The Issue The issue in this case is whether the land use designation placed on the property of intervenors is consistent with the goals, policies and objectives of the City of Jacksonville comprehensive plan.
Findings Of Fact Background This controversy involves a challenge to the City of Jacksonville 2010 Comprehensive Plan (Plan) by intervenors, Sybil L. Davis, Katherine T. Dekle, and Dr. James A. Acree, all residents and property owners in Duval County, Florida. The parties agree that intervenors are affected persons and thus have standing to pursue their claims. Intervenors contend generally that the land use designation given to their respective properties is inconsistent with other parts of the Plan and should be changed. If the requested relief is granted, intervenors would be able to develop their properties in a different manner than is now permitted under the Plan. The proposed Plan was first submitted by respondent, City of Jacksonville (City), to petitioner, Department of Community Affairs (DCA), on March 19, 1990. The DCA is the state land planning agency charged with the responsibility of reviewing comprehensive plans under Chapter 163, Florida Statutes. The City is a local government required to adopt a comprehensive plan pursuant to chapter 163. The proposed plan was the City's first attempt at meeting the compliance requirements established in that chapter. Under the law, the DCA is required to review all proposed plans for compliance with applicable statutes and rules. In that vein, besides its own in-house review, the DCA received comments from the Department of Environmental Protection and the Department of Transportation (DOT), considered such comments, and where appropriate, incorporated those views into its Objection, Recommendation and Comment Report (ORC) issued on July 10, 1990. The ORC contains the DCA's objections and comments concerning the Plan as well as recommendations which address those concerns. After considering the ORC, the City adopted a revised Plan on September 11, 1990, by Ordinance No. 90-794-380, which was then transmitted to the DCA. On November 9, 1990, the DCA issued its Statement of Intent to Find Comprehensive Plan Not in Compliance. After negotiations between the two parties, the City agreed to adopt remedial amendments to its Plan. This was accomplished by Ordinance No. 92-925-1405, effective January 22, 1993. Thereafter, on February 26, 1993, the DCA issued a Cumulative Notice of Intent to Find the Plan, as amended, in compliance with the law. As a consequence of this action, the interests of the City and DCA are aligned in this proceeding. Intervenors, however, consider the Plan to be internally inconsistent as to their respective properties and thus not in compliance with the law. It should be noted that during the local hearing process before the City, intervenors' requests to have their land use designation changed were denied. The Davis-Dekle Property Both Davis and Dekle own property which fronts on Southside Boulevard, a major arterial highway that runs in a north-south direction for ten to fifteen miles between Atlantic and Beach Boulevards. It consists of two northbound lanes, a divider (grass) median, and two southbound lanes. In addition, a twenty-foot service road runs along the outside of each roadway and is separated from the main roadway by a grass median. The highway right-of-way is 200 feet wide. This right-of-way has existed since at least the 1940's while the service roads were built in the 1950's. Davis owns two parcels of property on Southside Boulevard, also known as State Road 115. The first parcel, which is located at 2351 Southside Boulevard, is a vacant lot measuring 100 feet wide by 200 feet deep. The lot was purchased in 1987 with the intention of eventually converting the property to commerical use. A year later, Davis purchased a 1,000 square foot home located at 2615 Southside Boulevard. The house sits on a lot measuring approximately 85 feet wide by 200 feet deep. Although she currently resides in the home, Davis also intends to convert this property to commercial use if her appeal is successful. Both lots sit on the east side of Southside Boulevard between Atlantic and Beach Boulevards. Dekle's property is located at 2710 Southside Boulevard and lies on the west side of the street between Atlantic and Beach Boulevards. Dekle purchased the property in 1947 and has lived there for almost thirty years. The lot measures approximately 100 feet wide by 208 feet deep. Intervenors' properties are located in what is known as Southside Estates, a subdivision developed soon after World War II. The neighborhood surrounding their property is residential. Indeed, some 115 single-family homes are located on Southside Boulevard. Thus, the area historically has been a residential area since the 1940's and the predominant land uses along both sides of Southside Boulevard are single-family residences. Under the Plan, intervenors' properties are included in an area designated as "Low Density Residential," and thus this designation would bar intervenors from converting their properties to commercial use. "Low Residential Density" is defined in the future land use element of the Plan as follows: This category permits housing developments in a gross density range of up to seven (7) dwelling units per acre when full urban services are available to the site. Generally, single family detached housing will be the predominant land use in this category, although mobile homes, patio homes and multi-family dwellings shall also be permitted in appropriate locations. Minimum lot size shall be half acre per dwelling unit when both centralized potable water as well as wastewater are not available. The lot size shall be reduced to 1/4 acre per dwelling unit if either one of these services are not available. As noted above, intervenors' properties lie on Southside Boulevard between Atlantic and Beach Boulevards. The distance between these two latter roadways is approximately two miles. There is a major node of commercial development at the intersection of Southside and Atlantic Boulevards and a smaller commercial node at the intersection of Southside and Beach Boulevards. These uses, which extend approximately one-third of the distance between Atlantic and Beach Boulevards, are predominately offices, with the exception of more intense commercial uses near the intersection with Atlantic Boulevard. The southernmost extent of the commercial uses is approximately six or seven blocks north of the Dekle property. Intervenors complain that because of heavy traffic found on Southside Boulevard during the weekdays, their property should not carry a low residential density classification. More specifically, between 2:00 p. m. and 6:00 p. m. weekday afternoons, traffic backs up for more than a mile on the southbound lanes of Southside Boulevard between Atlantic and Beach Boulevards while there is a similar traffic backup in the northbound lanes during morning rush hours. This is confirmed by the fact that the roadway is functioning at a level of service "F," which means arterial flow is at "extremely slow speeds" and "intersection congestion" is likely at critical signalized locations. The DOT considers the minimum acceptable level of service to be level of service "D." Traffic counts, measured in average daily trips, are projected to reach 40,871 by 1995 at a point on Southside Boulevard 100 feet south of Atlantic Boulevard and 51,089 by the year 2010. Intervenors agree, however, that the service roads, on which their properties front, flow smoothly and are lightly traveled. Because intervenors' homes are located at the front of their lots closest to the service roads, they experience vehicle noise which affects their ability to watch television, sleep or carry on other normal activities unless windows and doors are closed at all times. Odors and fumes generated by the nearby traffic also require that windows and doors be shut at all times. Unless they retreat to the rear of their lots while outside their homes, they cannot escape the traffic fumes. In view of the foregoing condition, intervenors contend that a change in land use designation from low density residential to commercial is appropriate. "Commercial" is described in the future land use element of the Plan as follows: This category is intended to provide for all types of sales and services activities, such as retail trade, personal and professional services and storage, offices, hotels, motels, entertainment, and amusement facilities. Commercial recreation and entertainment activities, such as amusement parks and marinas, are also allowed in this category. Multi-family uses, when developed as part of an integrated mixes use project, are also permitted consistent with the Medium Density Residential (MDR) and High Density Residential (HDR) plan category description. The Plan includes five types of commercially dominated land use categories: residential-professional-institutional, neighborhood commerical, community/general commercial, regional commercial, and central business district. The primary uses range from a small convenience store, laundry/dry cleaning shop to a large shopping center or a multi-story office building. In considering intervenors' request to change the proposed land use to commercial, the City looked at the Greater Arlington Plan (an earlier land use plan completed in 1985), the existing use of the land, and the existing zoning. It also considered the general character of the area and the fact that most homes were graded in an "A" condition and were structurally sound. It should be noted here that the DCA did not raise any concerns over the proposed land use classification in its ORC report, nor has it subsequently posed any objection. In determining the appropriate land use classification for intervenors' properties, the Plan is the primary document to be used to guide the City's future growth and development. The future land use and housing elements of the Plan contain goals, objectives and policies which bear directly on this issue. More specifically, the following goals, objectives and policies found in the future land use and housing elements of the Plan support the classification given to intervenors' properties: Future Land Use Element GOAL 1 To ensure that the character and location of land uses optimize the combined potentials for economic benefit and enjoyment and protection of natural resources, while minimizing the threat to health, safety and welfare posed by hazards, nuisances, incompatible land uses and environmental degradation. Objective 1.1 Ensure that the type, rate, and distribution of growth in the City results in compact and compatible land use pattern, an increasingly efficient urban service delivery system and discourages proliferation of urban sprawl through implementation of regulatory programs, intergovernmental coordination mechanisms, and public/private coordination. Policy 1.1.1 The City shall ensure that all new development and redevelopment after the effective date of the 2010 Comprehensive Plan is consistent with the Future Land Use Map series, and textual provisions of this and other elements of the 2010 Comprehensive Plan, as provided in Chapter 163 (Part II), F.S. 1.1.8 By April 1, 1991, require that all new non-residential projects be developed either in nodal areas, in appropriate commercial infill locations, or as part of mixed or multi-use developments, as described in this element. GOAL 2 To enhance and preserve for future generations geographic areas with unique economic, social, historic or natural resource significance to the City. GOAL 3 To achieve a well balanced and organized combination of residential, non-residential, recreational and public uses served by a convenient and efficient transportation network, while protecting and preserving the fabric and character of the City's neighborhoods and enhancing the viability of non-residential areas. Issue: Residential Development Patterns The neighborhood is the functional unit of residential development. There is a need to protect existing, viable neighborhood units and the neighborhoods that will emerge in the future. However, much newer residential development occurs as enclaves, with little or no functional linkage to surrounding areas. Unplanned low density development has become a familiar land use pattern in Jacksonville as new subdivisions have been developed further and further out, away from the existing urban area. * * * Objective 3.1 Continue to maintain adequate land designated for residential uses which can accommodate the projected population and provide safe, decent, sanitary and affordable housing opportunities for the citizens. Protect single-family residential neighborhoods by requiring that any other land uses within single-family areas meet all applicable locational criteria of the 2010 Comprehensive Plan and subsequent Land Development Regulations. Policies 3.1.2 The City shall eliminate incompatible land uses or blighting influences from potentially stable, viable residential neighborhoods through active code enforcement and other regulatory measures. * * * 3.1.7 The City shall give high priority consideration to the provision of affordable housing in land development and funding decisions, especially those made relating to public/private cooperative efforts in which the City is participating. * * * Issue: Commerical and Industrial Development Patterns * * * Despite a significant increase in the number of planned centers approved in recent years, little change has occurred in the pattern of strip commerical uses lining the City's arterial and collector roadways. This development pattern is typically inefficient, unsafe, and aesthetically unattractive. It results in multiple curb cuts, sometimes up to 50 per mile, thereby reducing the traffic carrying capacity of highways while at the same time increasing the potential for accidents. With a clutter of signs of all sizes, shapes, color, and design, the appearance of these areas is not only unsightly, it is also distractive for traffic on the highway and can, therefore, be dangerous. Another problem relating to strip commercial uses has developed as the commercial market has begun to overbuild during the recent national economic expansion cycle. Commercial retail and office space has remained in an over-supply condition (indicated by vacancy rates over 15 percent) for the past several years,, and as a result, new space has come on line at square footage costs that create strong competition with existing space. This competitive market results in relocations of existing businesses to newer projects, leaving many older commercial buildings semi-vacant and with little investment benefit to the owners. Without the hope of a reasonable economic return, owners may not invest funds to maintain their structures, and inevitably, commercial blight begins to develop. For these reasons, new commercial development will be strongly encouraged to occur in nodes or clusters in the form of office parks, shopping centers and mixed use developments. Strip commercial expansion along arterial streets will be discouraged, except for commercial infill of uses such as hotels, motels, restaurants, auto sales and service, mobile home sales, convenience stores and gas stations, which shall continue to locate along highways. * * * Policies The City shall promote, through the use of development incentives and other regulatory measures, development of commercial and light/service industrial uses in the form of nodes, centers or parks, while discouraging strip commercial development patterns, in order to limit the number of curb cuts and reduce conflicts in land uses, particularly along collectors and arterials. The City shall promote, through the Land Development Regulations, infill and redevelopment of existing commercial areas in lieu of permitting new areas to commercialize. * * * The City shall permit expansion of commercial uses adjacent to residential areas only if such expansion maintains the residential character of and precludes non- residential traffic into adjacent neighborhoods. The City shall require neighborhood commercial uses to be located in nodes at the intersections of collector and arterial roads. Prohibit the location of neighborhood commercial uses interior to residential neighborhoods in a manner that will encourage the use of local streets for non-residential traffic. The City shall implement the locational criteria of this element for commercial and industrial uses consistent with the character of the areas served, availability of public facilities, and market demands. * * * Housing Element GOAL 1 The City shall develop stable and definable neighborhoods which offer sale, sound, sanitary housing that is affordable to all its present and future residents. Issue: Neighborhood Stabilization Urban housing is a function of neighborhood. Stable neighborhoods encourage residents to maintain, upgrade, build and buy housing resulting in a sound, diverse housing stock. * * * There is an inadequate number of organizations committed to the revitalization and cohesiveness of Jacksonville's neighborhoods. Preservation is relatively easy and inexpensive compared to redevelopment and will prevent widespread blight and deterioration in convenient residential locations close to transportation, schools, shopping and medical facilities. * * * Objective 1.4 Preserve, protect, and stabilize residential neighborhoods keeping the maximum number of dwelling units in the housing supply, as measured by the implementation of the following policies. * * * Policy * * * 1.4.5 Commercial and other non-residential uses lying adjacent to residential neighborhoods should not be expanded into residential neighborhoods unless: Such uses enhance or do not diminish or degrade the residential character of the neighborhood, and The expansion shall not result in a reduction of the level of service on the residential streets; * * * One of the overriding policies contained in the Plan was a desire to maintain the City's vibrant neighborhoods. The future land use element addressed those concerns by discouraging strip commercial development and promoting instead the development of commercial land uses at major intersectional nodes. Strip commercial development often has a "cancerous" effect on nearby residential land uses. Problems associated with strip commercial development include encroachment on adjacent residential neighborhoods, increased noise and traffic in residential areas, undesirable aesthetic appearances, and inefficient traffic flow along the roadways on which strip commercial development occurs. The Southside Estates subdivision is vulnerable to encroachment because of the grid pattern of streets, which increases the likelihood of non- residential traffic passing through the subdivision. If lots facing Southside Boulevard were converted to commercial land uses, traffic would likely increase on the neighborhood streets. The neighborhood is a stable neighborhood with a large inventory of homes in good condition. The current noise and traffic along Southside Boulevard has not impaired the neighborhood stability, as the character and condition of homes along Southside Boulevard is comparable with that in the interior of the neighborhood. The residential area in question constitutes an "established neighborhood" as that term is defined in the Plan. There, the term is defined as follows: A neighborhood where platted, or otherwise divided, land has been at least eighty percent developed and occupied without substantial deterioration since such development. The residential area surrounding intervenors properties provides a significant supply of affordable housing to both home buyers and renters. Preservation of that housing stock is preferable to development of additional housing elsewhere. Therefore, maintenance of this neighborhood for residential use supports the housing element of the Plan. As noted earlier, Southside Boulevard is classified as a principal arterial roadway in the Plan. It currently serves as a major north-south roadway. The State has planned and partially constructed State Road 9A, a limited access facility located to the east of Southside Boulevard. When completed, State Road 9A will be the eastern circumferential link to Interstate 95 north and south of the City. State Road 9A will accommodate some of the through traffic currently using Southside Boulevard and will reduce the volume of truck traffic on Southside Boulevard. Contrary to intevenors assertion, conversion of residential properties along this portion of Southside Boulevard would result in increased traffic along the main roadway as well as the service roads. It would also result in an increased number of vehicles entering onto Southside Boulevard. This would further exacerbate an already unacceptable level of service along that road. Southside Boulevard is not a limited access facility as defined in the future land use element of the Plan. Therefore, policy 3.1.12 within that element, which permits residential land use designations adjacent to limited access highways when the negative impact of the roadway can be mitigated, is not applicable. Policy 3.2.2 of the future land use element provides as follows: The City shall promote, through the Land Development Regulations, infill and redevelopment of existing commercial areas in lieu of permitting new areas to commercialize. "Infill development" is defined in the future land use element definitions as "development on scattered vacant sites within the urbanized/suburbanized area of the community." "Commercial infill" is defined as "commercial development of the same type and grade as adjacent commercial uses that is sited between those uses in existing strip commerical areas." Reclassification of this part of Southside Boulevard to a commercial land use would not consitute commercial infill development, as such development would not be occurring on scattered sites or vacant sites, nor are the adjacent uses commercial ones. The area in question cannot be considered a "blighted area" as that term is defined in the future land use element of the Plan. Policy 1.3.1 of the future land use element directs that the City require all non-residential development located along a designated major arterial to construct a service drive which connects to the service drive of adjacent properties, unless otherwise approved by the city traffic engineer. Such a service drive does not exist along this portion of Southside Boulevard. However, the same policy does not require that all property fronting a service drive be classified for commerical use. Further, in the event such service roads are provided in new locations, the policy does not require such roads to be constructed at City expense. Reclassification of intervenors' properties to commercial uses would constitute an expansion of commercial uses adjacent to residential areas. Policy 3.2.4 of the future land use element permits such expansion only if it maintains the residential character of and precludes non-residential traffic into adjacent neighborhoods. Establishment of commercial uses on the property would be a negative influence which would begin the erosion and decay of the surrounding neighborhood. Because of the street grid pattern, it would be difficult, if not impossible, to preclude non-residential traffic from utilizing streets in the adjacent neighborhood. Table L19 of the future land use element is a land use acreage allocation analysis. That table depicts the existing acreage for certain land use categories, the projected acreage needs for those categories to the year 2010, and the acreage allocated to those needs on the future land use map series. The amount of acreage allocated to commerical land use categories is 185.90 percent of the projected need while the acreage allocated to residential land use categories is 127.99 percent of the projected need. Therefore, the land use classifications found on the map series result in a greater overutilization of commercial land use acreage than that found with respect to residential land use acreage. The City's classification of intervenors' properties is similar to that along comparable areas elsewhere in the City. For example, State Road 13 (San Jose Boulevard/Hendricks Avenue) north from Baymeadows Road is characterized by predominately single family residential land uses interrupted by several nodes of commercial development. Like Southside Boulevard, San Jose Boulevard is a four-lane roadway carrying comparable volumes of traffic. This portion of San Jose Boulevard contains a parking lane, but it does not have parallel service roads and the overall width of the right-of-way is narrower than that found on Southside Boulevard. Therefore, homes along this portion of San Jose Boulevard are generally located as close to the right-of-way as those along Southside Boulevard and are closer to the traffic lanes themselves. Traffic counts are comparable, but projections for State Road 13 are as high as 78,426 by the year 2010. Despite this traffic, this area remains a viable, stable residential area. In summary, then, intervenors' properties should be classified as low residential density. This classification is consistent with and supported by the Plan's goals, objectives and policies. Therefore, intervenors' properties should not be reclassified as commercial. The Acree Property Intervenor Acree and his brother, who are both licensed veterinarians, own approximately 460 acres in the northwest portion of the county located on Acree Road (formerly Thomas Road). Of that amount, 360 acres were purchased in 1956 when the brothers started a wholesale dairy as an investment. Three adjoining parcels totaling 116 acres were later purchased as the dairy operation expanded. In 1989, the dairy animals were sold and Acree planned to sell the farm and retire. At that time, he hired civil engineers to develop a conceptual site plan for the purpose of ascertaining the value of his land for development under existing zoning regulatioins. Since the Plan changes his classification and impacts his ability to develop the property, Acree has brought this appeal for the purpose of challenging the land use classification given to his property. The Acree property is designated "agricultural" under the Plan. The allowable densities in an agricultural land use category are contained in the plan category descriptions of the future land use element and provide as follows: One dwelling unit (D.U.) per 100 acres of land for lots of record of 640 acres (section) or more in size at the time of adoption of the 2010 Comprehensive Plan; One dwelling unit (D.U.) per 40 acres of land area for lots of record of 160 acres (1/4 section) up to but not including 640 acres (section) in size at the time of adoption of the 2010 Comprehensive Plan; One dwelling unit (D.U.) per 10 acres of land area for lots of record of 40 acres and up to but not including 160 acres at the time of adoption of the 2010 Comprehensive Plan. One dwelling unit (D.U.) per 2.5 acres of land for single lots of record or the combination of contiguous lots of record under common ownership up to but not including 40 acres which were existing on September 21, 1990. In the event such land area equals 40 acres or more, the allowable number of dwelling units shall be determined according to paragraph (iii) above. Notwithstanding this requirement, one dwelling unit shall be permitted on any nonconforming lot of record which was existing on September 12, 1990. Development on such nonconforming lots of record shall be subject to all other plan provisions. By his petition, Acree seeks to have his property classified as rural residential. This classification is defined in the plan category descriptions of the future land use element as follows: This category is intended to provide rural estate residential opportunities in the suburban area of the City. Housing development at a net density range of up to two (2) dwelling units per acre will be allowed when community scale potable water and sewer facilities are available to the site, and one (1) unit per net acre when the site will be served with on-site water and wastewater facilities. Generally, single- family detached housing and mobile homes will be the predominant land uses in this category. In addition, agriculture, silviculture, and similar other uses may be permitted as secondary uses subject to the standards and criteria in the Land Development Regulations. If the petition is approved, Acree would be allowed to develop his property with a much higher density, and the value of the land would increase correspondingly. Prior to the adoption of the plan, Acree's property was zoned OR (agriculture). Under then-existing regulations, a residential density of one dwelling unit per acre of land was authorized. All other rural land in the county could be utilized for residences in one and one-half acre minimum size lots. This compares with current restrictions described in finding of fact 31. Acree's property is 3 miles by roadway (but only 2.4 linear miles) from the nearest available water and sewer utilities. The property is 1.5 miles from the nearest property classified as rural residential on the future land use maps. Presently, the farm is surrounded by timberland. In originally finding the City's Plan not in compliance, the DCA's concerns included the plan's projections of agriculture land use, its vested development rights, and urban sprawl considerations. As a consequence, in developing the Plan, one of the factors considered by the City was the discouragement of urban sprawl. That term is defined in the future land use element of the Plan as follows: A terminology commonly used to describe certain kinds of growth and development patterns. It refers to scattered, untimely, poorly planned urban development that occurs in urban fringe and rural areas without provisions for utilities and services. Urban sprawl typically manifests itself in one or more of the following patterns: (1) leapfrog development; (2) strip or ribbon development; and (3) large expanses of low-density, single- dimensional developments. This corresponds to the description given the term by the DCA in a technical memorandum issued by the DCA in 1989. The future land use element of the Plan contains the following objective and policies to discourage urban sprawl: Objective 1.1 Ensure that the type, rate and distribution of growth in the City result in compact and compatible land use patterns, an increasingly efficient urban service delivery system and discourages proliferation of urban sprawl through implementation of regulatory programs, intergovernmental coordination mechanisms, and public/private coordination. Policies * * * 1.1.16 Prohibit scattered, unplanned urban sprawl development without provisions for facilities and services at levels adopted in the 2010 Comprehensive Plan in locations inconsistent with the overall concepts of the Future Land Use Element. * * * 1.1.18 Limit urban scale development to the Urban and Suburban areas of the City, as identified in the 2010 Comprehensive Plan, in order to prevent urban sprawl, protect agriculture lands, conserve natural open space, and to minimize the cost of public facilities and services, except for urban villages and other large scale mixed use developments which are designed to provide for the internal capture of daily trips for work, shopping and recreational activities. * * * 1.1.20 Future development orders, development permits and plan amendments shall maintain compact and compatible land use patterns, maintain an increasingly efficient urban service delivery system, and discourage urban sprawl. * * * In addition, leapfrog development is defined in the future land use element as follows: An urbanizing growth pattern which occurs when new land development is sited away from existing urban area, bypassing vacant parcels located in or closer to the urban area that are suitable for development. It typically results in scattered, discontinuous growth patterns in rural areas. To discourage urban sprawl, the City has incorporated into its Plan a provision dealing with public facilities. This provision, which is found in the capital improvements element, establishes areas in which the City would provide public services during the time frame of the Plan. They include the "urban area," where urban services already exist or are programmed to be provided within a short time; the "suburban fiscal commitment area" where services such as water and sewer are in place or planned to be installed within five years; the "suburban non-fiscal commitment area," which is that portion of suburban area in which the City does not commit to providing water and sewer services witin the next five years; and the "rural area," which is predominately undeveloped and unplatted and comprises those areas not intended to be developed by the year 2010. Acree's property is located in the rural area as depicted in the capitol improvement element of the Plan. The sanitary sewer sub-element of the public utilities element of the Plan is also relevant to this issue. It provides in part as follows: Goal 1 The City shall provide for economically and environmentally sound wastewater collection and treatment systems which . . . promote beneficial land use and growth patterns and . . . discourage urban sprawl. Objective 1.1 In order to discourage urban sprawl and correct existing deficiencies, the City shall provide regional wastewater facilities in concert and conformance with the Public Facilities Map as adopted in the Capital Improvement Element. Policies * * * 1.1.5 The City shall not invest in sanitary sewer facilities in the Rural area as defined in the Future Land Use and Capital Improvements Elements, except where necessary to protect the public health and safety. The potable water sub-element of the public utilities element of the Plan contains comparable objectives and policies with regard to providing regional water facilities. The above provisions do not prevent a developer from paying the cost to extend such services to his property. Any facilities installed by the developer, however, must be maintained by the City after such facilities are turned over to the City by the developer. The plan category descriptions found in the Plan for agriculture land uses established a hierarchy based upon the size of the lot of record. The intent of the varying densities is to provide flexibility to owners of smaller lots of record while encouraging large land owners to maintain agricultural land uses, rather than converting to residential development. By law, certain development approved prior to the adoption of the Plan has vested rights. Local governments have included vesting language in their comprehensive plans. Some governments have elaborated upon vesting language to allow exceptions based upon density. The language regarding densities in agriculture land uses found in the Plan is similar to language found in other local government plans. Most plans with density exception language also contain provisions combining contiguous lots of record under common ownership. The density provisions found in the Plan do not make it inconsistent with Chapter 163, Florida Statutes, the DCA's rules, or the state comprehensive plan. At its closest point, Acree's property lies just 400 feet from the Nassau County line. He established that most of the land in Nassau County just north of the Duval County line, and just a short distance from his own, can now be developed at a residential density of one dwelling unit per acre while some can be developed at a residential density of one dwelling unit per one-half acre. He also established that all agriculture land in Nassau County can be developed with a residential density of one dwelling unit per twenty acres for tracts of 320 acres and greater regardless of the amount of land in single or contiguous ownership. However, there is nothing in chapter 163 or the agency's rules which require adjacent land uses in adjoining counties to be identical. Put another way, decisions made in Nassau County with respect to its comprehensive plan are not binding on Duval County. Therefore, the City was not required to classify Acree's property as rural residential merely because an adjoining county had classified nearby land in that manner. Redesignation of Acree's property from agriculture to rural residential would not constitute "infill" development. This is because of the property's distance from other urban development in the county and distance from existing water and sewer servcies. Given the location of Acree's property, reclassification to rural residential land would constitute leap frog development and promote urban sprawl as those terms are defined in the Plan. This is true even though nearby land in Nassau County is considered urban sprawl by City planning officials. Finally, preservation of agriculture land uses is a state concern, especially in areas not projected to be served by water and sewer services. Testimony established that there are several areas in Duval County classified as rural residential which constitute urban sprawl. With the exception of one such area, however, all areas reflect existing residential developments already in place. Table L19 of the future land use element of the Plan is a land use acreage allocation analysis which depicts the existing acreage for certain land use categories, the projected acreage needs for those categories to the year 2010, and the acreage allocated to those needs on the future land use map series. Table L19 indicates that the amount of the acreage allocated to the rural residential land use category is already 194.94 percent of the projected need. In summary, then, in order for the Plan to be internally consistent, Acree's property should be classified as agriculture. This will ensure that development occurs in a compact pattern, which is more cost efficient and compatible with the requirements of the Plan. Therefore, the property should not be reclassified as rural residential since this would be contrary to the goals, objectives and policies within the Plan.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Administration Commission enter a final order finding the City's Plan to be in compliance with the law. DONE AND ENTERED this 24th day of January, 1994, in Tallahassee, Florida. DONALD R. ALEXANDER 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 24th day of January, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-7496GM Petitioners Davis and Dekle: Partially accepted in finding of fact 1. Partially accepted in finding of fact 4. Partially accepted in finding of fact 2. Partially accepted in finding of fact 6. Partially accepted in finding of fact 7. Partially accepted in finding of fact 8. 7-8. Partially accepted in finding of fact 5. 9. Partially accepted in finding of fact 8. 10-11. Partially accepted in finding of fact 10. 12-13. Partially accepted in finding of fact 11. Petitioner Acree: Partially accepted in finding of fact 30. Rejected as being irrelevant. 3-4. Rejected as being a conclusion of law. 5. Partially accepted in finding of fact 35. 6-7. Rejected as being irrelevant. See finding of fact 42. 8. Partially accepted in findings of fact 35 and 44. 9. Partially accepted in finding of fact 42. 10. Partially accepted in finding of fact 33. 11. Partially accepted in finding of fact 30. 12. Partially accepted in finding of fact 42. 13. Partially accepted in findings of fact 31 and 41. 14. Partially accepted in findings of fact 32 and 42. 15. Partially accepted in findings of fact 35 and 43. DCA and the City: 1-2. Partially accepted in finding of fact 1. 3-5. Partially accepted in finding of fact 2. 6-7. Partially accepted in finding of fact 3. 8-10. Partially accepted in finding of fact 4. 11. Partially accepted in finding of fact 7. 12. Partially accepted in finding of fact 6. 13. Partially accepted in finding of fact 5. 14. Partially accepted in finding of fact 8. 15. Partially accepted in finding of fact 9. 16. Partially accepted in finding of fact 10. 17. Partially accepted in finding of fact 11. 18-19. Partially accepted in finding of fact 8. 20-21. Partially accepted in finding of fact 4. 22-24. Partially accepted in finding of fact 13. 25. Partially accepted in finding of fact 14. 26. Partially accepted in finding of fact 8. 27-28. Partially accepted in finding of fact 12. 29. Partially accepted in finding of fact 14. 30. Partially accepted in finding of fact 15. 31. Partially accepted in finding of fact 16. 32. Partially accepted in finding of fact 17. 33. Partially accepted in finding of fact 18. 34. Partially accepted in finding of fact 19. 35. Partially accepted in finding of fact 10. 36. Partially accepted in finding of fact 20. 37. Partially accepted in finding of fact 10. 38. Partially accepted in finding of fact 21. 39. Partially accepted in finding of fact 22. 40. Partially accepted in finding of fact 23. 41. Partially accepted in finding of fact 24. 42. Partially accepted in finding of fact 25. 43. Partially accepted in finding of fact 26. 44. Partially accepted in finding of fact 27. 45. Partially accepted in finding of fact 28. 46. Partially accepted in findings of fact 30 and 42. 47. Partially accepted in finding of fact 31. 48. Partially accepted in finding of fact 34. 49. Partially accepted in finding of fact 32. 50. Partially accepted in finding of fact 42. 51-53. Partially accepted in finding of fact 35. 54. Partially accepted in finding of fact 37. 55-56. Partially accepted in finding of fact 38. 57. Partially accepted in finding of fact 39. 58. Partially accepted in finding of fact 46. 59-60. Partially accepted in finding of fact 36. 61. Partially accepted in finding of fact 42. 62. Partially accepted in finding of fact 43. 63. Partially accepted in finding of fact 42. 64. Partially accepted in finding of fact 43. 65. Partially accepted in finding of fact 41. 66. Partially accepted in finding of fact 45. 67. Partially accepted in finding of fact 44. Note - Where a proposed finding has been partially accepted, the remainder has been rejected as being unnecessary, subordinate, cumulative, not supported by the evidence, or a conclusion of law. COPIES FURNISHED: Linda Loomis Shelley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Dan R. Stengle, Esquire General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Katherine A. Castor, Esquire 2740 Centerview Drive Tallahassee, Florida 32399-2100 Michael A. Altes, Esquire 200 West Forsyth Street, Suite 1100 Jacksonville, Florida 32202-4308 James A. Acree 5031 Dianwood Drive East Jacksonville, Florida 32210 Tracey I. Arpen, Jr., Esquire 1300 City Hall 220 East Bay Street Jacksonville, Florida 32202
The Issue The issue in Case 08-1144GM is whether Martin County Comprehensive Growth Management Plan (CGMP or Plan) Amendment 7-20, called the "Land Protection Incentives" (LPI) Amendment (LPIA), which was adopted by Ordinance 777 on December 11, 2007, and amended by Ordinance 795 on April 29, 2008, is "in compliance," as defined by Section 163.3184(1)(b), Florida Statutes.1 The issue in Case 08-1465GM is whether Martin County's Comprehensive Plan Amendment 7-22, called the "Secondary Urban Service District" (SUSD) Amendment (SUSDA), which was adopted by Ordinance 781 on December 11, 2007, is "in compliance," as defined by Section 163.3184(1)(b), Florida Statutes.
