the existing (at the time) use of the Subject Property and to have the property be a conforming use. Tr. 506-507. The history of industrial-type use on both the Subject Property and other sites in the Redevelopment Area has been a subject of significant concern. Although no tests have been conducted to determine whether the Subject Property is contaminated, Dr. Cherry testified that as a result of its long industrial use, it is likely that contamination will be present, which would render its use for residential purposes not realistic. Tr. 221-223. Since the subject property is located near the property upon which the community center was constructed and both parcels were part of a larger industrial area and utilized for similar uses, Dr. Cherry suspects that the Subject Property will likewise be contaminated. Tr. 222. If the Subject Property is contaminated, it is Dr. Cherry's opinion that there will be insufficient funds to clean the area. Tr. 219. Consequently, Dr. Cherry opined that if the Subject Property could not be used for industrial purposes, it would likely be unable to be developed as residential and most likely would be abandoned, thereby becoming a “brownfield.” This would significantly burden the redevelopment efforts in the Redevelopment Area. However, the Subject Property has not been declared a “brownfield” and no finding can be made regarding the environmental condition of the Subject Property based upon the record of this case. The Small Scale Plan Amendment Application and Adoption On or about August 10, 2004, Mr. Smith filed an application requesting the County to re-designate the land use of the Subject Property from RL-4 to IND. JE 2. According to the “Narrative Summary,” “[t]his change will provide for the continuation of historical motor freight uses and provide for optional industrial uses.” Id. On January 4, 2005, the County published Notice in a newspaper of local circulation providing that the Board would consider the adoption of the Plan Amendment at its meeting of January 19, 2005. At the January 19, 2005, meeting, the County tabled consideration of the Plan Amendment to its meeting of February 2, 2005. The Polk County Planning Division Staff report is dated February 2, 2005. This report contains a detailed analysis of the application. The Planning Division recommended denial of the Plan Amendment. (The report indicates that the Planning Commission recommended approval (3 to 1 vote) of the Plan Amendment.) The Planning Division found, in part, that "the proposed development request IS NOT compatible with surrounding land uses and general character of the area of the residential uses on the southern side of Snively Avenue (CR 655) and IS NOT consistent with the Polk County Comprehensive Plan for a land use change to Industrial (IND) because it would likely intrude into the existing residential neighborhood, allow for more intensive uses to be developed next to existing homes, and not be consistent with the approved Eloise Redevelopment Plan." (Emphasis is original). On February 2, 2005, the Board voted to adopt the Plan Amendment by the adoption of Ordinance No. 05-004.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order concluding that the Plan Amendment adopted by Polk County Ordinance No. 05-004 is not "in compliance" as defined in Section 163.3184(1)(b), Florida Statutes. DONE AND ENTERED this 8th day of July, 2005, in Tallahassee, Leon County, Florida. S CHARLES A. STAMPELOS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of July, 2005.
The Issue Whether Miami-Dade County’s (“the County’s”) comprehensive plan amendment, adopted by Ordinance No. 20-47 on May 20, 2020, is “in compliance,” as that term is defined in section 163.3184, Florida Statutes.1
Findings Of Fact The Parties Petitioner resides, and owns property, in the County. Petitioner made oral or written comments and objections to the County regarding the Plan Amendment during the time period between the County’s transmittal and adoption of the Plan Amendment. The County is a political subdivision of the State of Florida, with the duty and authority to adopt and amend its Comprehensive Plan. See § 163.3167(1), Fla. Stat. Krome is a limited liability company, existing under the laws of the State of Florida, with its principal place of business in the State of Florida. Krome owns the property subject to the Plan Amendment, as well as other property within the area affected by the Plan Amendment, and was the applicant for the Plan Amendment. The Subject Property and Surrounding Uses The Subject Property is 5.97 gross acres (approximately 4.6 net acres) of vacant land located outside of the Urban Development Boundary on the southwest corner of SW 177 Avenue (Krome Avenue) and SW 136 Street. It is the northeast corner of a larger 48.33-acre parcel owned by Krome (the “Parent Tract”). Adjacent to the north of the Parent Tract, across SW 136 Street, is a solar farm operated by Florida Power and Light Company (FPL). To the east, across Krome Avenue, and to the south, including the remaining portion of the Parent Tract, are agricultural lands used for row crops. West and south of the Parent Tract (including the Subject Property), the land is developed predominantly with five-acre rural estates, interspersed with small residential farms and agricultural sites ranging between 10 and 30 acres in size. The Property is located within an approximately 11-mile stretch of Krome Avenue where there are presently no gas service stations. The nearest gas service station to the south of the Property is located approximately three miles away. The nearest gas service station to the north of the Property is located approximately eight miles away. The Plan Amendment The Plan Amendment changes the Future Land Use (“FLU”) designation of the Subject Property from the “Agricultural” to the “Business and Office” land use category. The Business and Office category allows for development of a wide range of sales and services uses, including retail, wholesale, personal and professional services, call centers, commercial and professional offices, hotels, motels, hospitals, medical buildings, nursing homes, entertainment and cultural facilities, amusements, and commercial recreation establishments. The category also allows light industrial development, telecommunication facilities, and residential uses (stand alone or mixed with commercial, light industrial, office, and hotels). Krome sought the Plan Amendment for the ultimate purpose of operating a gas service station and other food and retail uses compatible with, and supportive of, the surrounding agricultural and residential community. In recognition that the “Business and Office” land use designation permits a wide variety of uses, Krome proffered to restrict the permitted uses on the Property by submitting a Declaration of Restrictions to be recorded as a covenant running with the land. County Consideration of Plan Amendment In October 2019, County planning staff issued its Initial Report and Recommendations, suggesting denial of the proposed Plan Amendment. The County’s Community Councils are tasked with providing recommendations on proposed amendments to the Comprehensive Plan. The West Kendall Community Council conducted a public hearing on the proposed Plan Amendment on December 16, 2019, at which members of the public commented on the proposal. A representative of Krome made a presentation at the public hearing and submitted presentation exhibits that included: (1) a proposed Declaration of Restrictions; (2) a County memorandum relating to a separate application to allow the establishment of a gas station at SW 177 Avenue and SW 200 Street in Miami-Dade County; (3) a letter from the Dade County Farm Bureau stating that it had no objection to the Application; and (4) a Petition of Support listing 105 members of the community that elected to express support and recommend approval of the proposal. At the conclusion of the December 16, 2019 hearing, the West Kendall Community Council voted to recommend that the proposed Plan Amendment be adopted with acceptance of the proffered Declaration of Restrictions. After previously deferring the matter at a hearing on October 29, 2019, the Miami-Dade County Board of County Commissioners (the “BCC”) voted on December 17, 2019, to adopt the Plan Amendment on first reading. The County’s Planning Advisory Board (“PAB”) serves as the Local Planning Agency to review any matters referred to it by the BCC, pursuant to section 2-108 of the Miami-Dade County Code. On January 8, 2020, the PAB, acting as the Local Planning Agency, conducted a public hearing to address the proposal. Near the conclusion of the hearing, the chairman of the PAB proposed an amendment to the proffered Declaration of Restrictions such that the maximum gross square feet of enclosed, under-roof construction on the Property, excluding fueling islands, would be reduced from 10,000 square feet to 6,000 square feet. Krome’s representative agreed to the proposed amendment. The PAB then voted to recommend that the BCC adopt the Plan Amendment with acceptance of the revised Declaration of Restrictions. After previously deferring second reading of the ordinance on January 23, 2020, the BCC voted nine-to-three to adopt Ordinance No. 20-47 on second reading at a public hearing on May 20, 2020. As part of its adoption of the Plan Amendment, the BCC accepted Krome’s proffered Declaration of Restrictions containing the provisions outlined below. The adopted Declaration of Restrictions states that it is a covenant running with the land for a period of 30 years, and thereafter automatically renews for 10-year periods. The Declaration of Restrictions expressly allows for “[a]ll uses permitted under Article XXXIII, Section 33-279, Uses Permitted, AU, Agricultural District, of the Miami-Dade County Code” along with an “Automobile gas station with mini mart/convenience store” with a maximum of 15 vehicle fueling positions. The Declaration of Restrictions further provides that “[m]echanical repairs, oil or transmission changes, tire repair or installation, maintenance, automobile or truck washing” are prohibited uses, and it limits the maximum gross square feet of enclosed, under-roof construction to 6,000 square feet. Petitioner’s Challenges In the Amended Petition, Petitioner alleges the Plan Amendment is not “in compliance,” specifically contending that it: (1) creates internal inconsistencies with certain existing Comprehensive Plan policies, in contravention of section 163.3177(2); (2) fails to discourage the proliferation of urban sprawl, as required by section 163.3177(6)(a)9.; and (3) is not “based upon relevant and appropriate data and analysis,” as required by section 163.3177(1)(f). Internal Consistency The Comprehensive Plan gives the County Commission flexibility to appropriately balance the community’s needs with land use, environmental, and other Comprehensive Plan policies. It is inherent in the comprehensive planning process that the Comprehensive Plan contains potentially competing goals, objectives, and policies, and that addressing them entails a balancing act rather than an all-or-nothing choice. The Comprehensive Plan expressly recognizes this balancing act in its Statement of Legislative Intent: The Board recognizes that a particular application may bring into conflict, and necessitate a choice between, different goals, priorities, objectives, and provisions of the CDMP. While it is the intent of the Board that the Land Use Element be afforded a high priority, other elements must be taken into consideration in light of the Board’s responsibility to provide for the multitude of needs of a large heavily populated and diverse community. * * * Recognizing that County Boards and agencies will be required to balance competing policies and objectives of the CDMP, it is the intention of the County Commission that such boards and agencies consider the overall intention of the CDMP as well as portions particularly applicable to a matter under consideration in order to ensure that the CDMP, as applied, will protect the public health, safety and welfare. Accordingly, the Comprehensive Plan must be read as a whole, and a plan amendment should not be measured against only certain policies in isolation. Krome’s expert, Kenneth Metcalf, opined that the Plan Amendment affirmatively furthers several Comprehensive Plan goals, objectives, and policies, including Land Use Policies (“LU”) 1G, 1O, and 8E; Conservation Policy (“CON”) 6E; Community Health and Design Policies (“CHMP”) 4A and 4C; Coastal Management Policies (“CM”) 8A and 8F; and Economic Policy (“ECO”) 7A. Petitioner contends that the Plan Amendment is inconsistent with some of those same policies, as well as other policies. Petitioner contends that the Plan Amendment is inconsistent with Policy LU-1G, which states: Business developments shall preferably be placed in clusters or nodes in the vicinity of major roadway intersections, and not in continuous strips or as isolated spots, with the exception of small neighborhood nodes. Business developments shall be designed to relate to adjacent development, and large uses should be planned and designed to serve as an anchor for adjoining smaller businesses or the adjacent business district. Granting of commercial or other non-residential zoning by the County is not necessarily warranted on a given property by virtue of nearby or adjacent roadway construction or expansion, or by its location at the intersection of two roadways. Petitioner offered no expert testimony to support this contention. By contrast, Mr. Metcalf opined that the Plan Amendment was consistent with the allowance in Policy LU-1G for small neighborhood nodes based on its relationship to the adjacent rural residential and agricultural community, especially given the evidence that such adjacent community lacks existing options for gas and convenience goods. He further explained that use of the word “preferably” in Policy LU-1G indicated a preference, not a bright-line rule or requirement, and that the Comprehensive Plan does not contain a definition of “small neighborhood nodes” or any interim step for designating such nodes. Further, the County’s expert, Alex David, opined that the Plan Amendment is not inconsistent with Policy LU-1G. He first noted that locating business developments in clusters or nodes is preferable, but not compulsory. In addition, he explained that the policy allows for small neighborhood nodes, and that this Plan Amendment fits the concept of a small neighborhood node in terms of its location, scale, and function: Location: The Plan amendment is limited to a portion of a quadrant of the intersection of two roads adjacent to a rural community, so it will not be linear development along the Krome Avenue corridor; Scale: The Plan amendment is considered “small-scale” under the Florida Statutes because it involves less than 10 acres in land area. In addition, the Declaration of Restrictions accepted by the County Commission restricts the extent of land uses (other than those permitted under the AU Zoning District) to a convenience retail limited to a maximum of 6,000 square feet and a gas station with 15 fueling positions; and Function: Neither the Comprehensive Plan nor the County Code define the term “convenience store.” However, many other communities define this use as a small retail establishment intended to serve the daily or frequent needs of the surrounding neighborhood population by offering for sale prepackaged food products, household items, over-the-counter medicine, newspapers and magazines, freshly prepared foods, and even access to an ATM. In rural neighborhoods such as those surrounding the location of the Plan Amendment, a convenience store associated with a gas station is often the only place nearby to buy such items. These stores often also serve as a community gathering spot. Based on these characteristics, Mr. David opined that the Plan Amendment would create a small neighborhood node with a gas and convenience use for the surrounding rural farm community, similar to the nodes to the south along Krome Avenue that serve the surrounding communities there. Mr. David also contradicted Petitioner’s contention that the Comprehensive Plan contains a process for designating nodes. Petitioner contends that the Plan Amendment is inconsistent with Policy LU-1O, which states: “Miami-Dade County shall seek to prevent discontinuous, scattered development at the urban fringe in the Agriculture Areas outside the Urban Development Boundary, through its Comprehensive Plan amendment process, regulatory and capital improvements programs and intergovernmental coordination activities.” Petitioner offered no expert testimony to support this contention. By contrast, Mr. Metcalf opined that