Findings Of Fact Petitioners' Standing FOF and MCCA objected to the LPIA and the SUSDA during the time period from transmittal to adoption of those amendments.3 FOF FOF is a non-profit organization incorporated in 1986, shortly after Florida’s Local Government Comprehensive Planning and Land Development Regulation (Growth Management) Act was enacted to monitor the Act's implementation. FOF engages in legislative, legal, and grassroots advocacy for sustainable comprehensive land use planning in Florida. It conducts membership meetings, sends newsletters to members and others, hosts meetings open to the general public, and initiates or participates in litigation or administrative proceedings concerning amendments to local comprehensive plans. Its main office is in Tallahassee, where several employees work. It also has a branch office in Lake Worth, Palm Beach County, where one employee works. It has no office or employees in Martin County. There was no evidence that FOF has applied for or obtained any license or permit to operate a business in Martin County; nor was there any evidence as to the requirements for obtaining such a license or permit. FOF has approximately 3,500 members; approximately 550 members live or own property in Martin County. FOF does not have a continuous presence in Martin County, other than its members who live and own property there, but it continuously monitors comprehensive planning and related growth management issues in Martin County and from time to time engages in activities in Martin County. Since 1990, FOF was involved in the Loxahatchee Greenways project, a major river corridor running through Martin County; was involved in the protection of Jonathan Dickinson State Park, which is in Martin County; undertook its Palm Beach and Martin County Green Initiative (which addressed housing, legal, transportation, and other planning issues in Martin County and resulted in the distribution of educational materials on Martin County planning issues); opposed specific local development proposals; supported a sales tax referendum to buy and preserve environmentally- sensitive lands; collaborated with the County planning department to update the housing element of the County Comprehensive Plan; assisted with a local affordable housing initiative; published a booklet on comprehensive planning in the County; and conducted a public survey of County residents assessing attitudes about planning. FOF staff members speak at and participate in annual growth management forums in Martin County, which are attended by a substantial number of its members. FOF has regularly commented in person and in writing to the Martin County Commission on proposed CGMP changes. FOF also has previously participated as a party in administrative hearings conducted in the County concerning the CGMP, during which its president has testified as an expert planner. The relief requested by FOF in this case is germane to its goals and appropriate to request on behalf of its members. MCCA MCCA is a Florida not-for-profit corporation created in 1997. It is a membership-based organization of 120 individuals and 14 other organizations. MCCA itself does not own real property in Martin County. However, at least 38 individual members reside and own real property in the County, and at least one organizational member (Audubon of Martin County) owns real property in the County. MCCA does not maintain an office or have paid employees. It operates through its members, who volunteer. MCCA's Articles of Incorporation state that it was formed "to conserve the natural resources of Martin County, to protect the native flora and fauna of Martin County, [and] to maintain and improve the quality of life for all of the residents of Martin County." It engages in various forms of lobbying and advocacy for or against amendments to Martin County's Comprehensive Plan, including initiation or participation in litigation and administrative proceedings. It conducts membership meetings in the County, sends newsletters to members and others, hosts meetings in the County that are open to the general public (including an annual growth management meeting with FOF and an annual awards luncheon with local conservation groups), and works with member organizations on issues relating to the Indian River Lagoon (IRL), including petition drives. The relief requested by MCCA in this case is germane to its goals and appropriate to request on behalf of its members. Martin County Comprehensive Growth Management Plan The CGMP establishes two "urban service districts" in the County, a Primary Urban Service District (PUSD) and a Secondary Urban Service District (SUSD). See CGMP, § 4.4.G. The PUSD has been part of the Plan since it was first adopted in 1982, while the SUSD was added during the major revision of the Plan in 1990. Approximately 65,702 acres (101 square miles) are located within the PUSD. The PUSD encompasses most of the eastern coastal area of the County surrounding four incorporated municipalities, (Stuart, Sewall's Point, Jupiter Island, and Ocean Breeze Park), plus an isolated inland area known as Indiantown. Approximately 9,621 acres (14 square miles) are located within the SUSD. All land within the SUSD is immediately adjacent to land within the PUSD, but is split into several discontinuous sections so that some of the land along the western border of the PUSD abuts land outside the urban service districts. The County's purpose for having urban service districts is to "regulate urban sprawl tendencies by directing growth in a timely and efficient manner to those areas where urban public facilities and services are available, or are programmed to be available at the levels of service adopted in [the Plan]." CGMP, § 4.4.G. The Plan further provides: Objective: Martin County shall concentrate higher densities and intensities of development within the strategically located [PUSDs], as delineated, including commercial or industrial uses as well as residential development exceeding a density of two units per acre . . . . * * * b. Policy: Martin County shall require that new residential development containing one-half acre or smaller lots, commercial uses, and industrial uses shall be located within the [PUSD]. * * * Objective 2. Martin County shall concentrate rural and estate densities not exceeding one unit per gross acre within the [SUSDs] where a reduced level of public facility needs are programmed to be available at the base level of service adopted in the Capital Improvements Element. a. Policy: Martin County shall designate land uses within the [SUSD] in order to provide for the use and extension of urban services in an efficient and economical manner, and consistent with the reduced intensity of urban services normally associated with densities of one unit per gross acre (Estate Density RE-1A) and one unit per two gross acres (Rural Density). . . . * * * f. Policy: In areas designated as [SUSD], where development is proposed that would contain one- half acre lots, or commercial and industrial uses, a change to a [PUSD] designation must be approved by the Board of County Commissioners as part of a land use amendment . . . . The Plan thus generally establishes residential density for land within the PUSD at 2 or more dwelling units per acre, and for land within the SUSD at 1 dwelling unit per acre to 1 dwelling unit per 2 acres. The remaining land within the County that is not within the PUSD or SUSD is generally referred to as "outside" the urban service districts. There are approximately 269,034 acres of such land. The vast majority of such land (approximately 210,379 acres) is designated in the Plan for "agricultural" use. Most of the other land outside the urban service districts is designated for either "public conservation" or "public utilities" See CGMP, § 4.4.L., § 4.4.M.1.a., i., and j. The Plan currently allows residential use of land outside the urban service boundaries that is designated for agricultural use but limits it to either 1 dwelling unit per 5 acres, known as "agricultural ranchette," or 1 dwelling unit per 20 acres. See CGMP, § 4.4.M.1.a.& c. The Plan further specifies for the latter that: Residential development in the agricultural area is restricted to one-single family residence per gross 20-acre tract. [N]o development shall be permitted which divides landholdings into lots, parcels or other units of less than 20 gross acres. Acreage may be split for bona fide agricultural uses into parcels no smaller than 20 gross acres. . . . Residential subdivisions at a density or intensity or greater than one single- family dwelling unit per 20 gross acre lot shall not be allowed. (CGMP, § 4.4.M.1.a.) Throughout the Plan, residential development on lots of 2 acres or more is consistently referred to as "rural" development (even within the SUSD), while residential development on smaller lots is consistently referred to as "urban" and must be in either the PUSD or SUSD. It was undisputed that the County's adoption of such a distinction between urban and rural residential lots was a professionally acceptable planning practice. Preservation of the County's agricultural lands is a goal of the Plan. See CGMP, § 4.4.L.1. It is also later stated in a policy related to the allocation of land: Through its planning, capital improvements, cooperative extension, regulatory and intergovernmental coordination activities, Martin County shall continue to protect agriculture as a viable economic use of land. (CGMP, § 4.4.M.1.b.) Preservation of conservation and open space areas within the County is the subject of an entire element of the Plan. See CGMP, Chap. 9.4 The County's goal is "to effectively manage, conserve, and preserve the natural resources of Martin County, giving consideration to an equitable balance of public and private property rights. These resources include air, water, soils, habitat, fisheries, and wildlife, with special emphasis on restoring the St. Lucie Estuary and the Indian River Lagoon." CGMP, § 9.4.A. Preservation of conservation and open space areas is also addressed in numerous other objectives and policies throughout the several elements of the Plan and is a predominant theme of the entire Plan. The provision of "urban public facilities and services" is expressly limited by a policy to the County's urban service districts "in order to preserve agricultural lands and provide maximum protection to the farmer from encroachment by urban uses." CGMP, § 4.4.L.1.a. The Plan defines the term "public urban facilities and services" as "regional water supply and wastewater treatment/disposal systems, solid waste collection services, acceptable response times for sheriff and emergency services, reasonably accessible community park and related recreational facilities, schools and the transportation network." CGMP, § 4.1.B.4. However, the term is often used in the Plan in a rearranged or abbreviated manner, such as "urban public facilities and services" (§ 4.4.G.1.f.(7)), "public facilities and services" (§ 4.4.G and § 4.4.G.1.f.), "public services and facilities" (§ 4.4.G.1.i.), "public urban facilities" (§ 4.4.G.1.c.), "public urban facilities" (§ 4.4.G.1.i.), or merely "public facilities (§ 4.4.G.1.) or "urban services " (§ 4.4.G.2.a.). LPIA Provisions The LPIA adds a new objective and new policies under the Future Land Use Element goal addressing "natural resource protection," which provides: Martin County shall protect all the natural resource systems of the County from the adverse impacts of development, provide for continued growth in population and economy and recognize the inter-relationship between the maintenance of urban support infrastructure in waste management, air and water quality, and the coastal zone environmental quality. (CGMP, § 4.4.E.) To the existing 6 objectives under that goal, the LPIA adds a seventh which states: Martin County shall create opportunities for the permanent preservation of contiguous open space, environmentally sensitive land and agricultural land uses while maintaining residential capacity as it existed on January 1, 2007. For the purposes of Section 4.4.E.7., and supporting paragraphs, the definition of open space, found in Section 9.4.A.11., CGMP, shall not include roads, highways and their median strips and berms. This objective is intended to encourage the conveyance of fee simple title of land listed for public acquisition by state, regional or local environmental or governmental agencies or land trusts. Lands listed for acquisition include, but are not be limited to [sic], land designated for public acquisition under the Save Our Rivers program, the Indian River Lagoon, North Palm Beach, and the Lake Okeechobee portions of the Comprehensive Everglades Restoration Plan (CERP), as well as Northern Everglades and Estuaries Protection Program. The overall purpose of the LPIA is to encourage the owners of tracts of land outside the urban service districts that are at least 500 acres to choose a different pattern of development than the Plan now allows, by allowing a substantial reduction in the minimum lot size so that the development may be "clustered" on a smaller "footprint" within the overall tract of land, but only if at least 50% of the entire tract is "set aside" permanently for conservation, open space, or agricultural use and stripped of its potential for future development. This approach, it is hoped, will make it easier and cheaper for the County and other governmental entities to acquire the large tracts of land they desire to use for the CERP and other conservation projects. The LPIA does not allow for more development than is allowed under the Plan currently. It allows the same amount of development to be arranged on a tract of land in a different pattern than is currently allowed. It accomplishes this primarily through the combination of a change in the minimum lot size from "20 acres" to "over 2 acres" with a new allowance for "clustering" the smaller lots on a portion of an overall tract of land rather than having an equal number of larger lots spread throughout the entire tract of land. The LPIA adopts six policies to accomplish the new objective: Policy (7)a. provides for the protection of the land "set aside" to be conveyed or subject to an easement in favor of a combination of the County, the South Florida Water Management District, and a third entity, chosen from among the other governmental or not-for-profit conservation- oriented organizational entities listed in the policy. Policy (7)b. requires that a combination of a comprehensive plan amendment and a PUD agreement be used for the change in the development characteristics of the land. The PUD agreement would address the portion of the tract subject to development and not "set aside," while the plan amendment would address (at a minimum) the remaining portion of the tract which is permanently "set aside" for conservation, open space, or agricultural use and would no longer have any potential for residential development. Policy (7)c. provides additional specificity concerning the subject matters that would be addressed by the comprehensive plan amendment, such as any required change in land use designation for the set-aside portion of the tract of land, and if it remains designated for agricultural use, the removal of any potential for development. Policy (7)d. primarily provides additional specificity concerning the subject matters that would be addressed by the PUD agreement, setting minimum requirements to be met such as the tract having to be a minimum of 500 acres in size; the development being "fiscally neutral to existing taxpayers"; the lots having to be more than 2 acres in size; the inability to develop in environmentally sensitive areas on the tract; and the acknowledgment of a permanent restriction against any future increase of density on the tract. The policy also essentially repeats some of the requirements enunciated in the second and third policies regarding the conveyance of title or easement and the required comprehensive plan amendment, and addresses who pays the closing costs for the set-aside portion of the tract. Policy (7)e. establishes additional requirements specifically applicable to land that has been "listed for acquisition by state, regional, or local agencies as part of an established conservation program." Policy (7)f. enumerates the "site specific benefits" that the second policy states the County must consider when deciding whether to approve an application for development under the optional pattern allowed by the LPIA, such as whether more than the minimum 50% of the tract will be "set aside" permanently, whether the location fills "gaps in natural systems, wildlife corridors, greenways and trails," or whether buffers are provided along roads "to limit access and to protect vistas." The LPIA requirement for at least 50% of an entire tract being set aside for one of the three public purposes, when coupled with other requirements of the Plan such as establishment of construction setback distances, preservation of wetlands and creation of buffers around wetlands, preservation of certain uplands, would result in more than 50% of an undeveloped tract of land remaining in an undeveloped state and at least 50% of agricultural land remaining in agricultural use. Meaning and Predictability of LPIA Standards Petitioners contend that the LPIA fails to establish meaningful and predictable standards in numerous respects. No Guide to Location and Pattern of Development Petitioners contend that the LPIA fails to establish meaningful and predictable standards essentially because it does not identify the lands to be preserved and developed, leaving the results up to the choice of landowners to make proposals and Martin County's case-by-case decisions on future development proposals. See PPRO, ¶¶52-53. However, the goals of the LPIA are quite clear, and there is no basis to speculate that Martin County will make decisions contrary to those goals--for example, by approving PUDs or agricultural uses on the most environmentally-sensitive part of tract, ignoring the importance of environmentally-sensitive and agricultural lands and the impact of development patterns on them, and ignoring the impact of the pattern of development under the LPIA on rural character. Petitioners also criticize the LPIA for not being clear "whether a subject property must be in single ownership." (PPRO, ¶61.) However, it is not clear why that omission would be pertinent. Undefined Increase in Maximum Density Petitioners contend that, in four ways, the LPIA increases maximum density in the Agricultural category without defining the amount of the increase. Waiver of Density Limits Clearly, the LPIA exempts the PUD option from "the agricultural land use policies in Section 4.4.M.1.a. pertaining to the 20 acre lot size . . . ." LPIA § 4.4.E.7.d.(8). Contrary to Petitioners' contention, that does not eliminate density standards. Residential lots must be greater than two acres. See LPIA § 4.4.E.7.d.(3). Maintenance of Residential Capacity Petitioners contend the LPIA increases density because its objective is to "create opportunities for the permanent preservation of contiguous open space, environmentally sensitive land and agricultural land uses while maintaining residential capacity as it existed on January 1, 2007." LPIA § 4.4.E.7. (Emphasis added.) Petitioners complain that County-wide residential capacity on that date is not identified and that the objective requires residential capacity in Agricultural lands to increase as it decreases elsewhere in the County. This interpretation is unreasonable. The County's interpretation, that residential units lost by preservation are to be maintained by clustering on the remaining Agricultural lands, is more reasonable. Transfer of Wetland Density Petitioners contend that the LPIA increases density by allowing transfer of wetland density in the Agricultural future land use category. See LPIA § 4.4E.7.d.(7). Under the Plan before the LPIA, up to half of wetland density can be transferred to uplands in a PUD. See CGMP § 9.4A7.b.(8). PUDs were not allowed in Agricultural lands before the LPIA. But Petitioners did not prove that allowing the transfer and clustering of residential units into a PUD on Agricultural lands under the LPIA would change the total number of residential units already allowed in Agricultural lands (at one unit per 20 acres). Alleged Failure to Remove Density from All Non-PUD Land Petitioners contend that the LPIA increases density by not stripping residential units from all so-called non-PUD land. Contrary to this contention, the more reasonable interpretation is that land not set aside for permanent preservation in a proposal made under the LPIA must be part of the proposed PUD. In any event, even if an LPIA proposal could include land that is neither set aside for preservation nor part of the PUD land, no residential units is such land would be transferred to the PUD, and failure to strip such land of its residential units would not affect the total number of units associated with the LPIA proposal. Petitioners also contend that the LPIA allows text amendments to increase density on land set aside for preservation under the LPIA because it specifies that such land must be changed on the FLUM and will not be eligible for "any additional [FLUM] amendment which increases residential density or intensity of use . . . ." LPIA § 4.4E.7.d.(7). The negative implication Petitioners draw from this language is contrary to the intent of the LPIA and is not warranted. Even if text amendments are not prohibited, they would apply to all land in a particular land use category, not just to land set aside under the LPIA. Subsequent Plan Amendments Not Required for PUD Petitioners contend that the LPIA "is unclear as to whether a PUD can be approved without a subsequent plan amendment specifically authorizing the two-acre lot subdivision site plan." PPRO, ¶80. This contention supposedly arises from the language of LPIA § 4.4.E.7.c.: "The Comprehensive Plan amendment that is part of a joint Plan Amendment and concurrent PUD application submitted under this objective must address the land use designation on the land set aside in perpetuity as contiguous open space, environmentally sensitive land and/or agricultural land uses in the following manner: . . . ." (Emphasis added in PPRO, ¶82.) The negative implication Petitioners draw from this language is contrary to the intent of the LPIA and is not warranted. It ignores LPIA § 4.4.E.7.d.(7): "The Comprehensive Plan amendment filed concurrently with the PUD application shall allow the site-specific clustering of density in one portion of the total subject site, including the transfer of full density of any wetlands on the site, at a density that shall not exceed one unit per twenty acres for the total site prior to conveyance. . . . The Plan amendment shall further specify that neither the land conveyed nor the land controlled by the PUD agreement shall be eligible for any additional [FLUM] amendment which increases residential density or intensity of use . . . ." While LPIA § 4.4.E.7.d.(7) discusses land that is conveyed, it is reasonably clear that a Plan amendment addressing the PUD also would be required for lands that are set aside using one of the other mechanisms specified in the LPIA. Public Benefit Criteria Petitioners contend that LPIA Section 4.4.E.7.b. and f. gives the County "unfettered discretion to reject or approve a PUD 'for any reason.'" PPRO, ¶90. Those sections provide that approval of a PUD will be based on consideration of "significant site-specific public benefits," some of which are listed. While it is true that the LPIA gives the County discretion to grant or approve a PUD based on its consideration of those factors, Petitioners did not prove "unfettered discretion." First, minimum requirements under the LPIA first must be met. Second, the list of public benefits gives some guidance as to the kinds of additional public benefits that will justify approval of a PUD. Petitioners did not prove that a comprehensive plan provision allowing for PUD zoning need be any more specific to be implemented in a consistent manner. Protection of Land Set Aside Petitioners contend that the LPIA fails to protect land set aside under the LPIA because it does not identify the land most appropriate for preservation or require that it be set aside. This contention ignores the objective to encourage conveyance of "land listed for public acquisition by state, regional or local agencies as part of established conservation programs" which "include, but are not be [sic] limited to land designated for public acquisition under" several named public acquisition programs. LPIA § 4.4.E.7. It also ignores the policy: "No development in the PUD shall be allowed on unique, threatened or rare habitat, or other environmentally sensitive lands that are critical to the support of listed plant or animal species . . . ." LPIA § 4.4.E.7.d.(4). It also ignores the policy that "PUDs that include land listed for acquisition by state, regional or local agencies as part of an established conservation program shall be subject to . . . additional requirements": including fee simple conveyance of at least half of such land; and no development in the PUD on such land "unless the land has been previously impacted by agricultural activities and the proposed development is determined to be inconsequential to the implementation and success of the conservation program . . . ." LPIA § 4.4.E.7.e.(1)-(2). In addition, various means of protecting such lands are several of the listed "additional significant site-specific benefits" of a PUD proposal to be considered in the approval process. See LPIA § 4.4.E.7.f. Petitioners contend that the LPIA fails to "require set-aside lands to be contiguous to other farmland, open space, or natural lands" and "contiguous, functional, and connected to adjacent and regional systems." PPRO, ¶¶102-98 [sic]. These contentions ignore the objective to "create opportunities for the permanent preservation of contiguous open space, environmentally sensitive land and agricultural land uses. . . ." LPIA § 4.4.E.7. They also ignore that land in public acquisition programs ideally is contiguous to other open space and natural lands. Petitioners did not prove their contention in PPRO ¶97 [sic] that it is necessary to specify the public acquisition programs for the LPIA to be implemented in a consistent manner. Petitioners contend that the LPIA fails to define the "perpetual easement" mechanism allowed in LPIA Section 4.E.7.a. for setting aside land in lieu of fee simple conveyance. See PPRO, ¶103. This contention ignores the policy in LPIA Section 4.E.7.d.(5) to use perpetual easements as a means of enforcing the prohibition against increasing residential density or intensity of use by FLUM amendments, as well as the policy in LPIA Section 4.E.7.d.(6) to use perpetual easements "to restrict future uses and ensure the government agencies or other entities holding fee simple title do not sell or develop the property inconsistent with this policy or the approved uses within the PUD Agreement." Petitioners did not prove their contention in PPRO ¶103 that it is necessary to further define "perpetual easement" for the LPIA to be implemented in a consistent manner. Petitioners contend in PPRO ¶¶105 and 107 that the LPIA fails to define the "agricultural uses" to be preserved in LPIA Section 4.4.E.7.c.(3) and allows the County to "specify allowed uses" without limitation and with "no certainty that farmland will be protected as farmland by easement." (Emphasis in PPRO ¶105.) Petitioners contend that everything allowed in the Agricultural category under the Plan will be allowed. See PPRO ¶107. Contrary to Petitioners' contention, it is reasonably clear that, while the language of LPIA Section 4.4.E.7.c.(3) contains a typographical error, the policy clearly is to maintain existing agricultural uses, not to allow intensification of agricultural use or expansion into "non-farm" uses that might be allowed in the Agricultural category. Alleged Threat to IRL and CERP Lands Petitioners contend that, by making development under its PUD option more marketable, the LPIA will encourage PUDs that do not protect and that fragment IRL and CERP lands. Petitioners did not prove that such a result is likely. Petitioners contend that the adverse impacts on IRL and CERP lands is more than speculation in part because of the wording of the policy in LPIA Section 4.4.E.7.c.(2), which is misstated in PPRO ¶114 and actually states: "If the land to be protected and maintained in perpetuity is land that is part of the North Palm Beach, and the Lake Okeechobee portions of the Comprehensive Everglades Restoration Plan (CERP), as well as Northern Everglades and Estuaries Protection Program, the plan amendment must include a future land use amendment to change the Future Land Use Designation to Institutional-Public Conservation." The language used in the policy is poor. But Petitioners' interpretation--that only land set aside for protection that is part of all of the described CERP projects will be protected--is absurd since no such land exists. That interpretation and Petitioners' interpretation that no IRL lands are protected under the LPIA ignore and are contrary to the language and intent of the objective stated in LPIA Section 4.4.E.7. and of the policies stated in Section 4.4.E.7.a., c.(1), and d.(5). The County's interpretation, that CERP and IRL lands are eligible for protection, is more reasonable. Definition of Critical Habitat Petitioners contend that LPIA Section 4.4.E.7.d.(4) does not provide a meaningful or predictable standard because the term "critical to the support of listed plant or animal species" is not better defined. Actually, PUD development is prohibited "on unique, threatened or rare habitat, or other environmentally sensitive lands that are critical to the support of listed plant or animal species." While the policy could have been better defined, Petitioners did not prove that a better definition is necessary for the LPIA to be implemented in a consistent manner. Petitioners contend that, regardless of the "critical habitat" definition, the policy language in LPIA Section 4.4.E.7.e.(2) "guts" Section 4.4.E.7.d.(4) by prohibiting PUD development "on land listed for acquisition . . . unless the land has been previously impacted by agricultural activities " Actually, the policy continues to state that the exception only applies if "the proposed development is determined to be inconsequential to the implementation and success of the conservation program . . . ." Petitioners' interpretation, that the policy allows PUD development on virtually all Agricultural lands, is unreasonable and contrary to the language and intent of the LPIA. The County's interpretation is more reasonable and is reasonably clear. It allows for distinctions among the various kinds of agricultural activities, which the Plan already recognizes. See, e.g., CGMP § 4.2.A.6.b.(8) ("Many low intensity agricultural uses such as range (pasture) land can be compatible with environmentally significant resource areas.") For these reasons, Petitioners did not prove that LPIA Section 4.4.E.7.e.(2) "guts" Section 4.4.E.7.d.(4), or that the LPIA cannot be implemented in a consistent manner. LPIA and Urban Sprawl In part based on unreasonable interpretations of the LPIA's objective and policy language, Petitioners contend that Martin County's Comprehensive Plan as amended by the LPIA no longer discourages urban sprawl and that the LPIA encourages urban sprawl. In part because the interpretations were unreasonable, Petitioners' urban sprawl contentions were not proven. Even if the LPIA results in a proliferation of PUDs with clusters of residences on lots slightly larger than two acres, which is the minimum lot size, it would not equate to urban (or suburban) sprawl. Assuming PUDs based on 500-acre tracts, it would result in a cluster of 25 homes within a 500-acre rural area. The LPIA does not plan for the extension of urban services to those homes and does not provide for or allow any new commercial or industrial development. Both the LPIA and the rest of the CGMP include provisions, most notably those related to the urban service districts, to reasonably ensure that urban sprawl will not result. To the extent that the LPIA triggers the first primary indicator of urban sprawl in Florida Administrative Code Rule5 9J-5.006(5)(g) ("designates for development substantial areas of the jurisdiction for low-intensity, low density or single use development or uses in excess of demonstrated need"), the Agricultural lands designation already does. Petitioners did not prove that the LPIA triggers the second primary indicator of urban sprawl in Rule 9J-5.006(5)(g) ("[p]romotes, allows or designates significant amounts of urban development to occur in rural areas at substantial distances from existing urban areas while leaping over undeveloped lands which are available and suitable for development"). The development promoted, allowed, or designated by the LPIA is not "urban" and does not "leap over undeveloped lands which are available and suitable for development." It allowed for development already promoted, allowed, and designated to arrange itself differently in a rural area. Petitioners did not prove that the LPIA triggers the third primary indicator of urban sprawl in Rule 9J-5.006(5)(g) (designation of urban development in "radial, strip, isolated or ribbon patterns generally emanating from existing urban development"). Petitioners did not prove that the LPIA triggers the fourth primary indicator of urban sprawl in Rule 9J-5.006(5)(g) (promotes premature conversion of rural land to other uses, thereby failing to adequately protect and conserve natural resources). To the contrary, its primary purpose is to protect and conserve natural resources and rural land. Petitioners did not prove that the LPIA triggers the fifth primary indicator of urban sprawl in Rule 9J-5.006(5)(g) (fails to adequately protect "adjacent agricultural areas" as well as "passive agricultural activities and dormant, unique and prime farmlands and soils"). Petitioners did not prove that the LPIA triggers either the sixth or seventh primary indicator of urban sprawl in Rule 9J-5.006(5)(g) (fails to maximize use of existing and future public facilities and services). Petitioners did not prove that the LPIA triggers the eighth primary indicator of urban sprawl in Rule 9J-5.006(5)(g) ("[a]llows for land use patterns or timing which disproportionately increase the cost in time, money and energy, of providing and maintaining facilities and services"). Petitioners did not prove that the LPIA triggers the ninth primary indicator of urban sprawl in Rule 9J-5.006(5)(g) ("[f]ails to provide a clear separation between rural and urban uses"). Petitioners did not prove that the LPIA triggers the tenth primary indicator of urban sprawl in Rule 9J-5.006(5)(g) ("[d]iscourages or inhibits infill development or redevelopment of existing neighborhoods and communities"). Although LPIA PUDs obviously would not be infill or redevelopment, it was not proven that they will discourage or inhibit infill and redevelopment. To the extent that the LPIA triggers the eleventh primary indicator of urban sprawl in Rule 9J-5.006(5)(g) ("[f]ails to encourage an attractive and functional mix of uses"), the Agricultural lands designation already does. To the extent that the LPIA triggers the twelfth primary indicator of urban sprawl in Rule 9J-5.006(5)(g) ("[r]esults in poor accessibility among linked or related uses"), the Agricultural lands designation already does. Petitioners did not prove that the LPIA triggers the thirteenth primary indicator of urban sprawl in Rule 9J- 5.006(5)(g) ("[r]esults in the loss of significant amounts of functional open space"). The LPIA does not exacerbate the two already-existing indicators of urban sprawl, but Petitioners still contend that the indicators are triggered by the LPIA essentially because development will proceed more quickly under the LPIA. This contention was not proven. Even if it were, Petitioners did not prove that the LPIA encourages the proliferation of urban sprawl or that the CGMP, as amended by the LPIA, fails to discourage the proliferation of urban sprawl. LPIA Data and Analysis Petitioners contend that the LPIA is not supported by data and analysis because the County explained it as a necessary response to the proliferation of 20-acre ranchette developments whereas only 75 have been built and only 15 have certificates of occupancy. Actually, the ranchette developments were only one reason for the LPIA, and the data and analysis showed 13 approved developments as of mid-September 2007, and three more approvals plus two pending applications for approval a year later. Petitioners also contend that the LPIA is not supported by data and analysis essentially because the LPIA implements some but not all of the recommendations in the various reports and studies cited by the County as part of the data and analysis. Petitioners also contend that the LPIA is not supported by data and analysis essentially because the LPIA does not conform to some recommendations in the various reports and studies cited by the County as part of the data and analysis. However, Petitioners base their contentions largely on unreasonable interpretations of the language of the objective and policies of the LPIA. In addition, the data and analysis they point to essentially reflect merely that planners disagree on the best plan for the Agricultural lands. Petitioners also contend that the LPIA is not supported by data and analysis essentially because the LPIA is not identical to the Atlantic Ridge project amendment. While all agree that the Atlantic Ridge project is a resounding success story, it is unique. The obvious and understandable inability to instantaneously duplicate Atlantic Ridge to the greatest extent possible in the Agricultural lands should not prevent the County from taking any action in its direction, such as the LPIA. Taken together, the data and analysis are adequate to support the LPIA. LPIA and TCRPC Regional Policy Plan Petitioners contend that the LPIA is inconsistent with the TCRPC's Strategic Regional Policy Plan (SRPP). The TCRPC's SRPP was not introduced in evidence, but the TCRPC's Executive Director testified and sponsored the TCRPC's report on the LPIA and the SUSDA. The TCRPC's findings on consistency with its SRPP were not contradicted. According to the TCRPC, the LPIA is inconsistent with the TCRPC's Strategic Regional Policy Plan (SRPP) Policies 2.1.1.1 and 2.1.1.2, which are to determine areas that are environmentally significant and to map, acquire, and manage them. The LPIA does not do this. According to the TCRPC, the LPIA is inconsistent with the TCRPC's SRPP Goal 1.1, which requires sustainable countryside development in urban enclaves, such as towns and villages, with mixed-use and appropriate densities between 4-10 units per acre, on strategically selected locations while preserving contiguous, targeted land identified through SRPP Policies 2.1.1.1 and 2.1.1.2. The LPIA does not do this. According to the TCRPC, the LPIA is inconsistent with the TCRPC's SRPP Policy 15.1.3.1, which is to increase the clarity of local land use plans so that preferred forms of development can be pre-approved. Instead, the LPIA uses the case-by-case PUD approval process to determine the ultimate development patterns for the Agricultural lands. The inconsistency with SRPP Policy 15.1.3.1 is the only LPIA inconsistency not already equally present in the existing CGMP. The TCRPC's concern as to the other inconsistencies is that the LPIA will make residential development in the Agricultural lands more marketable and increase the rate of residential growth in a manner inconsistent with SRPP Goal 1.1 and Policies 2.1.1.1 and 2.1.1.2. Internal Consistency of the LPIA Petitioners contend that the LPIA is inconsistent with CGMP Sections 1.6 and 1.11.A. for being inconsistent with the TCRPC's SRPP. CGMP Section 1.6 states that "elements of the [CGMP] shall be consistent and coordinated with policies of [various entities, including the TCRPC]. Petitioners did not prove that the County does not interpret that provision to require internal consistency and coordination with the other entities' policies, or that such an interpretation would be incorrect. CGMP Section 1.11.A. refers to amendment procedures. Essentially, it states that plan amendments must be "in compliance." There was no evidence that the County intended it to require strict and absolute consistency with the TCRPC's SRPP, or any evidence to prove that it would be incorrect for the County to interpret it not to. Petitioners also contend that the LPIA is inconsistent with CGMP Section 1.11.K., which also refers to amendment procedure. Petitioners did not prove that the LPIA is inconsistent with CGMP Section 1.11.K. for not having concurrently-processed land development regulations (LDRs) since concurrently-processed LDRs are only required "[t]o the extent necessary to implement a proposed amendment," and Petitioners did not prove that concurrently-processed LDRs are necessary. Petitioners also contend that the LPIA is inconsistent with numerous other provisions of the CGMP. These contentions were not proven. Most, if not all, were based on unreasonable interpretations of the LPIA. SUSDA Provisions The SUSDA amends the text of the future land use element, the sanitary sewer services element, and the potable water services element of the Plan. As amended, the Plan would allow owners of real property within the SUSD to apply for connection to regional water and sewer service rather than be limited to using individual potable water wells and individual septic tanks, provided all costs of connection to the public services would be paid by the owner. The policy of SUSDA Section 4.4.G.2.g. expressly states: The County Commission has determined that it is in the best interest of the health, safety, and welfare of the citizens of Martin County that regional water and sewer services be made available to properties within the [SUSD], in order to: (1) Protect our natural resources . . . from the negative impacts of onsite sewage disposal (septic) systems and private wells to serve individual residential units; (2) Provide fire protection; [and] (3) Provide safe drinking water. The policy of SUSDA Section 4.4.G.2.h. requires that the extension of any such services to properties within the SUSD must have Board approval, which cannot occur unless the Board finds that certain enumerated criteria have been met, including: Regional utility services may be provided to properties within the [SUSD] upon the request of the affected property owner, and upon payment of the required costs for connection to the regional system. Such services may only be provided by a regional utility, public or private, within a service area shown on Figure 11-2. Package plants for the provision of utility service are prohibited except under the provisions of the [CGMP]. The regional utility must demonstrate the treatment facility has capacity for the proposed connection and priority has been given to projects within the [PUSD]. Extension of utility services shall not be construed to imply support for any increase in the residential density of the property inside the [SUSD]. Property lying outside the Urban Service Districts . . . shall not receive utility service from a regional wastewater system. Extension of utility service outside the Urban Service Districts shall be prohibited. Development within the [SUSD] shall maintain lot sizes that exceed one-half acres. The SUSDA also contains new charts added to both the sanitary sewer services element and the potable water services element that display the numerical capacity of the regional water and sewer systems to handle additional customers upon extension of lines to the SUSD. See SUSDA Tables 10-3 through 10-6 and 11- 12 through 11-15. There was no credible evidence of any likelihood that the adoption of the SUSDA would allow the further extensions of water and sewer lines from the SUSD to properties outside the urban service districts. The testimony offered by Petitioners was speculative at best and depended upon an unproven assumption that the County would violate the explicit provisions of the SUSDA prohibiting such extension of services. See SUSDA §§ 4.4.G.2.h.(6)-(7) and 4.5.H. Meaning and Predictability of SUSDA Standards Petitioners contend that the SUSDA's standards are not meaningful or predictable because of the undefined term "central water and sewer" in the policy in SUSDA Section 4.4.G.2.a. Petitioners contend that "central water and sewer" can be interpreted to mean something other than a regional utility, and that the SUSDA can be interpreted to allow regional utility, package plant, and other similar types of utility systems serving two or more houses outside the urban services districts. Petitioners' interpretations are unreasonable and contrary to the language and intent of the SUSDA. Petitioners' evidence was speculative and depended on an unproven assumption that the County would violate the explicit provisions of the SUSDA prohibiting package treatment plants in the SUSD. See SUSDA § 4.4.G.2.h.(3) and § 4.5.H. In addition, the evidence was that package treatment plants may no longer be economically feasible. The County's interpretation is more reasonable--"central water and sewer," as used in SUSDA Section 4.4.G.2.a., means the provision of regional utility services by Martin County in the SUSD, and no such facilities may be provided outside the urban service districts. SUSDA Data and Analysis Petitioners contend that the data and analysis do not support the SUSDA essentially because they do not establish "any actual health, safety, or welfare problems." PPRO, ¶208. The absence of proof of actual health, safety, or welfare problems is not fatal in view of the rest of the data and analysis supporting the SUSDA. Since the creation of the SUSD in 1992, development in the PUSD has resulted in the extension of water and sewer lines up to the border between the PUSD and the SUSD. In effect, the intended SUSD transition area has transitioned. Meanwhile, the regional water and sewer utilities serving the County now have the necessary capacity to serve the PUSD and the SUSD. Improved fire protection in the SUSD is a benefit of regional water service, allowing installation of community fire hydrants. Without it, developers in the SUSD must rely on installed sprinklers and emergency generators and water drawn from nearby lakes or installed water tanks. While regional water service can fail temporarily in major storms, and the data and analysis did not include actual instances of fire damage cause by the lack of regional water service in the SUSD, regional water service generally provides more reliable and less costly fire protection. While the data and analysis do not establish that developers and property owners in the SUSD have not been able to permit potable water wells, regional water service generally is better, more reliable, and less costly. The data and analysis did include actual instances of home owners having to install expensive water treatment systems due to increasing chloride levels in their potable water wells. Connection to regional water service would eliminate those costs and concerns. While the data and analysis do not establish that developers and property owners in the SUSD have not been able to permit septic tanks systems for onsite sewage treatment (i.e., systems that meet environmental and health standards), such systems can fail if improperly installed, maintained, and repaired. If they fail, nutrients such as nitrogen and phosphorus can leach into and harm the groundwater and nearby surface waters. The North Fork of the Loxahatchee River, which is nutrient-impaired, probably would benefit from elimination of septic tanks. Regional sewer service generally is better for the environmental and public health. The data and analysis suggest that allowing regional water and sewer service in the SUSD, with the SUSDA's requirement for developers to pay the cost of installation, probably will save the County money in the long run. It will be a significant cost to the County if it has to install water and sewer lines post-development. Petitioners attack the credibility of the data and analysis supporting the SUSDA because regional water and sewer service is optional in the SUSD. But there were data and analysis that, even if regional water and sewer service in the SUSD is preferable, there are valid reasons to make it optional at this time. Alleged Environmental Impact of the SUSDA Petitioners contend that the SUSDA will have negative environmental impacts in part from a proliferation of package treatment plants in the SUSD, which is discouraged in CGMP Section 4.4. See PPRO, ¶¶221, 223. This contention is based on Petitioners' unreasonable interpretations of two sentences of the SUSDA. SUSDA Section 4.5.G. prohibits interim water systems outside the urban service districts and allows them, with conditions, in the PUSD where connection to a regional utility is not feasible. Petitioners interpret these two sentences to mean that interim water systems are allowed, without conditions, in the SUSD. The County's interpretation is more reasonable. Since the SUSDA makes connection to the regional utilities optional, there is no need for interim water systems in the SUSDA, and the SUSDA should not be construed to allow them there. Petitioners contend that the SUSDA will have negative environmental impacts in part essentially because increased development results in increased pollution. See PPRO, ¶228. To the extent true, it would be equally or more true of similar development without regional water and sewer services. SUSDA and Urban Sprawl Petitioners contend, in part due to their unreasonable interpretations of the objective in SUSDA Section 4.4.G.2.a., that Martin County's Comprehensive Plan as amended by the SUSDA, no longer discourages urban sprawl and that the SUSDA encourages urban sprawl. In part due to the unreasonableness of Petitioners' interpretation of the SUSDA, Petitioners' urban sprawl contentions were not proven. It is unlikely that the SUSDA will encourage urban sprawl. Petitioners also contend that the SUSDA will encourage urban sprawl simply by allowing denser development in the 5,000- 6,000 acres of the SUSDA not yet developed. This contention is contrary to the SUSDA policy: "Extension of utility services shall not be construed to imply support for any increase in residential density of the property inside the [SUSD]." SUSDA § 4.4.G.2.h.(5). Even if the SUSDA increased density in the SUSDA, increase in density itself does not promote urban sprawl. To the contrary, it is possible for increased density to discourage urban sprawl. Petitioners did not prove that increasing density in the SUSDA itself encourages urban sprawl or that, with the SUSDA, the CGMP will discourage urban sprawl less. Petitioners contend that the SUSDA will create pressures to develop areas that border the SUSD, leaping over areas suitable for urban development. See PPRO, ¶¶236-237. This contention actually devalues the very urban service district concept Petitioners seek to defend and can be said about any urban district boundary. Currently, there are many places where the PUSD borders the Agricultural lands. The pressures created by the SUSDA will be no greater than the pressures that have existed in those places all along. Petitioners contend that the SUSDA will increase costs to the County essentially because, notwithstanding SUSDA's requirement that developers pay the cost of connection, development will not pay for itself in the long run (taking into account costs of operations, maintenance, and repair.) To the extent true, it can be said of all development and does not prove that the SUSDA encourages urban sprawl. Petitioners did not prove that the SUSDA triggers any of the indicators of urban sprawl; did not prove that the SUSDA encourages the proliferation of urban sprawl; and did not prove that the CGMP, as amended by the SUSDA, fails to discourage the proliferation of urban sprawl. Internal Consistency of the SUSDA Petitioners contend that the SUSDA is internally inconsistent with CGMP Section 4.4.G.1.i., which gives priority in the provision and funding of water and sewer services to the PUSD, essentially because the data and analysis ensure that water demands in the PUSD can be met through 2025. The lack of data and analysis at present to ensure that water demands in the PUSD can be met beyond 2025 does not prove that priority will not be given to the needs of the PUSD.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining that the LPIA and the SUSDA are "in compliance." DONE AND ENTERED this 10th day of April, 2009, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of April, 2009.
The Issue The issue in this case is whether the small-scale comprehensive plan amendment adopted by the Town of Pomona Park (Town) through enactment of Ordinance No. 01-7 (the Plan Amendment) is "in compliance," as defined by Section 163.3184(1)(b), Florida Statutes (2001).
Findings Of Fact The Town's current Future Land Use Map (FLUM) (Exhibit H) depicts the subject parcel and Petitioner's adjoining parcel as fronting on the western shore of Lake Broward and being within a primarily residential land use area that encompasses most of the Town's land area lying west of Lake Broward and northeast of Highway 17. The parcels immediately to the north and south of the subject parcel and Petitioner's adjoining parcel are in Low Density Residential future land use, which allows densities up to two units per acre; the lake is to the east. The eastern five acres of the 13-acre subject parcel, including the lake frontage, were not included in the amendment; only the western eight acres were changed to Agricultural land use, which allows densities up to one unit per five acres (unless occupied only by the owner's family members, in which case densities up to one unit per acre are allowed). The property owner, Town Council member Barry Fouts, had previously requested to have the entire 13-acre parcel changed to Agricultural land use but withdrew that request. Fouts testified that, in requesting the same change for only eight acres of his parcel, he took into consideration that keeping the request under 10 acres would avoid review by the Department of Community Affairs (DCA). Several parcels near the Fouts parcel, including some of the parcels across the street to the west, are designated for Agricultural future land use. However, those parcels across the street to the west of the subject parcel are actually being used for residential rather than agricultural purposes. The nearest parcel that might be considered to be in actual use for agricultural purposes is a horse farm located approximately one quarter mile to the north. However, the present Town Clerk testified in her capacity as Town zoning officer that a horse farm (or an exotic bird breeding operation) is not to be considered an agricultural use because the animals are not being raised for human consumption. Fouts has voluntarily provided some visual buffering along his property line, but there is no requirement in the Plan Amendment that it be maintained in the future, nor would visual screening be particularly effective in protecting nearby Residential properties against noises and odors produced by some common types of agricultural livestock. The Plan Amendment was not initiated by the Town; rather, it was requested by the subject parcel's owner, Barry Fouts, whose request for a change in land use stated that his purpose was to bring his "established agricultural activities, which include horse and bird breeding" into conformity with "Putnam County [sic] zoning recommendations." Fouts gave no other reasons for wanting the change. The former Town Clerk (and zoning officer) testified that there were no restrictions on keeping any type or number of animals in Residential future land use, that Fouts could engage in horse and bird breeding without changing the future land use or zoning, and that there was no need for the land use change. No survey, study, or analysis of the Plan Amendment is reflected anywhere in the Town's files relating to the Plan Amendment, and it is found that there were none. When the Plan Amendment was presented to the Town Council for consideration, all that the former Town Clerk and present Town Clerk presented to the Town Council was a one-page note prepared by the former Town Clerk relating Fouts' desire to continue with his agricultural activities, including horse and bird breeding. At final hearing (with the assistance of leading questions on cross-examination by the Town's attorney), the present Town Clerk and former Town Clerk testified that, notwithstanding the absence of any written survey, study, or analysis, they made a site visit and recalled reviewing the Plan Amendment in relation to the Town's Comprehensive Plan, including the FLUM, as well as analyzing and considering the need for more agricultural land use within the Town's municipal boundaries and the desirability of keeping residential development and septic tanks away from the lake, in arriving at a recommendation to approve the land use change. Regardless whether any such analyses actually occurred by the time of adoption of the Plan Amendment, they clearly were presented as part of the evidence at final hearing. The analysis presented at final hearing that the Town's Comprehensive Plan calls for more land area to be designated for Agricultural future land use was based on an erroneous reading of the Comprehensive Plan adopted by the Town in 1991. The analysis presumed that, under the plan, 1220.3 acres of agricultural land use was "desired" (compared to less that 600 acres in actual agricultural use in 2001). This presumption was based on parenthetical references to 1220.3 acres next to the word "Agricultural" in two places in the plan. But it is clear from a fair reading of the plan that, in designating Agricultural future land use, the plan transferred all 648.6 acres in the "Vacant or Undeveloped" existing land use category to the Agricultural future land use category "for lack of a better land use designation," in addition to the 571.7 acres of existing agricultural land use, for a total of 1220.3 acres. (Other future land use designations mirrored 1991 existing land use.) There was no intention to indicate a need for 1220 acres of agricultural land use in the Town. To the contrary, the plan projected a need for 170 additional housing units through 2001 and stated that "[m]ost of the Town's . . . agricultural and vacant/undeveloped land is suitable for development." Consistent with that, the evidence showed that in the vicinity of the subject parcel most if not all of the parcels designated for Agricultural land use are actually being used for residential purposes and not for agriculture. If anything, it would seem that in 1991 the Comprehensive Plan anticipated a need to designate more acreage for Residential future land use and less for Agricultural. Even if the Comprehensive Plan reflected a perceived need for 1220 acres of actual agricultural use, 1220 acres already is designated for Agricultural future land use, and no reason was given for designating additional acreage for the category. Finally, this part of the Town's analysis makes no sense in light of the undisputed testimony of the Town Clerk, as zoning officer, that "agricultural use" consists of the raising of plants or animals for human consumption. The evidence was clear that the horses, cows, and exotic birds on the Fouts property are not for human consumption. It was not clear from the evidence what the 15-20 chickens on the Fouts property are used for. The analysis that the Plan Amendment was to protect Lake Broward from septic tanks associated with residential land use also is shallow and faulty. While it is true that allowable development densities are lower in the Agricultural future land use category, the five acres of the Fouts parcel that were nearest the lake were not included in the amendment but remained in Residential future land use. Second, the present Town Clerk testified that there never have been any negative effects on the lake from septic tanks, which are regulated, whereas she had no way of knowing whether the unregulated effects of agricultural runoff might be worse than any effects from septic tanks. Objective A.1.1 provides that the Town "shall coordinate future land uses with . . . adjacent land uses, . . . through implementing the following policies . . ..". In this case, the immediately adjacent land uses are designated on the FLUM as Residential, and most if not all of the nearby parcels that are designated Agricultural are actually being used for residential purposes. But Petitioner did not allege that the Plan Amendment was inconsistent with any of the policies listed under Objective A.1.1, and the evidence did not prove any such inconsistencies. Policy A.1.3.2 requires that the Town's Subdivision and Zoning Code shall require buffering and separation between land uses of different densities or intensities of use sufficient to ensure compatibility between uses and also requires the elimination of non-conforming land uses. In this case, the Plan Amendment did not provide for separation or buffering between the newly designated Agricultural future land use and the directly adjoining Residential properties, but neither did it have any effect on the Policy requiring the Town's Subdivision and Zoning Code to require such buffering and separation. Policy A.1.9.3.C.1 provides in pertinent part: "Residential land use is intended to be used primarily for housing and shall be protected from intrusion by land uses that are incompatible with residential density." The Plan Amendment intrudes a small area of Agricultural future land use into an area that is primarily designated for Residential land use and that is in actuality almost exclusively used for residential purposes. The sounds and smells associated with at least some types of agricultural activity, such as the pasturing and raising of livestock and poultry, are capable of adversely affecting nearby residents and are incompatible with residential land use. Policy A.1.9.3.C.4 provides in pertinent part: "Agricultural land is intended to be used primarily for pasture, grove operations or silviculture with possibly some row crops." In this case, the evidence shows that the primary purpose of the Plan Amendment was to allow the landowner to breed horses and operate an exotic bird breeding facility. The Town Clerk, as zoning officer, has taken the position that those activities do not fit within the definition of agriculture. But the Plan Amendment itself is not inconsistent with this Policy.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order finding that the Town's small-scale amendment adopted by Ordinance No. 01-7 is not "in compliance." DONE AND ENTERED this 18th day of June, 2002, in Tallahassee, Leon County, Florida. ___________________________________ J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of June, 2002. COPIES FURNISHED: James L. Padgett, Esquire 3 North Summit Street Crescent City, Florida 32112-2505 Michael W. Woodward, Esquire Keyser & Woodward, P.A. Post Office Box 92 Interlachen, Florida 32148-0092 Barbara Leighty, Clerk Growth Management and Strategic Planning The Capitol, Room 1801 Tallahassee, Florida 32399-0001 Charles Canaday, General Counsel Office of the Governor The Capitol, Suite 209 Tallahassee, Florida 323999-0001 Cari L. Roth, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325 Tallahassee, Florida 32399-2100
The Issue The issue in this case is whether Ft. Myers' comprehensive plan, as amended, is not in compliance for the reasons set forth in the prehearing stipulation, as amended during the final hearing.
Findings Of Fact Background The City of Ft. Myers, (Ft. Myers) adopted its comprehensive plan on February 13, 1989. The Department of Community Affairs (DCA) issued a Notice of Intent to find the plan not in compliance. Among other things, DCA alleged that the plan improperly omitted the Mid-Point Bridge and was inadequate in terms of intergovernmental coordination, at least with regard to the bridge. The City of Cape Coral (Cape Coral) and Lee County filed petitions to intervene. The petitions challenged the Ft. Myers plan based on its omission of the Mid-Point Bridge. DCA and Ft. Myers subsequently reached a settlement. On August 20, 1990, Ft. Myers adopted plan amendments pursuant to the settlement agreement. The plan, as amended, will be referred to as the Plan. DCA issued a Notice of Intent to find the plan amendments in compliance, but Lee County and Cape Coral, finding the plan amendments unsatisfactory, continued to prosecute their challenge to the Plan. Ft. Myers and Cape Coral are two of the three municipalities located in Lee County. /2 The two cities are divided by the Caloosahatchee River, which forms the western end of the Okeechobee Waterway. This waterway links the Gulf of Mexico to Lake Okeechobee, via the Caloosahatchee River, and Lake Okeechobee to the Atlantic Ocean. In the eastern part of Lee County, the Caloosahatchee River runs from east to west. In this area, the river is spanned by the State Road 31 Bridge and, further downstream, the Interstate 75 bridge. In the vicinity of Interstate 75, about two miles northeast of the city limits of Ft. Myers, the river widens, makes a slow turn, and takes a northeast-to-southwest course. Except for a railroad bridge about one mile downstream from the Interstate 75 bridge, the next bridge is the Edison Bridge, which is about 5 1/2 miles downstream from the Interstate 75 bridge. The Edison Bridge serves old U.S. 41. The southern landfall of this bridge runs into the northern end of the central business district of Ft. Myers. The Edison Bridge, which is presently two lanes, is planned to be widened to six lanes in the near future. About 1/2 mile downstream of the Edison Bridge is the Caloosahatchee Bridge, which serves new U.S. 41. The southern landfall of the Caloosahatchee Bridge, which is sometimes called the 41 Bridge, also runs into the central business district of Ft. Myers. The Caloosahatchee Bridge is four lanes. About seven miles downstream from the Caloosahatchee Bridge is the Cape Coral Bridge, which is the last bridge before the mouth of the river. The Cape Coral Bridge was recently expanded to four lanes. The proposed Mid-Point Bridge would be located 3.4 miles upstream from the Cape Coral Bridge and 3.8 miles downstream from the Caloosahatchee Bridge. At this point, the river runs more in a north-to-south direction. The bridge would connect central Cape Coral with south Ft. Myers. The Mid-Point Bridge project would include an east-west road corridor on both sides of the river. The corridor would connect Everest Parkway on the Cape Coral or west side of the river with Colonial Boulevard on the Ft. Myers or east side of the river. Everest Parkway is presently only about 12,000 feet long. The corridor would connect Everest Parkway with Miracle Parkway to the west, turn north at Malatcha Pass (the western boundary of Cape Coral), and extend to New Burnt Store Road. Everest Parkway and most of Miracle Parkway are four-lane divided collectors for which Cape Coral has jurisdiction. Colonial Boulevard is an arterial consisting of six lanes from McGregor Boulevard east to U.S. 41 and four lanes from U.S. 41 east to Interstate 75. The State had jurisdiction over all of Colonial Boulevard, but the County now has jurisdiction over the segment between McGregor Boulevard and U.S. 41. The west terminus of Colonial at McGregor Boulevard is about one- quarter mile east of the river. About 2000 feet east of McGregor is Summerlin Road. The next major intersection is U.S. 41, which is about 4000 feet east of Summerlin and less than 1.2 miles east of McGregor Boulevard. The Edison Mall, which is a major regional shopping mall, is less than one-half mile north of this intersection on the east side of U.S. 41. The next major intersection on Colonial is Metro Parkway, which is 1.3 miles east of U.S. 41. A little over 3.1 miles east of Metro Parkway is Interstate 75 where an interchange exists. From west to east, the major north-south roads are McGregor Boulevard, for which capacity improvements are constrained by historic and scenic factors; U.S. 41, which crosses the Caloosahatchee Bridge; Fowler Street and Evans Avenue, which are a one-way pair between the Edison Bridge and Colonial; Metro Parkway, which is proposed to be extended north to cross the proposed Metro Bridge; and Interstate 75, which is considerably east of the downtown area. Cape Coral is a relatively new community whose predominant land uses are residential. The relevant road network in Cape Coral consists of two major east-west roads: Pine Island Road, which is about four miles north of Everest, and Cape Coral Parkway, which is about three miles south of Everest. The major north-south roads are, from east to west, Del Prado Boulevard (at which point Everest presently ends), Country Club Boulevard, and Santa Barbara Boulevard. In contrast to Cape Coral, Ft. Myers has been more or less continuously occupied since the construction of a fort by the same name in 1850 between the Second and Third Seminole Wars. In 1887, Thomas A. Edison built his home alongside the Caloosahatchee River between the central business district and what is now Colonial Boulevard. Edison's home is located on McGregor Boulevard, which is attractively lined by Royal Palm trees. Aided by the arrival of Henry Plant's Coast Railroad in 1904 (and presumably a bridge to go with it), Ft. Myers began to grow rapidly in the early 1900's. The Colonial Boulevard area was not developed until the Florida land boom in the 1920's. Although the structures of historical interest are north of Colonial Boulevard, seven sextant structures on Rio Vista Way were constructed during the 1920's and 1930's and exemplify the prevailing Mediterranean revival architectural style. Running toward the river, Rio Vista Way intersects McGregor Boulevard about 250-500 feet of north of the western end of Colonial Boulevard. Data and Analysis February, 1989, Data and Analysis At the time of the adoption of the plan, Ft. Myers prepared a 45-page volume entitled "Traffic Circulation Data and Analysis." The document was dated August, 1988, and revised February, 1989. This document will be referred to as the 1989 Data and Analysis. The 1989 Data and Analysis reviews the city's current situation with respect to transportation facilities, especially roads. Table 1 of the document is a chart of daily traffic volumes based on Florida Department of Transportation traffic estimates issued April 10, 1987 Table 1 projects the peak hour level of services for various road segments for 2010. According to Table 1, by 2010, all of U.S. 41 is projected to be at level of service F, except for a segment south of downtown that is projected to deteriorate only to level of service D. All of Colonial Boulevard is projected to be at level of service F, except for the short segment between McGregor Boulevard and Summerlin Road, which is projected to deteriorate only to level of service C. McGregor Boulevard and Fowler Street are projected to be level of service F, except for the segment of Fowler Street beginning at the river, which is projected to be level of service E. Among the road segments already exceeding level of service standards are Colonial Boulevard west of U.S. 41 (level of service E) and McGregor Boulevard (level of service F). The 1989 Data and Analysis notes that the "intensified urbanization of Fort Myers will continue, and congestion problems will worsen." 1989 Data and Analysis, page 7. The 1989 Data and Analysis summarizes the "three major areas of major capacity deficiencies" as follows: Firstly, Fort Myers' downtown is the economic hub of Lee County and development attracts approximately 38,800 daily trip ends. [Fort Myers Downtown Plan, July 1986.] Second, the Edison Mall area which due to the major regional shopping mall is a main attractor of traffic congestions. Finally, McGregor Boulevard, the renowned historic and scenic highway, has capacity constraints. Id. at page 9. Map B in the 1989 Data and Analysis depicts future roadways and classifications. In addition to the existing Interstate 75, railroad, Edison, and Caloosahatchee bridges, the map shows the Metro Bridge. This bridge, which will be located just over one mile upstream from the Edison Bridge, will allow Metro Parkway to cross the river and intersect with Interstate 75 in north Lee County. According to the Future Land Use Map (FLUM), Metro Parkway presently extends from south of Colonial Boulevard to about two miles north of Colonial. Map B depicts Metro Parkway as continuing north until it meets the proposed landfall of the southern end of the proposed Metro Bridge. The proposed alignment of Metro Parkway between its present northern terminus and the proposed bridge takes it through economically distressed areas east of the railroad tracks and central, downtown area. Map F in the 1989 Data and Analysis depicts graphically travel desires lines for 1980 and 2010. The travel desires map shows the general direction and approximate volume of trips between 13 centroids for 1980 and 2010. The centroids aggregate up to 396 travel analysis zones. The 1989 Data and Analysis explains that the travel desires map "was produced as part of the MPO 2010 Needs plan update . . .." 