the Plan Amendment was not inconsistent with LU-1O because the development contemplated by the Plan Amendment is designed to serve the adjacent existing rural neighborhoods to the southwest that are in need of gas and convenience goods. Mr. David opined that the Plan Amendment is not inconsistent with Policy LU-1O. He explained that this policy aims to ensure that development does not happen in isolation and occurs, instead, where other development already exists. Because the Plan Amendment site is proximate to a contiguous, and nearly continuous grid of, existing development consisting of rural estate residential and small-scale residential farms, the Plan Amendment does not contravene this policy or its purpose. Petitioner contends that the Plan Amendment is inconsistent with Policy LU-1P, which states: While continuing to protect and promote agriculture as a viable economic activity in the County, Miami-Dade County shall explore and may authorize alternative land uses in the South Dade agricultural area which would be compatible with agricultural activities and associated rural residential uses, and which would promote ecotourism and agritourism related to the area's agricultural and natural resource base including Everglades and Biscayne National Parks. Petitioner offered no evidence or expert testimony to support the contention that the Plan Amendment is inconsistent with Policy LU-1P. By contrast, Mr. Metcalf opined that the Plan Amendment was not inconsistent with Policy LU-1P because that policy allows for alternative land uses that are compatible with agricultural uses, such as Krome’s plans for the store to support local agricultural uses and agri-tourism by selling fresh fruit from local groves and diesel for smaller scale agricultural farmers, as provided in the Declaration of Restrictions. Mr. David opined that the Plan Amendment is not inconsistent with that policy. He explained that the Plan Amendment pertains only to a very small portion (less than six gross acres) of a larger agricultural site, which will continue to be actively used for agriculture, and there is no evidence that the Plan Amendment will impair the viability of the agricultural economy in the County. As Mr. David explained, the County previously determined that the amount of land that is needed to maintain a “viable” agricultural industry is approximately 50,000 acres, and according to the County, the County has about 55,206 acres available. The 5.97 gross acres (approximately 4.6 net acres) of land that the Plan Amendment directly impacts is miniscule in comparison. Mr. David also explained how the uses specified in the Declaration of Restrictions are compatible with agricultural activities and associated rural residential uses, as well as promoting economic development in the County’s agricultural area. Petitioner contends that the Plan Amendment is inconsistent with Policy LU-1S, which states: The Miami-Dade County Strategic Plan shall be consistent with the Comprehensive Development Master Plan (CDMP). The Miami-Dade County Strategic Plan includes Countywide community goals, strategies and key outcomes for Miami-Dade County government. Key outcomes of the Strategic Plan that are relevant to the Land Use element of the CDMP include increased urban infill development and urban center development, protection of viable agriculture and environmentally-sensitive land, reduced flooding, improved infrastructure and redevelopment to attract businesses, availability of high quality green space throughout the County, and development of mixed-use, multi-modal, well designed, and sustainable communities. Petitioner offered no expert testimony to support this contention. Petitioner’s reliance on LU-1S is misplaced because that provision requires the Miami-Dade County Strategic Plan to be consistent with the Comprehensive Plan, not the other way around. As such, this policy is irrelevant to the Plan Amendment, as both Mr. Metcalf and Mr. David testified. Petitioner contends that the Plan Amendment is inconsistent with Policy LU-2B, which states: Priority in the provision of services and facilities and the allocation of financial resources for services and facilities in Miami-Dade County shall be given first to serve the area within the Urban Infill Area and Transportation Concurrency Exception Areas. Second priority shall be given to serve the area between the Urban Infill Area and the Urban Development Boundary. And third priority shall support the staged development of the Urban Expansion Area (UEA). Urban services and facilities which support or encourage urban development in Agriculture and Open Land areas shall be avoided, except for those improvements necessary to protect public health and safety and which service the localized needs of these non- urban areas. Areas designated Environmental Protection shall be particularly avoided. Petitioner offered no evidence or expert testimony to support this contention. By contrast, Mr. Metcalf opined that the Plan Amendment was not inconsistent with Policy LU-2B because that policy provides a specific exception for improvements that will serve “localized needs of these non- urban areas,” such as the proposed gas station and convenience store. Mr. David opined that the Plan Amendment is not inconsistent with Policy LU-2B because it does not request, require, or necessitate the expansion of the Urban Development Boundary (“UDB”) or the Urban Expansion Area (“UEA”), nor does it involve or propose the extension of urban services or facilities outside the 2020 UDB or into the Agriculture and Open Land areas. Mr. David explained that gas stations and convenience stores are not “services or facilities,” as those terms are used in the Comprehensive Plan, nor would the gas station or convenience store allowed by the Plan Amendment be an “urban” use. Therefore, urban services and facilities that support or encourage urban development in Agriculture or Open Land areas will continue to be avoided. Mr. David further explained, as County planning staff recognized, the Plan Amendment will not impact key infrastructure and Levels of Service (“LOS”) that exist within the UDB (including, but not limited to, water and sewer, transportation, solid waste, etc.). Although County staff found that, under the Plan Amendment, fire and rescue services for the Property would not meet national industry standards, Mr. David refuted that concern, explaining that the Comprehensive Plan does not require compliance with national industry standards for fire and rescue, nor does the Plan Amendment violate a County LOS standard for fire and rescue. Petitioner contends that the Plan Amendment is inconsistent with Objective LU-7, which states: Miami-Dade County shall require all new development and redevelopment in existing and planned transit corridors and urban centers to be planned and designed to promote transit-oriented development (TOD), and transit use, which mixes residential, retail, office, open space and public uses in a safe, pedestrian and bicycle friendly environment that promotes mobility for people of all ages and abilities through the use of rapid transit services. The Plan Amendment is not located in an existing or planned transit corridor or urban center. Objective LU-7 is not applicable to the Plan Amendment. Petitioner contends that the Plan Amendment is inconsistent with Policy LU-8C, which states: “Through its planning, capital improvements, cooperative extension, economic development, regulatory and intergovernmental coordination activities, Miami-Dade County shall continue to protect and promote agriculture as a viable economic use of land in Miami- Dade County.” Petitioner offered no expert testimony to support this contention. By contrast, Mr. Metcalf opined that the Plan Amendment was not inconsistent with Policy LU-8C. He explained that the policy contained a general directive for the County to promote and protect agriculture, but did not prohibit small scale plan amendments that respond to the existing needs of the surrounding agricultural and rural communities, such as the Plan Amendment. Further, Mr. David opined that the Plan Amendment is not inconsistent with Policy LU-8C. Again, he explained that the Plan Amendment pertains only to a small portion of the Parent Tract, which will continue to be actively used for agriculture; that the uses specified in the Declaration of Restrictions are compatible with agricultural activities and associated rural residential uses; and that those uses will promote economic development in the County’s agricultural area. He also explained that removing the Property from agricultural production would not reduce the number of acres in agricultural production below the threshold needed to sustain agriculture as a viable economic activity in Miami-Dade County. Mr. David further explained that there is no provision in the Comprehensive Plan categorically prohibiting the removal of agricultural land from agricultural production. Petitioner argued that the Plan Amendment would further degrade existing agricultural uses in the area because it could tempt ATV riders to trespass and ride their ATVs over nearby agricultural lands. Mr. David found that speculative concern immaterial to the analysis required by the Comprehensive Plan. Petitioner contends that the Plan Amendment is inconsistent with Policy LU-8E, which states: Applications requesting amendments to the CDMP Land Use Plan map shall be evaluated for consistency with the Goals, Objectives and Policies of all Elements, other timely issues, and in particular the extent to which the proposal, if approved, would: Satisfy a deficiency in the Plan map to accommodate projected population or economic growth of the County; Enhance or impede provision of services at or above adopted LOS Standards; Be compatible with abutting and nearby land uses and protect the character of established neighborhoods; Enhance or degrade environmental or historical resources, features or systems of County significance; and If located in a planned Urban Center, or within 1/4 mile of an existing or planned transit station, exclusive busway stop, transit center, or standard or express bus stop served by peak period headways of 20 or fewer minutes, would be a use that promotes transit ridership and pedestrianism as indicated in the policies under Objective LU- 7, herein. Petitioner offered no expert testimony to support this contention. By contrast, Mr. Metcalf opined that the Plan Amendment was not inconsistent with Policy LU-8E. As an initial matter, Mr. Metcalf explained that this Policy only requires an evaluation of “the extent to which” the subparts are satisfied, and does not set a threshold or a specific methodology. Regarding subpart (i), Mr. Metcalf explained the Plan Amendment addressed an existing and future need for a gas station, convenience retail products, fresh food, and supporting products for the agricultural industry within the general area, which currently lacks these offerings. In addition, he opined that the gas station would respond to a critical need to reduce fuel shortages during hurricane evacuations. As to subparts (ii-iv), Mr. Metcalf opined that the Plan Amendment would not impede provision of services at LOS standards; would enhance hurricane evacuations; would be compatible with nearby uses because the Parent Tract would continue to be used for agriculture, which would serve as a buffer between the Subject Property and adjacent uses; and that the Subject Property does not contain any environmental or historical resources, features, or systems of County significance. Further, Mr. David opined that the Plan Amendment is not inconsistent with Policy LU-8E. He explained, first, that Krome submitted with its application a Comprehensive Plan Consistency Evaluation study prepared by Mr. Metcalf, establishing that the Plan Amendment will help satisfy an existing deficiency in the Plan map by facilitating a convenience retail opportunity to serve the needs of the local population, who currently must drive on Krome Avenue at least three miles one way south of this location to SW 184th Street, or more than eight miles north, and then east on Kendall Drive (SW 88th Street), to reach the nearest equivalent services. In addition, there was significant support for the application by area residents, as evidenced by the petition submitted by Krome and the public testimony in favor of the Plan Amendment. Second, he explained that the Plan Amendment will not impede the provision of services at or above adopted LOS standards, as County staff noted in its report. On the contrary, with regards to traffic, the Plan Amendment may facilitate a reduction in trip generation and vehicle-miles traveled (“VMT”) on Krome Avenue from the existing residential community to the west and south, by providing a nearby convenience that may be reached without driving several miles north or south on Krome Avenue. Third, he opined that the Plan Amendment is compatible with abutting and nearby land uses and would protect the character of established neighborhoods—the large-scale solar power facility to the north, and the remainder of the 50-acre parcel that will remain in agricultural use to the west and south—will provide an appropriate buffer for the surrounding rural estate residential uses. Krome Avenue at this location is a 4-lane divided arterial with a 40-foot median, which also provides a significant buffer between the Plan Amendment site and the uses across Krome Avenue. In its evaluation, County staff recognizes that the “Business and Office” land use designation and the proposed development could be “generally compatible” with the existing agricultural uses and FPL’s Solar Energy Center. Mr. David opined that the assertion that the land use re-designation “would set a precedent for the conversion of additional agricultural land to commercial uses” is speculative and not only unproven, but refuted by the existing commercial development along the Krome Avenue corridor. The existing isolated uses along Krome Avenue, some of which are the same or similar uses that would be allowed by the Plan Amendment, are long-standing and have not led to urban development or infill in the area. Mr. David also testified that there are “very stringent policies” that restrict further development from occurring along Krome Avenue in this area, including Policies LU-3N and LU-3O. Fourth, Mr. David explained that the Plan Amendment will not degrade historical or archaeological resources, features, or systems of County significance, which is further confirmed by County staff’s own analysis. Regarding impacts to environmental resources, before any development proceeds on the Subject Property, the applicant must apply to all relevant state, regional, and local agencies for the applicable and necessary permits and variances, and if the applicant is unable to obtain such approvals due to environmental concerns, the project will not be permitted to proceed. In other words, while there is no evidence of adverse environmental impacts at the plan amendment stage, the applicant will have to satisfy all environmental requirements in subsequent stages of the development process to proceed with the project. Lastly, Mr. David explained that the Plan Amendment site is not located in an Urban Center or within 1/4 mile of an existing or planned transit station, exclusive busway stop, transit center, or standard or express bus stop served by peak period headways of 20 or fewer minutes; thus, the fifth and final consideration of Policy LU-8E is inapplicable to the Plan Amendment. Petitioner contends that the Plan Amendment is inconsistent with Policy LU-8G, which provides criteria for plan amendments that add land to the UDB. Because the Plan Amendment does not add land to the UDB, Policy LU-8G is irrelevant to the Plan Amendment. Petitioner contends that the Plan Amendment is inconsistent with Policy CHD-4A, which states: “Promote increased production and expand the availability of agricultural goods and other food products produced in Miami- Dade County.” Petitioner offered no expert testimony to support this contention. By contrast, Mr. Metcalf opined that the Plan Amendment was not inconsistent with Policy CHD-4A because the proposed store would support the local sale and consumption of goods from the community. Similarly, Mr. David opined that the Plan Amendment is not inconsistent with Policy CHD-4A. He explained that there is no metric associated with this aspirational policy, and noted that the approval of the Plan Amendment pertains only to a small portion of a larger agricultural site, the balance of which will continue to be protected and promoted for agricultural use. Moreover, he explained that the uses allowed by the Plan Amendment through the Declaration