1989 Data and Analysis, page 19. The 1980 travel desires line signifying the greatest number of trips runs in at northeast-southwest direction between south Ft. Myers near the river to north Ft. Myers a couple of miles inland. Other major 1980 travel desire lines cross the river in the vicinity of the Caloosahatchee, Edison, and proposed Metro Bridges cross the river between the center of Cape Coral and north Ft. Myers and connect north Ft. Myers to a point well east of Interstate 75 in the area of Lehigh Acres. The projected travel desires lines signifying the most travel in 2010 are the above-described line between south and north Ft. Myers and a line between south Ft. Myers and a point about six miles due south. The latter travel line depicts considerably less traffic in 1980. Compared to the two most significant 2010 travel lines, the travel lines crossing the river are projected to increase at a lesser rate. Table 3 in the 1989 Data and Analysis contains 1987 Traffic Counts. The table, which is derived from Lee County data, projects when various road segments will deteriorate to seasonal level of service E. Table 3 projects that Colonial Boulevard between Summerlin Road and U.S. 41 and Colonial east of Metro Parkway will deteriorate to peak season level of service E by 1988 and 1992, respectively. McGregor was already at an average level of service of E by 1987. Segments of Metro Parkway south and north of Colonial are projected to reach level of service E by 1991 and 1989, respectively. Also, U.S. 41 at the river is projected to deteriorate to level of service E by 1992. Other relevant segments are projected to be at seasonal level of service D or better. Map G in the 1989 Data and Analysis graphically depicts 1980 and 2010 levels of population and employment by area. In general, Map G shows that, in 1980 and 2010, Cape Coral experienced and is projected to continue to experience considerably greater population than employment opportunities. North and south Ft. Myers' figures show a much better balance between population and jobs. Addressing Map B in, the 1989 data and Analysis, which depicts future roadways, the 1989 Data and Analysis states: The City's Major Thoroughfare Plan (Map H[)] /4 has been developed to coordinate with the Metropolitan Planning Organization, State and County plans to the greatest extent possible. The most significant deviations from these plans are the terminus of the Evans/Fowler one-way pair and the exclusion of a "mid- point bridge." The proposal by other agency plans of a "mid-point bridge," at its current proposed location, conflicts overwhelmingly with other goals, objectives, and policies of the Comprehensive Plan. Conflicts with Land Use, Historic, and Community Appearance elements and internal conflicts with the Traffic Circulation element precludes the City from supporting the proposed bridge alignment. The present and future land use pat1terns have been coordinated to the greatest extent feasible with the Major Thoroughfare Plan. 1989 Data and Analysis, page 36. The 1989 Data and Analysis does not explain how the Major Thoroughfare Plan ``coordinates'' with the plans of the Metropolitan Planning Organizations' State, and County plans. Maps A and B of the 1989 Data and Analysis depict, respectively, present and future roads. Tables in the 1989 Data and Analysis following the Major Thoroughfare Plan--2010 list transportation projects included in the list of one organization or entity but excluded from that of another. Mentioning the Mid-Point Bridge and approaches, Table 12 states "The City of Fort Myers is adamantly opposed to this project on the basis of it being inconsistent with the City's Comprehensive Plan." The 1989 Data and Analysis concludes with a discussion of "issues and opportunities." This discussion mentions the maintenance or provision of "adequate road capacity for future traffic needs" and the preservation and protection of the "quality of residential areas, major activity centers, and recreation and environmental resources." Nothing in the 1989 Data and Analysis expressly incorporates by reference other sources of data or analysis in support of the plan's treatment of the Mid-Point Bridge or any approach. Setember, 1990, Data and Analysis An updated version of the 1989 Data and Analysis was issued. The new version bears the date, "August 1988," but also states that it was "updated September 1990." This document will be referred to as the 1990 Data and Analysis. Table I in the 1990 Data and Analysis is based on the same Florida Department of Transportation estimates issued April 10, 1987, on which Table 1 in the 1989 data and Analysis was based. The above-noted segments are all projected to reach the same level of service, except that all segments of U.S. 41 are projected to reach level of service F by 2010. Other differences between the 1989 Data and Analysis and 1990 Data and Analysis appear fairly minor. /6 Table IV updates the 1987 Traffic Counts in the 1989 Data and Analysis with 1988 Traffic Counts, which are, also from Lee County. The differences as to when relevant road segments are projected to deteriorate to peak season level oil service E are as follows: Colonial Boulevard east of Metro Parkway, which is now projected to reach level of service E in 1993 instead of 1992; Metro Parkway north and south of Colonial, which are no longer "projected" to deteriorate to level of service E in 1988; and Colonial Boulevard just west of U.S. 41, which is now projected not to reach level of service E within the applicable timeframe instead of reaching it in 1988. There is no difference in the discussions in the 1989 Data and Analysis and 1990 Data and Analysis concerning the differences between the road network portrayed by the Major Thoroughfare Plan--2010 and the road networks portrayed by the plans of the Metropolitan Planning Organization, State, /7 and County. The conflict concerning the Mid-Point Bridge and corridor remains unresolved. Nothing in the 1990 Data and Analysis expressly incorporates by reference other sources of data or analysis in support of the plan's treatment of the Mid-Point Bridge or any approach. The MPO Plans and Environmental Fact Statement Other sources of data and analysis existing in February, 1989, pertain to the Mid-Point Bridge and transportation planning issues. Much of these data nd analysis are associated with the work of the Lee County Metropolitan Planning Organization (MPO) and of Lee County and its consultants in the preparation of an environmental impact statement for the Mid-Point Bridge and corridor. When adopting the Plan, Ft. Myers representatives were aware of the data and analysis used or prepared by the MPO and the data and analysis used to prepared by Lee County and its consultants in connection with the environmental impact statement. Required by federal law, a metropolitan planning organization coordinates transportation planning in areas governed by more than one local jurisdiction to ensure that federal and state transportation funds are spent effectively. The MPO consists of 12 voting members: five Lee County Commissioners, the Mayor and two City Council members of Ft. Myers, the Mayor and two City Council members of Cape Coral, and the Mayor or a City Council member of Sanibel. The MPO is also served by a Technical Advisory Committee (TAC), which consists largely of planning and engineering employees of each of the member jurisdictions. The TAC analyzes data and presents to the MPO for consideration. The MPO prepared its initial transportation plan in 1974. The MPO first included the Mid-Point Bridge in its 1978 transportation plan. The MPO later dropped the Mid-Point Bridge project, but reinstated it in 1983. The Mid-Point Bridge remained in the MPO's transportation plans until March, 1991. At an early stage, Lee County was opposed to the bridge, but later reversed its position. The positions of Cape Coral and Ft. Myers appear to have remained constant. In 1987, the MPO began to run computer simulations of various transportation improvements. These modeling runs, or assignments, were integral to the preparation of the MPO 2010 Needs Plan (Needs Plan) and MPO 2010 Financially Feasible Plan (Financially Feasible Plan). Although some text is associated with these plans, they generally consist of two maps of road networks with indications as to the number of lanes and type of facility (e.g., freeway or collector). The Needs Plan depicts the system needed "to accommodate projected travel demand efficiently and conveniently at acceptable levels of service, but unconstrained by cost considerations." Financially Feasible Plan. Based upon cost-benefit analyses, the Financially Feasible Plan prioritizes the facilities shown in the Needs Plan. It is arguable whether the Financially Feasible Plan depicts road improvements that are, in fact, financially feasible. The plan concedes that the MPO has proposed improvements whose cost nearly doubles projected available revenues: The estimated $993 million cost of the Financially Feasible Plan, while $442 million less than that of the 2010 Needs Plan, still exceeds projected financial resources from traditional or existing Sources by -some $313 million. In order to pay for the implementation of the Financially Feasible Plan, a number of options for raising additional revenue available under current Florida law have been identified. Financially Feasible Plan. Although a number of the revenue options involve Ft. Myers, such as through the use of impact fees or local option gas taxes and infrastructure sales taxes, the proposed Mid-Point Bridge and corridor would not Ft. Myers to contribute directly to its cost. The record does not address whether the commitment of Lee County to the project prevents the County from sharing in other transportation expenses otherwise borne to a greater extent by Ft. Myers. Lee County intends to pay for the Mid-Point Bridge and the corridor between Del Prado-Boulevard and Interstate 75. The Lee County schedule of capital improvements, which are contained in the Lee County plan, includes the $168.4 million cost of the Mid-Point Bridge and corridor from Del Prado to Interstate 75. The capital improvement schedule identifies the revenue source as toll revenue bond proceeds. Cape Coral intends to pay for the corridor west of Del Prado Boulevard. The Cape Coral schedule of capital improvements includes $17.8 million for the design and construction of the east-west expressway from Del Prado to Santa Barbara and includes another $6.9 million for related right-of- way acquisition. The Cape Coral plan, as amended August 27, 1990, identifies impact fees and gas taxes as sources for the needed revenue, although later amendments identify other sources as well. In running computer simulations, the MPO used the Florida Standard Model to process socioeconomic data inputs and project levels of service for various network alternatives. The TAC validated the modeling by comparing projections to current travel conditions. The MPO or TAC approved the model after reviewing the validation results. After approving the model, the MPO and TAC unanimously approved the socioeconomic data in December, 1986. In addition to the specified transportation network, the data inputs include such socioeconomic data as projected populations, numbers of housing units by type, pp categories by type, and school enrollments. Generally, each TAC member supplied the socioeconomic data for the jurisdiction represented by that member. Decisions concerning the evaluation of data were by majority vote. The TAC and its outside consultant, Wilbur Smith and Associates, selected alternatives to test, although it appears that the TAC had considerable discretion in `the choice of alternatives. The socioeconomic data were correlated to applicable land uses, which were derived from land use plans then in effect for the various jurisdictions. None of these land use plans contained the comprehensive revisions required by the 1985 Local Government Comprehensive Planning and Land Development Regulation Act (the Act). By running traffic simulation models, Wilbur Smith and Associates determined the relationship of population to employment for 1980 and projected the relationship to 2010. This work was reflected in Map G of the 1989 Data and Analysis and 1990 Data and Analysis. Wilbur Smith and Associates then simulated the travel projected to occur in the area and the routes to accommodate such travel. This work eventually was incorporated into the travel desires map, which, is Map F of the 1989 Data and Analysis and 1990 Data and Analysis. The modeling process is iterative. The first network model led was the existing and committed road network, as of February, 1987. This system, as expected, was grossly inadequate to handle projected growth through 2010. The existing and committed network consisted of, the following committed projects: the Edison Bridge six-laning, the cape Coral Bridge four-laning, an extension of Colonial Avenue, and multi-laning of State Road 80. The next network modelled was the MPO 2000 Long Range Transportation Plan. The predecessor to the 2010 Needs Plan, the 2000 Long Range Transportation Plan, which included the Mid-Point Bridge, provided an ample road network. A total of 15 assignments were run prior to the preparation and adoption of the Needs Plan. The computer modelling represents the first time that the MPO undertook such work on its own or with an outside consultant. By the latter half of 1987, the TAC and Wilbur Smith and Associates had prepared Assignment D, which included much of what was eventually included in the Needs Plan. Assignment D became a base against which other alternatives were tested. At the request of Ft. Myers, the TAC and Wilbur Smith and Associates ran an assignment without the Mid-Point Bridge. This assignment included the Iona Cove Bridge expanded to four lanes and served by a freeway. /8 As ultimately adopted in the Needs Plan, the Iona Cove Bridge and Southern Corridor would consist of a two-lane bridge downstream from the Cape Coral Bridge and about 2 1/2 miles upstream from the mouth of the Caloosahatchee River. On the Cape Coral side, the Southern Corridor would connect indirectly to the Cape Coral Parkway well west of the Cape Coral Bridge. On the Ft. Myers side, the Southern Corridor would be a new four-lane expressway in south Lee County that, from west to east, would intersect Metro Parkway and then Interstate 75. As a two-lane expressway, the Southern Corridor would turn north, passing south of the regional airport, and teirminate at Lehigh Acres in east Lee County. The simulation without the Mid-Point Bridge was Assignment G. Due to faulty data inputs, 9 possibly concerning one or more developments of regional impact in south Lee County, the MPO reran the requested alternative as Assignment J. Assignment J is the only valid assignment excluding the Mid-Point Bridge except for the initial run of the base network. Table A-I of Technical Report 3, which was prepared by Wilbur Smith and Associates, compares projected traffic volumes on various road segments based on Assignment D and Assignment J. In Assignment D, the Iona Cove Bridge would be a two-lane facility with expressway approaches, rather than freeway approaches. Treating the Edison, Caloosahatchee, and Metro Bridges as a single corridor with a capacity of 138,000 trips per day, Table A-I projects that these bridges would handle, under Assignment D, 142,864 trips per bay and, under Assignment J, 153,605 trips per day. The respective volume to capacity ratios are 1.04 and 1.11. The Mid-Point Bridge in Assignment D would have a capacity of 76,000 trips per day and would carry 36,542 for a volume to capacity ratio of 0.48. The Cape Coral Bridge, with a capacity of 33,600, is projected to serve 34,565 trips per day under Assignment D and 43,778 trips per day under Assignment J. The respective volume to capacity ratios are 1.03 and 1.30. Table A-I considers a group of three north-south roads in Ft. Myers, including U.S. 41, in three segments as they travel south from the river. The range of volume to capacity ratios, under Assignment D, from 0.76 to 1.00 and, under Assignment J, from 0.84 to 1.06. Table A-I reports the results for 18 other segments in Cape Coral or Ft. Myers. All but four of these segments are below a volume to capacity ratio of 0.95 under Assignment D. With Assignment J, eight segments exceed 1.0 and two more exceed 0.95. The MPO adopted the Needs Plan on January 21, 1988. After running 14 more assignments, the MPO adopted the Financially Feasible Plan on November 17, 1988. The more elaborate Needs Plan contains a four-lane Metro Bridge with Metro Parkway as, a divided six-lane arterial south of the bridge and a four-lane expressway to U.S. 41 north of the bridge. The Caloosahatchee Bridge remains four lanes, as would be the proposed Mid-Point Bridge. To the west, Everest Parkway is a four-lane freeway to Del Prado Boulevard, then Everest turns into a four-lane expressway as it is extended west to join the existing Miracle Parkway. As the new expressway turns north toward New Burnt Store Road, it is reduced from four to two lanes. To the east of the Mid-Point Bridge, the Needs Plan converts Colonial Boulevard to a four-lane freeway with a pair of one-way service roads and elevated interchanges at Summerlin Road, U.S. 41, and Metro Parkway. The one-way service roads continue east to the vicinity of Interstate 75, but Colonial becomes a four-lane expressway east of Metro. The Financially Feasible Plan retains the four- lane Metro Bridge, but reduces the capacity of the adjoining corridor to the north. Mid-Point Bridge remains four lanes, but, on the Cape Coral side, the expressway is reduced from four lanes to two lanes at Santa Barbara Boulevard rather than at New Burnt Store Road. To the east of the Mid-Point Bridge, Colonial remains unchanged from the Needs Plan. The Financially Feasible Plan eliminates the Iona Cove Bridge and the eastern half of the Southern Corridor. The southern half of the expressway is shown, but is reduced to two lanes and ends west of Interstate 75. Another important source of data and analysis relating to the Mid- Point Bridge and approaches is a draft environmental impact statement prepared by Lee County for the Mid-Point Bridge and corridor. The Draft EIS considers the proposed Mid-Point Bridge in the context of two alternatives: "no action" and the construction of the Iona Cove Bridge and Southern Corridor. Exhibit 7 of the Draft EIS /10 portrays the Colonial corridor east of the Mid-Point Bridge. Consistent with the MPO Needs Plan's depiction of elevated interchanges at Summerlin, U.S. 41, and Metro Parkway, Exhibit 7 also shows overpasses at McGregor, Fowler, Evans, and the railroad track. By the summer of 1987, Lee County had retained Greiner, Inc. as a consultant to assist in the preparation of the Draft EIS. Cape Coral, which joined Lee County in proposing the project, hired Kimley-Horn & Associates, Inc. to assist in projecting transportation planning impacts west of Del Prado Boulevard. The Coast Guard, which served as the lease agency, approved the final environmental impact statement in September, 1990 (EIS). Greiner retained Wilbur Smith and Associates as a subconsultant to perform traffic modeling for roads east of Del Prado, and Kimley Horn performed modeling for Cape Coral for roads west of Del Prado. Either Griner or Wilbur Smith and Associates prepared Exhibit 5 /11 in the Draft EIS. Exhibit 5 identifies various existing and proposed river crossings, supplies actual 1986 traffic volumes, and projects traffic volumes for 2010 if no action were taken, if the Mid-Point Bridge were constructed, and if the Iona Cove Bridge and Southern Corridor were built. For 2010 projections, Exhibit 5 presumed that the Edison Bridge would be six lanes, Caloosahatchee Bridge would be four lanes, Cape Coral Bridge would be four lanes, and Metro Bridge would be added. For 1986, Exhibit 5 shows the Edison Bridge as handling 19,700 trips daily for a level of service of E, the Caloosahatchee Bridge as handling 45,800 trips daily for a level of service of D, and the Cape Coral Bridge as handling 45,400 trips daily for a level of service F. If no action were taken, Exhibit 5 projects that, by 2010, average daily trips and levels of service will be: Edison Bridge 59,400 and C; Caloosahatchee Bridge 59,500 and E; and Cape Coral Bridge (which was widened after 1986) 65,950 and If the Mid-Point Bridge were built and the Iona Cove Bridge were not, Exhibit 5 projects that, by 2010, average daily trips and levels of service will be: Edison Bridge 53,140 and B; Caloosahatchee Bridge 52,400 and D; Mid-Point Bridge 47,400 and C; and Cape Coral Bridge 41,870 and C. If the Iona Cove Bridge were built and the Mid-Point Bridge were not, Exhibit 5 projects that, by 2010, average daily trips and levels of service will be: Edison Bridge 56,427 and C; Caloosahatchee Bridge 56,250 and D; Cape Coral Bridge 45,740 and D; and Iona Cove Bridge 34,600 and B. Composite Exhibit 4 of the Draft EIS /12 projects average annual daily traffic for over 100 road links /13 mostly on the Ft. Myers side of the river and bounded on the east by Interstate 75 and the south by the Southern Corridor. The projections address alternatives of no-action, the Mid-Point Bridge, and the Iona Cove Bridge. Twenty of the Ft. Myers links most directly affected the addition or deletion of the Mid-Point Bridge yield 537,398 trips under the no-action alternative, 614,280 trips under the Mid-Point Bridge alternative, and 522,425 trips under the Iona Cove Bridge alternative. /14 With the Mid-Point Bridge, the new elevated freeway is projected to receive about one-third and two-thirds more traffic than Colonial presently experiences just west of Metro Parkway and just west of U.S. 41, respectively. With the Mid-Point Bridge, the projected number of trips on these two links are, respectively, 40,900 and 52,700. Just west of Summerlin, the traffic volume on Colonial increases from 6400 to 43,300 trips. Even if the three Colonial links are excluded from the 20 links, the total volume remains greatest under the Mid- Point Bridge and corridor alternative, which is projected to have 477,380 trips. For the remaining 17 links, the no-action alternative generates 469,038 trips and the Iona Cove Bridge and Southern Corridor alternative generates 455,345 trips. Analyzing the same data, Transportation Planner and Engineer Marty Wells, who is an employee of Gorove-Slade, testified on behalf of Ft. Myers that he examined the links identified by the Draft EIS that are in the City limits. These links yield the following volumes under the three alternatives: no action--1.84 million trips; Mid-Point Bridge and corridor-- 2.1 million trips; and Iona Cove Bridge and Southen Corridor-- 1.8 million trips. May 15 Transcript, pages 29 et seq. Using existing data, Mr. Wells also calculated the capacities for these links. Based on the volumes in the preceding paragraph, the overall volume-to-capacity ratios for Ft. Myers' links are as follows for the three alternatives: no action--0.60; Mid-Point Bridge and corridor--0.68; and Iona Cove Bridge and Southern Corridor--0.59. In other words, the Mid-Point Bridge and corridor, if built, would mean that overall traffic would absorb 68% of the capacity of Ft. Myers links most affected by the proposed project. The no-action alternative, on the other hand, would mean that overall traffic would absorb only 60% of the capacity of the same links. Table 415 of the Draft EIS reports other variables among the three alternatives. The first is that total daily river crossings in 2010 are greatest if the Mid-Point Bridge is built. The Mid-Point Bridge alternative generates 196,110 river crossings daily. The Iona Cove Bridge alternative generates 193,020 daily river crossings, and the no-action alternative generates only 186,090 daily river crossings. Under total vehicle hours of operation, Table 4 projects for 2010 the following figures: no-action alternative-- 656,902 hours; Mid-Point Bridge alternative--638,433 hours; and Iona Cove Bridge alternative--660,483 hours. Total vehicle miles are projected as follows: no-action alternative--14,466,600; Mid-Point Bridge alternative--14,437,100; and Iona Cove Bridge alternative--15,013,456. Table 5 of the EIS compares the Mid-Point and Iona Cove alternatives. These data were available by February, 1989. The Mid-Point Bridge and corridor would require 8.8 miles of corridor and 1.5 miles of bridge over the river, reduce vehicle miles traveled from the no-action alternative, by 30,000 daily, bypass wetlands, cost about $170 million, and require the relocation of 100-350 residences, 2' 6-56 businesses, and 1-4 nonprofit operations. The Iona Cove Bridge' and Southern Corridor would require 19.3 miles of corridor and 2.4 miles of bridge over the river, increase vehicle miles traveled from the no-action alternative by 550,000 daily, require the removal of 10-30 acres of wetlands, cost about $266 million, and require the relocation of 317-361 residences and 10 businesses. Table 5 of the EIS concludes that the Mid-Point Bridge would result in "more efficient distribution of traffic across combined bridges," and the Iona Cove Bridge would result in "[s]omewhat less efficient distribution of traffic across combined bridges." Table 5 reports that the "Mid-Point Bridge alternative "[c]omplies with existing land use plan; supports existing business communities," and the Iona Cove Bridge alternative would be "[non-compliant with land use plan; bypasses existing business communities." The Draft EIS concludes that the Iona Cove Bridge alternative is not a "reasonable or feasible" alternative to the Mid-Point Bridge alternative. The, EIS later cautions, however, that the Iona Cove Bridge alternative may have a role in the "very long term" transportation network. After rejecting the Iona Cove Bridge alternative, the Draft EIS reports that the "`No Action' Alternative is the base caste against which the [Mid Point Bridge project) is compared in order to determine the benefits and impacts of the project." The EIS reveals more of the analysis undertaken by the Coast Guard in reaching its latter conclusion that the no- action alternative "is not a reasonable alternative." EIS, page 171. To the extent that any data are implicit in such analysis, the data were available in February 1989. Offering a somewhat `expanded version of a discussion of community impact contained in the Draft EIS, the EIS notes that the State of Florida has designated as an "historic highway" McGregor Boulevard from U.S. 41 to College Parkway, which leads to the Cape Coral Bridge. The EIS acknowledges that Lee County and Ft. Myers have ordinances similar to state law with one key difference. The County ordinance specifically allows construction of an overpass for the Mid-Point Bridge corridor, and the City ordinance specifically prohibits such crossings. The EIS observes that litigation is pending over the controversy concerning the McGregor overpass, which would require the removal of about seven Royal Palms along McGregor according to the EIS. EIS, page 2-41. In a similar vein, the EIS reports that the Colonial corridor would mean, due in large part to the existing Colonial arterial, little community- disruption from "proximity" effects, such as "air and noise pollution, visual impacts, access changes, and other considerations." EIS, page 2-37. The EIS anticipates that 75 acres would be required for additional right-of-way along Colonial Boulevard. Id. at page; 2-38. The EIS considers in some detail the impact of noise pollution. The corridor would result in noise levels in excess of those set for residential use and would affect 26 dwelling units along the Colonial corridor. EIS, page 4-56 and Tables 35 and 36. Sound barriers are not technically feasible for the road surface between the river and McGregor and Summerlin and U.S. 41. EIS, page 4-57. For the remainder, cost barriers are implicitly deemed cost ineffective. The EIS envisions a 288'-330' right-of-way along Colonial Boulevard. The right-of-way would be within about 150' of Rio Vista Way. The corridor would be elevated 22'-24'. Turning to the Cape Coral side of the project, the EIS states: It is envisioned that a direct east-west roadway corridor [on the Cape Coral side of the river would enhance future residential development in the area. EIS, page 4-2. The EIS generally fails to address any need for the development in Cape Coral of commercial, industrial, recreational, or institutional uses. The EIS contains detailed comments from Ft. Myers' counsel with an appendix containing, among other things, comments from Ft. Myers' transportation consultant, Gorove-Slade Associates, Inc. Ft. Myers' counsel submitted these comments to the Coast Guard on September 22, 1989, and the EIS also contains the Coast Guard's undated responses. One suggestion of the Gorove-Slade representative is that reversible lanes on the existing bridges could accommodate the present and future demand. The Gorove-Slade letter suggests that reversible lanes are feasible as long as the directional imbalance on a bridge is "normally 2:1 to 3:1." The Gorove-Slade letter asserts that the imbalance is 67/33, which is of course within the above-stated range. Rejecting the suggestion of reversible lanes, the Coast Guard first erroneously concludes that the 67/33 split is not greater than 2:1. Then the Coast Guard states that the more recent directional imbalance is 58/42. The source of the Coast Guard's data is undisclosed. However, the evidence is abundant that the cross-river traffic is at least 2:1 toward Ft. Myers on weekday mornings and 2:1 toward Cape Coral on weekday afternoons. Even Lee County's witness, Ronald Talone, who was formerly employed in the Lee County Planning Department, testified to a 67/33 split based on data that Lee County had collected./ 16 The Coast Guard response also relies upon "potential shifts in land use patterns [in connection with) land use plans, which were the basis for [the Draft EIS] analysis. The results show an overwhelming need for the Midpoint Bridge Corridor." EIS, page 151. The basis for this statement apparently is the work of Lee County's consultant, who replicated future land uses under the settlement agreement between DCA and Lee County. However, this work was "unofficial" and offered only "initial results." EIS, page 159. The EIS notes that the settlement between Lee County and DCA required the county to reduce densities in outlying areas, such as those served by the Southern Corridor proposed by Ft. Myers. The reductions reportedly were as much as 10,000 percent, "further reducing the travel production/attraction base in those areas." EIS, page 160. The consultant also considered the plans of "cities in the region." EIS, page 146. However, it is unlikely that the consultant considered the plans adopted pursuant to the Act. It is difficult to determine the extent to which any traffic modeling in this case was informed by the future land use designations contained in the plans of Lee County, Cape Coral, and Ft. Myers under the Act. If not done, it is impossible to determine the impact of changed future land uses, which could result in large changes in the distributions of new residents. /17 However, later modeling--presumably incorporating changed future land uses--reportedly did not generate significantly different traffic volumes, at least for the various river crossings. Such later modeling includes that performed by Gorove- Slade for Ft. Myers. Focusing directly on land use planning concerns, the Coast Guard explains one of the reasons why it did not oppose the Mid-Point Bridge proposed by Lee County and Cape Coral: The concept of intentionally prohibiting construction of a bridge to force development on one side of a river is inappropriate and contrary to urban development concepts. In this instance, the no-bridge alternative would not stimulate development, given the interdependent nature of the Lee County economy. EIS, page 151. Lee County did not attempt to tell the city governments to change their Future Land Use elements, as the Fort Myers comments suggest that Cape Coral be instructed to do. * * * Alternative land use planning is not the purview of the transportation planner and is outside the scope of the project to plan this single bridge crossing. Instead, a project such as this is required to accept the adopted land use plans and the projected travel demand based on them. EIS, pages 169 and 171. Alluding to the land-use planning responsibilities placed upon local governments by the Act, the Coast Guard notes: Since the publication of the [Draft EIS], an important event has taken place in regard to this specific issue, rendering [a fatteners'] comment obsolete. The top state land planning agency, the Department of Community Affairs, found the Fort Myers' Comprehensive Plan to be non-compliant with state land planning guidelines because it prohibited the Midpoint Bridge, which is include in the plans of the county, the region, /18 and the City of Cape Coral. Administrative hearing procedures were scheduled to settle the issue but, instead of defending its opposition to the bridge, the city elected to remove the wording obstructing the project from the Comprehensive Plan. Instead, the city agreed to enter binding arbitration on the issue. Id. at page 153. Specifically addressing urban sprawl, the Coast Guard response states: Lee County Future Land Use plans since 1984 have aimed at containing urban sprawl through encouraging compact development patterns. The 1984 Lee Plan was based upon an urban service area concept, which focused future growth on the existing urbanized areas and their environs through a combination of land use categories, density allocations, infrastructure policies, and environmental protection standards. The 1989 Lee Plan continued to stress the importance of existing and permitted urban areas as the focal points for more intensive future growth. The major existing and permitted urban areas in Lee County, in terms of size, are clearly Cape Coral, Fort Myers (including its Urban Reserve area for future growth), and Lehigh Acres. . . . Both the 1984 and 1989 Lee Plans recognized these three major urban areas as givens, where preexisting investments and governmental approvals dictated the need for public services and infrastructure. Together, they constitute a tier of urban areas extending across the northern central part of the county, which is served by the east-west alignment of the Midpoint Bridge Corridor as extended to connect with Lee Boulevard in Lehigh Acres, as shown on the [Financially Feasible Plan]. The logic of connecting the population concentrations of Fort Myers and Cape Coral, the two largest urban areas in the County, with a primary east-west route is clear; with the extension to Lee Boulevard in Lehigh Acres, the logic of the Midpoint Bridge is even stronger. EIS, page 168. Summarizing its findings as to the planning decisions made by Lee County, the EIS concludes: The 1989 Lee Plan builds upon the 1984 Lee Plan. It was adopted as a result of the mandatory process of participation and review. It contains a responsible strategy for managing the large and rapid growth of the county. It sets forth numerous policies for providing the infrastructure necessary to support future populations, for projecting the sensitive natural environment, for paying for future public facilities, for maintaining a reasonable and compact, future land use pattern, and for buildings the necessary transportation network to allow its citizens to move efficiently between their homes, work, recreation, and shopping destinations. It is not a utopian document based upon unsubstantiated opinions, but a practical guide to development based upon the best available data and information. Following the amendments from the Stipulated Agreement, [the 1989 Lee Plan) will be fully consistent with Florida law and an even more effective guide for future development, in terms of reducing sprawl, protecting the environment, maintaining desirable land use patterns, and providing orderly expansion of roads and infrastructure. EIS, pages 169-70. Other Sources of Data and Analysis The Regional Comprehensive Policy Plan of the Southwest Florida Regional Planning Council (Regional Plan) contains land use analysis. Prepared no later than May 21, 1987, when the current version of the Regional Plan was adopted, the land use analysis was in existence at the time of the adoption of the Plan. In its analysis of the regional issue of Balanced and Planned Development under Land Use, the Regional Plan notes: The growth that has occurred [during the recent period of rapid growth that the region has experienced] can also", be considered "imbalanced." This imbalance is of two natures: inadequate development of certain common aspects of urban areas and inadequate distribution of certain types of urban areas. A lack of manufacturing is sometimes considered an indication of the urban inadequacies. More commonly, the problem is described as a lack of suitable jobs within industrial, office, education, and research facilities. The uneven distribution of urban uses is best (but not solely) depicted by an aerial view of the Region's major subdivisions, entire townships devoted to residential uses. Such areas have only limited commercial uses, few of the necessary public use site's, and high demand for transportation improvements for access to other areas. This lack of diversity is the result of private sector planning, namely large development projects, and traditional zoning techniques which discourage the use of planned unit developments by making them special exceptions and by segregating uses into separate zoning categories instead of using a performance zoning approach. Regional Plan, page 16-2. Another source of data and analysis is the Cape Coral comprehensive plan. Both the operative provisions and data and analysis provide a potential source of data and analysis in support of the Ft. Myers Plan. Adopted on February 13, 1989, the Cape Coral plan was in existence when the Ft. Myers plan was adopted. Amended August 27, 1990, the Cape Coral plan amendments were likely available, given noticed and public participation requirements, when Ft. Myers amended, its plan one week earlier. Cape Coral's Transportation Data and Analysis discloses that the city's strategy through 2000 is to direct future growth into the Infill and Transition areas. The Infill Area is located in Cape Coral's southeast quadrant, which has historically served as the growth center from which new growth emanated. The eastern two miles off Everest Parkway run through the Infill Area, dividing its northern third from its southern two-thirds. The Transition Areas is a band of land north and west of the Infill Area. Although Everest Parkway presently ends at the west limit of the Infill Area, the southern end of the Transition Area encompasses about 1 1/3 miles of the proposed Everest Parkway extension. Cape Coral's Transportation Data and Analysis rejects the MPO data concerning population projections for Cape Coral. The differences are significant. Rejecting the MPO projection as "lack[ing] any credibility, and . . . of no value as a planning tool," Cape Coral projects that its population would reach 100,000 persons by 2000, not 2010. Transportation Data and Analysis, pages 6-7. Cape Coral also contests other important socioeconomic data on which the MPO models rely, such as where Cape Coral residents actually reside or will reside. The MPO study "projected" that about 70% of-the population "lives" in the Infill and Transition Areas. The Cape Coral existing land use map provides that at least 90% of the population lives in these two areas. Cape Coral's Transportation Data and Analysis notes that the present location of commercial/office and other employment activities in Cape Coral is generally along the most heavily traveled roads, especially the Del Prado Boulevard, Cape Coral Parkway, and the Downtown Business District. This "strip commercial development" has engendered traffic congestion along these critical arterials. Without its own data or analysis as to employment trends, Cape Coral adopts the MPO data and analysis concerning, employment trends. This includes a projection that total employment within Cape Coral will increase from an estimated 8000 persons in 1980 to over 27,000 persons, presumably by 2000. Also, the ratio of Cape Coral residents to jobs in Cape Coral is expected to decrease from 4.2:1 in 1980 to 3.7:1 in 2000. The data and analysis add: "If the City commercial acreage estimates are realized, however, an even more favorable ratio would result." Transportation Data and Analysis, page 9. In any event, "Employment growth is expected to increase twice as fast as residential growth." Id. at page 8. Cape Coral's Transportation Data and Analysis acknowledges a clear directional flow or modal split of cross- river traffic: Until [the Cape Coral Bridge) is widened to four lanes (scheduled by the County for 1989), mile long traffic queues will continue to exist on the Cape Coral side of the bridge during the morning peak period and on the Fort Myers side during the afternoon peak. Transportation Data and Analysis, page 20. Through 2000, the destination of tries will remain largely outside the City of Cape Coral. Lacking "high intensity employment centers, airports or other facilities that attract County residents [to Cape Coral], the prime reason for travel into Cape Coral by nonresidents is to provide services, such as construction. Transportation Data and Analysis, page B-2. But this factor is relatively insignificant, as the data and analysis predict that, by 2000, there will be twice the number of trips to points outside the city than to points within the city. Transportation Data and Analysis, page 44. In the meantime, however, intensive growth will outstrip the capacity of Cape Coral's internal parkway system, id. at page 49, and Cape Coral's strategy in "road programming has been to the major roads into the two new proposed County Bridges". Id. at page 60. The Cape Coral plan contains operative provisions that, to some extent, address the historic absence of employment and regional shopping opportunities in the city. These provisions generally involve the attempt to deal with vacant, platted land and promote a mixture of uses in the city. /19 The Lee County plan was most recently amended on September 17, 1990. Based on the above mentioned notice and participation requirements, it is likely that all provisions were in existence when Ft. Myers adopted its amendments on August 20, 1990. The Lee County plan contains a number of provisions encouraging the development and redevelopment of mixed uses. /20 Lee County's traffic circulation element policy 21.1.1 adopts the Financially Feasible Plan with five minor changes. /21 Policy 21.1.3 is for the county's current Thoroughfare Alignment Project to reexamine the transportation model used to generate the MPO plans. Concerning the Mid-Point Bridge and associated corridor, the Lee County traffic circulation element states in relevant part: GOAL 24: MAJOR INTRA-COUNTY TRANSPORTATION CORRIDORS. To provide for efficient intra- county vehicular traffic by planning an integrated system of transportation corridors, possibly of limited access design, that connect urban centers within the county. OBJECTIVE 24.1 MID-POINT CORRIDOR. Create a new east-west transportation corridor, possibly of limited access design, across central Lee Counts in order to alleviate existing congestion of traffic crossing the Caloosahatchee River. POLICY 24.1.1: The county will continue the planning, feasibility determination, and environmental impact assessment for the Mid-Point Bridge. POLICY 24.1.2: The construction of this east-west transportation corridor will be coordinated through the Metropolitan Planning Organization to ensure system-wide continuity. POLICY 24.1.3: Due to the public need to provide this critically important corridor so as to solve roadway deficiencies affecting most of Lee County, and due to the admitted impossibility of devising any alignment, which would not generate at least some negative impacts, it is declared as the policy of Lee County that once the best alignment is selected this policy shall preempt any other perceived conflicting portion of the Lee Plan and such conflicts, real or perceived, shall not be construed so as to require or justify blocking the construction of this facility. POLICY 24.1.4: Because of the high priority Lee County placed on the