of Restrictions are limited to those permitted in the AU Zoning District, plus a fueling and convenience retail service use, which could support the sale and consumption of local agricultural goods. Petitioner contends that the Plan Amendment is inconsistent with Policy CON-6D, which states: “Areas in Miami-Dade County having soils with good potential for agricultural use without additional drainage of wetlands shall be protected from premature urban encroachment.” Petitioner offered no expert testimony to support this contention. By contrast, Mr. Metcalf opined that the Plan Amendment is not inconsistent with the policy because it affects only a five-acre tract, and because the Plan Amendment was justified by the existing demand. Further, Mr. David opined that the Plan Amendment is not inconsistent with Policy CON-6D. He noted, first, that according to the County, the Plan Amendment site does not contain jurisdictional wetlands. Second, he explained the Plan Amendment will not result in premature urban encroachment–i.e., a poorly planned expansion of low-density development spread out over large amounts of land, putting long distances between homes, stores, and work, and requiring an inefficient extension of urban infrastructure and services. According to Mr. David, the adopted Plan Amendment is the opposite of these characteristics because: a) it pertains to a very small site, with a range of permitted uses that is specifically limited by the accepted Declaration of Restrictions; b) it will reduce the distance between residents’ homes and local-serving convenience services; and c) it does not involve the extension of urban infrastructure and services. In addition, Mr. David opined that the term “premature” does not apply to the Plan Amendment, as evidenced by the public support of area residents for the gas and convenience uses and the applicant’s expert analysis of area need. Furthermore, Mr. David established that a gas station with a convenience store is not an “urban” use, and, therefore, the Plan Amendment does not allow “urban encroachment.” Petitioner contends that the Plan Amendment is inconsistent with Policy CON-6E, which states: “Miami-Dade County shall continue to pursue programs and mechanisms to support the local agriculture industry, and the preservation of land suitable for agriculture.” Petitioner offered no expert testimony to support this contention. By contrast, Mr. Metcalf opined that the Plan Amendment was consistent with Policy CON-6E because it affected less than five net acres, only 10 percent of the Parent Tract, and would provide convenience goods for the community and local farmworkers. He further explained, again, that the policy does not prohibit small-scale plan amendments that respond to a local need. Further, Mr. David opined that the Plan Amendment is not inconsistent with Policy CON-6E. He explained that the Plan Amendment does not prevent Miami-Dade County from continuing to pursue programs and mechanisms to support the local agriculture industry and the preservation of land suitable for agriculture. Moreover, the addition of the permitted uses on a small portion of an otherwise agricultural site, which will continue to be used for agricultural production, is not inconsistent with this policy. Urban Sprawl Petitioner alleges that the Plan Amendment fails to discourage the proliferation of urban sprawl, contrary to section 163.3177(6)(a)9, Florida Statutes. Petitioner offered no evidence or expert testimony to support this contention. By contrast, Mr. Metcalf opined that the Plan Amendment would not constitute scattered or discontinuous development because, inter alia, it would introduce uses designed to serve the existing nearby community. Mr. Metcalf opined that the Plan Amendment would allow for non-vehicular trips due to the proximity of the rural neighborhoods and would internalize vehicular trips without requiring access to Krome Avenue, consistent with strategies to discourage urban sprawl. Finally, Mr. Metcalf opined that at least six of the eight criteria provided in section 163.3177(6)(a)9.B. were satisfied by the Plan Amendment. Specifically, he opined that: The Plan Amendment will not have an adverse impact on natural resources or ecosystems; The Plan Amendment promotes the efficient and cost-effective provision or extension of public infrastructure and services because the subject property will not be served by public infrastructure and is already served by emergency services, and because it will reduce demand on roads from nearby neighborhoods, thereby reducing operational and maintenance costs; The Plan Amendment promotes walkable and connected communities and provides for compact development and a mix of uses at densities and intensities by providing convenience goods and services within walking or biking distance to nearby residential neighborhoods and local farm workers; The Plan Amendment promotes the conservation of water and energy by reducing water demands as compared to the former use of the Property, and by reducing existing trip lengths otherwise required to access goods and services; The Plan Amendment indirectly supports the preservation of agricultural areas and activities by providing diesel fuel, selling locally grown produce and other agriculturally supportive products, and by maintaining the agricultural use on the remainder of the Parent Tract; The Plan Amendment creates an improved balance of land uses by providing convenience goods and gasoline/diesel fuel in response to the demands of the neighborhood residents and local farm workers; The Plan Amendment remediates the existing, single use, urban sprawl development pattern by providing a commercial use in a compact urban form at an intensity to allow residents and local farm workers to obtain goods, gasoline, and diesel fuel without leaving the neighborhood; and The Plan Amendment does not impact the criterion for open space, natural lands and public open space. Similarly, Mr. David opined that the Plan Amendment would not result in the proliferation of urban sprawl; he analyzed each of the statutory indicators of urban sprawl in section 163.3177(6)(a)9.A. and found that none are present, meaning that the Plan Amendment does not fail to discourage the proliferation of urban sprawl. In addition, he found that four of the statutory indicators of the Plan Amendment that would discourage the proliferation of urban sprawl, are present. He found that the remainder were not applicable. Specifically, Mr. David opined that the Plan Amendment would meet the following four indicators: Directs or locates economic growth and associated land development to geographic areas of the community in a manner that does not have an adverse impact on and protects natural resources and ecosystems. As Mr. David explained, agriculture is a human development activity. Therefore, the Parent Tract is not in a natural state, nor does it contain natural resources and ecosystems. According to County staff’s own report, the Subject Property does not feature native wetland communities, specimen trees, endangered species, or natural forest communities. There are no jurisdictional wetlands, no water courses, and no federally designated critical habitat on the Subject Property or adjacent properties. The Subject Property is not in a wellfield. Other environmental considerations, including water and stormwater management, and flood protection, are directed through the pertinent permitting agencies at the appropriate time to ensure that any future development minimizes adverse impacts on the general environment. Promotes the efficient and cost-effective provision or extension of public infrastructure and services. As Mr. David opined, the Plan Amendment does not involve or require the provision or extension of County-owned public infrastructure and services. This, therefore, meets the definition of the terms “efficient” and “cost- effective,” since the County will not have to invest time or funding in the extension of such infrastructure and services. The County staff’s own report finds, as a fact, that the amendment would not negatively impact existing infrastructure and service within the UDB. Moreover, the contention that fire and rescue services would not meet national industry standards is irrelevant because: (1) the Comprehensive Plan does not adopt the national industry standard as the LOS; and (2) the Plan Amendment would not negatively impact current estimated travel times for fire and rescue services. Further, as Mr. David testified with respect to the first set of urban sprawl indicators, the Plan Amendment would not disproportionately impact fire and rescue services. V. Preserves agricultural areas and activities, including silviculture, and dormant, unique, and prime farmlands and soils. As Mr. David explained, the Plan Amendment preserves agricultural areas and activities because the balance of the Parent Tract will continue to be preserved as crop land, and because the uses allowed in the proffered Declaration of Restrictions include agricultural uses and a fueling station that could include the sale of diesel, which is in demand for agricultural uses. VII. Creates a balance of land uses based upon demands of the residential population for the nonresidential needs of an area. As Mr. David opined, today the area does not have a balance of land uses, as it is entirely dominated by rural estate residential and agricultural uses. By introducing a gas and convenience use supportive of agriculture, the Plan Amendment will create a better balance of land uses in the area. Today, the local population does not have access to any type of convenience shopping in the vicinity of this location, because it is situated along an 11-mile gap between such uses on Krome Avenue. Contrary to the contention that the applicant failed to demonstrate the use is needed or required by residents, the applicant provided written evidence of support from over 100 neighbors about the need for the proposed nonresidential use and its benefit to their quality of life. Moreover, according to the public hearing record, many residents also attended the public hearings to express their support for the Plan Amendment. Further supporting the finding of need, the corporate representative of Krome testified in detail about the neighborhood’s need for a gas station and convenience store. Data and Analysis Finally, Petitioner alleges that the Plan Amendment “is not based upon the relevant and appropriate data and analysis provided by the County planning staff at the Department of Regulatory and Economic Resources, as required by section 163.3177(1)(f), Florida Statutes.” Petitioner also alleges that the Plan Amendment is based on “the convenience of access to fuel for private property owners in the area and not on relevant data and analysis.” Petitioner’s allegations, both in the Amended Petition and the Joint Pre- Hearing Stipulation, are conclusory and do not supply any discernible rationale for why she contends the Plan Amendment is not based on relevant and appropriate data and analysis. Petitioner offered no evidence or expert testimony to support these contentions. By contrast, Mr. Metcalf opined that the Plan Amendment is based on “relevant and appropriate data and analysis” supporting the Plan Amendment contained in the record. Namely, the following sources constitute such “relevant and appropriate data and analysis”: Mr. Metcalf’s Comprehensive Plan Consistency Evaluation, which contains 78 pages of comprehensive data and analysis supportive of his consistency findings; a petition of support for the Plan Amendment signed by over 100 members of the surrounding community; testimony from community members at various public hearings indicating a need for the Plan Amendment; and a letter from the Dade County Farm Bureau stating that the organization had no objection to the Plan Amendment Further, Mr. David also opined that the Plan Amendment is based on, and supported by, appropriate data and analysis. He explained that the video recordings and the legislative history of the adoption hearings related to the disposition of the Plan Amendment application clearly show that the County Commission duly considered the analysis provided by County staff before making a decision. Commissioners asked staff members thoughtful questions and discussed various findings of the staff report throughout the public hearings. Mr. David explained that County staff’s input is not the only criterion upon which elected officials may rely. Indeed, relevant data and analysis were also submitted by the applicant as part of the Plan Amendment application, including the Comprehensive Plan Consistency Evaluation study prepared by Mr. Metcalf. The Consistency Evaluation study relies on professionally accepted data sources and Mr. Metcalf’s extensive expertise to provide a sound rationale for the requested Plan Amendment. The County Commission considered, and reacted in an appropriate way to, such relevant and appropriate data. The County Commission received and considered community input in the form of public testimony, much of which was in support of the Plan Amendment, as well as the applicant’s petition of support from members of the surrounding community expressing need for local gas and convenience uses. Finally, Mr. David’s expert report itself supplies further data and analysis supporting the Plan Amendment. Other Allegations Petitioner alleges that the Plan Amendment “depletes the Urban Development Boundary and Urban Expansion Areas.” The Comprehensive Plan includes the UDB to distinguish the area where urban development may occur from areas where it should not occur. The Comprehensive Plan defines the UEA as “the area where current projections indicate that further urban development beyond the 2020 UDB is likely to be warranted sometime between the year 2020 and 2030.” Petitioner fails to identify any inconsistency between the Plan Amendment and any UDB or UEA policies based on her assertion that depletion will occur. Moreover, there are no goals, objectives, or policies in the Comprehensive Plan that address the concept of “depleting” the UDB or UEAs. Petitioner also alleges that the County adopted the Plan Amendment “to benefit[] other private property owners and special interests.” Petitioner introduced no evidence to support this allegation, and the allegation is also irrelevant to whether the Plan Amendment is “in compliance.”
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity enter a final order determining that the Plan Amendment adopted by Miami-Dade County Ordinance No. 20-47, on May 20, 2020, is “in compliance,” as that term is defined by section 163.3184(1)(b), Florida Statutes. DONE AND ENTERED this 16th day of April, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Mary K. Waters Post Office Box 700045 Miami, Florida 33170 Christopher J. Wahl, Esquire Miami-Dade County Attorney's Office Suite 2810 111 Northwest 1st Street Miami, Florida 33128 Alannah Shubrick, Esquire Shubin & Bass, P.A. Third Floor 46 Southwest 1st Street Miami, Florida 33130 Tom Thomas, General Counsel Department of Economic Opportunity Caldwell Building, MSC 110 107 East Madison Street Tallahassee, Florida 32399-4128 Janay Lovett, Agency Clerk Department of Economic Opportunity Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128 S SUZANNE VAN WYK Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of April, 2021. James Edwin Kirtley, Assistant County Attorney Miami-Dade County Attorney's Office Stephen P. Clark Center, Suite 2810 111 Northwest First Street Miami, Florida 33128 Mark E. Grafton, Esquire Shubin & Bass Third Floor 46 SW 1st Street Miami, Florida 33133 David Winker, Esquire David J. Winker, P.A. 2222 Southwest 17th Street Miami, Florida 33145 Dane Eagle, Executive Director Department of Economic Opportunity Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128
The Issue The issues in this case are: Whether a Residential Office (RO) designation for the thirty acre parcel at the southeast corner of McMullen-Booth and Curlew Roads, which is owned by Gas Kwik (Petitioner), is consistent with the Countywide Comprehensive Plan for Pinellas County (Countywide Plan); or Whether a split designation of RO for the northern nine acres with Low Density Residential (LDR) for the southern twenty-one acres of the subject parcel, as recommended by the Pinellas Planning Council (PPC), is consistent with the Countywide Plan and supported by competent substantial evidence, and Whether the PPC is authorized to initiate this split designation amendment rather than limiting its review and recommendation to the RO designation which was approved by the City of Safety Harbor (City), and forwarded to the PPC by the City as a proposed amendment to the Countywide Plan.