planning and construction of this transportation corridor, permitting efforts shall be initiated by the year 1989, if feasible, and construction shall begin, if possible, by the year 1993. * * * The Lee County intergovernmental coordination element provides, in relevant part: GOAL 28: INTERGOVERNMENTAL COORDINATION. Lee County shall participate in and share the leadership of all necessary and desirable programs in coordinating the transportation planning and improvements of routes within or affecting Lee County. OBJECTIVE 28.1: PLANNING. Lee County will continue to plan cooperatively with its municipalities, surrounding counties, and FDOT. POLICY 28.1.1: The county will participate in the MPO and Regional Planning Council planning processes for system-wide facility needs. POLICY 28.1.2: The County will use informal mediation whenever possible to resolve disputes before other formalized processes are pursued. * * * Various other sources of data and analysis were in existence when the Plan was adopted. As Colonial proceeds east of McGregor, the prevailing and planned land uses are predominantly commercial, and the existing commercial uses are dependent upon direct access to Colonial Boulevard. The addition of an elevated freeway or expressway would tend to reduce business for some of these roadsides commercial uses due to, among other factors, the presence of one-way service roads in place of two-way traffic, less on-site parking, and less visibility from the road. However, the record establishes no more than a temporary reduction in commercial property values. It is unclear whether, in the longer term, commercial uses, especially the older ones along the western part of Colonial, would be impaired by a freeway. The record does not preclude the possibility that the corridor could lead to commercial revitalization, especially at the Summerlin, U.S. 41, and Metro Parkway interchanges. The existing and planned land uses on both sides of McGregor north and south of Colonial are low density residential. The record establishes that the elevated freeway would, through noise and visual impact, have a negative impact upon these and possibly other residential areas. However, the record does not establish the extent of such an impact. The record does not establish that the freeway would impair access between points within the affected area. Presently, motorists, pedestrians, and bicyclists must cross Colonial, which is an at-grade six-lane arterial west of U.S. 41. Accessibility with the Mid-Point Bridge corridor would depend upon a variety of factors, such as the design of the service roads and three interchanges, the sign of the other overpasses, the traffic on the service roads, and the traffic on the north- south roads in the vicinity of the corridor. Provisions of Ft. Myers Plan Traffic Circulation Element (TCE) Objective 1 is "To meet the transportation needs of the incorporated area through a balanced system of roadway, rail, air, boating, public transportation, and bicycle and pedestrian facilities." TCE Objective 2 is, "To maintain or provide adequate road capacity to meet present and anticipated future traffic needs." TCE Policy 2.4 is: "New roadway corridors will be provided when justified by needs where feasible, and when exiting corridors cannot meet the need. TCE Policy 2.6 is: "The City will obtain traffic counts and intersection studies to determine current service levels." Standard 2.6.3 mentions capacity constraints on McGregor Boulevard and all roads in the downtown area; for those, the peak hour, peak season acceptable level of service is "Maintain and improve." The downtown area is limited to the immediate vicinity of the Caloosahatchee and Edison Bridges. TCE Objective 5 is: "To preserve the integrity and quality of residential areas, major activity centers, and recreational and environmental resources." TCE Policy 5.1 is: "Proposed transportation improvements will be coordinated with existing land uses and the Future Land Use Map." TCE Action 5.1.1 is: "Changes to the Future Functional Classification Map (Map F) that would change proposed rights-of-way requirements, will be developed in accord with adjacent land uses as well as bin accord with the City's overall needs." TCE Action 5.1.2, which was amended at least to add the language concerning the Mid-Point Bridge, states: No new transportation corridors or improvements will be permitted which could preclude those indicated on the Major Thoroughfare Map (Map G)--unless, with respect to the Mid-Point Bridge and elevated limited access expressway system proposed by Lee County and Cape Coral, the result of the binding conflict resolution process described in the Goals, Policies and Objectives of the Intergovernmental Coordination Element is that the Bridge should be constructed. Any proposed amendment to the Thoroughfare Plan must be consistent with all Traffic Circulation policies as well as other Comprehensive Plan Elements. TCE Policy 5.2 is: "Any transportation improvements proposed for McGregor Boulevard shall consider its qualities as a special historic and scenic corridor." Action 5.2.1 provides that, except under certain conditions, there shall be no new street connections, road connections, road intersection, or the widening of any existing, intersections and no overpasses or underpasses, made either with, under, or over McGregor Boulevard or any alteration of the physical dimensions, appearance, or location of this corridor . . . However, new street connections, road connections, road intersections, or widening of any existing intersections and overpasses or underpasses may be made either with, under, or over McGregor Boulevard or alteration of the physical dimensions, appearance, or location of this corridor with respect to the Mid-Point Bridge and elevated limited access expressway system proposed by Lee County and Cape Coral, if the result of the binding conflict resolution process described in the Goals, Policies and Objectives of the Intergovernmental Coordination Element is that the Bridge should be constructed. At least the language following the ellipses is the result of a plan amendment. TCE Policy 5.3 is: "Transportation improvements proposed in or near residential arenas will contain appropriate mitigation measures." TCE Objective 6 is: "To obtain the cooperation and active participation of all responsible governments in the coordinated implementation of the metropolitan transportation plan." TCE Policy 6.1 is: "All proposed major transportation improvements, including all improvements which extend beyond the limits of the City, will be coordinated with the other affected jurisdictions prior to City approval of the improvement." TCE Action 6.1.1 is: "The City will participate in the committees of the Metropolitan Planning Organization to ensure that this policy is met." TCE Policy 6.2 is: "The City will actively participate in the development and review of transportation improvements proposed by other jurisdictions." TCE Action 6.2.1 is: "The City will participate in the County's Planning Technical Advisory Committee to ensure that this policy is met." Intergovernmental Coordination Element (ICE) Goal 2, which, together with its objectives and policy, was added by amendment, states in its entirety: It is the goal of the City of Fort Myers to resolve the conflict with Lee County. and the City of Cape Coral concerning the Mid-point Bridge through ban independent, objective, equitable, efficient and binding process as an alternative to the litigation in Lee County vs. City of Fort Myer, Circuit Court Case No. 88-5598 CA-RWP pending in the 20th Judicial Circuit for Lee County, that will ensure that all relevant factors and concerns are fairly and objectively evaluated. Objective 1. In order to achieve the City's goal of resolving the conflict over the proposed Mid-Point Bridge, it is the objective of the City of Fort Myers to abate the pending litigation between the County and the City in regard to the Mid-Point Bridge and to enter into a binding conflict resolution process that will provide a balanced determination of the need for and appropriateness of the proposed Mid-Point Bridge in terms of the following factors: county-wide transportation needs; the comparative effectiveness and cost benefit of reasonable alternative transportation solutions; social, cultural economic and environmental impacts on the City of Fort Myers and Lee County; and long-term financial feasibility and cost-effectiveness. Policy 1.1 It is the policy of the City of Fort Myers in regard to the conflict over the proposed Mid-Point Bridge to submit the conflict to a conflict resolution process that contains the, following elements: An objective, independent decision maker who has substantive, and/or technical familiarity with land use and transportation issues; A fair and reasonable opportunity for all affected persons including the City of Fort Myers to submit substantive information in regard to the merits of the proposed Mid- Point Bridge; A resolution of the conflict and the merits of the proposed Mid-Point Bridge based on the following principles: the proposed Mid-Point Bridge should not be constructed if it can be reasonably demonstrated that implementation of the comprehensive plans of Lee County, the City of Fort Myers and the City of Cape Coral will result in a shift in land use patterns, transportation management systems, or increased modal splits that will reduce the projected number of rivers crossings so that there is no need for the proposed Mid-Point Bridge; the proposed Mid-Point Bridge should not be constructed if peak hour levels of service on existing and committee river crossings, with or without operational improvements such as reversible lanes, will provide an acceptable level of service; the proposed Mid-Point Bridge should not be constructed if there are reasonable alternatives that have the following characteristics: reduced or equal costs; equal or superior transportation capacity too serve county wide transportation needs; arid reduced social, cultural, economic or environmental impacts on the residents of the City of Fort Myers. For the purposes of this paragraph, reasonable alternatives Shall include, but not be limited to, river crossings at other locations, a county-wide beltway or circumferential road system and non-geometric improvements such as transportation management systems, reversible lanes and the like. 4) Any determination-of fact shall be based on a standard of preponderance of the evidence. The Future Land Use Element (FLUE) Objective 1 is: "Coordinate land development with the public and private provision of community services and facilities, soil suitability, and topography." FLUE Objective 2 is: "Protect distinct functional areas from intrusion and encroachment of incompatible uses." FLUE Objective 3 is: "Protect significant natural and historic resources from intrusion and encroachment of incompatible uses." FLUE Objective 4 is: "Ensure a balanced distribution and allocation of the various land uses in newly developing areas." FLUE Objective 5 is: "Revitalize declining areas through rehabilitation, redevelopment, and infill strategies as appropriate." Map C, which accompanies the FLUE, designates the following corridors as part of the "corridor improvement strategy": U.S. 41 on both sides of Colonial, Evans Avenue north of Colonial to the river, Fowler south from the river but only about halfway to Colonial, and three east-west routes including Palm Beach Boulevard, which runs along the river, from Interstate 75 to the proposed landfall of the Metro Bridge. Map C designates the following corridors as part of the "corridor conscious" development strategy. Less in need of redevelopment than those named in the preceding paragraph, the corridor conscious corridors include Colonial Boulevard, Winkler Avenue, Summerlin Road south of Colonial Boulevard, Metro Parkway north and south of Colonial and in the vicinity of the Metro Bridge, and Palmetto, Marsh and Ortiz Avenues on both sides of Colonial. FLUE Policy 5.2 is for the central business district to be "redeveloped as the pre-eminent regional center." Provisions of Regional Plan Goal 19, Regional Issue B, of the Regional Plan concerns transportation and growth management. Policy 1 is: All regional transportation systems should be designed, upgraded or maintained to enable roadways to operate at, or above, a service level acceptable to the agency with land use authority, with operational maintenance responsibility, and with the affected surrounding local government, when such standards incorporate the minimum standards set by the agency having operational, and maintenance responsibility for that public facility, unless designated a special transportation area by those agencies and governments. Policy 3.d. is that transportation improvements are to be "related to seasonal and area needs in order to minimize disruption of the existing road network during periods of highest use." Policy 6 is: "Transportation plans should preserve, to the greatest extent possible, the integrity of residential areas." Policy 9 is: `"Transportation investments should be directed in such a way so that they contribute to efficient urban development." Goal 20, Regional Issue A, of the Regional Plan addresses intergovernmental coordination. The policies suggest the improvement of intergovernmental coordination through the use of interlocal agreements, technical assistance, and solicitation of review and comments. Regional Issue D speaks in stronger terms, but only requires, by 1996, that "each jurisdiction will have enacted the appropriate administrative arrangement to ensure coordination occurs." Pursuant to this Issue, Policy D states: "Mediation of jurisdictional disputes should be pursued by local governments as a first alternative to judicial action." Goal 16 of the Regional Plan concerns land uses. Regional Issue A relates to balanced and planned development. The first policy is: "The plans of all jurisdictions should promote balanced and planned development." Policy 3.e. suggests that comprehensive plans "ensure existing urban areas are protected from the adverse impacts of future growth." Policy 3.i. suggests that plans "provide for effective intergovernmental coordination methods for siting public and private locally unpopular land uses." Policy 3.1. suggests that plans "provide for new central business districts, as needed by urban growth." Policy 9 states: Comprehensive plans and land development regulations should provide incentives to develop and redevelop land downtown including allowing mixed uses, higher densities, shared parking, and improved vehicular access. Regional Issue C, which concerns the problem of already-platted, vacant lands in the region, contains Policy 3, which states: "Additional urban uses and protection of threatened resources within existing platted areas should be pursed through reassembly or other techniques." Policy 8 adds: "Each local government should provide alternatives to traditional development of platted lands." The Regional Plan does not recommend the construction of the Mid- Point Bridge. Map IV-10 of the volume entitled, "Description of the Region," identifies the bridge and corridor as a regional roadway "not yet constructed." Neither the map nor the surrounding text suggests that the Regional Planning Council has determined that the bridge and corridor should be built. /22 Ultimate Findings of Fact Sorting Data and Analysis TCE Policies 5.1, 5.2, and 5.3, and the implementing actions thereunder, prohibit the construction of the Mid-Point Bridge and corridor unless this alternative is selected pursuant to the binding arbitration described in ICE Goal 2. Lee County is unwilling to agree to the conditions set forth in ICE Goal 2. The refusal is justified because, for reasons set forth below, the offer to arbitrate contains an unreasonable condition. The Plan's treatment of the Mid-Point Bridge and corridor can be characterized as an intentional omission of these improvements from any road network for the city, and the Plan's offer to arbitrate, in effect, leaves the resolution of the Mid-Point Bridge dispute to the courts or voters. However, Lee County and Cape Coral have failed to prove by a preponderance of the evidence that the omission of the Mid-Point Bridge and corridor from the Plan is not supported by data and analysis. The data and analysis contained in the 1989 Data and Analysis and 1990 Data and Analysis are sparse in terms of support for the omission or inclusion of the bridge and corridor. Ft. Myers failed to incorporate into its data and analysis, verbatim or by reference, the best "available existing data, which were those generated by Lee County bin preparing the EIS, especially Composite Exhibit 4 of the EIS. However, the 1989 Data and Analysis and 1990 Data and Analysis contain analysis in support of the omission of the Mid-Point Bridge and corridor. The analysis consists mostly of consideration of the effect of the proposed project on various provisions of the Plan and the conclusion that the project would be inconsistent with these provisions. The Ft. Myers' planning strategy emphasizes more than the preservation of the historic and aesthetic values of McGregor Boulevard and nearby Rio Vista Way. The analysis justifies the omission of the ride and corridor by at least implicitly construing the Plan as part of an urban containment strategy that, if successful, benefits the region by promoting existing, close-in commercial uses and promoting the attractiveness of Ft. Myers as a place to live. This analysis finds some support in the data concerning the noise and visual impact of the corridor upon nearby residential areas. The most important sources of data and analysis in support of the omission of the Mid-Point Bridge and corridor are the Draft EIS and EIS, especially Composite Exhibit 4. Although Ft. Myers was aware of these data, it failed to include and analyze them, in the 1989 Data and Analysis or 1990 Data and Analysis. The most likely explanation for this omission is that the exclusion of the bridge and corridor was a foregone conclusion at the beginning of the planning process, and, until plan litigation became imminent Ft. Myers felt no need to explicate its opposition to the project. However, for reasons set forth in the Conclusions of Law, the sources of data and analysis available to support the plan are not limited to those identified or even actually relied upon by Ft. Myers in the plan-adoption process. The data and analysis contained in the Draft EIS and EIS support the exclusion of the Mid-Point Bridge and corridor because this project would tap, to some degree, latent travel demand and would result, to , a significant extent, in more traffic on Ft. Myers' roads. The corridor would also displace, at least in the short term, viable commercial uses whose proximity to downtown Ft. Myers and nearby residential areas is useful in maintaining a mixture of uses in Ft. Myers. The data and analysis do not, however, address the possibility of renewed commercial development along the corridor. It is therefore impossible to determine if the data and analysis suggesting the possible displacement of existing commercial uses are offset by data and analysis indicative of a possible revitalization of aging commercial uses. In short, data and analysis exist to support a decision by Ft. Myers to omit the bridge and corridor, and data and analysis also exist to support a decision by Ft. Myers to include the bridge and corridor, had it wished to do so. Little, if any, data and analysis exist that comprehensively net the benefits of the Mid-Point Bridge alternative against the benefits of the no-action or Iona Cove Bridge alternative. In large part, the conflict is between transportation and land use strategies whose competing sets of underlying data and analysis have not been evaluated in a process designed to identify the superior data and analysis from an appropriately broad perspective. In such a proceeding, no deference could be given to the planning preference of any individual local government. This is the first shortcoming of the EIS process in which due deference to the prerogative of local governments in local land use planning provided a procedural advantage to the proponents of the project, Lee County and Cape Coral. In any event, the conclusions of the EIS are supported by its data and analysis to the extent that the Coast Guard concludes that the decision of Lee County and Cape Coral to build the bridge is reasonable. The conclusions of the EIS that the other alternatives, especially the no-action, are unreasonable from a regional perspective, if even relevant to the present case involving only Ft. Myers' Plan, are based predominantly upon transportation considerations. These conclusions clearly are not based upon a comprehensive, objective, and informed review of comprehensive land use strategies, of which transportation strategies are a part. To the extent that the EIS concludes that the no-action alternative is an unreasonable land use strategy, such a conclusion is unsupported even by the data and analysis contained in the EIS. To some extent, Lee County and especially Cape Coral, although responsible for preparing nearly all of the relevant data in this case, have not sufficiently focused their data and analysis so as to justify a finding that the Plan's omission of the bridge and corridor is not supported by the data and analysis. The Lee County and Cape Coral data and analysis supporting the Mid-Point Bridge and corridor justify a transportation strategy linking more efficiently the bedroom communities to the east and west with each other and to shopping and jobs. By contrast, the omission of the bridge and corridor is based on more comprehensive land use planning considerations. Data and analysis supporting the exclusion of the Mid-Point Bridge and corridor address an overall land use strategy, to which transportation planning is properly subordinated. To some extent, the differing emphases reflect that Ft. Myers is a more established community than the fast- growing Cape Coral and Lee County. To some extent, the increased emphasis upon overall land use planning by Ft. Myers, as opposed to the focus upon transportation planning by Cape Coral in particular, may reflect varying planning philosophies. Cape Coral has suffered from the lack of an effective land use strategy to overcome the burdens of urban sprawl, which has engendered a monolithic land use dominated by low-density residential. The Cape Coral plan and data and analysis point to some improvement dealing with this problem. But to meet the burden of showing that the Ft. Myers strategy, which excludes the bridge and corridor, is supported by data and analysis, Cape Coral must offer data and analysis more effectively addressing land use planning issues, rather than merely transportation planning issues. Cape Coral cannot meet its burden in this case by presenting data and analysis supporting a transportation strategy of linking its internal parkways to bridges and building more bridges. Although such data and analysis may support Cape Coral's planning solutions, they are not so compelling as to displace the data and analysis presently supporting Ft. Myers' land use strategy of preserving a viable mixture of uses. The support for Ft. Myers' land use strategy excluding the Mid-Point Bridge and corridor is not overwhelming in terms of data and analysis. The increased traffic on city roads, noise pollution, and the visual impact support the decision. Other factors, such as impaired physical accessibility, commercial decline, and the extent of the negative impact upon residential integrity, do not so clearly support the decision. Even if present conditions clearly were to support the decision to exclude the bridge and corridor, changing conditions could later deprive Ft. Myers' decision of support from the data and analysis. New developments, such as Omni Park, could leave Colonial and nearby collectors, as well as McGregor, choked in traffic during nonpeak season, nonpeak hours. The decline of commercial uses along the western part of Colonial may in time require revitalization through redevelopment If so, imaginative planning solutions may :,"identify corridor-connected uses whose scale and type promote, rather than threaten, Ft. Myers' status as a viable mixed-use center. If sufficiently compelling under then-existing conditions, such solutions may even compel a bridge and corridor. But the data and analysis do not portray these conditions presently. Internal Consistency Lee County and Cape Coral have failed to prove to the exclusion of fair debate that TCE Action 5.2.1 is inconsistent with FLUE Objective 1. TCE Action 5.2.1 prohibits the construction of the Mid-Point Bridge and corridor unless this alternative is selected pursuant to the binding arbitration described in ICE Goal 2. FLUE Objective 1 is, to coordinate land development with the adequate provision of facilities, which include roads. FLUE Objective 1 and its policy cluster require adequate levels of service for facilities (presumably for which concurrency is required), the availability of land for public facilities, development patterns that maximize, the use of existing public facilities, and coordination with Lee County and the Florida Department of Transportation regarding tide intensity of land uses and their location relative to collectors and arterials. There is nothing inherently contradictory between TCE Action 5.2.1 and FLUE objective 1. FLUE Objective 1 does not require the construction of the Mid-Point Bridge and corridor, just as it does not require that downtown segments of U.S. 41 or Fowler be widened to 12 lanes if there is sufficient traffic demand. FLUE Objective 1 does not requiring reducing the planning exercise to promising invariably to widening existing roads or building new roads in urban areas upon the identification of traffic congestion. Taking a wider view, FLUE Goal 1 is to ensure the achievement of acceptable "general patterns and relationships (distribution, allocation, and intensity) of all land uses" in the city. The record does not establish that the omission of the Mid-Point Bridge and corridor is inconsistent with FLUE Objective 1. Lee County and Cape Coral have failed to prove to the exclusion of fair debate that TCE Objective 5, Policy 5.1, Actions 5.1.1 and 5.1.2, Policy 5.2, Action 5.2.1, ICE Goal 2, Objective 2, and Policy 1.1, on the one hand, are inconsistent with TCE Objective 6, Policy 6.1, Auction 6.1.1, Policy 6.2, and Action 6.2.1, on the other hand. TCE Objective 5, Policy 5.1, Actions 5.1.1 and 5.1.2, Policy 5.2, Action 5.2.1, ICE Goal 2, Objective 2, and Policy 1.1 will bet referred to as Modified TCE Objective 5. Modified TCE Objective 5 prohibits the construction of the Mid-Point Bridge and corridor unless this alternative is selected pursuant tot the binding arbitration described in ICE Goal 2. ICE Goal 2, Objective 2, arc Policy 1.1 set the conditions of such arbitration. With one exception, these conditions are reasonable. The goal to obtain a fair, objective, and binding resolution of the bridge dispute outside of court is salutary. The objective is also reasonable, assuming that the reference to the socioeconomic and environmental, impacts on Ft. Myers and Lee County includes Cape Coral. Policy 1.1 establishes specific conditions. The first calls for an objective, disinterested decision-maker with expertise in land use and transportation planning. The second condition ensures that all parties have a chance to be heard. The fourth condition provides that the standard of proof is the preponderance of the evidence. These conditions are obviously reasonable. The substantive guidelines for the decision-maker are set forth in ICE Policy 1.1(3). The first guideline prohibits the bridge if the land use plans of Cape Coral, Ft. Myers, and Lee County can be implemented so as to reduce the number of river crossings by shifting land use patterns, introducing or expanding transportation management systems, or increasing modal splits. The second guideline prohibits the bridge if existing and committed river crossings will provide an acceptable level of service regardless of operational improvements such as reversible lanes. In general, these conditions are reasonable. The effectiveness of transportation management systems and operational improvements, especially reversible lanes, should be considered as relatively inexpensive alternatives to the construction of a new bridge and corridor. Changing land use patterns presumably requires each local government to address through comprehensive planning any deficiencies that it may suffer in terms of a lack of mixed land uses. The guideline does not specify the extent to which a local government must remediate a lack of mixed uses. For example, it might be effective but prohibitively costly for Cape Coral to solve its mixed land use problems by purchasing and reassembling vacant and developed platted land suitable for commercial or industrial development. The reasonableness of the guideline of changing land use patterns depends upon its interpretation. The third guideline, prohibits the construction of the Mid-Point Bridge if "reasonable" alternatives exist at reduced or equal costs, with equal or superior transportation capacity to serve County-wide transportation needs, and with reduced socioeconomic and environmental impacts on Ft. Myers residents. The factors of reduced or equal costs and equal or superior transportation capacity are reasonable and address regional concerns. The guideline focusing on the socioeconomic and environmental impacts of Ft. Myers' residents exclusively undermines the viability of ICE goal 2 and Ft. Myers' putative "offer" to submit to binding arbitration. Just as it is reasonable for Ft. Myers to concern itself exclusively with the socioeconomic and environmental welfare of itself and its residents, so it is reasonable for Lee County and Cape Coral to concern themselves with the socioeconomic and environmental welfare of themselves and their residents. This guideline is unreasonable and effectively relegates the parties to whatever judicial or political solutions that may be available. Notwithstanding the failure of the offer to arbitrate, Modified Objective 5 is not inconsistent with TCE Objective 6 and its policies and actions. The latter provisions do not preclude the judicial option for this longstanding dispute. TCE Objective 6 is to obtain the cooperation of all governmental entities in the implementation of MPO plan. Except for TCE Policy 6.1, the policy and actions under this objective require merely participation in transportation planning processes. The arbitration process described in Modified TCE Objective 5 does not preclude participation in transportation planning processes; Modified TCE objective 5 merely identifies one approach to resolving disputes not resolved by normal transportation planning processes. Policy 6.1 requires the "coordination" of "major transportation improvements" with other affected governmental entities. The simple resolution of this issue is that the policy requires coordination only of projects that Ft. Myers proposes to undertake, not of projects sponsored by other entities that Ft. Myers proposes to ignore or resist. Even if the omission of a project sponsored by others triggers the coordination requirement of Policy 6.1, Modified TCE Objective 5 is not inconsistent with such a requirement. Coordination does not require the successful achievement of a consensus for each transportation project that each local government or regional entity may propose. "Coordinate" means: To place in the same order, class, or rank. To arrange in the proper relative position. To harmonize in an action or effort. American Heritage Dictionary. In this case, Ft. Myers participated in the normal transportation planning processes. Consensus was reached as to a considerable number of road projects, although the Mid-Point Bridge and corridor are extremely large projects in the County. "Coordinate" does not mean "approve," and Ft. Myers is not required by TCE Policy 6.1 to obtain the approval of all other governmental entities for projects proposed by Ft. Myers or to give its approval for projects proposed by any or even all of the others. The facts of this case do not reveal a series of disputes involving numerous proposed road projects. The three local governments have not had systemwide impasse that defeats their ability to design and implement a coordinated transportation network. Although the Mid-Point project is of considerable magnitude, the Major Thoroughfare Plan--2010 does not prevent the transportation plans of Lee County and Cape Coral from working. The size of a project proposed by a majority of area local governments does not alone compel a lone opponent to capitulate to attain intergovernmental coordination. Neither does the inclusion of the Mid-Point Bridge and corridor in the financially Feasible Plan compel Ft. Myers to accede to the project or risk inconsistency with the intergovernmental coordination provisions of its Plan. The MPO's data and analysis support its adoption of the Mid-Point Bridge and corridor. But the purpose of the MPO is not to restate the positions of its constituent members and, even if they are supported by data and analysis, thereby compel dissenters to conform their plans to the plans of the majority. The MPO has served a valuable purpose in this case by collecting and disseminating important data and providing the parties with a forum in which to exchange their data and analysis; inform and, if necessary, revise their positions; and, if possible, form a consensus. Like Lee County and Cape Coral, Ft. Myers participated in this process in good faith and thereby engaged in intergovernmental coordination. The unreasonableness of requiring local governments invariably to conform their plans to those of the MPO is illustrated by another factor in this case. The Financially Feasible Plan describes a road network that is financially feasible only if existing available revenues are nearly doubled. The present facts do not support a construction of intergovernmental coordination that mandates strict compliance with a Financially Feasible Plan that requires local governments to raise additional revenues. Lee County and Cape Coral have failed to prove to the exclusion of fair debate that Modified TCE Objective 5 is inconsistent with TCE Objective 1. TCE Objective 1 is to meet the city's transportation needs through a "balanced system" of road, rail, air, boat, bicycle, pedestrian, and public transportation. For the reasons set forth above, the preclusion of the Mid-Point Bridge and corridor does not preclude the attainment of such a balanced system. Lee County and Cape Coral have failed to prove to the exclusion of fair debate that Modified TCE Objective 5 is inconsistent with TCE Objective 2, Policies 2.4 and 2.6, and Standard 2.6.3. TCE Objective 2 is to "maintain or provide adequate road capacity to meet present and anticipated future needs." Policy 2.4 is to construct new roadway corridors when existing corridors cannot meet the need. Policy 2.6 is for the city to "pursue acceptable level of service standards for its roadways, and coordinate the standards with Lee County and the Florida Department of Transportation." Standard 2.6.3 acknowledges constraints on capacity improvements for McGregor and the central business district and adopts a peak season, peak hour level of service for these roads of "maintain and improve." The record fails to establish that the omission of the Mid-Point Bridge and corridor is inconsistent with these provisions. The evidence shows that traffic would actually increase on city roads with the Mid-Point Bridge. Consistency with Regional Plan Lee County and Cape Coral have failed to prove by a preponderance of the evidence that the TCE, in omitting the Mid-Point Bridge and corridor, is not consistent with the Regional Plan. The record fails to establish that the omission of the Mid-Point Bridge and corridor is inconsistent with the Regional Plan considered as a whole. The Plan's treatment of the bridge and corridor is consistent with provisions in the Regional Plan regarding balanced land uses and intergovernmental coordination. Consistency with Other Minimum Criteria For the reasons set forth above, Lee County and Cape Coral have failed to prove by, a preponderance of the evidence that the Plan is not consistent with the criterion of, "to the maximum extent feasible as determined by the local government," analysis compatible with the plans of the Florida Department of Transportation and MPO, as well as the criteria of analysis of projecting levels of service for roads based on the FLUM, the need for new roads, and the adopted level of service standards and plans of the Florida Department of Transportation and MPO. Lee County and Cape Coral have failed to prove by a preponderance of the evidence that TCE Policies 5.1, 5.2, and 5.3, with their implementing actions, in omitting the Mid-Point Bridge and corridor, are not consistent with the criteria of an objective coordinating transportation planning with the metropolitan planning organization and a future traffic circulation map showing the location of arterial and limited access facilities. The issue of coordination has already been addressed. The Major Thoroughfare Plan--2010 is consistent with the latter criterion. Lee County and Cape Coral have failed to prove by a preponderance of the evidence that the FLUE or TCE Action 5.2.1 is not consistent with the criterion of discouraging the proliferation of urban sprawl. The strategy of urban containment is not limited to planning for undeveloped or underdeveloped areas. The maintenance of existing mixed-use centers also assists in deterring urban sprawl. By preserving and enhancing close-in residential areas, some of the pressure toward urban sprawl may be alleviated. The omission of the Mid-Point Bridge and corridor may be viewed as part of a reasonable planning strategy designed to promote the mixture of uses presently characterizing the city. For the reasons set forth above, Lee County and Cape Coral have failed to prove by a preponderance of the evidence that the ICE is not consistent with the criteria of establishing principles and guidelines to be used in attaining coordination with the plans of adjacent municipalities and the county, ensuring coordination in setting level of service standards for public facilities with any governmental entity with operational or maintenance responsibility for such facility, and resolving conflicts with other local governments through the Regional Planning Council's informal mediation process.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Administration Commission enter a final order determining that the Ft. Myers plan, as amended, is in compliance with Chapter 163, Part II, Florida Statutes, and Chapter 9J-5, Florida Administrative Code. ENTERED this 7 day of January, 1992, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7 of January, 1992.
The Issue The issue in this case is whether the Comprehensive Plan adopted by Jefferson County is not "in compliance" as such is defined at Section 163.3184(1)(b), Florida Statutes, as alleged in the Petition for Administrative Hearing to Review the Comprehensive Plan Adopted by Jefferson County, filed by the Petitioners in this case.
Findings Of Fact Robert B. Rackleff and Jo Ellyn Rackleff own property in Jefferson County. The Rackleff's represent the "Friends of Lloyd, Inc.", an organization opposed to a proposed siting of petroleum product terminal facilities near Lloyd, a town within Jefferson County. The Department of Community Affairs (DCA) is the state land planning agency and administers the requirements of the "Local Government Comprehensive Planning and Land Development Regulation Act", Chapter 163, Part II, Florida Statutes. On or about July 19, 1991, The Board of County Commissioners of Jefferson County adopted a comprehensive plan (plan). The plan was reviewed by the DCA and determined to be "in compliance". 2/ Jefferson County, population 12,243, is located in the northern part of Florida, bordered by the Aucilla River and Madison and Taylor Counties to the east, the Gulf of Mexico to the south, Leon and Wakulla Counties to the west, and the State of Georgia to the north. Jefferson County contains a land area of approximately 392,192 acres. The bulk of the county's residents live in or near Monticello (the county seat), Lloyd, Wacissa, Lamont, Drifton, Capps, Aucilla, Waukeenah, Dills, Thomas City, and Nash. Major transportation routes through Jefferson County include Interstate 10 running east-west through the county just south of Monticello, U.S. Highway 90 lying north of and parallel to I-10 and running through the center of Monticello, U.S. Highway 27 lying south of I-10 and running east-west through the county, and U.S. Highway 98 lying south of U.S. 27 and also running east- west. U.S. Highway 19 enters north Jefferson County at the Georgia border and runs south until it merges with U.S. 27. State Roads 257 and 59 also run north- south. Both State Roads 257 and 59 intersect with I-10, as does U.S. Highway 90. The plan designates land parcels surrounding the I-10/U.S. 90 and I- 10/S.R. 59 interchanges and land parcels on the north side of the I-10/S.R. 257 interchange as "Mixed Use Interchange Business". Future Land Use Element Objective 1, Policy 1-3, of the plan defines the "Mixed Use Interchange Business" designation as follows: A mixed use category located at an interchange with I-10, with a variety of primarily commercial businesses. Because there are but three such interchanges in Jefferson County, the amount of land is necessarily limited; uses in the category are, therefore, limited to those activities requiring locations with high vehicular traffic and easy access to I-10. Appropriate uses include (1) tourist oriented facilities, such as restaurants, automotive service stations, truck stops, motels, campgrounds, and the like; (2) region serving retail complexes or office centers; (3) commerce parks; (4) facilities for the storage and distribution of foods and products including wholesale activity; (5) light manufacture of goods for distribution to other locations; and (6) truck stops. Intensity of use, as measured by impervious land coverage shall not exceed 80%. More intense truck transport and highway oriented activities, and regional distribution centers may also be allowable, subject to special exception approval by the Board of County Commissioners in order to ensure the closest possible scrutiny of such uses. Activities subject to such special exception approval include: uses exceeding 50,000 square feet impervious land coverage; uses with a total land area of five or more acres; uses which have storage capacity for more than 500,000 gallons of petroleum product; or uses on environmentally sensitive lands as defined in the Conservation Element. Performance standards shall be included in the land development regulations for special exceptions to insure that on-site and off-site impacts are adequately planned for and monitored. Impacts include trip generation, transportation access, drainage, water quality, visual appearance, avoidance of environmentally sensitive lands and mitigation of impacts, noise, signage, and air quality. Information to support the application shall be provided by the applicant at the applicant's expense. Activities subject to special exception in this district shall only be required to obtain special exception approval for plan land use changes, and shall not be required at the time of application or receipt of a building permit. (emphasis supplied) Local governments are required to adopt and enforce, within one year following submission of the comprehensive plan for review by the state land planning agency, land development regulations (LDR's) which are consistent with and implement the adopted comprehensive plan. Section 163.3202(1), Florida Statutes. According to the data in the plan, the interchange at I-10/S.R. 59 exists over a potential area of high groundwater recharge. The county's groundwater system includes the upper and lower Floridan Aquifer. Support documents to the Jefferson County plan note that aquifer recharge occurs through sinkholes near Lake Miccosukee, along the Aucilla River, and through the northeast area of the county. Water contamination can occur through drainage from septic tanks, leaking underground storage tanks, hazardous waste, and contaminated stormwater runoff. The Petitioners generally assert that the plan is not in compliance because the possible siting of a petroleum product facility over the potential area of high groundwater recharge fails to adequately protect water quality and the Floridan Aquifer. Under the "mixed use interchange business" designation, land uses permitted through a special exception process receive specific scrutiny by the Jefferson County Board of County Commissioners. Uses including storage capacity for more than 500,000 gallons of petroleum product or which lie on environmentally sensitive lands as defined in the Conservation Element are required to undergo the "special exception" process. Special exception uses are governed by the performance standards which will be included in the county's land development regulations. Such regulations must insure that on-site and off-site impacts, including water quality, avoidance of environmentally sensitive lands and mitigation of impacts, trip generation, transportation access, drainage, visual appearance, noise, signage, and air quality are adequately planned for and monitored. Section 163.3177, Florida Statutes, identifies the elements of a local government comprehensive plan. Some elements identified in this section may be included in the plan at the local government's option; others are required. 3/ FUTURE LAND USE ELEMENT Section 163.3177(6)(a), Florida Statutes, requires the inclusion of a Future Land Use Element, which "may designate areas for future planned development use involving combinations of types of uses for which special regulations may be necessary to ensure development in accord with the principles and standards of the comprehensive plan and this act". Rule 9J-5.006(3)(c)(6), Florida Administrative Code, states that a Future Land Use Element must contain one or more policies addressing the implementation of protection of potable water wellfields and environmentally sensitive land. The Jefferson County Comprehensive Plan Future Land Use Element includes the information required by the statute and rules. Jefferson County's Future Land Use Element Policy 1-5 states: Existing, revised, and/or new land development regulations shall ensure protection of environmentally sensitive lands. Such lands include areas designed 4/ as Conservation on the Future Land Use Map, and may include other isolated areas identified on a site-by-site basis shall be included in the land development regulations. All development is subject to site plan review which is the primary means of ensuring protection. Also refer to specific objectives and policies of the Conservation Element. Future Land Use Element Policy 1-6 provides: The LDR's 5/ shall require protection of all future potable water well fields developed in the County with a design capacity of 100,000 gallons per day or greater through development of locational criteria including a minimum 200 ft. prohibited development zone around the well's perimeter and consideration of distance from hazardous waste storage or generation (including petroleum storage tanks). (This is the same as the G-1 rule from DER.) Future Land Use Element Objective 3 provides: Throughout the planning period, the County shall require that the natural and historic resources of the County be protected from the negative impacts of development activities, and shall require that future land uses are coordinated with the appropriate topography and soil conditions. This objective shall be accomplished using Policies 3-1 through 3-3 Future Land Use Element Policy 3-1 provides: Encourage development and allow growth only in areas without steep slopes. Future Land Use Element Policy 3-2 provides: Drainage improvement plans will be submitted as part of the site plan and/or subdivision review process. Standards will be included in the land development regulations for drainage improvements during development. Future Land Use Element Policy 3-3 provides: Existing regulations in the Jefferson County Development Code shall be continued; the regulations are designed to ensure protection from flood damage, protection of the aquifer, protection of lands adjacent to lakes, streams, and within wetlands. Regulations will be revised for consistency with the objectives and policies of the Jefferson County Comprehensive Plan. CONSERVATION ELEMENT Section 163.3177(6)(d), Florida Statutes, requires the plan to include a Conservation Element for the conservation, use, and protection of natural resources in the area, including water, water recharge areas, and waterwells. Rule 9J-5.013(2)(c)(1), Florida Administrative Code, states that a Conservation Element shall contain policies addressing the implementation activities for the protection of water quality by restriction of activities known to adversely affect the quality and quantity of identified water sources including existing cones of influence, water recharge areas, and waterwells. Rule 9J- 5.013(2)(c)(6), Florida Administrative Code, states that a Conservation Element shall contain policies addressing the implementation activities for the protection and conservation of the natural functions of existing soils, fisheries, wildlife habitats, rivers, bays, lakes, floodplains, harbors, wetlands including estuarine marshes, freshwater beaches and shores, and marine habitats. Rule 9J-5.013(2)(c)(9), Florida Administrative Code, states that a Conservation Element shall contain policies addressing the implementation activities for the designation of environmentally sensitive lands for protection based upon locally determined criteria which further the goals and objectives of the Conservation Element. Rule 9J-5.013(2)(c)(10), Florida Administrative Code, states that a Conservation Element shall contain policies addressing the implementation activities for the management of hazardous wastes to protect natural resources. The Jefferson County Comprehensive Plan Conservation Element includes the information required by the statute and rules. Conservation Element Objective 2 provides: In order to protect water quality, the County shall protect all its surface waters and ground waters from the intrusion of pollutants throughout the planning period This shall be accomplished through: continued implementation and enforcement of the Jefferson County Land Development Code, which requires a site plan review process for all development; correction of drainage deficiencies by 1992, and by the creation of a stormwater drainage plan for Lake Miccosukee and the Aucilla River (north of US27/19) as soon as funding is available. Upon completion of the drainage plan, the County will amend the comprehensive plan for consistency with the recommendations of the drainage plan. Conservation Element Policy 2-1 provides: Throughout the planning period, the County shall require that all new development provide stormwater management systems designed so that post development rates of runoff do not exceed pre-development rates, and to provide treatment of stormwater prior to surface water discharge, consistent with Chapter 17-25, F.A.C. This shall be accomplished using the site plan review process, mandatory for all development, adopted as part of the land development regulations by the statutory deadline. Conservation Element Policy 2-2 provides: The County shall coordinate with the Department of Environmental Regulation, Bureau of Waste Management to ensure that the existing underground leaking tanks are remediated by the owner expediently, and in a manner which does not further threaten ground water quality. Conservation Element Policy 2-3 provides: The County shall adopt a wellfield protection ordinance (for protection of cones of influence and waterwells) by the statutory deadline, a hazardous waste management ordinance by 1991, and a shoreline/waterfront protection ordinance by 1992 to ensure protection of ground and surface water. Conservation Element Policy 2-4 requires the county to consult with the DER and the water management districts to ensure that water withdrawal within two named sites will not increase groundwater contamination from said sites. Conservation Element Policy 2-7 provides: The County shall coordinate with the Suwanee river and Northwest Florida Water Management Districts in the protection of prime recharge areas, once such areas have been designated by the Districts. Conservation Element Policy 2-8 provides: The land development regulations shall limit impervious surfaces, and require onsite retention of stormwater runoff in the County's high recharge areas. Conservation Element Objective 3 provides: Throughout the planning period, the County shall protect all areas that fall within the 100-year floodplain. The County shall use the Flood Insurance Rate map and the site plan review process for all development, as the tools for implementation. Conservation Element Policy 3-1 provides: The County shall continue to enforce the existing floodplain ordinance restricting development if (sic) floodprone areas. The ordinance shall continue to prohibit the following within the 100 year floodplain: fill; structures (other than on stilts); common water supplies or sewage treatment facilities; and roads, except as infrequent intervals as necessary to provide access to private or public property. Permitted uses in the 100 year floodplain shall include agriculture; silviculture; residential structures, only where fill is not required and the first floor elevation is at least one foot above the 100 year flood, and, only at very low densities; recreation (such as hiking trails); native vegetation and wildlife habitat. The ordinance shall continue to protect the functions of floodprone areas through its requirement that flood areas are to be treated as positive visual open space, wildlife habitat, and as water recharge and discharge resources. Conservation Element Policy 3-2 provides: The floodplain ordinance shall protect the water quality and wildlife habitat values of shorelines and riverine floodplains by establishment of a contiguous vegetative buffer along the Wacissa and Aucilla Rivers, of at least 50 foot in width, measured from the wetlands jurisdictional line, within which permanent structures will be prohibited, and clearing of native vegetation (other than areas designated for silvicultural use) shall be limited to only to (sic) provide reasonable access to the shoreline. Shoreline buffers shall be established for Lake Miccosukee. Conservation Element Objective 4 provides: Throughout the planning period, the County shall conserve the water supply and protect the quantity and quality of current water source and any new water sources. This objective shall be accomplished using Policies 4-1 through 4-4. Conservation Element Policy 4-1 provides: The County shall enforce water conservation during times of drought by enacting an ordinance which prohibits irrigation between 10:00 AM to 6:00 PM, and shall keep the public informed of these restrictions through newspaper notices and posted notices. Conservation Element Policy 4-2 provides: The County shall continue to adhere to any emergency water conservation measures imposed by the Northwest Florida and Suwanee River Water Management Districts. Conservation Element Policy 4-3 provides that all new construction and all remodeling activities utilize fixtures conforming to a specified schedule of maximum water usage. Conservation Element Policy 4-4 provides: The County shall enact policies that allow septic tanks only in areas where public sewer is unavailable and only upon issuance of a Jefferson County Health Department permit. Conservation Element Policy 4-5 provides that the county will promote and encourage agricultural land owners to incorporate specified water conserving farming methods. Conservation Element Policy 4-6 provides: Future water demand for nonpotable water uses should be met through the use of water of the lowest acceptable quality for the purpose intended. To this end, the County may require that developers requiring large amounts of water for use other than drinking water utilize reclaimed water from stormwater systems and treated wastewater. Conservation Element Policy 5-1 provides: By the statutory deadline for adoption of land development regulations, the County shall adopt regulations for the preservation and conservation of those areas which are known habitats for threatened and endangered species, and species of special concern, and those areas characterized by wetlands. By 1995, the County shall develop and complete a program to identify, protect and enhance those specific areas which contain unique vegetative communities, springs, caves, sinkholes, ravines, or are suitable for, habitats for threatened and endangered species, and species of special concern, and those areas characterized by wetlands. Conservation Element Policy 5-7 provides: In order to carry out Policy 5-1, the County shall: establish a citizens or other committee to initiate the vegetation and wildlife habitat identification program, based upon the initial data provided by the Comprehensive Plan, and coordination with US Fish and Wildlife and the Florida Game and Freshwater Fish Commission. use innovative techniques in the land development regulations for preservation of such areas, such as: designation and regulations of conservation areas; site plan review; on-site density transfers to allow clustering of allowable units to protect environmentally sensitive portions of a site; and, overlay zoning whereby density calculations and developable land expectations area (sic) based on net developable acreage after excluding the environmentally sensitive portions. Conservation Element Policy 5-8 provides: The County shall promote the designation and protection of natural reservations designated within the County, through cooperation with the federal government regarding St. Mark's National Wildlife Refuge and the Aucilla Wildlife Management Area, the State's CARL program, the Water Management District's Save Our Rivers and SWIM Program, and designation of such areas on the Future Land Use Map as conservation. Conservation Element Policy 5-10 provides: Natural resources, such as wetlands, water bodies, springs, sinkholes, caves, and habitat of endangered, threatened and species of special concern are valuable resources which need protection, and are therefore designated as environmentally sensitive lands. These lands which are threatened by urban development, as well as any lands identified during the County's vegetation and wildlife habitat program to be of critical habitat for designated species, shall be protected from encroachment through the land development regulations, adopted by the statutory deadline. The Regulations shall establish performanc standards for development in such environmen- tally sensitive areas. Any environmentally sensitive lands designated for Silviculture shall be required to us (sic) the US Forest Service Best Management Practices, and are subject to the requirements of Policy 5-11. Policy 5-11 prohibits development of land designated as "Agriculture I" on the Future Land Use Map. To develop such land requires amendment of the comprehensive plan, preceded by an inventory of all wetlands and other environmentally sensitive lands as well as documentation that the proposed use will not negatively impact the environmentally sensitive lands. Conservation Element Policy 5-6 provides conservation-related criteria for permitting commercial mining activities in the county, however, there are currently no commercial mining activities in Jefferson County. Conservation Element Policy 5-13 requires that the county continue its efforts in reducing erosion in coordination with the Soil Conservation Service, and continue to notify farmers of the opportunities available towards reducing erosion. Conservation Element Policy 5-14 requires that silvicultural lands be managed to reduce erosion. Conservation Element Policy 5-15 requires that best management practices be utilized for soil conservation. Conservation Element Objective 6 provides: Throughout the planning period, the County shall prohibit the disposal of hazardous wastes into the public sewer system, canals and ditches, wetlands, stormwater facilities, unlined landfills and other unsafe areas. The hazardous wastes which are prohibited will be listed in the County's revised land development regulations. The County shall ensure that all hazardous waste is properly handled, generated or stored during the site plan review process, required for all development. Conservation Element Policy 6-1 provides: Through intergovernmental coordination and public education programs, beginning within six months after plan adoption, the County shall encourage that residents participate with the City of Monticello in promoting and participating in hazardous waste amnesty days. Conservation Element Policy 6-2 provides: In order to protect natural resources and public sewer systems, the County shall prohibit the unsafe disposal of hazardous wastes by enacting and enforcing an ordinance by the statutory deadline for adoption of the land development regulations. The ordinance shall prohibit disposal into canals, ditches, wetlands, stormwater facilities, unlined landfills and other safe areas, as well as require that any land use proposing to store, generate, or handle hazardous waste; develop an emergency response plan addressing accidents; ensure that DER standards for transfer and storage of hazardous waste are implemented; and, ensure that the site will not degrade quality of ground or surface water or other natural resources. INFRASTRUCTURE ELEMENT Section 163.3177(6)(c), Florida Statutes, requires that the plan include a general sanitary sewer, solid waste, drainage, potable water, and natural groundwater aquifer recharge element (commonly identified as the "Infrastructure Element") as follows: A general sanitary sewer, solid waste, drainage, potable water, and natural groundwater aquifer recharge element correlated to principles and guidelines for future land use, indicating ways to provide for future potable water, drainage, sanitary sewer, solid waste, and aquifer recharge protection requirements for the area. The element may be a detailed engineering plan including a topographic map depicting areas of prime groundwater recharge. The element shall describe the problems and needs and the general facilities that will be required for solution of the problems and needs. The element shall also include a topographic map depicting any areas adopted by a regional water management district as prime groundwater recharge areas for the Floridan or Biscayne aquifers, pursuant to s. 373.0395. These areas shall be given special consideration when the local government is engaged in zoning or considering future land use for said designated areas. For areas served by septic tanks, soil surveys shall be provided which indicate the suitability of soils for septic tanks. (emphasis supplied) Section 373.0395, Florida Statutes, provides: Each water management district shall develop a ground water basin resource availability inventory covering those areas deemed appropriate by the governing board. This inventory shall include, but not be limited to, the following: A hydrogeologic study to define the ground water basin and its associated recharge areas. Site specific areas in the basin deemed prone to contamination or overdraft resulting from current or projected development. Prime ground water recharge areas. Criteria to establish minimum seasonal surface and ground water levels. Areas suitable for future water resource development within the ground water basin. Existing sources of wastewater discharge suitable for reuse as well as the feasibility of integrating coastal wellfields. Potential quantities of water available for consumptive uses. Upon completion, a copy of the ground water basin availability inventory shall be submitted to each affected municipality, county, and regional planning agency. This inventory shall be reviewed by the affected municipalities, counties, and regional planning agencies for consistency with the local government comprehensive plan and shall be considered in future revisions of such plan. It is the intent of the Legislature that future growth and development planning reflect the limitations of the available ground water or other available water supplies. (emphasis suplied) Although Jefferson County's groundwater system includes the upper and lower Floridan Aquifer, the regional water management districts have not completed their studies and have not designated areas of Jefferson County as prime groundwater recharge areas for the Floridan or Biscayne aquifers, pursuant to Section 373.0395. Accordingly, the plan does not designate areas of prime groundwater recharge. Plan maps indicate where the potential for high recharge exists. As stated in the "needs assessment" at page 57 of the support documents to the Conservation Element: [A]t the present time insufficient information is available to allow the county to institute a site specific comprehensive aquifer recharge protection program. This problem should be remedied with the completion of the GWBRAI groundwater basin study for Jefferson County by the NWFWMD (Northwest Florida Water Management District) and the SRWMD (Suwanee River Water Management District). Until this GWBRAI becomes available, the county should adopt interim measures to promote protection of aquifer recharge functions, based on the known characteristics of development within the County, and general knowledge of aquifer recharge principles. The interchange at I-10/S.R. 59 exists over a potential area of high groundwater recharge. Pursuant to the special exception requirements set forth in the "mixed use business interchange" designation, the area shall receive special consideration in zoning or considering future land use for the area. Until prime groundwater recharge areas are designated, in order to promote protection of aquifer recharge functions, land use decisions will be based on the known characteristics of development within the County, and general knowledge of aquifer recharge principles. Rule 9J-5.011(2)(c)(3), Florida Administrative Code, states that an Infrastructure Element shall contain policies addressing the implementation activities for establishing and utilizing potable water conservation strategies and techniques. Rule 9J-5.011(2)(c)(4), Florida Administrative Code, states that an Infrastructure Element shall contain policies addressing the implementation activities for regulating land use and development to protect the functions of natural drainage features and natural groundwater aquifer recharge areas. The Jefferson County Comprehensive Plan Infrastructure Element includes the information required by the statute and rules. Jefferson County's Infrastructure Element Goal 4 is to conserve and preserve the values and functions of the County's natural groundwater aquifer recharge areas. Infrastructure Element Goal 4, Objective 1 provides: The County shall conserve and protect the values and functions of natural groundwater aquifer recharge areas from adverse impacts through adoption of land development regulations by the statutory deadline and coordination with federal, state, and local agencies throughout the planning period. Infrastructure Element Goal 4, Policy 1-1 provides: The County shall seek assistance from the Northwest Florida and Suwanee River Water Management Districts in the management of prime aquifer recharge areas, once such information is made available. The comprehensive plan shall be amended at that time as necessary to protect prime aquifer recharge areas. Infrastructure Element Goal 4, Policy 1-2 provides: The land development regulations shall limit impervious surface ratios for new development and shall require management of stormwater to ensure post development run-off does not exceed predevelopment run-off rates. Infrastructure Element Goal 4, Policy 1-3 provides: The County shall allow the re-use of treated effluent and stormwater for irrigation, and shall encourage such re-use during the site plan review process. Infrastructure Element Goal 4, Policy 1-8 provides for closure of the current landfill upon completion of the replacement landfill, such closure to be handled in accordance with DER requirements. Infrastructure Element Goal 2, Policy 2-1 sets forth limits on the use of new on-site wastewater treatment systems in new development and provides that such existing on-site systems may remain in service until central service is available. INTERGOVERNMENTAL COORDINATION Petitioners allege that the Intergovernmental Coordination Element contained within the plan is not in compliance, in that it allegedly fails to provide a mechanism for coordinating protection of the Floridan Aquifer and water quality in Leon and Jefferson Counties. Petitioners further allege that the plan contains no coordination of common issues such as fire protection and protection of drinking water. The goals, objectives, and policies of the Intergovernmental Coordination Element appropriately provide for formalized coordination of land use decisions with surrounding counties in order to protect water quality and quantity. The Intergovernmental Coordination Element does not specifically address fire protection. However, the evidence fails to establish that currently available fire protection is inadequate, or that, if additional protection is required, the county is unable to provide such services. INTERNAL INCONSISTENCY Section 163.3177(2), Florida Statutes, provides: Coordination of the several elements of the local comprehensive plan shall be a major objective of the planning process. The several elements of the comprehensive plan shall be consistent.... Rule 9J-5.005(5)(a), Florida Administrative Code, provides: The required elements and any optional elements shall be consistent with each other. All elements of a particular comprehensive plan shall follow the same general format. Where data are relevant to several elements, the same data shall be used, including population estimates and projections. Petitioners allege that the plan's Future Land Use Element, which includes the "mixed use interchange business" designation, is inconsistent with the policies and goals of the Conservation Element, which includes the policies related to water quality protection. The evidence fails to support the assertion that the plan is internally inconsistent. The "mixed use interchange business" designation, including the enhanced scrutiny of the special exception provisions for specified and more intensive uses, is not inconsistent with the provisions of the plan related to protection of groundwater and aquifer recharge areas. Further, the evidence does not establish that the plan is inconsistent with Chapter 187, Florida Statutes, the state's comprehensive plan. Petitioners asserted that the plan did not contain the best available information in existence at the time the plan was adopted. Section 163.3177(10)(e), Florida Statutes, provides: It is the Legislature's intent that support data or summaries thereof shall not be subject to the compliance review process, but the Legislature intends that goals and policies be clearly based on appropriate data....Chapter 9J-5, F.A.C., shall not be construed to require original data collection by local governments.... The county did not, and is not required to, produce original data in order to prepare and adopt a comprehensive plan. Petitioners suggest that the DCA erred in not considering Department of Environmental Regulation data identifying petroleum storage facilities which experienced leaks or spills reported to the DER. However, the evidence offered by Petitioners at hearing did not support the suggestion that such data was more appropriately considered than the data set forth in the county's plan. The inference suggested by Petitioner's evidence is that some petroleum storage facilities pose a threat to groundwater supplies due to leaking tanks and operational errors. However, the evidence does not indicate whether such facilities were designed to the prevent such occurrences, the types of safeguards installed, the types of maintenance required at such facilities (and whether it was performed), or whether, and the extent to which, the reported leaks or spills resulted in ground or surface water contamination. The Petitioners further assert that the plan's data related to aquifer recharge is unacceptable because it is not site specific. The general aquifer recharge map in the plan is based upon U.S. Geological Survey data, and a U.S. Bureau of Geology map. The plan also includes wetlands maps based on U.S. government information and a National Wetlands Conservatory survey. Due to the failure of the water management districts to complete the study of the county's prime aquifer recharge areas, reliable site specific information is not yet available. The plan maps adequately indicate the areas where the potential for high groundwater recharge may exist.
Recommendation Based on the foregoing, it is hereby recommended that the Department of Community Affairs enter a Final Order dismissing the Petition of Friends of Lloyd, Inc., Robert B. Rackleff and Jo Ellyn Rackleff and finding the Jefferson County Comprehensive Plan to be "in compliance" as defined at Section 163.3184(1)(b), Florida Statutes. RECOMMENDED this 31st day of July, 1991, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 31st day of July, 1991.
Findings Of Fact The Parties Petitioner Kathleen Burson owns property and resides at 2950 Knox McRae Drive in Titusville. Her residence is located near the land affected by the FLUM amendment. Petitioner submitted comments and objections regarding the amendment to the Titusville City Commission. The City of Titusville is a municipality of the State of Florida and has adopted a comprehensive plan that it amends from time to time pursuant to Section 163.3167(1)(b), Florida Statutes. Intervenor Ravi Shah was the applicant for the comprehensive plan amendment and a companion zoning change. He signed a contract to purchase the property affected by the amendment. At the time of the hearing, the contract's expiration date had passed. However, Intervenor is pursuing mediation under the terms of the contract to contest and prevent the termination of his right to purchase the property. The Amendment The amendment changes the FLUM designations for a portion of a 18.17-acre parcel of land ("the property") located at the intersection of State Road 405 (South Street) and Fox Lake Road. The amendment was formally approved by Ordinance 72- 2007, issued by the City on December 11, 2007, and was designated Small Scale Amendment 15-2007. The property had two FLUM designations before the amendment, Residential High Density and Conservation. The amendment changes a portion of the Residential High Density area to Conservation. It changes an area formerly designated Residential High Density and Conservation to Commercial Low Intensity. It changes an area formerly designated Conservation to Residential Low Density. Respondent's Exhibit 10 and Petitioner's Exhibit 50, respectively, depict the "before" and "after" land use designations. Concurrent with the comprehensive plan amendment, the City approved a rezoning of the property. Petitioner and the City presented evidence related to the rezoning and to Intervenor's proposed development of a drug store and other retail shops on that portion of the property now designated Commercial Low Intensity. However, most of this evidence was irrelevant to the issue of whether the comprehensive plan amendment is "in compliance." The Property and Surrounding Land Uses The property is currently vacant. A wetland covers 3.71 acres in the southern portion of the property. The boundaries of the wetland were used to define the area designated Conservation by the amendment. It was the City's intent for the amendment to place in the Conservation designation on any part of the wetland that was not previously designated Conservation and to remove from the Conservation designation any land that was not part of the wetland. The upland portion of the property is used by wildlife, but it is not known to be used by any threatened or endangered wildlife species other than the gopher tortoise, which is a threatened species. Several gopher tortoise burrows were found and at least one burrow was "active." Petitioner claims that the amendment would destroy the rural character of the area. The City disputed that the area has much rural character. The property is bounded on the west by South Street, which is an arterial road. The land across South Street to the west includes commercial and industrial uses. The land on the northwest corner of the intersection of South Street and Fox Lake Road is designated Commercial Low Intensity and the City has approved a gas station/convenience store for the site. The property is bounded on the north partly by Fox Lake Road, a collector road, and partly by a small parcel which is designated Residential High Density. This small parcel has existing dwellings and has non-conforming density. Across Fox Lake Road to the north is land which is designated Residential High Density. To the east of the property, between the property and the neighborhood where Petitioner resides, is land which is designated Residential Low Density and is zoned for single- family homes on lots of at least one acre. Petitioner's neighborhood comprises 14 homes on lots that generally range in size from one acre to 4.5 acres, with one 10-acre lot. No other homeowners in Petitioner's neighborhood challenged the amendment, even those persons who live closer to the property than Petitioner. The southern border of the property is bounded by Commercial High Intensity, Conservation, and Educational land uses. The Education designation covers the site of Apollo Elementary School. The property has access to urban services, including public utilities. The land uses designations created by the amendment are compatible with the surrounding land uses. More specifically, the Commercial Low Intensity designation is compatible with Petitioner's neighborhood because the neighborhood is separated from the commercial use by almost 300 feet, with other residential land uses between. The Conservation Designation Petitioner's challenge to the amendment focuses primarily on the change in the area previously designated Conservation. She contends that the area should remain Conservation because she relied on the designation, and the former Conservation designation protects upland wildlife. When it adopted its first comprehensive plan in 1988, the City designated Conservation areas on the FLUM to correspond with wetlands as depicted on a 1988 National Wetland Inventory map prepared for the U.S. Fish and Wildlife Service. From time to time since 1988, the City has modified the boundaries of Conservation areas depicted on the FLUM when, in the process of reviewing land development proposals, the City has received more current and detailed information about the boundaries of particular wetlands. Petitioner claims that it is wrong for the City to use wetlands, alone, as a basis for designating Conservation areas. She cites statements made by the City in 1988 as evidence that the City intended for the Conservation designation to cover some upland areas as well as wetlands. Goal 1, Objective 6, Policy 3 in the Conservation Element states that "at a minimum," the 1988 Wetland Inventory Map will be used to define Conservation areas. Policy 3 allows the City to designate Conservation areas to correspond only with wetlands, and that has been the City's consistent practice. It is reasonable for the City to continue that practice in the adoption of the amendment at issue in this case. The amendment is consistent with this policy. Protection of the Wetland's Functional Values Petitioner contends that the amendment is inconsistent with comprehensive plan policies and with Florida Administrative Code 9J-5.013(3), related to protecting the functional values of wetlands. Petitioner did not present competent evidence that any functional values of the wetland on the property would be adversely affected by the amendment, but she does not think an adequate functional value assessment was done for the wetland. Goal 1, Objective 6 of the Conservation Element is to "encourage preservation/protection of wetlands according to their function." Policy 1, Strategy 1 states that "The protection of wetlands shall be determined by the functional value of the wetland." Other related policies and strategies in the Conservation Element indicate that this objective is to be accomplished in part through land development regulations. For example, Policy 3, Strategy 6 states that "Mitigation for unavoidable impacts to wetlands which possess significant functional value, as determined by a functional value assessment, will be addressed in the land development regulations." Florida Administrative Code 9J-5.013(3)(a) states: Wetlands and the natural functions of wetlands shall be protected and conserved. The adequate and appropriate protection and conservation of wetlands shall be accomplished through a comprehensive planning process which includes consideration of the types, values, functions, sizes, conditions and locations of wetlands, and which is based on supporting data and analysis. The City interprets its comprehensive plan policies as satisfied if wetland impacts are avoided. The wetland analysis conducted for the amendment at issue in this case was adequate because the entire wetland is included in the Conservation designation and, therefore, appropriate planning level protection is provided for the wetland. The adjacent Commercial Low Intensity designation, standing alone, does not mean that adverse impacts to the wetland will occur. Intervenor's proposed development, for example, provides a buffer from the wetland and does not propose to have an impact to the wetland. The City's interpretation and application of the comprehensive plan objectives and policies related to protecting wetland functional values was not shown to be unreasonable. The amendment was not shown to be inconsistent with the comprehensive plan nor with Florida Administrative Code Rule 9J- 5.013(3)(a). Compatibility Petitioner contends that the amendment also violates Florida Administrative Code Rule 9J-5.013(3)(b) because it directs incompatible land uses into wetlands. The amendment places all of the wetlands on the property under the Conservation land use designation. Neither the Residential Low Density designation nor the Commercial Low Intensity designation is placed in the wetlands. The amendment eliminates an incompatible Residential High Density designation that was formerly in the wetlands. Petitioner failed to show that the amendment directs incompatible uses into the wetlands. Petitioner contends the amendment is inconsistent with Objective 1.13 and Policy 1.13.1 of the Future Land Use Element (FLUE), which require compatibility with "environmentally sensitive areas;" and Policy 1.6.1 which requires elimination or minimization of negative impacts to environmentally sensitive areas caused by commercial land uses. "Environmentally sensitive areas" are not defined in the comprehensive plan, but discussed in the Conservation Element are (1) habitat for threatened and endangered species, (2) important natural resources, (3) critical habitat, and (4) streams, lakes, rivers, estuaries, and wetlands. The types of "environmentally sensitive areas" on the property are wetlands and habitat for a threatened species, the gopher tortoise. As found above, the amendment does not direct commercial uses into the wetlands. Petitioner did not show where the gopher tortoise habitat is located on the property but claims that Intervenor’s proposed commercial project fails to protect that habitat. The property has not been designated as critical habitat for the gopher tortoise. In fact, no critical habitat has been designated in Florida for the gopher tortoise because there are many areas in the state that provide suitable habitat for this species. In Florida, it is common for land developers to seek and obtain approval from state and federal regulatory agencies to remove and relocate gopher tortoises to other areas which have suitable gopher tortoise habitat. Developers also have the option to build near the burrows as long as they are not disturbed. Goal 1, Objectives 1 and 2, Policy 3 of the Conservation Element states that "any public or private use of land greater than three (3) acres in area shall require a management plan designed to minimize harm to the species and its habitat.” Such a management plan, however, would be submitted as part of a re-zoning or development proposal and, therefore, the adequacy of any management plan submitted by the Intervenor in this case is not a relevant inquiry. Petitioner argues that the relocation of the gopher tortoises to other suitable habitat would not be consistent with the comprehensive plan's policy to protect habitat. For threatened and endangered species ("listed species") other than the gopher tortoise, relocation might be impracticable or inappropriate, and, therefore, inconsistent with the comprehensive plan. However, for gopher tortoises, their relocation is often determined to be practicable and appropriate, and it has been the practice of the City and of the state and federal regulatory agencies to allow their relocation. There is no policy in the comprehensive plan that clearly requires gopher tortoises and their habitat to be managed differently in Titusville than in other areas of the state. A local government's future land use designation has no effect on the regulation and protection of listed species, including gopher tortoises, afforded under state and federal law. Any land use, including a single-family residence, has the potential to disturb the habitat of gopher tortoises. Although Petitioner is correct in her view that the Conservation designation is more likely to avoid habitat disturbances and the need to re-locate gopher tortoises on the property than the Commercial Low Intensity designation, that factor, standing alone, does not require a finding that the amendment is not in compliance. Restricting Development Petitioner contends that the amendment is inconsistent with FLUE Policy 1.6.1 E because the City did not impose conditions regarding hours of operation, visual impacts, and privacy factors on the Intervenor's proposed development in the Commercial Low Intensity area. This policy only requires that such matters be considered. The City approved the concurrent rezoning of property with a condition that a six-foot wooden fence be placed along the boundary between the commercial project and the adjacent residential area. The City also required Intervenor to place the wetland under a conservation easement, to provide a buffer zone around the wetland, and to prepare and submit a gopher tortoise management plan prior to development of the property. Petitioner failed to show that controls were not considered by the City or that the amendment is incompatible due to the lack of adequate controls. Road Access Petitioner contends the amendment is inconsistent with FLUE Policy 1.6.1 A, which states that sites for commercial development at collector/arterial intersections are appropriate "provided minimal access is necessary on the collector street." The site plan for the proposed commercial development shows a primary entrance on South Street, an arterial road. A secondary, side entrance is on the collector street, Fox Lake Road. Petitioner failed to show how the amendment was inconsistent with Policy 1.6.1 A. Open Space and Recreation Zoning Petitioner contends the amendment violates the City's land development regulations (LDRs) because the LDRs place an Open Space and Recreation (OR) zoning classification on all Conservation lands on the FLUM, and describe OR as a "permanent" classification. This argument is not persuasive, because the characterization of the OR zoning classification as "permanent" in the LDRs is merely to distinguish OR from certain other classifications which are used as "holding" or temporary classifications. The word "permanent" in this context merely means that the OR classification is treated the same way as normal zoning classifications, which are "permanent" unless there is a re- zoning by the City. The City has modified or eliminated OR districts many times in conjunction with updated wetland delineations. Market Analysis Petitioner contends the amendment in inconsistent with FLUE Policy 1.6.1 I because a market analysis was not conducted. The policy states: Commercial land use shall be limited to those areas designated as commercial or mixed use on the Future Land Use Map except as may be permitted by the Planned Development Regulations. Requests to increase and/or convey commercial land rights to an alternate site must be accompanied by adequate analysis to prove necessity for such request. The applicability of this policy was not shown. The first sentence of the policy appears to be self-evident; limiting commercial uses to land designated for commercial uses. The meaning of “Planned Development Regulations” was not explained. Perhaps it is a typographical error and was intended to refer to “Land Development Regulations.” The meaning intended for the term “commercial land rights” was not explained, nor was it explained how this amendment involves a request to increase or convey commercial land rights to an “alternate” site. A market analysis is more typically associated with a specific development proposal, because that allows the analysis to be focused on a particular service or product. Petitioner argues that the policy requires a market analysis for any FLUM amendment that creates a new commercial land use designation. If she is correct, the market analysis would necessarily be a more general one. The City conducted a general market analysis and determined that the residential development in the surrounding area provided a market for a commercial use on the property. That is a reasonable conclusion. If FLUE Policy 1.6.1 I is applicable to this amendment, the amendment is consistent with the policy. Archaeological Resources Petitioner amended her petition to allege that the amendment was improper because it was incompatible with the protection of an Indian mound on the property. However, no admissible evidence was presented to show that an Indian mound exists on the property, where it is located, or how the amendment would cause it to be disturbed. As with listed species, a local government's land use designations have no effect on the state regulation and protection of archaeological resources.