Findings Of Fact The Petitioner owns a thirty acre parcel of property located in the City of Safety Harbor, Pinellas County, Florida, which is the subject of the proposed land use change at issue in this case. The PPC is the countywide land planning agency charged with development and implementation of the Countywide Plan. As it relates to this case, it is responsible for review of the proposed amendment to the Countywide Plan concerning Petitioner's parcel, and for recommending action on that amendment to the Board of County Commissioners. The City of Safety Harbor (City) received the Petitioner's application for a redesignation of the subject property from Suburban Low Density Residential (SLDR) to Residential/Office/Retail (ROR), and after review it approved an amendment to the City's land use plan map on March 6, 1989, which redesignated Petitioner's property to Residential/Office (RO). Thereafter, the City requested an amendment to the Countywide Plan to change the designation of the subject property to RO. After review, the PPC recommended denial of the City's request, and further, recommended an alternative split designation of Residential/Office - Low Density Residential (RO/LDR). Neither the City nor the Petitioner have agreed to the PPC's compromise alternative. The Petitioner timely filed its request for a hearing on the PPC's denial of the City's request, and its recommendation of the split alternative. The City did not seek to become a party to this action, but as the owner of the property in question, the Petitioner is substantially affected by the PPC's action, and its right to maintain this action without the participation of the City is not at issue. Location and Characteristics of the Property The subject property is located at the northwestern boundary of the City, bordered on the north by unincorporated Pinellas County, on the west by the City of Clearwater, and on the east, across the Lake Tarpon Outfall Canal, by the City of Oldsmar. The property lies at the intersection of McMullen- Booth and Curlew Roads, both of which are designated scenic, non- commercial corridors, although where it abuts the subject property Curlew Road is not so designated. The City does not recognize this portion of McMullen-Booth Road within its jurisdiction as a scenic, non-commercial corridor. Across Curlew Road to the north of the Petitioner's parcel is a vacant tract of about 7.5 acres in unincorporated Pinellas County that is currently designated SLDR, which allows 2.5 units per acre. The adjoining property to the south is also a vacant parcel in unincorporated Pinellas County, with a designation of SLDR, and is approximately 30 acres in size. Further to the south, is Mease Countryside Hospital and related office and health care facilities. Across the Lake Tarpon Outfall Canal to the east is a low density residential mobile home park in the City of Oldsmar with a land use designation that allows 7.5 units per acre. A residential subdivision in which one lot abuts the subject property is located to the southeast. Across McMullen-Booth Road to the west in the City of Clearwater are a single family residential area and nursing home, with land use designations which allow from 1 to 5 units per acre. Mease Countryside Hospital, and associated offices, are appropriately located along McMullen-Booth Road to the south of the subject property since this location is consistent with the relevant portion of the Countywide Plan that states, "Hospitals should continue to be built adjacent to freely moving traffic corridors so that they are conveniently accessible to emergency and private vehicular traffic." The siting of the nursing home to the west of the Petitioner's parcel, across McMullen-Booth Road, is consistent with those portions of the Countywide Plan which provide, "Nursing homes should be built near community hospitals whenever possible in order to encourage inter-institutional activities", and which encourage prospective builders of nursing homes to locate such facilities in residential settings. There is a clear potential for a substantial impact on surrounding jurisdictions from the development of the subject property. Approval of the proposed RO designation, with its allowable density of 15 units per acre, can reasonably be expected to result in pressure to redesignate the vacant parcel located to the immediate south of the subject property from its current SLDR designation, allowing 2.5 units per acre, to the higher density allowable under RO, which is, in fact, the highest density allowed in the unincorporated county. Concerns of other jurisdictions must be considered under the Countywide Plan, which sets forth the following guidelines for intergovernmental coordination: Evaluate the potential impacts proposed programs and activities may have on adjacent government entities before actively pursuing implementation. Consider the programs and activities of surrounding jurisdictions before making decisions which may have multi-jurisdictional affects. The subject property is vacant and consists of approximately thirty acres. Its current designation is SLDR, which allows up to 2.5 units per acre. This current designation is consistent with surrounding residential uses. The Possum Branch Creek drainageway traverses the property in an approximately east to west direction, with approximately nine acres lying to the north and twenty-one acres to the south. The original channel was meandering, but currently it is a straight line with a spoil bank on the north side. This is a channelized, natural drainageway which is classified as a major drainageway under the Drainage Element of the Countywide Plan, which includes the policy of restoring drainageways to their natural course whenever possible. Significant portions of the southern twenty-one acres of this parcel lie within the 100 year flood plain. Residential land use designations in the Countywide Plan provide that densities of greater than five units per acre are inappropriate for areas with significant environmental constraints, such as areas within the 100 year flood plain. While development in a flood plain is not prohibited, relevant portions of the Plan specifically list both SLDR and LDR, which allow densities of from 2.5 to 5 units per acre, as appropriate for flood zone restricted property. The southern portion of the property includes a portion of a five acre eagle protection area which extends to the south and southeast beyond the Petitioner's property, and which separates this property from the existing residential subdivision to the southeast and vacant property to the immediate south. It extends into the vacant parcel to the south The Eagle's continued use of this area is uncertain. Because the Countywide Plan allows for the transfer of development density out of this eagle protection area, the existence and location of this area does not favor any particular pattern of development on the subject property. The predominate vegetation on the parcel consists of oak trees located in the right-of-way of McMullen- Booth Road in the southwest corner of the site. Scenic Non-Commercial Corridor The purpose and intent of the scenic, non- commercial corridor policy in the Countywide Pan is to protect the corridor's traffic carrying capacity, to limit adjacent non- residential uses, and to encourage the scenic and natural qualities along the corridors. It is a policy of long-standing application, originally adopted in 1977, and covers six such corridors, including McMullen-Booth Road. Stability and control of land uses along such corridor is a significant component of transportation planning for the corridor. Commercial uses allowed under the RO land use designation are not permitted within 500 feet of the right-of-way of a designated scenic, non-commercial corridor, unless approved by plan amendment or recognized on the Future Land Use Plan. No dwelling units may be located within 350 feet of the scenic, non- commercial corridor right-of-way. Two parcels with an RO designation exist south of the Mease Hospital, but each of these were authorized while the PPC lacked authority to apply the scenic, non-commercial corridor policy and before the effective date of the Countywide Plan. Under the Countywide Plan, there have been no deviations from the protection of the scenic, non-commercial corridor policy along McMullen-Booth Road, and in several specific instances the PPC has, without exception, refused to recommend approval of amendments which would have been inconsistent with that policy. While there are instances of multi-family, office and commercial development along McMullen-Booth Road, the land use designations along this scenic, non-commercial corridor are predominantly residential intermixed with vacant parcels, particularly north from the intersection of State Road 580 with McMullen-Booth to Curlew Road where there is a total of only 12 to 15 acres of office uses and these offices are associated with Mease Hospital. Petitioner's proposed RO amendment would more than double the number of acres on this portion of the corridor presently designated for office use. The predominant land use along McMullen-Booth north of Curlew Road to State Road 584 is also residential intermixed with vacant parcels. The non-residential intensity level established as appropriate for preserving the traffic carrying capacity along the scenic, non-commercial corridor is similar to the LDR density of 5 units per acre. However, the RO designation sought by the Petitioner allows densities of 15 units per acre, and therefore, this scale of potential non-residential use would be inconsistent with the pattern of development along this portion of the McMullen-Booth corridor from State Roads 580 to 584, and with the Countywide Plan which states, "Land planning should weigh heavily the established character predominately developed in areas where changes of use or intensity of development is contemplated. It is the position of the Petitioner that the subject property falls within a commercial node, or commercial intersection, which should be excepted from the scenic, non- commercial corridor policy. However, that policy does not specifically include an exception for "commercial nodes", and in fact such commercial nodes were not shown to exist between State Roads 580 and 584 on McMullen-Booth. There is a nodal exception policy in the housing element of the Countywide Plan which provides that higher density residential areas should be located in proximity with commercial nodes, and in areas immediately served by arterial streets and mass transit. The scenic, non-commercial policy, in contrast, encourages low density residential development and discourages mass transit. In fact, the area surrounding the subject property is not planned to receive mass transit service. The intersection of Curlew and McMullen-Booth Roads is significantly different from commercial nodes recognized in the MPO long range plan where large areas of high density residential development are concentrated, such as at the intersection of State Roads 584 and 580, and at the intersection of State Roads 586 and 584. Unlike other nodes, the subject property has only one limited access point onto McMullen-Booth, and no access onto Curlew. It is also the position of Petitioner that there would be minimum impacts resulting from an RO designation on the year 2010 Plan levels of service along this corridor. However, this is based upon the unrealistic assumption that such designation of this parcel would not result in a proliferation of similar higher density redesignations for the vacant thirty acre parcel to the south, as well as for other vacant parcels along the corridor. Such a proliferation would result in the elimination of any visual relief and any scenic transition along McMullen-Booth Road. Traffic Considerations Curlew Road (State Road 586) is presently a two- lane road in the vicinity of the subject property, while McMullen-Booth is a four-lane divided road adjacent to the property. In the MPO Year 2010 Plan, Curlew Road is designated as a six-lane divided roadway, and McMullen-Booth is designated as a four-lane divided facility. Portions of McMullen-Booth south of State Road 580 are designated for six-laning. The right-of-way design for the intersection of McMullen-Booth and Curlew Roads abutting the subject property has been designed to accommodate an elevated six-lane urban interchange, and pavement width of McMullen-Booth at this intersection is sufficient to allow it to be striped as a six-lane divided roadway at some, undetermined time in the future. While these roadway improvements have been budgeted for construction through 1992-93, no assurance of funding was shown, and therefore, these improvements are considered to be planned, but not committed. According to David Healey, who was accepted as an expert in land use and municipal planning, approval of the RO designation sought by the Petitioner will result in a 750% increase in projected vehicle trips per day over what would result from the present designation of this property as SLDR upon which these roadway improvements were planned. According to Hubert Pascoe, who was called by the PPC arid was accepted as an expert in MPO planning, Petitioner's request would generate approximately 250% more vehicle trips per day than the alternative split designation recommended by the PPC. Nevertheless, under either proposal the levels of service for these adjacent roadways would remain acceptable under the MPO Year 2010 Plan, and while an RO designation would intensify use and lower service levels somewhat, it would not create an unacceptable level of service. However, the impact of an RO designation on existing traffic and upon these adjacent roadways as they presently exist would be substantial, and is reasonably estimated to result in as much as a 30% increase in existing traffic. The Countywide Plan specifies that the "scale of (any) proposed land use development should be compatible with the capacity of existing supporting facilities, such as roads and facilities." While roadway improvements are planned, as found above, the substantial impact on existing facilities of this RO designation, without those improvements in place, would threaten continued acceptable service levels for these unimproved, existing facilities, and would perpetuate a pattern of development preceding essential facility improvements which results in unacceptable levels of service for existing facilities until planned improvements can catch up with such growth. The designation of McMullen-Booth as a scenic, non-commercial corridor, with resulting limitations on commercial and high density development, has significantly influenced the transportation planning that has taken place with regard to this corridor, and the identification of appropriate roadway improvements, specified above. The present SLDR designation of this parcel is consistent with the low intensity transportation planning assumptions considered under the Countywide Plan. Significant changes in adjoining land uses, such as redesignating vacant parcels from SLDR to RO, would result in significant changes in projected impacts and render such planning less meaningful and relevant. The RO designation sought by the Petitioner is inconsistent with basic assumptions used in the identification of projected traffic impacts that lead to the development of proposed roadway improvements which both parties acknowledge and contend will be sufficient to handle expected traffic volumes. It is unrealistic since it ignores the basic fact that these anticipated improvements are premised upon the continued viability of this scenic, non-commercial corridor which excludes high density, commercial development. The Countywide Plan states that, "The transportation system should not dictate the form and future development pattern but should be a supporting service system for the area's development plan." The transportation system can only function as a "supporting service system" when the area's development plan remains consistent, and when long standing policies, such as a scenic, non-commercial corridor, are not abandoned on a piecemeal basis. The fact that Mease Hospital is appropriately located along the McMullen-Booth corridor, south of the subject property, is not a basis on which this RO designation should be approved. Such a designation would contribute to an increase in the traffic burden on the McMullen-Booth corridor, especially when the potential for additional RO amendments based upon this redesignation is considered, and this could reasonably be expected to result in the elimination of this as a "freely moving traffic corridor" upon which the hospital siting was based. There is limited accessibility to the subject property with only northbound traffic on McMullen-Booth Road having direct access to the site. All other traffic is required to go through the McMullen-Booth and Curlew Road intersection and make a left hand turn from McMullen-Booth southbound across northbound traffic onto the site. Given this very limited access, an RO designation, with its densities up to a maximum of 15 units per acre, is inappropriate. The fact that this parcel has limited accessibility was a significant factor in the transportation planning process. The Petitioner's analysis is based upon the unrealistic assumption that other land use changes would not occur on these adjacent roadways between the present and the year 2010, even if an RO designation is approved for this parcel. The reasonable likelihood that the owners of similar parcels along McMullen-Booth Road will seek higher densities for their properties, if this RO designation is approved, must be considered in any meaningful analysis. Development Potential Petitioner does not allege that the current SLDR designation of the subject property is confiscatory. Evidence offered by Petitioner that it has been unable to market this property for low density residential development was neither competent nor substantial. Additionally, the extent and diligence of these marketing efforts is suspect since Petitioner purchased this property for the purpose of high density, commercial and office development, despite its low density residential designation, as well as that of parcels to the south and east, and also since Petitioner remains primarily interested in office and high density development. According to the Petitioner, an RO designation would serve as an appropriate buffer, or step-down, between the existing low density mobile home park, residential area, and vacant SLDR parcel to the east, southeast and south, respectively, and the high intensity activity intersection of McMullen-Booth and Curlew Roads to the north. However, the pertinent provision in the Countywide Plan provides that "development patterns should recognize and support coherent neighborhoods. Neighborhoods should be insulated wherever possible from disruptive land uses and nuisances." Placing an RO designation on the subject property lying to the north and west of residential parcels would not serve as a buffer for those residential parcels designated SLDR, nor would it insulate them from potential commercial and office development which would then be authorized for the subject property. While RO is recognized in the Countywide Plan as an appropriate buffer between major traffic corridors and LDR (5 units per acre), it is not recognized to be an appropriate buffer between such high intensity activity areas and SLDR (2.5 units per acre). The fact that there is a fully developed and apparently successful, low density, residential subdivision to the west of the southern portion of the Petitioner's parcel, across McMullen-Booth Road, conclusively establishes that this area is appropriate for residential development. Additionally, to the west of the northern portion of the subject property, across McMullen-Booth, is a nursing home. While there was evidence that residents in the subdivision have blocked some access roads into their subdivision to limit traffic on residential streets entering the subdivision from McMullen-Booth, there was no competent substantial evidence to establish that residents have been selling their homes at below market value in order to leave the subdivision, whether the rate of home sales has been increasing, or that noise levels resulting from traffic along McMullen-Booth for residents of the subdivision or the nursing home are unacceptably high. The Countywide Plan requires site planning regulations which protect residential development from such noise concerns by providing buffers along arterial roadways, including berms, walls, or woody vegetation. The open space set-back requirement of the scenic, non-commercial corridor policy is well suited for use as a buffer. Most Appropriate Designation: RO vs. RO/LDR The Petitioner seeks approval from the Board of County Commissioners of the City's action redesignating the subject 30 acre parcel from SLDR (2.5 units per acre) to RO (15 units per acre). The PPC has recommended a split designation of RO on the northern 9 acres and LDR (5 units per acre) on the southern 21 acres of Petitioner's property. The split designation provides an appropriate buffer between low density residential development and vacant parcels to the east and south, as well as projected high volume traffic at the intersection of Curlew and McMullen-Booth Roads. The southern 21 acres of the property would provide an appropriate transition density of 5 units per acre from the 2.5 units per acre to the south, and the 15 units per acre which would be allowed in the northern RO portion of the subject property adjacent to the roadway interchange. Traffic volumes at the interchange do not justify redesignating the entire parcel RO, since this would ignore, and be inconsistent with, the Countywide Plan policy of buffering low density residential areas designated SLDR. The use of Possum Creek Branch drainageway to separate the RO and LDR designations on the subject property, as recommended by the PPC, is logical and consistent with the depth of other non-residential designations along Curlew Road, as well as with prior actions by the PPC in recognition of an interchange influence area. The RO designation sought by Petitioner is inconsistent with the fact that the southern 21 acres of this parcel lie within the 100 year flood plain where low density development under SLDR or LDR is allowed, as recommended under the PPC's split designation. The scale of allowable development under an RO designation of up to 15 units per acre is not consistent with the pattern of development along the McMullen-Booth scenic, non- commercial corridor, north of State Road 580 through the Curlew Road intersection to State Road 584, or with Countywide Plan policies which seek to protect existing development patterns. The split designation recommended by the PPC does provide for consistency with existing patterns of development along adjacent portions of McMullen-Booth. The LDR designation on the southern 21 acres of the subject property aligns with the residential subdivision to the west, across McMullen-Booth Road, and is consistent with residential densities in that subdivision, as well as densities to the east and southeast. The subject property's existing SLDR designation is consistent with surrounding residential uses, with concerns for intergovernmental coordination expressed in the Countywide Plan, and with the low intensity assumptions used for transportation planning. The PPC's split designation balances these concerns for intergovernmental impacts with the Petitioner's stated desire for high density development. An LDR designation for the southern 21 acres of this parcel will provide for a viable opportunity for development, consistent with other residential developments to the west, southeast and east, and with sound planning principles. The RO designation sought by Petitioner would result in unplanned, contiguous uses along McMullen-Booth and Curlew Roads which would be inconsistent with basic assumptions that have gone into planned improvements to these roadways. Stability and control of land uses along the adjoining scenic, non-commercial corridor is a significant aspect of transportation planning for the McMullen-Booth Road corridor, which is premised upon low density residential development. Petitioner's traffic projections, concluding that land use changes associated with an RO designation would have no significant impact on the functional capacity of these adjacent roadways and planned interchange improvements, were not based upon competent substantial evidence, and were conclusively rebutted by evidence of adverse, cumulative, unplanned impacts presented by the PPC. Due to this parcel's limited accessibility, an RO designation for the entire site is inappropriate because it will result in significant adverse impacts on the traffic carrying capacity of the adjacent scenic, non-commercial corridor. The PPC's split designation retains significant low density residential acreage, which is consistent with limited access points and protection of the corridor's traffic carrying capacity. The split designation recommended by the PPC is consistent with the scenic, non-commercial corridor policies of the Countywide Plan since it will prevent the proliferation of high density development, maintain visual relief and scenic transition along McMullen-Booth Road north from Mease Hospital, and limit non-residential development along the corridor. The development of 30 acres under an RO designation at this intersection would represent an isolated nodal increase in intensity which would be inconsistent with development along this portion of the McMullen-Booth corridor, and would occur without any plans to provide mass transit services to this area. Thus, this would be inconsistent with the nodal exception policy adopted by the PPC which identifies community nodes as areas immediately served by arterial streets and mass transit. The PPC split designation does allow limited intensification of development on the northern 9 acres of the subject property immediately adjacent to the McMullen-Booth and Curlew Road intersection, thereby recognizing a reasonable extent of impact from intersection traffic and improvements. This is a reasonable approach, consistent with the Countywide Plan. Approval of the Petitioner's request for RO designation of this entire 30 acre parcel would be inconsistent with prior decisions of the PPC under the scenic, non-commercial corridor policy. The split RO/LDR designation is a reasonable compromise of competing interests and policies, and is consistent with pertinent portions of the Countywide Plan.