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 amendment is "in compliance" as defined in Chapter 163, Part II, Florida Statutes. DONE AND ENTERED this 20th day of June, 2008, in Tallahassee, Leon County, Florida. BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of June, 2008.
The Issue The issue is whether the City of Panama City's small scale development amendment adopted by Ordinance No. 2055.1 on February 8, 2005, is in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background Creekstone is a limited liability corporation and presumed to be the owner of a 3.212-acre tract of land at 305 East Beach Drive, Panama City.3 (The record does not show when or if Creekstone actually purchased the property; when the application for a land use change on the property was filed with the City, Creekstone was a contract purchaser. In its Proposed Recommended Order, however, the City states that Creekstone "recently acquired" the property.) The property lies at the northwest edge of a residential area known as The Cove and is just south of the central business district of the City. The Cove is separated from the business district by a small waterbody known as Massalina Bayou (Bayou), which is spanned by the Tarpon Bridge (Bridge) at one of the Bayou's most narrow points. The 225-foot Bridge provides the most direct and easiest access between the two areas of the City. For many years, and beginning before the City adopted its Plan, Tibbetts Boat Works, Inc. (Tibbets) occupied the site and was engaged in the boat repair business, consisting of hull repair, engine maintenance, other mechanical services, and boat bottom painting, a legal but nonconforming use under the City's land development code. Photographs of the area suggest that the business is no longer active, presumably because the property has been sold. On or about December 8, 2004, SFB Investment Company, LLLP (SFB), who then owned the property but had a contract to sell it to Creekstone, filed an application with the City Planning Board seeking a change in the land use and zoning on the property. At the Planning Board meeting on January 10, 2005, the staff noted that the proposed change would "allow an encroachment of commercial into a predominately residential area" and recommended denial of the application on the ground that the change "is inconsistent with the LDR and the Comp Plan."4 By a 3-1 vote, the City Planning Board rejected the staff recommendation and recommended that the application be approved. On February 8, 2005, by a 4-1 vote, the City accepted the recommendation of the City Planning Board and adopted Ordinance No. 2055.1, which amended the FLUM by reclassifying the land use designation on the property from MU to GC for the purpose of allowing the owner to "develop [a] multi-family project on [the] property." (Simultaneously with that change, the City also changed the zoning on the property from Mixed Use- 3 to General Commercial-2, which allows a wide range of activities, including residential, professional office and services, low-intensity commercial, public/institutional/ utilities, and high-intensity commercial.) The MU land use classification "is intended to provide areas for medium to high density residential development and low intensity commercial development," allows a density of "not more than twenty (20) dwelling units per acre," and an intensity of "[n]o more than 75% lot coverage as determined by the size of the lot compared to the amount of impervious roof and driveway/ parking lot surface." On the other hand, the GC district is "intended to provide areas for high intensity commercial development, including retail sales and services, wholesale sales, shopping centers, office complexes, and other similar land uses." There are no density restrictions, but intensity is limited to "[n]o more than 90% lot coverage." Thus, while the two land uses are similar in some respects, the highest and best use on the property will now be "high intensity commercial development," such as shopping centers and office complexes, a much more intensive use than is presently permitted under the MU land use category. To address this concern, witness Harper indicated that SFB has filed a restrictive covenant on the property which includes a shoreline buffer, as well as use, height, and setback restrictions. At the Planning Board meeting on January 10, 2005, however, the staff stated "that a covenant would not be enforceable." Under the existing land use (MU), the owner can construct up to 64 residential units on the property. That number is derived by multiplying the size of the property (3.212 acres) times the allowed density (20 units per acre). However, the current zoning on the property (which is apparently tied to the MU land use category) prohibits the construction of buildings which exceed 65 feet in height. Because of this height restriction, which limits the number of residential units that can be constructed on the property, the owner has requested a change in the land use (and zoning) so that it can develop a multi-family residential condominium project (nine stories in height) with approximately 77 units. On March 10, 2005, Mr. Cooper filed his Petition challenging the small-scale amendment. He later filed an Amended Petition on April 21, 2005. Mr. Cooper resides and owns property one-half block south of the subject property (in an area designated as a special historical zone of the City) and submitted objections to the amendment during the adoption process. As such, he is an affected person and has standing to file this challenge. Joint Exhibit 9 reflects that Creekstone is a "contract purchaser" of the subject property. It also reflects that it appeared through counsel at the adoption hearing on February 8, 2005, and offered comments in support of the plan amendment. As such, Creekstone is an affected person and has standing to participate in this case. In the parties' Pre-Hearing Stipulation, Mr. Cooper (through his former counsel) identified numerous issues, many of which were not raised in his Amended Petition. At hearing, however, he contended only that the GC land use is incompatible with the character of the surrounding area, and that the amendment is internally inconsistent with Objectives 1.1 and 1.4 and Policies 1.1.1, 1.2.1, and 1.4.1 of the Future Land Use Element (FLUE) of the Plan. All of the objectives and policies relate to the compatibility issue. In all other respects, Petitioner agrees that the plan amendment is in compliance. Because the City's action involves a small scale (as opposed to a large scale) development plan amendment, the Department of Community Affairs did not formally review the plan amendment for compliance. See § 163.3187(3)(a), Fla. Stat. The Subject Property West Beach Drive runs in a northwest-southeast direction through the downtown business portion of the City until a few blocks north of the Bridge, where it changes to East Beach Drive. The roadway continues south across the Bridge and in a southerly direction along the eastern edge of St. Andrews Bay, a much larger waterbody which lies between the City and Panama City Beach. Approximately one-half mile south of the Bridge, East Beach Drive takes a 90-degree turn to the east. Most, if not all, of the peninsula south of the Bayou and Bridge and continuing until East Beach Drive turns to the east is known as The Cove, a part of which has been designated by the City as a historic special treatment zone because of its historical significance. The predominate character of The Cove is older, single-family homes. As noted above, the Bayou separates The Cove from the central business district and serves as a natural barrier between the two areas. The property is an odd-shaped parcel which sits just east of the southern terminus of the Bridge and fronts on the Bayou. (The central business district lies directly across the Bayou to the north and northwest, is classified as General Commercial or Public/Institutional, and includes a wide array of offices, government buildings, restaurants, and other commercial and public uses.) The western side of the property faces East Beach Drive. Immediately across East Beach Drive to the west (and facing St. Andrews Bay) is the Cove Harbor Condominium, a nine-story, multi-family residential condominium which was apparently constructed under MU standards, which apply to that parcel. Immediately to the east of the property is a single- family residence and then a two-story townhouse complex. The southern boundary of the property (which appears to run approximately 325 feet or so) faces East Second Court, a local road which begins on East Beach Drive and runs eastward until Watson Bayou (perhaps a mile or so away). Although a map of the historical district was not introduced into evidence by the parties, the northern and western reaches of the special treatment zone appear to begin just east of the intersection of East Second Court and East Beach Drive since the homes at 114 and 122 East Second Court are designated as having historical significance. See Respondent's Exhibit 4. These two homes appear to lie directly across the street from the southern boundary of Creekstone's property. Except for a two-story, multi-family structure (Cedar Cove Townhouses) which sits across East Second Court facing the southwest corner of the subject property, the remainder of the southern boundary of Creekstone's property faces four single-family homes. Several other multi-family structures are scattered throughout the area to the south and east, while the remainder of the neighborhood extending for at least one-half mile to the south and all the way to Watson Bayou on the east is predominately single-family residences. Finally, a condominium is located about one-half mile south of the property on the waterfront where East Beach Drive makes a 90-degree turn to the east. Except for Tibbets' activities, there is no commercial encroachment (by non-conforming use or land use classification) in the immediate area south of the Bridge and Bayou. The current FLUM shows that, with three exceptions, the entire area south of the Bridge and the Bayou to the end of the peninsula, and extending east at least a mile to Watson Bayou, is either classified as Mixed Use or Residential Low Density. (Perhaps a mile or so to the southeast there is one parcel classified as Recreation, another as Public/Institutional (which is probably a school), and a smaller adjoining parcel classified as General Commercial.) Thus, if the change is approved, the subject property will be the only parcel south of the Bridge and Bayou (except for the above exceptions which lie around a mile away) which is classified as commercial; the remainder is either mixed use or residential. Over the years, Tibbets has been the subject of City code enforcement actions, investigations by City code enforcement personnel, and investigations by the Department of Environmental Protection (DEP). It has also caused chronic environmental problems in the area. On August 27, 2002, DEP and Tibbets executed a Consent Order to resolve certain violations. Also, on April 10, 2001, Mr. Paul L. Benfield, who apparently either owned Tibbets or was associated with it in some manner, entered into a Consent Order with DEP because of his unlawful filling of 0.114 acres of jurisdictional wetlands on the site. It is fair to describe the subject property as blighted, unsightly, and in disrepair. Photographs received in evidence suggest that the business is no longer active. The parcel is fenced on three sides, and, besides an older structure which apparently housed Tibbets' office, the property contains a mixture of empty storage crates, pilings, and various pieces of equipment that were once used in the boat repair business. There are also several docks or small piers extending into the Bayou from the northwestern corner of the site. Finally, it appears that much of the eastern half of the parcel contains wetlands and is largely undeveloped. Although the staff report dated December 31, 2004, recommended denial of the application, noting that it would allow "an encroachment of commercial into a predominately residential area," it acknowledged that "[a]llowing this request can make a case for helping to rid this area of a problematic non- conforming use." See Joint Exhibit 6, page 2. Petitioner's Objections As narrowed at hearing, Mr. Cooper contends only that the plan amendment is not compatible with the character of the adjoining land in The Cove and is thus internally inconsistent with Objectives 1.1 and 1.4 and Policies 1.1.1, 1.2.1, and 1.4.1 of the FLUE. He also relies upon Policy 2.5.5(6)(e) of the City's Land Development Code. However, plan amendments do not have to be consistent with land development regulations in order to be in compliance. See § 163.3184(1)(b), Fla. Stat. Objective 1.1 requires that the City maintain a FLUM "which coordinates future land uses with . . . [compatibility]5 of adjacent land uses." Policy 1.1.1, which furthers that objective, provides in part that the City will regulate land uses through the designation of land use districts on a FLUM, and that the "location and extent of development within the City" should be "consistent with . . . compatibility of adjacent land uses." Under this objective and policy, then, land use districts on the FLUM should be located in a manner which assures compatibility with adjacent land uses. Objective 1.4 provides that the City shall "maintain procedures for the elimination or reduction of land uses inconsistent with the character of the City and the future land uses designated in the Plan." In furtherance of that objective, Policy 1.4.1 requires that the City "restrict proposed development which is inconsistent with the character of the community." Taken literally, the objective encourages the City to reduce or eliminate land uses that are inconsistent with the character of the surrounding area or other land use districts. In the same fashion, the policy requires that the City prohibit development that is not consistent with the character of the adjoining area. Finally, among other things, Policy 1.2.1 requires that the City "administer land development regulations for implementation of the Comprehensive Plan" in such a manner as to "ensure the compatibility of adjacent land uses." (The City has adopted such regulations for this purpose.) Because the implementation of land development regulations is not in issue, the provision does not appear to be relevant. According to the City's Director of Public Works, The Cove, or at least that part which lies in the area around Creekstone's property, is considered to be a part of the central business district since the two areas are "contiguous," and therefore the extension of the commercial land use district across the Bayou would be consistent with the character of the immediate area. The same view was also expressed by witness Grey. However, the two areas are physically separated by a waterbody (the Bayou) and are connected only by a 225-foot bridge which spans the Bayou at one of its most narrow points. At the same time, the land uses in the two areas are distinctly different: the business district contains a wide array of commercial and public/institutional uses while the predominate character of The Cove is single-family residential, with a scattering of multi-family residential dwellings such as townhouses and a condominium. The fact that the City interprets its GC district (presumably through its zoning regulations) as allowing certain residential uses does not change this dichotomy in character. Therefore, it is inappropriate to consider The Cove and the central business district as being contiguous, or to base a finding of compatibility on the fact that commercial uses are now found across the Bayou in the business district. The commercial land use classification has never been extended into the residential neighborhood south of the Bayou. If the change becomes effective, the new land use would be incompatible with the Residential Low Density and Mixed Use land uses which now make up the entire neighborhood. It would also be incompatible with the historic special treatment zone, which lies directly across the street from Creekstone's property. Finally, the creation of a commercial district in this area of The Cove would change the character of the neighborhood, and it is fair to infer that, even if SFB's covenant is enforceable, it would still lead to, and justify, the reclassification of other nearby parcels into commercial uses. Given these considerations, the proposed land use is internally inconsistent with the City's objective and policy that there be "[compatibility] of adjacent land uses," see Objective 1.1 and Policy 1.1.1, and Plan provisions encouraging the elimination of land uses and associated development which are inconsistent with the "character of the community." See Objective 1.4 and Policy 1.4.1. The minutes of the two meetings which culminated in the adoption of Ordinance No. 2055.1 reflect that the City's (and Planning Board's) principal rationale for the reclassification of the property was to eliminate an unsightly nonconforming use (boat repair business) which occupied the site. While it is true that the City's Plan encourages the revitalization and redevelopment of blighted areas, and provides that developers should be given "flexibility" when seeking to revitalize blighted areas, see Objectives 1.3 and 1.15 of the FLUE, there is no evidence that these objectives are intended to override (and trump) the provisions of the Plan which require that adjacent land uses be compatible with one another and preserve the character of the neighborhood.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order determining that the plan amendment adopted by Ordinance No. 2055.1 is not in compliance. DONE AND ENTERED this 19th day of August, 2005, 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 19th day of August, 2005.
The Issue The issue in this case is whether comprehensive plan future land use map amendment (FLUMA) 07-L25, adopted by Marion County Ordinance 07-31 on November 20, 2007, which changed the FLUM designation on 378 acres of Urban Reserve and on 17.83 acres of Rural Land to Medium Density Residential, is "in compliance," as defined in Section 163.3184(1)(b), Florida Statutes.1
Findings Of Fact The parcel that is the subject of the FLUMA at issue (the Property) is approximately 395.83 acres in size. The existing FLUM designation for 378 acres of the Property is Urban Reserve, and the remaining 17.3 acres are designated as Rural Land. Both designations allow a maximum of 1 dwelling unit per 10 acres. The FLUMA would change the designation of the entire parcel to Medium Density Residential (MDR). MDR generally allows up to four dwelling units per acre. However, Future Land Use Element (FLUE) Policy 12.5.k, which also was adopted as part of County Ordinance 07-31, limits the maximum density on the Property to two dwelling units per acre. FLUE Policy 12.5.k also requires: that development on the Property "be served by central potable water and central sanitary sewer services available concurrent with development" and be a Planned Unit Development "to address site design, buffering, and access issues"; and that NW 90th Avenue be reconstructed from U.S. Highway 27 north to the north-eastern corner of the Property and that all traffic facility improvements needed at the NW 90th Avenue/U.S. 27 intersection, including signalization if approved by the Florida Department of Transportation, be constructed prior to the issuance of any certificates of occupancy for the Property. Finally, with respect to the 17.3 acres formerly designated as Rural Land, FLUE Policy 12.5.k defers compliance with the County's Transfer of Development Rights (TDR) Program until application for assignment of a zoning classification for the land. Petitioners' Challenge Intervenors own the Property. Petitioners own property nearby in Marion County. Intervenors and Petitioners commented on the proposed FLUMA between transmittal to DCA and adoption by the County. Petitioners contend: The FLUMA is not consistent with the stormwater drainage, retention, and management policies contained in Policies 1.1.a. and 1.1.d. of the Natural Groundwater Aquifer Recharge Sub-Element of the Infrastructure Element of the Comprehensive Plan. MDR is not suitable or compatible with existing and planned development in the immediate vicinity, as required by FLUE Policy 12.3 of the Comprehensive Plan. The Board of County Commissioners failed to evaluate the FLUMA's impact on “the need for the change” as provided in FLUE Policy 12.3 of the Comprehensive Plan. The FLUMA fails to take into account its impact on “water quality and quantity, the availability of land, water and other natural resources to meet demands, and the potential for flooding,” as required by Section 187.201(15)(b)6., Florida Statutes. The FLUMA is not consistent with Transportation Policy 1.0 of the Comprehensive Plan, which states: "Marion County shall create and maintain transportation facilities that operate in a safe and efficient manner within an established level of service." The FLUMA is not consistent with the State's Comprehensive Plan in that it does not "ensure that new development is compatible with existing local and regional water supplies," as required by Section 187.201(7)(b)5., Florida Statutes. The FLUMA does not direct development away from areas without sediment cover that is adequate to protect the Floridan Aquifer and does not prohibit non-residential uses within 200 feet of a sinkhole, solution channel, or other karst feature, in violation of FLUE Policy 4.2 of the Comprehensive Plan. The FLUMA does not comply with Section 187.201(7), Florida Statutes, concerning the protection of surface and ground water quality in the State. Recharge Sub-Element Policy 1.1.a. and d. Policy 1.1 of the Natural Groundwater Aquifer Recharge Sub-Element of the Infrastructure Element of the Marion County Comprehensive Plan provides in part: The County’s land development regulations shall implement the following guidelines for stormwater management consistent with accepted engineering practices by October 1, 2007: Stormwater retention/detention basin depth will be consistent with the water management district's storm water requirements for Karst Sensitive Areas so that sufficient filtration of bacteria and other pollutants will occur. Avoidance of basin collapse due to excessive hydrostatic pressure in Karst Sensitive Areas shall be given special consideration. * * * d. Require the use of swales and drainage easements, particularly for single family residential development in Karst Sensitive Areas. These are requirements for land development regulations (LDRs); they do not apply to comprehensive plan amendments. In any event, the evidence did not prove that the site is unsuitable for the density allowed under the adopted FLUMA due to karst features. The admissible evidence presented by Petitioners regarding stormwater management in karst topography generally related to flooding problems on the property contiguous to the Property, and to a karst feature referred to as the “63rd Street Sinkhole,” which is located in the general vicinity of the Property. Fay Baird, an expert hydrologist called by Petitioners, testified that the 63rd Street Sinkhole allows stormwater run- off to enter the upper aquifer. Ms. Baird testified generally of the problems and concerns regarding development and stormwater management systems in karst topography. She testified that the Property should be properly inventoried, that specific karst features should be identified, and that any stormwater system designed or developed should take into account karst features to protect against groundwater contamination and flooding. She testified that she had not been on the Property, had not seen or reviewed core borings or other data to determine the depth and nature of the sub-surface, and was not in a position to provide opinions as to whether or not a particular stormwater management system would or could adequately protect against her concerns. Intervenors’ expert, Richard Busche, testified that a stormwater management plan like the one recommended by Ms. Baird was being developed. Compatibility under FLUE Policy 12.3 FLUE Policy 12.3 provides in pertinent part: Before approval of a future land use amendment, the applicant shall demonstrate that the proposed future land use is suitable, and the County will review, and make a determination that the proposed land use is compatible with existing and planned development in the immediate vicinity . . . . Petitioners argued that the proposed MDR development of the Property is incompatible with surrounding agricultural uses. Actually, the Property is surrounded by a mixture of agricultural and residential uses, including residential subdivisions, a golf course, and scattered large-lot residential and equestrian uses. The properties immediately to the south and east of the Property are developed residential properties and are designated MDR. Before the FLUMA, most of the Property was designated Urban Reserve under the County's Comprehensive Plan. Such land "provides for expansion of an Urban Area in a timely manner." FLUE Policies 1.24.B and 2.18. "For an Urban Reserve Area to be designated an Urban Area, it must be compact and contiguous to an existing Urban Area, and central water and sewer must be provided concurrent with development within the expanded area." FLUE Policy 2.18. The Property is compact and is contiguous to existing Urban Area designated MDR. This indicates that the County already has planned for timely conversion of the Urban Reserve land on the Property to urban uses, including MDR. It also means that the County already has determined that at least certain urban uses, including MDR, are compatible with adjacent agricultural uses. The Property is in the receiving area under the County's Farmland Preservation Policy and TDR Program in FLUE Objectives 13.0 and 13.01 and the policies under those objectives. This means that the County already has determined that residential density can be transferred to the Property from the Farmland Preservation sending areas to increase residential density up to one dwelling unit per acre. See FLUE Policy 13.6. This would constitute Low Density Residential, which is an urban use under the County's Comprehensive Plan. See FLUE Policy 1.24.A. By establishing the Farmland Preservation Policy and TDR Programs, the County already has determined that Low Density Residential is compatible with adjacent Rural Land. In addition, Low Density Residential clearly is compatible with MDR. Although not raised in the Petition, Petitioners argued that the Urban Reserve and Farmland Preservation eastern boundary was improperly moved west to NW 90th Avenue. However, that change was made prior to the adoption of Ordinance 07-31 and the FLUMA at issue in this case and is not a proper subject of this proceeding. Demonstration of Need under FLUE Policies 13.2 and 12.3 FLUE Policy 13.2 provides: The Transfer of Development Rights program shall be the required method for increasing density within receiving areas, unless, through the normal Comprehensive Plan Amendment cycle, an applicant can both justify and demonstrate a need for a Future Land Use Map (FLUM) amendment. FLUE Policy 12.3 provides: Before approval of a future land use amendment, . . . the County . . . shall evaluate its impact on: The need for the change; The availability of facilities and services; The future land use balance; and The prevention of urban sprawl as defined by Rule 9J-5.006(5)(g), Florida Administrative Code. The evidence proved that the County interprets FLUE Policy 12.3 to require need and future land use balance to be assessed within the planning districts it has established. There is no need for additional MDR in the County's Planning District 5, where the Property is located. To accommodate the projected population increase in Planning District 5 by 2010, which is the planning horizon for the County’s Comprehensive Plan, an additional 644 dwelling units are needed. There are 1,893 vacant acres of MDR available in Planning District 5. At four units per acre allowed in MDR, the County has an available supply of 7,572 MDR dwelling units in Planning District 5. In the absence of a need in Planning District 5, the County relied on a need demonstration prepared for the Intervenors by Fishkind and Associates.6 Besides being a County-wide analysis instead of a planning district analysis, the Fishkind analysis assumed a planning horizon of 2015, rather than the 2010 horizon established in the Comprehensive Plan. Finally, the Fishkind analysis applied an allocation factor to the total projected need for residential use, most of which already is supplied, resulting in a projection of residential far in excess of the incremental need for additional residential land by 2015, much less by 2010. The result of the Fishkind approach was to allocate enough land for residential use to meet the County-wide projected incremental need for additional residential land use for approximately 45 years, which is five times the calculated incremental need for 2015. Even assuming that a County-wide demonstration of need complied with Marion County's Comprehensive Plan, this is much too high an allocation ratio to use to meet the incremental need projected for a 2015 plan, much less for a 2010 plan. The expert for Intervenors, Stanley Geberer, defended the Fishkind analysis in part by stating that it was comparable to demonstrations of need accepted by DCA in other cases. However, there was no evidence that the facts of those other cases were comparable to the facts of this case. Mr. Geberer also asserted that holding the County to its 2010 planning horizon would make it impossible for the County to plan for the future. However, nothing prevents the County from revising its Comprehensive Plan to plan comprehensively for a longer timeframe. There was no evidence of any other circumstances that would demonstrate a need for the FLUMA at issue in this case. State Comprehensive Plan Policy 187.201(15)(b)6. Petitioners did not prove that the FLUMA fails to take into account its impact on "water quality and quantity, the availability of land, water and other natural resources to meet demands, and the potential for flooding." To the contrary, the evidence was that those items were taken into account as part of the FLUMA. (However, as to the FLUMA's impact on the availability of land to meet demands, see "Demonstration of Need under FLUE Policies 13.2 and 12.3," supra.) Transportation Element Objective 1.0 Transportation Element Objective 1.0 provides: Marion County shall create and maintain transportation facilities that operate in an efficient and safe manner within established levels of service. Petitioners presented no expert testimony or admissible evidence that the FLUMA will change established levels of service or result in transportation facilities operating in an unsafe or inefficient manner. Intervenors presented the testimony of Jonathan Thigpen, an expert traffic engineer, who prepared and submitted to the County a Traffic Impact Study and testified that the FLUMA would not change established levels of service or result in transportation facilities operating in an unsafe or inefficient manner. The ultimate need for transportation improvement, such as turn lanes and traffic lights to mitigate the impacts of development under the FLUMA, will be determined at later stages of development. Petitioners suggested that the FLUMA will result in delays caused by additional traffic, frustrate drivers waiting to turn east on U.S. 27, and induce large numbers of them to seek an alternative route to the north through agricultural areas, some of which have inadequate slag roads. However, Petitioners failed to prove that this result is likely. State Comprehensive Plan Policy 187.201(7)(b)5 Petitioners presented no evidence that the designation of MDR on the Property is incompatible with existing local and regional water supplies. The evidence was that adequate local and regional water supplies exist. Even if they did not exist, the consequence would be less development than the maximum allowed by the FLUMA. FLUE Policy 4.2 FLUE Policy 4.2 provides in pertinent part: In order to minimize the adverse impacts of development on recharge quality and quantity in high recharge Karst sensitive and springs protection areas, design standards for all development shall be required and defined in the LDRs to address, at a minimum, the following: * * * f. Directing development away from areas with sediment cover that is inadequate to protect the Floridian [sic] Aquifer. * * * h. Prohibiting nonresidential uses within 200 feet of a sinkhole, solution channel, or other Karst feature. This policy sets forth requirements for the content of LDRs, not FLUMAs. Petitioners presented no evidence that sediment cover on the Property is inadequate to protect the Floridan Aquifer or that any non-residential uses would be constructed within 200 feet of a sinkhole, solution channel, or other karst feature under the FLUMA. Marion County has adopted amendments to its Comprehensive Plan to protect springs and karst features.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department determine the FLUMA at issue in this case to be not "in compliance" and take further action as required by Section 163.3184(9)(b), Florida Statutes. DONE AND ENTERED this 4th day of February, 2009, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 2009.