Recommendation Based upon the foregoing, it is recommended that the Pinellas County Board of County Commissioners enter a Final Order disapproving an RO designation for Petitioner's subject property, and approving, as a compromise, the PPC's split designation of RO/LDR, subject to the Petitioner and the City of Safety Harbor affirmatively joining in said compromise. DONE AND ENTERED this 27th day of February, 1990, in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 27th day of February, 1990. APPENDIX (DOAH CASE NO. 89-3438) Rulings on the Petitioner's Proposed Findings of Fact: 1. Adopted in Finding 1. 2-4. Adopted in Finding 3. 5. Adopted in Finding 2. 6-7. Adopted in Finding 3. 8-9. Adopted in Findings 6 and 7. 10-11. Adopted in Finding 12. 12-13. Adopted in Finding 6. Adopted in Findings 5, 7, 10, 12. Rejected in Findings 8, 27, 35. Adopted in Findings 6, 21. Rejected in Findings 6, 30, and otherwise not based on competent substantial evidence. Rejected in Finding 12. Rejected in Findings 32-40, and otherwise as speculative. 20-23. Rejected as immaterial and unnecessary. 24-25. Adopted in Finding 21. 26. Rejected as immaterial and unnecessary. 27-29. Adopted in Finding 21. 30-31. Rejected as unnecessary. 32. Adopted in Finding 22. 33-37. Rejected as unnecessary. Adopted in Finding 22. Rejected in Findings 24, 26, and otherwise not based on competent substantial evidence. Rejected as irrelevant and as simply a summation of testimony rather than a proposed finding of fact. Rejected in Findings 24 and 26. 42--43. Rejected as irrelevant and immaterial. 44-45. Rejected in Finding 10. 46-47. Rejected as irrelevant and immaterial. 48. Adopted in Finding 11. 49-50. Rejected as speculative and not based on competent substantial evidence. 51-53. Rejected as irrelevant and immaterial. Rejected in Finding 19. Rejected in Findings 13-20, and 40. Rejected in Finding 16, and otherwise as irrelevant. Adopted in Finding 8. Rejected in Finding 16, and otherwise as irrelevant. Rejected in Findings 18, 19, 39. Adopted in Finding 14. Rejected as irrelevant and not based on competent substantial evidence. Rejected in Findings 16, 18, 19, 39. Adopted in Findings 33 and 39. 64-67. Rejected in Findings 13, 16, 18, 19, 34, 37-40. Adopted and Rejected in part in Findings 3, 33, 38-40. Rejected in Findings 18, 19 and 39. Adopted in Finding 13. Rejected as irrelevant and immaterial Rejected in Findings 18, 19 and 39. Adopted in Finding 14, but otherwise Rejected as speculative and immaterial. Adopted in Findings 17 and 24. 75-78. Rejected as immaterial. Rejected as irrelevant and immaterial. Rejected in Findings 18 and 19. Rejected in Finding 8, and otherwise as irrelevant and immaterial. Adopted in Finding 14. Rejected as irrelevant and immaterial. Adopted in Finding 5. Rejected as irrelevant and immaterial, and as not based on competent substantial evidence. Adopted in Finding 28. 87-88. Rejected in Findings 28 and 30. 89-90. Rejected as irrelevant and immaterial. Rejected as not based on competent substantial evidence. Rejected in Findings 28 and 30. Adopted in Finding 30. Rejected as not based on competent substantial evidence. Rejected in Findings 18, 19 and 39. Rejected in Finding 16 and otherwise as irrelevant and immaterial. Rejected as not based on competent substantial evidence. 98-99. Rejected as speculative and immaterial. Rejected in Finding 8. Adopted in Finding 5, but Rejected in Finding 16. Rejected in Finding 29. Rejected as immaterial, irrelevant and contrary to competent substantial evidence. Rejected in Findings 34-40 and otherwise as contrary to competent substantial evidence. 105-106. Rejected as unnecessary. Rejected in Findings 32-40. Rejected in Finding 29. Rejected in Findings 32-40, and otherwise as unnecessary and immaterial. Rejected in Finding 25, and as not based on competent substantial evidence. 111-112. Rejected in Findings 32-40. 113-165. Rejected in Findings 8, 9, 11, 12, 16-20, 22, 24-27, 29, 30 and 32-40, and otherwise as unnecessary, irrelevant, and needlessly cumulative and duplicative of previous proposed findings of fact. Rulings on the PPC's Proposed Findings of Fact: Adopted in Finding 2. Adopted in Finding 1. Adopted in Finding 4. 4-5. Adopted in Finding 8. 6. Adopted in Finding 5. 7-8. Adopted in Findings 11 and 33. 9-10. Adopted in Finding 10. 11. Adopted in Finding 33. 12. Adopted in Findings 9 and 10. 13. Adopted in Finding 33. 14. Adopted in Finding 12. 15. Adopted in Findings 6 and 12. 16-17. Adopted in Finding 6. 18. Adopted in Finding 16. 19. Adopted in Finding 30. 20-21. Adopted in Finding 7. 22-23. Adopted in Finding 16. 24. Adopted in Finding 15. 25-26. Adopted in Finding 16. 27. Adopted in Finding 17. 28. Adopted in Finding 9. 29. Adopted in Findings 17 and 34. 30-31. Adopted in Findings 29, 32 and 39. 32. Adopted in Findings 16 and 17. 33. Adopted in Finding 9. 34. Adopted in Finding 40. 35-40. Adopted in Findings 8, 20, 24, 27 and 35. 41-42. Adopted in Finding 28. 43-46. Adopted in Finding 30. Rejected as unnecessary and immaterial. Adopted in Finding 30. 49-50. Rejected as unnecessary and immaterial. Adopted in Finding 22. Adopted in Finding 23. 53-59. Adopted in Findings.24 and 36, but otherwise Rejected as cumulative and unnecessary. Adopted in Finding 26. Adopted in Finding 23. Adopted in Finding 27. Adopted in Finding 36. Rejected as unclear in the use of the term "particular amendment". Rejected as cumulative and unnecessary. Adopted in Finding 35. Adopted in Finding 39. 68-70. Adopted in Findings 13 and 16. Adopted in Finding 17. Adopted in Finding 20. 73-74. Adopted in Findings 21 and 23, but otherwise Rejected as cumulative and unnecessary. 75-76. Rejected as cumulative and unnecessary. 77-78. Adopted in Findings 37 and 40. 79-83. Rejected as cumulative and unnecessary. 84-85. Adopted in Finding 38. 86-87. Rejected as cumulative and unnecessary. 88-98. Adopted in Findings 18, 19 and 39, but otherwise Rejected as cumulative and unnecessary, 99-100. Adopted in Finding 40. 101-107. Rejected as cumulative and unnecessary. COPIES FURNISHED: James L. Bennett, Esquire Assistant County Attorney 315 Court Street Clearwater, FL 34616 Keith W. Bricklemyer, Esquire 777 South Harbour Island Blvd. Suite 350 Tampa, FL 33602 David P. Healey Executive Director Pinellas Planning Council 440 Court Street Clearwater, FL 34616
The Issue The issue is whether the Petition to Establish the Bexley Community Development District I (Petition) meets the applicable criteria set forth in Chapter 190, Florida Statutes (2006),1 and Florida Administrative Code Rule Chapter 42-1. The purpose of the hearing was to gather information in anticipation of quasi- legislative rulemaking by the Florida Land and Water Adjudicatory Commission (Commission).
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 in this case is whether the City's Future Land Use Map (FLUM) Amendment for Site 7 is "in compliance," as defined in Section 163.3184(1)(b), Florida Statutes.1
Findings Of Fact The City of Groveland is located in Lake County, mostly north of State Road 50 and the northeastern corner of the Green Swamp. The core of the City is in the vicinity of the intersections of State Road 50 with State Road 33 (to the south) and State Road 19 (to the north). There are many lakes and wetlands within the City and surrounding the City in Lake County. The Green Swamp was designated an Area of Critical State Concern by the Florida Legislature in 1979. It consists of approximately 500 million acres south from the City through south Lake County and into Polk County. It is bordered on the east by U.S. Highway 27 and on the west extends over the County line into Sumter County. The Green Swamp is important as a statewide resource to Florida because it is one of the last remaining intact ecosystems in Florida. It is one of Florida's largest wetland systems, second only to the Everglades. It includes the headwaters of five rivers, and provides recharge to the Floridan Aquifer, the primary source of drinking water for Florida. It is an ecologically and hydrologically significant resource. It provides habitat for many endangered species including gopher tortoise, scrub jay, and wood stork. In 2003, the City annexed the parcels known in this proceeding as Sites 4, 5, 6, and 7 from Lake County into the City. All of the parcels are located east of State Road 33 and south of State Road 50 and within the boundaries of the Green Swamp. Sites 4, 5, and 6 total 171.1 acres of wetlands bordering Sumner Lake and the City's boundaries before annexation. Site 7 consists of 361 acres (264 acres of uplands and 97 acres of wetlands). (There is an approximately 70-acre County "enclave" in the middle of Site 7 which remained in Lake County.) Site 7 currently is used to grow citrus. It is connected to the City through the other three sites and Sumner Lake. At the time of annexation (and until City plan amendments are found to be "in compliance"),4 the future land use designation for Sites 4, 5, and 6 was Lake County Rural/Conservation. Site 7 had and still has its Lake County future land use designations. Its 97 acres of wetlands are designated Lake County Rural/Conservation, which allows one dwelling unit per 10 acres, while the 264 acres of uplands are designated as Lake County Transition, which allows one unit per 5 acres, or one unit per acre if the “timeliness” criteria under the Lake County Comprehensive Plan are met. These parcels were the subject of the City's FLUM amendments adopted on August 2, 2004. The FLUM amendments changed the designation of Sites 4, 5, and 6 from County Rural/Conservation to City Conservation. These City designations have been found to be "in compliance." The FLUM amendments also changed the future land use designation of Site 7's 97 acres of wetlands to City Conservation, and its 264 acres of uplands to City of Groveland Green Swamp Single Family Rural Development (GSRD), which allows two dwelling units per acre. With a transfer of development rights from the undevelopable wetlands to the developable uplands, which would be allowed under both the City's and the County's comprehensive plans, the maximum number of dwelling units allowed on Site 7 under the City's designation would increase to 532, up from the 57 allowed under the current County designations. Compliance Issues As indicated in the Preliminary Statement, DCA's Petition and SOI alleged that the City's Plan, as amended by the Site 7 FLUM amendment, is not "in compliance" because: (1) it is inconsistent with Rule Chapter 9J-5 because it fails to discourage the proliferation of urban sprawl, as required by Rule 9J-5.006(5); (2) it is internally inconsistent with the City's Future Land Use Element (FLUE) Policies 1-1.10.1 (land use allocation), 1-1.10.2 (promoting orderly compact growth), and 1-1.10.3 (coordination with Lake County to reduce urban sprawl), and Intergovernmental Coordination Element (ICE) Policy 7-1.1.3 (land use planning of adjacent lands); (3) it is inconsistent with the Green Swamp Guiding Principles; (4) it is inconsistent with Section 163.3177(6)(a) and (8), Florida Statutes, and Rule 9J-5.005(2)(a), because it does not react appropriately to the data and analysis on environmental site suitability; and (5) it is inconsistent with State Comprehensive Plan Public Facilities Goal 17(a) and Policies 17(b)1.-2. Urban Sprawl It is no longer disputed that there is a demonstrated need for the additional residential development allowed by the Site 7 FLUM amendment. The real contention by DCA is that the development should not occur at Site 7. DCA's urban sprawl argument focuses on five of the 13 "primary indicators that a plan or plan amendment does not discourage the proliferation of urban sprawl": 4. As a result of premature or poorly planned conversion of rural land to other uses, fails adequately to protect and conserve natural resources, such as wetlands, floodplains, native vegetation, environmentally sensitive areas, natural groundwater aquifer recharge areas, lakes, rivers, shorelines, beaches, bays, estuarine systems, and other significant natural systems. * * * Fails to maximize use of existing public facilities and services. Fails to maximize use of future public facilities and services. Allows for land use patterns or timing which disproportionately increase the cost in time, money and energy, of providing and maintaining facilities and services, including roads, potable water, sanitary sewer, stormwater management, law enforcement, education, health care, fire and emergency response, and general government. Fails to provide a clear separation between rural and urban uses. Fla. Admin. Code R. 9J-5.006(5)(g). Indicator 4 DCA's argument as to Indicator 4 is two-fold: Site 7 is surrounded by rural land; and increasing densities will harm the natural resources of the Green Swamp. Site 7 is immediately surrounded by generally rural uses. As indicated, wetlands and Sumner Lake are to the immediate northwest. Directly to the north of the northernmost portion of Site 7 is a sprayfield owned and operated by the City of Clermont. North of the sprayfield is an open water body. The east side of Site 7 adjoins a marshy area on the west side of Lake Palatlakaha. The south side of Site 7 abuts CR 565 and low wetlands areas, with Lake Wash and other rural lands and wetlands farther south. While immediately surrounded by rural lands (City Conservation, County Rural/Conservation, and County Transition), Site 7 is located approximately 3,000 feet (not three miles, as DCA's primary witness on this issue believed as late as her deposition in this case) south of State Road 50, a highly traveled, major road that connects West Central Florida to East Central Florida. Site 7 is in a fast-growing area less than two miles southeast of the center of the City. Immediately to the north of Sumner Lake is the Westwood residential subdivision which lies along the southern boundary of State Road 50. Existing homes are scattered around the sprayfield. Westwood is located within the City’s boundaries and in the Green Swamp. It has a future land use designation of Green Swamp Single Family Low Density Development (GSLD), which allows up to four single-family detached homes per acre. This corresponds to the Lake County Ridge designation it had at the time it was annexed into the City. Westwood currently is under construction, with many homes already occupied. Along the northern side of State Road 50 north of Westwood is a parcel within the City designated on the FLUM as Commercial, which is proposed to be used for a Publix grocery store, and the Green Valley Country Club, an existing golf course community. To the west of Site 7 is an existing golf course and water ski community known as the Swiss Ski School. It is located within unincorporated Lake County in the Green Swamp and has a Planned Unit Development (PUD) approval for 296 residential units. To the west of the Swiss Ski School lie Stewart Lake and Olsen Lake and their associated wetlands, which are in the Green Swamp in the unincorporated County and have County designations of Rural/Conservation and Transition. Farther west, along State Road 33 and still in the Green Swamp, lie developments having FLUM designations of GSSFLD allowing up to four units per acre. Both those developments lie within City limits. To the south of Site 7, and in unincorporated Lake County, with a County designation of Transition, lies a subdivision along Monte Vista Road which is vested for residential development partly at a density of two units per acre and partly at one unit per acre. Although there will be wetlands and Sumner Lake in City Conservation designations between Site 7 and developments to the north and west in the City, leapfrog development is not a concern for Site 7 and its surrounding area. To the extent Site 7 is separated from other urban or suburban uses in the City by lakes, wetlands, and conservation lands, no urban, suburban or even rural development of those conservation lands should be expected, so that "leaping over" those undeveloped lands should not be considered an indicator of sprawl. For these reasons, it is found that the Site 7 FLUM amendment is not premature. Nor is the conversion from agricultural use to residential use poorly planned. The development will be compact and orderly, and public facilities and services are available. Natural resources already receive a significant amount of protection in the plan. The development of Site 7 will promote conservation of natural resources by allowing only uplands to be developed onsite and allowing a density of up to two units per acre. A lower density would be an inefficient use of developable land. An inefficient land use pattern encourages the premature conversion of environmentally significant lands. Indicators 6 and 7 DCA's arguments as to Indicators 6 and 7 essentially are that some public facilities and services will have to be extended to Site 7, that there are places in the City capable of development using only existing public facilities and services, and that the City has planned for future public facilities and services elsewhere--namely, in the North Overlay, which is described below. As for existing public facilities and services (Indicator 6), development under the site 7 FLUM amendment will receive the same public services of law enforcement, fire, emergency services, and schools as are currently available to Site 7, at a lower residential density, under the existing Lake County Transition land use. Pursuant to an interlocal agreement with Lake County, the City already provides law enforcement services not only to Site 7 and surrounding areas in the City, but also to adjacent areas in unincorporated Lake County. As the City already provides public services in the area, it will be more cost-efficient to spread those costs among more homeowners. The proposed amendment will allow more homeowners to share these costs. DCA's only response to these facts, some of which were not known by DCA's expert witness, was that "the increased population on the site may require additional staff and facilities to serve the population." DCA's PRO, at 41. As for water and sewer, as indicated, a connection to central water and sanitary sewer is available at State Road 50, approximately 3,000 feet from Site 7 (a fact also not known by DCA's expert witness until shortly before the hearing). The developer will be required to pay for the cost of the new lines to Site 7. After those lines are installed, nearby property owners can voluntarily connect to central water and sewer. A few of the nearby property owners who have septic tanks have indicated an interest in connecting to the Site 7 sewer lines. For these reasons, the proposed amendment would result in an efficient use of central water and sanitary sewer facilities. As for future public facilities and services (Indicator 7), in 2003, as a result of a settlement agreement between the City and DCA on the City's 2003 plan amendment, the City proposed and adopted the "Groveland North Overlay" area and associated policies as a plan for future growth. The North Overlay was found to be "in compliance," is part of the City's FLUE, and is designated on Map 1-7 of the City’s FLUM series. The North Overlay is located to the north of the existing City limits and consists of several thousand acres. It is identified as an area in which future annexations are likely to take place in order to meet growth needs. The area is adjacent to parcels already annexed by the City, designated for urban densities, and planned for public facilities. It allows for a mix of uses. It shows that the City had identified a growth strategy to meet its need for the planning timeframe and beyond. It was established to ensure that, as land in the North Overlay was annexed into the City, new development would not develop as urban sprawl, but rather would be managed in a way which created a more effective land use pattern. While adopting the North Overlay, the City has a policy to annex land only on a voluntary basis. It does not exercise its rights under Section 171.0413, Florida Statutes, to require contiguous, compact unincorporated territory to annex. For this reason, it is difficult for the City to foresee with certainty which lands will annex into its municipal boundaries. In addition, starting in the mid-1990's, before adopting the North Overlay, the City began to annex land to the south in the Green Swamp. At that time, the City began the process of amending its comprehensive plan to include provisions to comply with the Principles for Guiding Development in the Green Swamp. In late 2000, the City embarked on a study to guide development and facilitate municipal expansion in the Green Swamp. The DCA provided funding for the study through a technical assistance grant. DCA also provided feedback for the study. The City hired a private consulting firm to do the study and produce a series of four quarterly reports. The final report is entitled "City of Groveland Small Area Study Final Report November 1, 2001." The Small Area Study considered an area of approximately 2,580 acres in the Green Swamp, which the City reasonably projected may be annexed. The geographic boundaries of the study were larger in the first three phases of the study, but were constricted for the final report at the request of DCA planner, Bob Dennis, to be closer to State Road 33. In addition, future annexations were projected to be phased, with areas closer to State Road 33 projected to occur before areas farther away from there. Site 7 is even farther away from State Road 33 and entirely outside the final boundaries of the Small Area Study. But the Small Area Study was not intended to bind the City, or restrict the City's annexation rights and powers, or change the City's policy of voluntary annexation. In other words, the projected annexations and phasing did not preclude consideration of out- of-phase or out-of-area annexations. The DCA grant required the Small Area Study to evaluate the area south of Groveland using several criteria, including upland area, utility availability and expansion, road/transportation network, Lake County land use designation, current land use activities, environmental assessment impacts, and the Green Swamp rules. The Small Area Study recommended that the City adopt two land use categories to apply to residential development in the Green Swamp: a land use category allowing a maximum of four units per acre, and another land use category allowing a maximum of two units per acre. A requirement of 60 percent open space and limitations on impervious surface for residential development also were recommended. For the protection of the Green Swamp and the Floridian Aquifer, the study also recommended that clustered development be encouraged and that central water and sewer be provided. The Small Area Study also recommended that wetlands be designated a Conservation land use. The Small Area Study also recommended that the plan require an upland buffer of 50 feet from the edge of the wetland line and that all development be prohibited in wetlands and floodplains. The City adopted those recommendations, as well as others. All of those plan amendments were found be DCA to be "in compliance." One of those amendments, FLUE Policy 1.3.11, prohibits any structure in the Green Swamp to be located within fifty feet of a wetland line. This requirement exceeds the St. Johns River Water Management District (SJRWMD) performance standards for wetland buffers, which require an average uplands buffer of 25 feet, with a minimum buffer of 15 feet, as well as the standard included in the plan’s Conservation Policy 7.3.5, which applies only to development located outside of the Green Swamp, and requires an average buffer of 50 feet, with a minimum buffer of 25 feet. FLUE Policy 1.3.3 and Conservation Policy 7.13.1 prohibit all development in the wetlands and floodplains for land located within the Green Swamp. This policy is more stringent than the Guiding Principles and Rule 9J-5. Rule 28- 28.008(1) provides performance criteria for development in flood-prone areas, which may be adopted in land development regulations applying in Lake County portions of the Green Swamp. Rule 9J-5.013(3)(b) requires that land uses be distributed to allow wetland impacts to be minimized and mitigated. The City also implemented the recommendations of the Small Area Study for the two residential land use categories. As already indicated, the City adopted the GSLD land use category, allowing a density of up to four units per acre. FLUE Policy 1.1.17. It also adopted the GSRD land use category in FLUE Policy 1.1.18, allowing a density of up to two single family detached homes per acre. Both categories require that at least 60 percent of the property remain in open space and that development be clustered on the least environmentally sensitive portions of the site. The amendments adopting the GSLD and GSRD land use categories were found by DCA to be "in compliance" and consistent with the Principles of Guiding Development in the Green Swamp. However, those categories were not yet assigned to all land considered in the Small Area Study, much less land outside its final boundaries. The appropriateness of GSRD for Site 7 is the issue in this case. Indicator 8 DCA's arguments as to Indicator 8 essentially focus on the timeliness provision in Lake County's Transition designation and the requirement to provide some new public facilities and services as a result of the City's Site 7 FLUM amendment. See Finding 4, supra. Development of Site 7 under Lake County's Transition designation would be limited to one unit per five acres. Site 7 would not qualify for development at one unit per acre under the timeliness provision, which requires more than 40 percent of the surrounding area within a mile radius, and 60 percent of the surrounding area within a two-mile radius, to be developed at a density of one unit per acre or greater.5 In addition, development of Site 7 under the City's FLUM amendment would make one unit per acre development of the 70- acre County "enclave" within Site 7 timely, which in turn may make one unit per acre development of other County land in the vicinity timely under Lake County's Transition designation. In effect, DCA fears that the City's Site 7 FLUM amendment will have a "domino effect" that will trigger rapid, wholesale conversion of rural County Transition land that can be developed at one unit per five acres to Transition land "timely" for development at one unit per acre. But DCA did not prove that its fear is reasonable. DCA also fears that the City's Site 7 FLUM amendment ultimately will result in too much residential development in the Green Swamp. But future County land use designation changes that will harm the Green Swamp will be subject to challenge by DCA. In any event, whether the City's FLUM change at issue in this case is timely depends on a number of factors besides just the timeliness provision of Lake County's Transition designation. Indicator 8 addresses allowing "land use patterns or timing which disproportionately increase the cost in time, money and energy, of providing and maintaining facilities and services," not just patterns or timing that increases those costs. (Emphasis added). DCA did not prove that extending water and sewer lines will be a disproportionately high cost for the developer to pay and pass on to homeowners. The water and sewer lines will be placed along an existing right-of-way and will be required to be extended approximately 3,000 feet to reach Site 7. Longer lines have been installed within City limits. Also, as discussed above relating to Indicators 6 and 7, the Site 7 FLUM amendment will allow a greater sharing of expenses of facilities and services. Indicator 9 As to Indicator 9, there is some merit to DCA's argument that the Site 7 FLUM amendment fails to provide a clear separation between rural and urban uses. But this is partly because of the lakes and wetlands between Site 7 and those urban uses. In addition, there are some urban-like uses between Site 7 and other urban uses in the City. See Finding 14, supra. Internal Consistency DCA's Petition and SOI alleged that the Site 7 FLUM amendment is internally inconsistent with other parts of the City's comprehensive plan addressing urban sprawl considerations: FLUE Policies 1-1.10.1, 1-1.10.2, and 1- 1.10.3; and ICE Policy 7-1.1.3. After the Site 7 FLUM amendment was adopted, the City further amended its comprehensive plan. FLUE Policies 1-1.10.1, 1-1.10.2, and 1- 1.10.3 became, respectively: Policy 1.1.2; Objective 1.6 and Policy 1.6.1; and Policy 1.6.2. ICE Policy 7-1.1.3 was replaced by ICE Policy 11.1.1, and there was no objection to substituting the new, equivalent policy for purposes of this proceeding. FLUE Policy 1.1.2 states: The City shall designate land use on the [FLUM] to accommodate needs identified within the Comprehensive Plan supporting document (i.e., Data Inventory & Analysis). The City shall allocate a reasonable amount of land above identified needs to avoid economic impacts which a controlled supply of land places on land values and market potential. As found, it is undisputed that the Site 7 FLUM amendment is internally consistent with this policy. In its response to the ORC, the City adequately demonstrated that it had a need for additional residential land to accommodate its future population. Moreover, the ratio between the City's future land use needs and population growth is only slightly more than 1:1. The Site 7 FLUM amendment does not create an over- allocation of land uses in relation to its estimated population growth. Again, DCA's challenge is to the location of Site 7. FLUE Objective 1.6 states: "Discourage urban sprawl through a future land use pattern which promotes orderly, compact development." FLUE Policy 1.6.1 states: Land use patterns delineated on the [FLUM] shall promote orderly, compact growth. The City shall encourage growth and development in existing developed areas where public facilities and services are presently in place and in those areas where public facilities can provide the most efficient service. Land shall not be designated for growth and development