The Issue Whether an amendment to the Lee County Comprehensive Plan, adopted by Ordinance 15-10 on June 3, 2015, is “in compliance,” as that term is defined in section 163.3184(1)(b), Florida Statutes (2014).1/
Findings Of Fact Petitioners, Roger Thornberry, Georgette Lundquist, Steven Brodkin, Ruby Daniels, Rosalie Prestarri, and James Giedman, reside in and own property within Lee County. Petitioners submitted oral and written comments to Lee County concerning the challenged Plan Amendment during the period of time beginning with the transmittal hearing for the Plan Amendment and ending with the adoption of the Plan Amendment. Respondent, Lee County (the County), is a political subdivision of the State of Florida with the duty and responsibility to adopt and maintain a comprehensive growth management plan pursuant to section 163.3167, Florida Statutes (2015). Intervenors, RH Venture II, LLC; RH Venture III, LLC; and Greenpointe Communities, LLC (Greenpointe), are the owners and developers of the property which is subject to the Plan Amendment. Intervenors are the applicants for the Plan Amendment. The Lee County Comprehensive Plan (Comprehensive Plan) allocates future land uses based on community plans for 22 distinct communities within the County. The Fort Myers Shores planning community is located in eastern Lee County. Within Fort Myers Shores is a sub-community planning area known as Caloosahatchee Shores, which is located south of the Caloosahatchee River, east of Interstate 75 (I-75), and west of Hickey’s Creek. The southern boundary of Caloosahatchee Shores is the Orange River and State Road 82. Caloosahatchee Shores contains a mixture of future land use designations. The majority of the land is designated Suburban, Sub-Outlying Suburban, Rural, or Urban Community. The subject property is located in Caloosahatchee Shores within an existing 1,978-acre mixed-use golf community known as River Hall. Most of the existing development in River Hall was completed between 2004 and 2009 by the original developer, Landmar Group, which was then owned by Crescent Resources. Crescent Resources declared bankruptcy in 2009. Those portions of River Hall subject to the Plan Amendment were acquired by Greenpointe in 2010. The property subject to the Plan Amendment is approximately 585 acres of non-contiguous land within the existing mixed-use development. All of the property subject to the Plan Amendment is located within the Rural future land use category. The Plan Amendment changes the future land use category of the subject property from Rural to Sub-Outlying Suburban.2/ The density of development allowed in Rural is one dwelling unit per acre and the density of development allowed in Sub-Outlying Suburban is two units per acre. In 2001, the Lee County Board of County Commissioners (Lee County Commission) adopted procedures to encourage community planning aimed at specific neighborhood interests within the County. A coalition of property owners in Caloosahatchee Shores developed the Caloosahatchee Shores Community Plan (Community Plan) between 2001 and 2003. The Community Plan was incorporated into the Comprehensive Plan in 2003 and is codified as Future Land Use Element (FLUE) Goal 21 and its implementing objectives and policies. FLUE Goal 21 reads as follows: GOAL 21: CALOOSAHATCHEE SHORES: To protect the existing character, natural resources and quality of life in Caloosahatchee Shores, while promoting new development, redevelopment and maintaining a more rural identity for the neighborhoods east of I-75 by establishing minimum aesthetic requirements, planning the location and intensity of future commercial and residential uses, and providing incentives for redevelopment, mixed use development and pedestrian safe environments. This Goal and subsequent objectives and policies apply to the Caloosahatchee Shores boundaries as depicted on Map 1, page 2 of 8 in the Appendix. The Community Plan was amended in 2007 and again in 2009. Policy 21.1.5 was added to the Community Plan in 2009, and reads as follows: POLICY 21.1.5: One important aspect of the Caloosahatchee Shores Community Plan goal is to retain its’ [sic] rural character and rural land use where it currently exists. Therefore no land use map amendments to the remaining rural lands category will be permitted after May 15, 2009, unless a finding of overriding public necessity is made by three members of the Board of County Commissioners. It is undisputed that the Plan Amendment removes land from the Rural land use category. It is undisputed that the Lee County Commission did not make a finding of an “overriding public necessity” when it adopted the Plan Amendment. Petitioners allege the Plan Amendment is internally inconsistent with Policy 21.1.5 because the Lee County Commission did not make the requisite finding of an “overriding public necessity” to remove property from the Rural land use category.3/ Respondent and Intervenors argue that Policy 21.1.5 does not apply to the Plan Amendment because the existing development on the property subject to the Plan Amendment is not rural in either character or land use. Respondent and Intervenors introduced abundant evidence to establish that the property subject to the Plan Amendment is suburban development served by the full spectrum of urban services and devoid of any of the trappings of rural development, such as large-lot residential and agricultural uses. Respondent and Intervenors advocate an interpretation of Policy 21.1.5 which requires a finding of “overriding public necessity” only if a plan amendment removes property that exhibits rural character or rural land use from the Rural land use category. The County offered the testimony of Brandon Dunn, one of its principal planners. Mr. Dunn characterized the Policy as an “if/then statement”: if property in the Rural land use category (subject to a plan amendment) exhibits rural character and rural land use, then a finding of “overriding public necessity” is required. Under Mr. Dunn’s analysis, Policy 21.1.5 does not apply to the Plan Amendment because River Hall is a suburban community. Intervenors’ planning expert, Dr. David Depew, testified that the first sentence narrows the application of the second. Dr. Depew testified that the first sentence indicates “we aren’t talking about the category per se.”4/ Under Dr. Depew’s reading, the second sentence only applies to plan amendments which exhibit rural character or rural land use, rather than all plan amendments removing property from the Rural land use category. Neither Mr. Dunn’s nor Dr. Depew’s opinion is persuasive.5/ The interpretation advanced by both Respondent and Intervenors adds language to the second sentence of Policy 21.1.5 limiting its application to only those plan amendments which exhibit rural character and rural land use. The plain language of Policy 21.1.5 contains no such limitation. The policy directs the County to make a finding of an “overriding public necessity” as a prerequisite to removing land from the Rural land use category in Caloosahatchee Shores. The first sentence of Policy 21.1.5 does not constitute a limitation on the directive for a finding of an “overriding public necessity.”
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order determining that the Lee County Plan Amendment, adopted by Ordinance 15-10 on June 3, 2015, is not “in compliance,” as that term is defined in section 163.3184(1)(b), Florida Statutes. DONE AND ENTERED this 1st day of December, 2015, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of December, 2015.
Findings Of Fact The Parties. Petitioner, the Environmental Coalition of Broward County, Inc. (hereinafter referred to as the "Coalition"), is a Florida corporation. The Coalition has offices located in Broward County. The Coalition has approximately 500 members, most of whom reside in Broward County. A substantial number of the Coalition's members own property in Broward County and/or operate businesses within Broward County. The Coalition is a not-for-profit corporation, chartered for educational and scientific purposes. The primary purpose of the Coalition is to present objections and recommendations to local governments concerning planning issues on behalf of its membership. The Coalition is authorized to participate in actions of this type and to represent its membership in administrative proceedings. The Coalition presented oral and written objections to Broward County during the review and adoption process concerning the plan amendment at issue in this proceeding. Respondent, the Department of Community Affairs (hereinafter referred to as the "Department"), is the state agency charged with the responsibility of implementing the Local Government Comprehensive Planning and Land Development Act, Chapter 163, Part II, Florida Statutes (hereinafter referred to as the "Act"). Among other things, the Department is required to review local government comprehensive plans and amendments thereto for compliance with the Act. Respondent, Broward County (hereinafter referred to as the "County"), is a political subdivision of the State of Florida. The County is the local government with the authority pursuant to the Act and the Broward County Charter to adopt and amend a comprehensive plan. The County has adopted the 1989 Broward County Comprehensive Plan (hereinafter referred to as the "Plan"). The Broward County Board of County Commissioners (hereinafter referred to as the "County Commission"), is the local planning agency for the County. The County Commission is advised on land use planning issues by the Broward County Planning Council (hereinafter referred to as the "Planning Council"). The Planning Council was created by the County Charter. Intervenors, Miramar Lakes, Inc., d/b/a Miramar Rock, Robert A. Whitcombe, Trustee, and the South Broward Trust own or have under contract virtually all of the property affected by the Plan amendment which is the subject of this proceeding. These Intervenors have entered into a joint venture agreement with Intervenor Atlantic Gulf Communities Corporation to develop the subject property. Intervenors applied for the amendment that is the subject of this proceeding and presented oral or written comments, recommendations and objections during the period of time between the transmittal hearing and adoption of the subject Plan amendment. The County's Plan. The County adopted a comprehensive plan as required by the Act in 1989. The planning horizon of the plan is 2010. The Plan includes two volumes of text, two volumes of support documents and associated maps. See Petitioner's exhibit 8. Volume One is text and is effective countywide. Volume Three contains support documents for the Plan. The Plan also includes the 1989 Broward County Future Land Use Plan Map (Series) (hereinafter referred to as the "FLUM"). The FLUM depicts the proposed distribution, extent and location of categories of land uses allowed under the Plan. Among others, those land uses include "residential" at various densities and "agricultural". Pursuant to the Plan, the eastern approximately one-third of the County may be developed. The developable area consists of approximately 400 square miles of land area. The western approximately two-thirds of the County are designated as water conservation areas and are separated by a levee from the developable one- third. Future land use elements of municipal comprehensive plans in the County must be in substantial conformity to the Plan. The Subject Property. The property which is the subject of the Plan amendment at issue in this case consists of 1,280 acres of a total of 1,965 acres (hereinafter referred to as the "Property"). The Property is located in the City of Miramar, in southwest Broward County, Florida, Sections 25, 26, 27 and 36, Township 51 South, Range 39 East. The Property is located in the southwestern portion of the developable one-third of the County. See Map 1 of Broward County exhibit 1. The Property is bounded on the east by S.W. 184th Avenue and on the north by Honey Hill Road. It is east of U.S. Highway 27. Part of the Property is vacant. Part of the Property is being used as cattle pasture and for a rock mining, batching, mixing and crushing operation. Existing land uses in the vicinity of the Property include vacant land, rock mining and some development to the north, single-family residential development to the east, rock mining and vacant land to the south, in Dade County, Florida. Residential development immediately to the east in a development known as "Silverlakes" is being developed at a density of three dwelling units per acre. Further to the west of the Property is the eastern boundary of the water conservation areas of the Everglades. These areas are separated from the rest of Broward County by a levee. The land use designation of the Property and other property in the surrounding area is "agricultural". Under the Plan, the land use designation allows agricultural uses and residential development of one dwelling per 2.5 acres. Under its current land use designation, a total of 786 dwelling units may be developed on the Property. The First Amendment Requested by the Intervenors. In early 1994 Intervenors filed an application with the County seeking an amendment of the FLUM to modify the future land use designation of all 1,965 acres of the Property to "Low (2) Residential". "Low (2) Residential" allows the development of two dwelling units per acre. The Planning Council conducted a review of the proposed amendment. The Broward County Department of Natural Resource Protection raised objections to the proposed amendment because the Property is located in an area of water recharge and wetlands. The area is identified as within a general wetlands area on the "Southwestern Generalized Wetlands Map" of the Plan. 30 Based upon the objections of the County Department of Natural Resource Protection, the staff of the Planning Council recommended denial of the proposed amendment. The South Florida Water Management District (hereinafter referred to as the "SFWMD"), an agency with broad regional responsibility for water management in southeast Florida, raised objections with the Planning Council concerning the location of the property in an area which was being considered for use as part of a project to restore the Everglades. The SFWMD was concerned that the Property is located within an area which has come to be known as the "East Coast Buffer". In early 1994, at the time of the initial review of the proposed amendment, the East Coast Buffer was a study area abutting the eastern water conservation areas of southeast Florida. The SFWMD was studying the East Coast Buffer for use in water conservation efforts in southeast Florida. At the time of the first review of the proposed amendment, the portion of the East Coast Buffer in which the Property is located was being considered for preservation as a reservoir site. The Planning Council transmitted the proposed amendment to the County Commission without recommendation. The County Commission decided not to transmit the proposed amendment to the Department for its review, ending review of the initial application. The Initial Review of the Subject Amendment. A second application on the Property was resubmitted by the Intervenors in March of 1994. The application was designated Application PC 94- 15. Application PC 94-15 sought an amendment of the FLUM to modify the future land use designation of all 1,965 acres of the Property to "Irregular 1.5 Residential". "Irregular 1.5 Residential" allows 1.5 dwelling units per acre. The amendment sought by Intervenors would have allowed an increase from 786 dwelling units to 2,947 dwelling units on the Property. An increase of 2,161 units. Application PC 94-15 was again reviewed. The same comments about, and objections to, the proposed amendment were raised concerning groundwater and aquifer recharge. The staff of the Planning Council again recommended denial of the proposed amendment. 41 The Planning Council recommended transmittal of the application, subject to the Intervenors satisfying the concerns raised by the SFWMD. On August 17, 1994, the County Commission transmitted Application PC 94-15 to the Department, conditioned upon the Intervenors satisfying the concerns of the SFWMD. The SFWMD objected to Application PC 94-15 because of its conclusion that the proposed future land use designation was not compatible with the East Coast Buffer then under evaluation by the SFWMD. SFWMD had developed data and conducted computer modeling concerning the utilization of a buffer for a variety of purposes, including reducing seepage of water from the Everglades, increasing groundwater recharge into aquifers and creating a natural buffer to protect the Everglades from the impacts of development. The SFWMD had commissioned a worldwide engineering firm, CH2M Hill to prepare a report on the East Coast Buffer. The SFWMD recommended that Application PC 94-15 not be approved until it had completed its study of the East Coast Buffer because the land use designation being sought might be incompatible with the conclusions reached from the SFWMD's and CH2M Hill's evaluation. The Department reviewed Application PC 94-15 and, based upon comments from the SFWMD similar to those raised before the County Commission, issued an Objections, Recommendations and Comments report concerning Application PC 94-15. The Department raised objections consistent with the adverse comments from the SFWMD. Modification of the Proposed Amendment. Parts of southwestern Broward County and northwestern Dade County were designated "Management Unit 5" by the SFWMD. Management Unit 5 was being considered, as recommended by CH2M Hill, as a reservoir area. Development of the Property was, therefore, not considered to be a use comparable with the concept of the East Coast Buffer being considered by the SFWMD at the time of the County's and Department's decision to reject Application PC 94-15. Intervenors worked with the SFWMD in an effort to find a way of modifying Application PC 94-15 to satisfy the SFWMD's concerns. SFWMD utilized computer modeling to simulate groundwater and surface water flows in Management Unit 5 to determine the impact of allowing development of the Property. The SFWMD concluded that Management Unit 5 was more suitable as a recharge area rather than as a reservoir. This conclusion was based, in part, of the transmissibility of the soil and other site conditions which were not conducive to storing water above ground for long periods of time. Use of Management Unit 5 as a recharge area and not a reservoir requires less surface area. Therefore, it was concluded that development in the area might be compatible with the SFWMD's East Coast Buffer concept. The SFWMD modeled four development alternatives for Management Unit 5 and analyzed the impact of each alternative on the efforts to retard seepage, provide groundwater recharge and enhance wetland benefits: (a) retaining the Property as a recharge area and allowing no development; (b) retaining the entire western two-thirds as a recharge area and allowing development of the eastern one-third; (c) retaining the western one-third as a recharge area and allowing development of the eastern two-thirds; and (d) allowing development of the entire management unit. Alternatives (b) and (c) assumed that a berm would be constructed between the recharge area and the developed area. After meeting with Intervenors and discussing the results of the modeling, Intervenors indicated willingness to remove the western portion of the Property from the proposed development. The SFWMD then conducted a more detailed, computer analysis of the following alternatives: (a) continuing existing conditions; (b) constructing a berm around Management Unit 5 and utilizing the entire area as a recharge area; (c) constructing a berm between the eastern and western sections of the Management Unit 5 and utilizing the western section for recharge with no development in the eastern section; and (d) alternative "(c)" with development of the eastern section. As a result of computer modeling of the alternatives, it was concluded that alternatives (b), (c) and (d) could significantly reduce seepage from the Everglades and increase groundwater recharge in to the aquifers when compared to development under the agricultural land use designation of alternative (a). As a result of the more detailed analysis, the SFWMD concluded that essentially all of its goals could be achieved for Management Unit 5 if the western section of Management Unit 5 is preserved even if development is allowed in the eastern section. The SFWMD concluded that the eastern two-thirds of the Property, consisting of approximately 1,280 acres, could be developed as "Irregular 1.5 Residential" if the western one-third, consisting of approximately 685 acres, was utilized as a recharge area. Intervenors agreed to preserve the western third of the Property (685 acres) and grant the SFWMD a flowage easement, consistent with the East Coast Buffer and at a savings of $43 million. On December 14, 1994, the staff of the SFWMD presented the results of the computer modeling to the SFWMD. On December 15, 1994, the SFWMD withdrew its objection to Application PC 94-15, conditioned upon the deletion of the 685 acres from the application and the granting of a flowage easement. The County and the Department were informed of the decision of the SFWMD. Approval of Application 94-15. On December 20, 1994, the County Commission adopted by Ordinance 94-55 an amendment to the Plan, Amendment PC 94-15 (hereinafter referred to as the "Amendment"), subject to the conditions suggested by the SFWMD, which resolved the SFWMD's objections. The Amendment included modifications to the FLUM and text amendments. The Amendment, in relevant part, modifies the future land use designation of approximately 1,280 acres of the Property from "Agricultural" to "Irregular 1.5 Residential". This will allow the construction of a total of 1,920 dwelling units on the Property, or an increase of 1,408 dwelling units over the number of dwelling that may be constructed under the current future land use designation for the Property. In light of Intervenor's modifications of the application, the removal of the SFWMD's objections and the approval of the application by the County, the Department found the Amendment to be in compliance with the Act. On February 14, 1995, the Department issued a notice of intent to find the Amendment in compliance. The County and the Department accepted and relied upon the data and methodology employed by the SFWMD and the conditions for removal of the SFWMD's objections. Petitioner's Challenge. On or about March 8, 1995, Petitioner filed a Petition for Formal Administrative Hearing with the Department challenging the Amendment. Petitioner filed an Amended Petition on April 25, 1995. At the commencement of the final hearing, Petitioner withdrew all issues it had raised in the Amended Petition except the issues of: (a) whether the data and analysis available supports a conclusion that there is a need for additional residential development; and (b) whether the Amendment is supported by data and analysis in light of an ongoing study of the East Coast Buffer. Residential Housing Need. The Plan includes the following Goal and Objective concerning the provision of adequate areas for residential use: Goal 01.00.00 Provide residential areas with a variety of housing types and densities offering convenient and affordable housing opportunities to all segments of Broward County's population while maintaining a desired quality of life and adequate public services and facilities. Objective 01.01.00 Accommodate the projected population of Broward County by providing adequate areas on the Future Broward County Land Use Plan Map (Series) intended primarily for residential development, but which also permit those non-residential uses that are compatible with and necessary to support residential neighborhoods. The Plan, including the methodology utilized to determine residential need, was found to be in compliance by the Department. The residential need methodology of the Plan utilized the Broward County Population Forecasting Model to project the population of southwest Broward County in 1994 to be 225,489 people. This projected population formed the basis for the allocation of residential housing units for Subregion 5 under the Plan. The Property is located in an area of southwest Broward County designated as Subregion 5 in the Plan. In reviewing the Amendment, the County conducted an analysis of the need for additional residential development in southwest Broward County. This analysis utilized, and was consistent with, the residential need methodology of the Plan. A summary of the data and analysis utilized by the County was provided to the Department. The County's analysis indicated that the population of Subregion 5 has exceeded the population projections for the Subregion of the Plan. By 1994, there were 284,361 people living in Subregion 5 or 17,872 more than projected in the Plan. The increased population rate of growth in Subregion 5 was projected to represent an increase in projected demand for approximately 6,847 residential units in excess of the projected demand expected under the Plan. The analysis also took into account amendments to the Plan which have resulted in a reduction of 1,087 residential units for Subregion 5. When combined with the increased population, the data and analysis supports a conclusion that there is a need for 7,934 additional residential units in Subregion 5. The Amendment increases residential housing in Subregion 5 by 1,134 dwelling units (1,920 units allowed under the Amendment, less 786 dwelling units allowed under the current agriculture classification), well below the projected need for additional residential units for Subregion 5. The data and analysis relied upon by the County and submitted to the Department supports the conclusion of the County that there is need for the proposed additional residential development approved by the Amendment. The data and analysis relied upon by the County and the Department was professionally acceptable and adequate to support the Amendment. The evidence presented by Petitioner failed to prove that the data and analysis relied upon by the County and the Department was not professionally acceptable and adequate. Rather than attempting to prove that the County's methodology was not professionally acceptable or was flawed, Petitioner utilized a methodology based upon an annualized population growth rate for Subregion 5. Petitioner offered evidence that there is sufficient residential housing approved under the Plan to meet the projected population for 15.6 years, beyond the remaining life of the Plan. The methodology utilized by Petitioner was, by the admission of the Petitioner's own witness, not a professionally acceptable methodology. The evidence failed to prove that the data and analysis relied upon by the County does not support its conclusion that there is sufficient need for the additional residential housing authorized for the County by the Amendment. The East Coast Buffer Zone. Efforts to restore the Everglades have been initiated and are ongoing. As a part of these efforts a group of technical and scientific staff members of various federal agencies involved in the restoration efforts were formed as the "Science Sub Group." The Science Sub Group was formed as an advisory group to provide guidance towards ecosystem restoration efforts. The Science Sub Group had no implementing authority. It issued at least one report in late 1993 which included an East Coast Buffer concept. The East Coast Buffer identified by the Science Sub Group included the area in which the Property is located. The Science Sub Group relied upon data obtained from the SFWMD and various computer models developed by the SFWMD, and SFWMD personnel contributed to the preparation of the report. The East Coast Buffer concept generally includes a series of interconnected water flow-ways along the eastern edge of the water conservation areas necessary to restore the Everglades. The federal government has also instituted a study known as the "Central & South Florida Project: Comprehensive Review Study" (hereinafter referred to as the "Restudy"). The United States Corps of Engineers is the lead agency of the Restudy. The first phase of the Restudy's efforts has resulted in a "Reconnaissance Report", also known as the "Recon Study". The second phase of the Restudy's efforts will be the feasibility phase. The feasibility phase will begin in the summer of 1995 and will be completed several years later. The purpose of the Restudy is to bring together the interested federal agencies to review the current management of the Everglades and identify strategies for altering management practices and systems to improve the Everglades. The Recon Study was completed in late 1994. It describes various conceptual strategies for restoring the Everglades. The determination of the feasibility of the strategies has not, however, been started, much less completed. Therefore, although the East Coast Buffer concept is considered in the Recon Study, the actual identification of the area which will constitute the Buffer has not been identified. Nor has the area which should constitute the East Coast Buffer been recommended in the Recon Study. The Recon Study identifies problems and opportunities, formulates alternative plans, evaluates conceptual alternative plans and recommends further study. The Recon Study is advisory. It does not identify, recommend or implement a plan of action. The Coalition presented evidence concerning the ongoing analysis of Everglades restoration efforts. That evidence proved that the Property is located within a very large area, which completely surrounds the Everglades, which is being considered as part of the Everglades restoration effort because of the impact of this large area on restoration efforts. The evidence presented by the Coalition, however, failed to prove that the Property has been, or will be, determined to be essential or even necessary for future Everglades restoration efforts. At the time of the approval of the Amendment and, even at the time of the final hearing of this case, no such determination had been made. Nor had any determination been made as to what will be necessary for the restoration of the Everglades or whether decisions will be made to carry out the necessary restoration efforts. As recognized by the Coalition in its proposed order: 52. The study necessary to make [a determination of the water levels needed] for the areas which are implicated by this amendment will be done in the next two years or three years. * * * 55. There is no way of telling, based on the data and analysis available at this point, how much water will be necessary in order to fully restore the Everglades. . . . Coalition proposed findings of fact 52 and 55. The Coalition also recognized the following: The Reconnaissance study has not reached the point where conclusions can be drawn about parcel specific uses. The next step is the feasibility planning phase, which is a much more detailed phase which will run for several years. . . . Coalition proposed finding of fact 107. Instead of attempting to prove that the data and analysis at the time of adoption of the Amendment indicated that development of the Property authorized by the Amendment would be detrimental to restoration efforts, the Coalition attempted to prove that development of the Property should be delayed until data and analysis is available indicating conclusively what the impact of development of the Property will be on restoration efforts. The Act does not require such delay. In addition to failing to prove what the impact of development of the Property will be on restoration efforts, the evidence presented by the Coalition also failed to prove that the conclusions reached by the Science Sub Group and the Restudy will even be implemented. The evidence presented by the Coalition failed to prove that the conclusions of the SFWMD with regard to the impact of the Amendment are not supported by data and analysis or were not arrived at by professionally acceptable methods. While the evidence proved that there will be some reduction in the amount of groundwater recharge function and seepage control function as a result of the Amendment, the evidence failed to prove what ultimate impact the reductions in recharge and seepage control will be or that the SFWMD's conclusions are not reasonable. While the Coalition proved that the SFWMD's conclusions were not based upon a consideration of what should be done to restore the Everglades, the evidence failed to prove that the information available was sufficiently conclusive that the SFWMD should have objected to the Amendment. The data and analysis relied upon by the County in approving the Amendment was collected and applied in a professionally acceptable manner. None of those agencies charged with responsibility to review the Amendment raised objections to its approval. The evidence failed to prove that the state of the data and analysis available to the County from the Science Sub Group and the Restudy or any other source concerning the area referred to as the East Coast Buffer and the Property is such that it proved that the data that was relied by the County upon was inadequate.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department dismissing finding the Amendment "in compliance" and dismissing the petition in this case. DONE AND ENTERED this 19th day of July, 1995, in Tallahassee Florida. LARRY J. SARTIN, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of July, 1995. APPENDIX The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Coalition's Proposed Findings of Fact Accepted in 1-2. Accepted in 2. 3-4 Accepted in 3. Accepted in 4. Accepted in 5 Accepted in 4. Accepted in 5. Accepted in 4-6. Accepted in 5-6. Accepted in 6. Hereby accepted. Accepted in 12 14-15 Not relevant. 16-18 Not relevant. See 81-84. 19-25 Not relevant and not supported by the weight of the evidence. See 81-84. Accepted in 29. Not supported by the weight of the evidence. Hereby accepted. Accepted in 26 and hereby accepted. 30-31 See 24. Accepted in 26. Accepted in 36 and 62. Accepted in 62. 35-41 Hereby accepted. 42-48 These proposed findings are generally correct. They are not, however, relevant to the ultimate determination in this case. 49-50 Too speculative. Not supported by the weight of the evidence. The first sentence is hereby accepted. The last sentence is not relevant. See 96. Not supported by the weight of the evidence and not relevant. Not supported by the weight of the evidence. The first sentence is accepted in 96. The last sentence is not relevant. Hereby accepted. 57-63 Too speculative. Not supported by the weight of the evidence. 64-65 Not relevant. Hereby accepted. Accepted in 89 and 91 and hereby accepted. Accepted in 90 and 92. See 86 and 92. Hereby accepted. Although generally true, the evidence failed to prove that this finding specifically applies to the Property. Except for the first sentence, not supported by the weight of the evidence. Hereby accepted. Accepted in 31-33. Not supported by the weight of the evidence. 76-87 Although generally correct, these findings were too broad and the evidence failed to prove that they specifically apply to the Property. 88-90 Although generally correct, these proposed findings are not relevant. Not supported by the weight of the evidence. Although generally correct, these proposed findings are not relevant. Too speculative. Not supported by the weight of the evidence. 94-97 Although generally correct, these proposed findings are not relevant. 98 Too speculative. Not supported by the weight of the evidence. 99-100 Not relevant. Hereby accepted. Not supported by the weight of the evidence. Although generally correct, these proposed findings are not relevant. 104-105 Not relevant. Too speculative. Not supported by the weight of the evidence. Accepted in 97. Accepted in 90. Too speculative. Not supported by the weight of the evidence. Not supported by the weight of the evidence. 111-114 Too speculative. Not supported by the weight of the evidence. The County's Proposed Findings of Fact 1 Accepted in 1. 2 Accepted in 7. 3 Accepted in 8. 4 Accepted in 11. 5 Hereby accepted. 6 Accepted in 12. 7 Accepted in 13. 8 Accepted in 14. 9 Accepted in 15. 10 Accepted in 9-10. 11 Accepted in 18. 12 Accepted in 16. 13 Accepted in 17. 14 Accepted in 61. 15 Accepted in 60. 16 Accepted in 19-20, 26 and 62. 17 Accepted in 23. 18 Accepted in 21-22 19-20 Accepted in 24. 21 Hereby accepted. 22 Accepted in 37. 23-24 Hereby accepted. 25 Accepted in 68. 26 Accepted in 65-67. 27-28 Accepted in 67. 29-30 Hereby accepted. 31-32 Accepted in 28. 33 Accepted in 29. 34 Accepted in 30. 35 Accepted in 34. 36 Accepted in 31 and hereby accepted. 37 Accepted in 32-33. 38 Accepted in 31. 39 Accepted in 33. 40 Accepted in 35. 41 Accepted in 316. 42 Accepted in 37. 43 Accepted in 39. 44 Accepted in 40. 45 Accepted in 41. 46 Accepted in 42. 47 Accepted in 72. 48-49 Hereby accepted. Accepted in 73-77 and hereby accepted. Accepted in 76-77. Accepted in 38. Accepted in 79-80 Accepted 58 and 62. 55-57 Hereby accepted. Accepted in 82. Hereby accepted. 60-61 Accepted in 81-84. 62 Hereby accepted. 63-65 Accepted in 46 and hereby accepted. Accepted in 43 and 45. Accepted in 88. Accepted in 89-90. 69-70 Accepted in 85-86. 71 Accepted in 90 and 92-93. 72-77 Hereby accepted. Accepted in 32 and 44. Hereby accepted. None proposed. Accepted in 33. Hereby accepted. Accepted in 50. Accepted in 51. Accepted in 49 and hereby accepted. Hereby accepted. 87-88 Accepted in 52. 89-90 Hereby accepted. Accepted in 53 and 58 and hereby accepted. Accepted in 54. Accepted in 56. Accepted in 58. 95-96 Accepted in 59. Accepted in 60. Accepted in 61. The Department's and Intervenors' Proposed Findings of Fact Accepted in 1. Accepted in 7. Accepted in 8. Accepted in 11. Hereby accepted. Accepted in 12. Accepted in 13. Accepted in 14. Accepted in 15. Accepted in 9-10. Accepted in 18. Accepted in 16. Accepted in 17. Accepted in 61. Accepted in 11 and 19-20. Accepted in 20. Accepted in 23. Accepted in 24-25. Accepted in 26. Accepted in 27. Accepted in 36-38. 22-37 Hereby accepted. Accepted in 43. Accepted in 88. Hereby accepted. Accepted in 31. 42-43 Accepted in 44. Accepted in 43 and hereby accepted. Hereby accepted. Accepted in 42. Accepted in 42 and 46. Accepted in 46 and hereby accepted. Accepted in 46. Accepted in 50. Accepted in 46. 52-53 Accepted in 48. Accepted 49. Accepted in 49, 52 and 54. Accepted in 50. Accepted in 51. Accepted in 54 and 57. 59-60 Accepted 54. 61-63 Accepted in 54 and hereby accepted. Accepted in 55. Accepted in 56-57. 66-67 Accepted in 58. 68-70 Accepted in 59. Accepted in 64. Accepted in 58 and 62. Accepted in 60 and 62. Accepted in 63. Accepted in 67. Hereby accepted. Accepted in 67 and hereby accepted. Accepted in 37 and hereby accepted. Not relevant. Accepted in 86. Hereby accepted. 82-83 Accepted in 86. Accepted in 87. Accepted in 89 and hereby accepted. Accepted in 90. Accepted in 90 and 92-93. Accepted in 93. 89-90 Hereby accepted. Not supported by the weight of the evidence. Accepted in 72-78. Accepted in 69-71. Accepted in 70. Accepted in 73-74 and hereby accepted. Accepted in 75. Accepted in 76. Accepted in 77. Accepted in 78. Accepted in 79-80. 101-102 Accepted in 82. Accepted in 83. Accepted in 83-84. Accepted in 81 and 84. COPIES FURNISHED: Linda Loomis Shelley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399 Dan Stengle, General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399 Brion Blackwelder, Esquire Jack Milbery, Esquire 8751 West Broward Boulevard, #206 Plantation, Florida 33324 Sherry A. Spiers Assistant General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Tracy Lautenschlager, Esquire Broward County Attorney's Office 115 South Andrews Avenue Suite 423 Fort Lauderdale, Florida 33301 Glenn Smith, Esquire Michael A. Cohn, Esquire Ruden, Barnett, McClosky, Smith, Schuster & Russell, P.A. 200 East Broward Boulevard Post Office Box 1900 Fort Lauderdale, Florida 33302 Honorable Gerald F. Thompson Chairman, Broward County Board of County Commissioners Governmental Center 115 South Andrews Avenue Fort Lauderdale, Florida 33301