if abundant undeveloped land is already present within developed areas served by facilities and services." Based on the findings as to the urban sprawl indicators, supra, DCA did not prove that the Site 7 FLUM amendment is internally inconsistent with FLUE Objective 1.6 and Policy 1.6.1, much less that internal consistency is beyond fair debate. FLUE Policy 1.6.2 states: "The City of Groveland shall coordinate with Lake County through a Joint Planning Agreement to develop an areawide [sic] planning approach by 2010, taking into account environmental suitability, functional relationships and areas where public facilities and services are available or proposed to be available by year 2020." ICE Policy 11.1.1 states: "The City of Groveland shall continue to work closely with Lake County, Lake County School Board, other municipalities and affected regional, state and national government agencies to coordinate the comprehensive planning effort of the City with those agencies affected, through the provision of information and participation on committees and working parties." DCA did not prove that the Site 7 FLUM amendment is internally inconsistent with FLUE Policy 1.6.2 or ICE Policy 11.1.1, much less that internal consistency is beyond fair debate. To the extent that internal consistency requires that the local government to comply with the intergovernmental coordination provisions in its comprehensive plan when it proposes and adopts plan amendments, DCA also did not prove that the City failed to do so, much less that its failure to comply is beyond fair debate. The City regularly coordinates its plan amendments with Lake County. The City provided a copy of its 2004-02 amendment package to Lake County when the amendment was transmitted to DCA, as was indicated to DCA in the transmittal amendment cover letter to DCA. A local government’s submittal to an adjacent local government of a copy of an amendment under review is a common way for a local government to coordinate amendments with other local governments. The City also regularly coordinates planning issues with Lake County and other Lake County municipalities by attending meetings of their planning departments. Obviously, the Site 7 FLUM amendment was adopted long before FLUE Policy 1.6.2's 2010 target for a joint planning agreement. At this time, there is no voluntary joint planning strategy with which it can be argued that this amendment is inconsistent. At the hearing, DCA was permitted to also argue internal inconsistency with new plan provisions adopted in July 2005, and found to be “in compliance” in September 2005 (but not provisions adopted in September 2005 and under DCA challenge at the time of the hearing).6 Newly adopted Sanitary Sewer Objective 5.3 reads: MAXIMIZE EXISTING FACILITIES AND DISCOURAGE URBAN SPRAWL. The City shall maximize existing sanitary sewer facilities within its service area and promote compact efficient growth patterns. This objective must be read in conjunction with related Sanitary Sewer Policy 5.3.1, which requires all new development in the City to connect to the central sanitary sewer system, as well as with FLUE Policy 1.1.18, which requires all development in land designated GSRD to connect to central water and sanitary sewer utilities. Density is related to the ability to provide central sewer and water services. If a developer runs new water and sewer lines, which he must do at his own cost in the City, compact density will make development more economical for those services and will encourage an efficient land use pattern. A density of two units per acre is financially feasible for providing central water and sewer to Site 7, whereas the evidence was that a density of one unit per five acres, as urged by DCA, is not cost-effective for Site 7, at least given the developer's $6.5 million land acquisition cost. As the use of septic tanks is not an option in the City for any new development, a contiguous and compact form of development is essential not only for the property in question, but also for future development sites. Development of Site 7 will be connected to an existing City-owned and operated wastewater treatment plant, which has adequate capacity for the maximum of 532 homes allowed by the amendment. As the amendment will allow a compact development pattern of two units per acre and will maximize the use of an existing sewer facility, it is not internally inconsistent with ICE Objective 5.3. Newly-adopted ICE Objective 11.2 requires the City to implement a strategy to ensure the efficient provision of urban services, sound urban development, and accommodation of growth. The objective identifies negotiating interlocal agreements with Lake County and other local governments for joint planning areas and for providing public services. ICE Objective 11.2 requires future intergovernmental coordination and is not self-implementing. The Site 7 FLUM amendment is not internally inconsistent with ICE Objective 11.2. Guiding Principles The Guiding Principles were adopted by rule by the Administration Commission in 1974 and subsequently were approved by reference by the Legislature. See Rule 28-26.003; Ch. 79-73, § 5, Laws of Florida (1979). Preceding Rule Chapter 9J-5 and modern Florida statutory requirements for local comprehensive plans, the Guiding Principles actually were adopted to provide guidelines for the adoption of land development regulations. See Rule 28-26.004 and Rule Chapter 28-28, Land Planning-Part VII Boundary and Regulations for the Green Swamp Area of Critical State Concern-Lake County; § 380.0551(2), Fla. Stat. The City's plan contains goals, objectives, and policies that are consistent with the Guiding Principles. Nonetheless, DCA contends that the Site 7 FLUM amendment is inconsistent with the following objectives to be achieved under the Green Swamp Guiding Principles, Rule 28-26.003(1): Minimize the adverse impacts of development on resources of the Floridan Aquifer, wetlands, and flood-detention areas. Protect the normal quantity, quality and flow of ground water and surface water which are necessary for the protection of resources of state and regional concern. Protect the water available for aquifer recharge. * * * (j) Protect the natural flow regime of drainage basins.7 One of the primary reasons for designating the Green Swamp as an area of Critical State Concern is its relatively high aquifer recharge capabilities. This results from the relative proximity of the surficial aquifer to the ground surface, together with relatively high rate at which water percolates through the soils overlying the surficial aquifer. The relatively high aquifer recharge rate results in a relatively high potentiometric surface in the underlying Floridan aquifer (Central Florida's primary drinking water source) and drives the groundwater system throughout Central and Southwest Florida. Florida contains many areas of no recharge, but low- to-moderate recharge characteristics are common throughout Florida. Within the Green Swamp, there are areas of low, moderate, and high aquifer recharge, depending primarily on the proximity of the surficial aquifer to the ground surface and the characteristics of the overlying soils. In the area of Site 7, the surficial aquifer is approximately 150 feet below ground surface. Site 7 has both Type A (sandy, upland) soils, which have a high infiltration rate, and Type B (wetlands) soils. The area has been regionally mapped by SJRWMD as having a net recharge rate of 0-4 inches (low) on the western side of the site, and 4-8 inches (moderate) on the eastern part of the site. As such, these recharge characteristics of Site 7 can be said to be "common" for the Green Swamp. As for groundwater contamination, a map of the Floridan Aquifer Groundwater Vulnerability admitted into evidence by DCA showed that the groundwater for Site 7 and the surrounding area are "more vulnerable" to contamination. However, DCA did not present a map for other parts of the Green Swamp or the rest of Florida for comparison purposes, and its expert witness on the subject was unable to quantify vulnerability or directly compare Site 7 to other parts of the Green Swamp and the rest of Florida. However, he did testify that areas of "high vulnerability" extend all the way to the west of Tallahassee and that the western part of the Green Swamp generally is more vulnerable to groundwater contamination than the eastern part, where Site 7 is, because the surficial aquifer is at or near the ground surface in the western part of the Green Swamp. As to the natural flow regime of drainage basins, Site 7 lies in the Oklawaha River Drainage Basin. The natural local drainage of Site 7 is into the Palatlakaha River via several smaller drainage sub-basins: Sumner Lake Outlet, Palatlakaha Reach, Lake Wash Outlet, and Pine Island Outlets. The Palatlakaha is a major tributary to the Oklawaha River. DCA did not prove that the Site 7 FLUM amendment will adversely impact the natural flow regime of the drainage basin Site 7 is in. DCA did not prove that Site 7 has any hydrologic or environmental characteristics that would require more protection than other parts of the Green Swamp. It follows that DCA did not prove a need for Site 7 to have a lower density than is allowed under the GSRD land use category already approved by DCA for the Green Swamp. Similar residential densities also have been approved in other parts of the Green Swamp. A plan's goals, objectives and policies must be considered when evaluating the impacts of development allowed by a land use category. The FLUM, the goals, objectives, and polices are interrelated. See § 163.3177(6)(a), Fla. Stat. The hydrologic features and functions addressed in the Guiding Principles are protected in the plan, and those protections have been found by DCA to be consistent with the Guiding Principles. Those plan provisions will guide development to ensure that the aquifer, wetlands, flood detention areas, groundwater, surface water, Lake Sumner, and the natural flow of the drainage basin will be appropriately protected. The essence of DCA's argument that the Site 7 FLUM amendment is inconsistent with the Guiding Principles is that, regardless of how much protection the plan's provisions afford, the Site 7 FLUM will allow approximately ten times the various impacts of development--e.g., impacts on wetlands, reduction of aquifer recharge due to increased impervious surfaces, water quality impacts, and water quantity impacts-- at one unit to five acres under the current Lake County Transition designation, so that adverse impacts are not minimized, and resources are not protected, as envisioned in the Guiding Principles. There are several flaws in DCA's argument, even assuming the impact factor of ten. First, the logical extension of DCA's argument would be that minimization and protection require no additional adverse impacts. If so, development at one unit per acre under Lake County Transition's timeliness provisions--a fivefold increase in impacts, under DCA's rationale--also would be inconsistent with the Guiding Principles. Second, planning should be based on reality,8 and DCA did not prove that residential development would occur on Site 7 at one unit to five acres. To the contrary, while continued development of small parcels in areas designated Lake County Transition is plausible, the evidence was that it is financially infeasible to develop Site 7 as a whole residentially at that density.9 For that reason, while ordinarily it is appropriate only to compare potential impacts from different possible land use designations, in this case it is appropriate to consider the impacts of the current use of Site 7 as an orange grove when deciding whether the Site 7 FLUM amendment is consistent with the Guiding Principles. The evidence was clear that, under all the criteria in the Guiding Principles cited by DCA, residential development under the Site 7 FLUM amendment is far preferable to the continued use of the property as an orange grove10--the likely if not absolutely clear result of maintaining Lake County's Transition designation.11 Third, as mentioned in Finding 57, supra, it was clear from the evidence that DCA has found residential land use designations of two units per acre and greater not only elsewhere in the Green Swamp, both in the City and elsewhere, to be consistent with the Guiding Principles, and DCA failed to explain why those densities would be consistent with the Guiding Principles elsewhere but not at Site 7. Again under this issue, DCA in effect fears that the City's Site 7 FLUM amendment will have a "domino effect" that will ultimately result in the entire Green Swamp being designated for two-unit per acre residential densities. But the entire Green Swamp is not like Site 7. Future County land use designation changes that actually will harm the Green Swamp will be subject to challenge by DCA, and it is unreasonable to assume that DCA will allow densities of two units per acre throughout the Green Swamp if it is allowed at Site 7. Environmental Suitability For essentially the same reasons DCA argues inconsistency with urban sprawl rules and plan provisions and with the Guiding Principles, DCA also contends that the City did not react appropriately to data and analysis indicating Site 7's alleged environmental unsuitability for residential development at two units per acre. Based on the previous findings, DCA did not prove that allegation.12 State Comprehensive Plan DCA alleges that the Site 7 FLUM amendment is inconsistent with the State Comprehensive Plan's Public Facilities goal and two related policies. Public Facilities Goal (a) addresses the need to protect substantial investments in existing public facilities. Related Policy (17)(b)1. provides incentives for developing land in a way that maximizes the uses of existing public facilities. Public Facilities Policy 17(b)2. promotes the "rehabilitation and reuse of existing facilities, structures, and buildings as an alternative to new construction." As discussed above in the urban sprawl findings, the Site 7 FLUM amendment encourages the efficient use of existing public facilities. The increase in density, which the amendment allows, may be viewed as a land use incentive that encourages the maximization of existing public facilities both as to Site 7 and as to surrounding properties that may later connect to City utilities. The amendment furthers Public Facilities Goal (a) and Policy (b)(1). The Site 7 FLUM amendment also does not undermine or conflict with Policy (b)(2). The City’s plans to rehabilitate a downtown community redevelopment area (CRA) will not be adversely affected by development allowed by the proposed amendment. Also, there is insufficient land within the CRA to accommodate the City’s projected housing and land use needs. The amendment is not inconsistent with this policy.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order finding the City's Site 7 FLUM amendment to be "in compliance." DONE AND ENTERED this 28th day of November, 2005, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of November, 2005.
The Issue The issue is whether a text amendment to the general description of the Commercial land use designations of the Comprehensive Plan (Plan) of Respondent, City of Jacksonville (City), adopted by Ordinance No. 2010-401-E on June 22, 2010, is in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: The Parties The City is a municipal entity and is responsible for enacting and amending its Plan. Since 2007, the City has participated in the Pilot Program for adoption of comprehensive plan amendments. Except for amendments based on the Evaluation and Appraisal Report or amendments based on new statutory requirements that specifically require that they be adopted under the "traditional" procedure described in section 163.3184, and small-scale amendments, all other amendments must be adopted under that process. Under the Pilot Program, municipalities have "reduced state oversight of local comprehensive planning," and plan amendments may be enacted in "an alternative, expedited plan amendment adoption and review process." § 163.32465, Fla. Stat. Although the City must send a transmittal package to the Department of Community Affairs (Department) and other designated agencies for their preliminary review, the Department does not issue an Objections, Recommendations, and Comments Report or a notice of intent. Instead, the Department "may provide comments regarding the amendment or amendments to the local government." Id. It may also initiate an administrative proceeding to challenge whether an amendment is in compliance. Id. In this case, the Department did not file adverse comments or initiate a challenge to the City's amendment. Clifton Curtis Horton owns real property located at 7175 Blanding Boulevard, Jacksonville, Florida. Horton Enterprises, Inc., is a Florida corporation that owns and operates a "strip club" known as "New Solid Gold" located on Mr. Horton's property. The club is an "adult entertainment establishment" as defined by the Jacksonville Municipal Code (JMC). See §§ 150.103(c) and 656.1101, JMC. History Preceding the Amendment In order to operate an adult entertainment facility within the City, the facility must have both a correct land use and zoning classification. The location must also satisfy certain distance limitations from schools (2,500 feet), other adult entertainment businesses (1,000 feet), churches (1,000 feet), residences (500 feet), and businesses selling alcohol (500 feet). See § 656.1103(a)(1)-(4), JMC; § 847.0134, Fla. Stat. Prior to 2005, adult entertainment facilities were an authorized use in the Heavy Industrial (HI) land use category. In 2005, the City adopted Ordinance No. 2005-1240-E, which approved a text amendment to the Future Land Use Element (FLUE) of the City's 2010 Plan adding the following language to the Community/General Commercial (C/GC) land use category: "Adult entertainment facilities are allowed by right only in Zoning District CCG-2." See Respondent's Exhibit D. That classification is the primary zoning district within the C/GC land use category. The Ordinance also deleted the following language from the HI land use category: "Adult entertainment facilities are allowed by right." Id. The purpose of the amendment was to change the permissible land use designation for adult entertainment facilities from HI to C/GC with a further condition that the property must also have a CCG-2 zoning classification. At the same time, the City enacted Ordinance No. 2005-743-E, which adopted a new zoning requirement that any adult entertainment facility whose location was not in conformity with the revised land use/zoning scheme must close or relocate within five years, or no later than November 10, 2010. See § 656.725(k), JMC. Because New Solid Gold did not conform to these new requirements, it would have to close or relocate within the five-year timeframe. On an undisclosed date, Horton Enterprises, Inc., and two other plaintiffs (one who operated another adult entertainment facility in the City and one who wished to open a new facility) filed suit in federal court challenging the constitutionality of the City's adult zoning scheme and seeking to enjoin the five-year amortization requirement, as applied to them. See Jacksonville Property Rights Ass'n v. City of Jacksonville, Case No. 3:05-cv-1267-J-34JRK (U.S. Dist. Ct., M.D. Fla.). On September 30, 2009, the United States District Court entered a 33-page Order generally determining that, with one exception not relevant here, the City's zoning and land use scheme was permissible. See Petitioners' Exhibit V. On November 3, 2009, that Order was appealed by Petitioners to the United States Court of Appeals for the 11th Circuit where the case remains pending at this time. The parties' Stipulation indicates that oral argument before that Court was scheduled during the week of December 13, 2010. An Order of the lower court memorialized an agreement by the parties that the five- year time period for complying with the new requirements are stayed until the federal litigation is concluded. See Petitioners' Exhibit JJ. The Court's Order also noted that an "ambiguity" in the Plan arose because the City failed to "remove the language in the general description of the Commercial land use designations acknowledging its intention to locate adult entertainment facilities in the HI category." Id. at 19. This occurred because when adopting the new amendments, the City overlooked conflicting language in the general description of the Commercial land use designations in the FLUE. However, the Court resolved the ambiguity in favor of the City on the theory that the conflicting language was contrary to the City's overall legislative intent in adopting the new land use/zoning scheme and could be disregarded. Id. Thereafter, a new amendment process was begun by the City to delete the conflicting language. This culminated in the present dispute. The Transmittal Amendment - 2010-35-E To eliminate the ambiguity, the City proposed to amend the FLUE by deleting the following language from the general description of the Commercial land use designations: "Adult entertainment facilities are allowed by right in the heavy industrial land use category, but not in commercial." This amendment was numbered as Ordinance No. 2010-35-E. A public workshop was conducted by the City's Planning and Development Department on December 14, 2009. Thereafter, public hearings were conducted by the City Planning Commission on February 11, 2010; by the City Council Land Use and Zoning Committee on February 17, 2010; and by the full City Council on February 9 and 23, 2010. It became effective upon the Mayor signing the Ordinance on February 26, 2010. Although the Ordinance inadvertently referenced section 163.3184 as the statutory authority for its adoption, it also stated that the amendment was being transmitted for review "through the State's Pilot Program." See Petitioners' Exhibit E. As required by the Pilot Program, copies of the amendment were then transmitted to the Department and seven other agencies. No adverse comments were received from any agency. It is undisputed that Petitioners did not attend the the workshop or any hearing, and they did not submit written or oral comments concerning the proposed amendment. When the process for adopting Ordinance No. 2010-35-E began, the City's 2030 Plan was still being reviewed by the Department and had not yet become effective. Consequently, at the Department's direction, the Ordinance referenced the City's then-effective 2010 Plan as the Plan being amended. On February 3, 2010, the City's 2030 Comprehensive Plan became effective, replacing the 2010 Plan. However, the 2030 Plan contained the same conflicting language. Notice of the public hearings for Ordinance No. 2010- 35-E (and other plan amendments adopted at the same time) was published in the Daily Record on January 29, 2010, a local newspaper that the City has used for advertising plan amendments since at least 2003. The parties agree that the legal advertisements complied with the size, font, and appearance requirements of section 166.041(3)(c)2.b. Besides the above notice, an additional notice regarding Ordinance No. 2010-35-E was published in the Florida Times Union on January 31, 2010. The parties agree that this advertisement did not meet the size, font, and appearance requirements of section 166.041(3)(c)2.b. but was published by the City for the purpose of providing additional public notice and to broaden the coverage of the plan amendment. The Adoption Amendment - 2010-401-E Because the 2030 Plan contained the same conflicting language in the Commercial land use descriptions, on May 25, 2010, a draft of Ordinance No. 2010-401-E was introduced at City Council for the purpose of deleting this language. Except for referencing the latest Plan, the language in Ordinance Nos. 2010-35-E and 2010-401-E was identical. While somewhat unusual, this procedure was authorized by the Department because the 2030 Plan became effective during the middle of the amendment process. A copy of the draft Ordinance and schedule for the upcoming hearings on that Ordinance was emailed by the City's counsel to Petitioners' counsel on June 4, 2010. See Petitioners' Exhibit FF. Public hearings on Ordinance No. 2010-401-E were conducted by the Planning Commission on June 10, 2010; by the City Council Land Use and Zoning Committee on June 15, 2010; and by the full City Council on June 8 and 22, 2010. All of the meetings occurred after Petitioners' counsel was given a schedule of the hearings. The amendment became effective upon the Mayor signing the Ordinance on June 24, 2010. Notice of the public hearings for Ordinance No. 2010- 401-E was published in the Daily Record on May 28, 2010. The parties agree that the size, font, and appearance requirements of section 166.041(3)(c)2.b. were met. An additional notice of the public hearings was published in the Florida Times Union on May 30, 2010. The parties agree that this legal advertisement did not meet the size, font, and appearance requirements of section 166.041(3)(c)2.b., but was published by the City for the purpose of providing additional public notice and to broaden the coverage of the plan amendment. Ordinance No. 2010-401-E, as originally proposed, incorrectly referenced section 163.3184, rather than the Pilot Program, as the statutory authority for adopting the amendment. During the hearing conducted by the City Council Land Use and Zoning Committee on June 15, 2010, an amendment to Ordinance No. 2010-401-E was proposed changing the statutory authority to section 163.32465. The City proposed the same amendment for 19 other plan amendments being considered at the same hearing. The amendment was minor in nature and had no effect on the substance of the Ordinance. It is undisputed that Petitioners did not appear or submit written or oral comments at any public hearing regarding Ordinance No. 2010-401-E. On July 21, 2010, Petitioners timely filed their Petition with DOAH challenging Ordinance No. 2010-401-E. Their objections, as later refined in the Stipulation, are both procedural and substantive in nature and are discussed separately below. Petitioners' Objections Substantive Objections As stated in the Stipulation, Petitioners contend that the amendment is not in compliance because it "is inconsistent with the balance of the 2030 Comprehensive Plan, and underlying municipal policies, since it forces adult uses into zones which permit residential and educational uses." To support this claim, Petitioners point out that the C/GC land use category permits a wide range of uses, including commercial uses in close proximity to sensitive uses, such as schools, churches, and residential areas. Petitioners characterize the current range of uses in C/GC as "an excellent planning approach to downtown Jacksonville" and one that promotes a well-reasoned, mixed-use development in the urban area. Because Ordinance No. 2010-401-E "forces" adult uses into the C/GC category where, despite the distance limitations, they will have to co-exist with sensitive uses, Petitioners contend the amendment is inconsistent with Policy (15)(b)3. and Goal (16) of the State Comprehensive Plan, which generally encourage orderly, efficient, and functional development in the urban areas of the City. Further, they assert it would contradict the City's "policy" of separating adult uses from residences, businesses, and schools. Petitioners' primary fear is that if they are required to relocate from HI to C/GC where sensitive uses are allowed, this will generate more complaints from schools, churches, and residents, and result in further zoning changes by the City and more forced relocations. As explained by Mr. Killingsworth, Director of the City's Planning and Development Department, Ordinance No. 2010- 401-E does not change the permitted uses in the Commercial or HI land use categories. Those changes in permitted uses were made by Ordinance No. 2005-1240-E in 2005 and are now being litigated in federal court. The purpose of the new amendment is simply "to clear up an inconsistency [noted by the federal court but told that it could be disregarded] that existed in the comprehensive plan." Mr. Killingsworth added that even if the language remained in the Plan, it would have no regulatory weight since the actual language in the C/GC and HI categories, and not the "header" or general description that precedes the category, governs the uses allowed in those designations. Assuming arguendo that the new amendment constitutes a change in permitted uses, the City established that from a use standpoint, adult entertainment facilities (like businesses selling alcohol) are more consistent with the C/GC land use category with the appropriate distance limitations from schools, churches, and residential areas. Further, the placement of adult entertainment facilities on property with a C/GC designation will not necessarily result in their being closer to residential property, as the City currently has a "great deal" of HI land directly adjacent to residential properties, as well as grandfathered enclaves of residential areas within the HI category. The City also established that the HI category is set aside for uses that generate physical or environmental impacts, which are significantly different from the "impacts" of a strip club. Finally, while a plan amendment compliance determination does not turn on zoning issues, it is noteworthy that the CCG-2 zoning district is the City's most intensive commercial district, and that very few schools (all grandfathered) remain within that zoning classification. The preponderance of the evidence supports a finding that the amendment is consistent with the State Comprehensive Plan and internally consistent with the "balance of the 2030 Comprehensive Plan." Procedural Objections Petitioners' principal argument is that the City did not publish a notice for either Ordinance in a newspaper of general circulation, as described in section 166.041(3)(c)2.b., or in the proper location of the newspaper; that these deficiencies violate both state law and a Department rule regarding notice for the adoption of this type of plan amendment; and that these procedural errors require a determination that the amendment is not in compliance. They also contend that because the legal notice did not strictly comply with sections 163.3184(15)(e) and 166.041(3)(c)2.b., both Ordinances are void ab initio.2 As noted above, the City has published legal notices for plan amendments in the Daily Record since at least 2003. The newspaper is published daily Monday through Friday; it has been published continuously for 98 years; it is published wholly in English; it is mailed to 37 zip codes throughout the City and around 20 zip codes outside the City; most of its revenue is derived from classified and legal advertisements; it is considered by the United States Postal Service to be a general circulation newspaper; it is available in newsstands throughout the City; and although much of the newspaper is directed to the business, legal, and financial communities, the newspaper also routinely contains articles and editorial content regarding special events, sporting news, political news, educational programs, and other matters of general interest pertaining to the City that would be of interest to the general public and not just one professional or occupational group. Its publisher acknowledges that the newspaper is a "Chapter 50 periodical," referring to chapter 50 and specifically section 50.031, which describes the minimum standards for newspapers that can be utilized for publishing certain legal notices. Also, its website states that it covers political, business, and legal news and developments in the greater Jacksonville area with an emphasis on downtown. Although Petitioners contend that the legal notice was published in a portion of the Daily Record where other legal notices and classified advertisements appear, as proscribed by section 166.041(3)(c)2.b., and is thus defective, this allegation was not raised in the Petition or specifically in the parties' Stipulation. Therefore, the issue has been waived. Both proposed recommended orders are largely devoted to the issue of whether the Daily Record is a newspaper of general paid circulation as defined in section 166.041(3)(c)2.b. For the reasons expressed in the Conclusions of Law, it is unnecessary to decide that question in order to resolve the notice issue. Petitioners received written notice that the City intended to adopt Ordinance No. 2010-401-E prior to the public hearings, along with a copy of the draft Ordinance and "everything" in the City's file. They also received a copy of all scheduled hearings during the adoption process. See Petitioners' Exhibits EE and FF. Therefore, notwithstanding any alleged deficiency in the published legal notice, they were on notice that the City intended to adopt the plan amendment; they were aware of the dates on which public hearings would be conducted; and they had an opportunity to submit oral or written comments in opposition to the amendment and to otherwise participate in the adoption process. Given these facts, even assuming arguendo that the publication of the legal notice in the Daily Record constitutes a procedural error, there is no evidence that Petitioners were substantially prejudiced in any way. Petitioners also contend that reference by the City to section 163.3184, rather than the Pilot Program, in the draft ordinance during the preliminary stages of the amendment process is a procedural error that rises to the level of requiring a determination that the amendment is not in compliance. This argument is rejected as the error was minor in nature, it was corrected shortly after Ordinance No. 2010-401-E was introduced, it did not affect the substance of the amendment, and it would not confuse a member of the public who was tracking the amendment as to the timing and forum in which to file a challenge. In Petitioners' case, they cannot claim to be confused since they timely filed a Petition with DOAH, as required by section 163.32465(6)(a). Finally, intertwined with the procedural arguments is the issue of whether Petitioners are affected persons and thus have standing to challenge the plan amendment. The parties have stipulated that Petitioners (or their representative) did not attend any meeting regarding the adoption of either Ordinance. Petitioners argue, however, that emails between the parties in May and June 2010, and a telephone conference call on June 3, 2010, involving Petitioners' counsel and the City's then Deputy General Counsel, equate to the submission of written and oral comments regarding the amendment. The parties have stipulated that the following written communications between Petitioners and the City occurred in May and June 2010: Petitioners made a public records request regarding the amendment on May 21, 2010, to Cheryl Brown, Council Secretary/Director, seeking various public documents relating to Ordinance No. 2010-35-E, transmitted by electronic mail and facsimile. On May 27, 2010, counsel for Petitioners exchanged emails with Assistant General Counsel Dylan Reingold regarding pending document requests relating to Ordinance No. 2010-35-E, and Mr. Reingold provided a number of responsive documents. On June 3, 2010, Cindy A. Laquidara, then Deputy General Counsel (but now General Counsel), sent an email to Petitioners' counsel stating: "Below please find the schedule for the passage of the comp plan changes. Call me with questions or to discuss. Take care." On June 4, 2010, counsel for Petitioners exchanged a series of emails with Assistant General Counsel Reingold regarding the status of Ordinance Nos. 2010-35-E and 2010-401-E, as well as the review of the proposed plan amendment by the Department of Community Affairs. On June 4, 2010, Jessica Aponte, a legal assistant with counsel for Petitioners' office, exchanged emails with Jessica Stephens, legislative assistant, regarding the proofs of publication for the legal advertisements relating to Ordinance No. 2010- 35-E. The affidavits of Petitioners' counsel (Petitioners' Exhibits KK and LL) regarding a conversation with the City's then Deputy General Counsel would normally be treated as hearsay and could not, by themselves, be used as a basis for a finding of fact. See § 120.57(1)(c), Fla. Stat. However, the parties have stipulated that they may be used in lieu of live testimony by Petitioners' counsel. See Stipulation, p. 17. The affidavits indicate that the reason for the conference call was "that [Petitioners] were trying to reach a mutually acceptable approach with the City by which enforcement of the City of Jacksonville's amortization ordinance against [them] . . . would be deferred pending the outcome of the appeal to the Eleventh Circuit." Petitioners' Exhibits KK and LL. During that call, counsel also advised the City's counsel that "there were [procedural] problems with the enactment of the subject Comprehensive Plan Amendment and that they would likely be filing challenges to its enactment." Id.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining that the plan amendment adopted by Ordinance No. 2010-401-E is in compliance. DONE AND ENTERED this 11th day of January, 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 11th day of January, 2011.
