Findings Of Fact At all times material to these proceedings, Respondent was a licensed real estate salesman licensed by the Division of Real Estate. On November 1, 1983, J.B. and N., Inc., a Florida Corporation, purchased a parcel of real estate located in Santa Rosa County, Florida, for the purpose of developing a residential subdivision. Robert J. Furse (Furse) and Respondent were officers, director, and owners of J.B. and N., Inc. At the time of the acquisition of the parcel of real property referenced above, Furse and the Respondent each owned 50 per cent of J.B. and N., Inc. The parcel of property purchased by J.B. and N., Inc., was roughly rectangular running north to south between US Highway 98 and the Gulf of Mexico/Santa Rosa Sound. Mr. Lewis Johnston, registered surveyor, was retained by J.B. and N., Inc., to survey the property and prepare a preliminary plat for subdividing the parcel. A drawing of this plat is attached to Petitioner's Exhibit 5. The parcel was divided east and west by a north-south road from U.S. 98 which stops short of the sound. Ten lots of equal size border the east and west boundaries of the road and three waterfront lots front on Santa Rosa Sound. The Respondent and Furse intended and attempted to provide the inland lot owners in the subdivision with a pedestrian access to the waterfront. This access can be seen along the western boundary of Lot 13 as depicted in the plat attached to Petitioner's Exhibit 5. The plat prepared by Johnston was never recorded in the official records of Santa Rosa County. The regulations for establishing a subdivision in Santa Rosa County did not require filing of a plat plan when this subdivision was developed. On November 2, 1983, Furse purchased Lot 13 which was adjacent to the access easement as surveyed and drawn but not recorded. At the time of the purchase, Furse received a survey indicating the location of the access way. Furse had a privacy fence constructed between the access way and his property as depicted on the attachment to Petitioner's Exhibit 5. Furse and the Respondent intended to create an easement for access to the water across the lot Furse purchased from J.B. and N., Inc. Closing on the sale from J.B. and N., Inc., to Furse was handled by Furse's attorney. The Respondent understood that the attorney was supposed to create the easement in the deed to Furse. Furse instructed his attorney to prepare a deed transferring the property to him to which he was to take title. Furse did not think that this included the access way. Subsequently, J.B. and N., Inc., listed for sale the other lots in the subdivision with Shore to Shore Realty, Inc. The listing agents were Brice and Hanks. To induce purchasers to purchase the lots, the lots were advertised as having water access as indicated by the MLS listing, the plat, and advertising signs. In October, 1984, Lot No. 6 was purchased by Lowell Ray. In November of 1984, Lot No. 3 was purchased by John Alvarez. In the summer of 1985, Lot No. 4 was purchased by Balfour and Linda Clark. All of these purchasers were told that they had access to the water. Access to the water was a major consideration in their decision to purchase. Furse had a house built, centered on the lot, allowing for the access way mentioned above. During the summer of 1984, Furse divorced his wife; and thereafter, they defaulted on payments on the mortgage on the property in question. The mortgagee foreclosed on the property in 1985 and thereafter sold it to Mr. Thomas Ferguson in August of 1987. During a title search, Mr. Ferguson's attorney found that the access way had been conveyed to Furse. After purchasing the property, Mr. Ferguson removed the privacy fence separating the access way from the remainder of the property and fenced off the access way to prevent further access across his property. The access way had never been deeded in the form of an easement. All of the property had been conveyed initially to Furse and thereafter to Ferguson. The Respondent did not know that the easement had not been created until after Ferguson took possession of the property and restricted access. Prior to that, the Respondent thought that the easement had been created at the time of Furse's acquisition of the lot. Prior to Ferguson's restriction of the access, Ray, Alvarez, and Balfour did have access to the water over the access way as prepared by Furse. Upon being notified that the access had been restricted by Ferguson, the Respondent attempted through negotiation to acquire an easement from Ferguson for the benefit of the property owners. However, Ferguson ultimately decided that he did not desire to grant such access except as a license to those property owners who had purchased the property prior to his purchase of the property.
Recommendation Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the charges against the Respondent be dismissed. DONE and ENTERED this 3 day of March, 1990, in Tallahassee, Florida. STEPHEN F. DEAN, 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 23rd day of March, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-5021 The parties submitted proposed findings of fact and conclusions of law which were read and considered. The following is a listing of the findings which were adopted and those which were rejected and why. Respondent's Proposed Findings of Fact 1-9. Adopted. Adopted, but rewritten. Adopted. Adopted, but rewritten. 13-19. Adopted. Rejected, as irrelevant. Adopted, but rewritten. Petitioner's Proposed Findings of Fact 1-2. Adopted. Rejected; corporation bought the land. Adopted. 5-6. Rejected, contrary to the evidence. Adopted, but rewritten. Rejected, contrary to the evidence. COPIES FURNISHED: Steven W. Johnson, Esquire Department of Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, FL 32802 Stephen R. Moorhead, Esquire McDonald, Fleming, & Moorhead 700 South Palafox Street Pensacola, FL 32501 Darlene F. Keller, Division Director Department of Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, FL 32802 Kenneth E. Easley, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
The Issue The issue for determination in this case is whether the Small Scale Comprehensive Plan Amendment No. SSA 03-07 (Plan Amendment) adopted by Bay County (County) through the enactment of Ordinance No. 03-06 is "in compliance" as that term is defined by Section 163.3184(1)(b), Florida Statutes.
Findings Of Fact Parties Petitioner, T & P Enterprises of Bay County, Inc. (T & P), is a Florida corporation authorized to do business in this state, and operates such business at 20016 Front Beach Road in Panama City Beach, Florida. Petitioner, Edgar Garbutt, is a resident of Bay County, Florida, and is the President of T & P, which operates a seasonal resort at 20016 Beach Front Road in Panama City Beach, Florida. Petitioner, Edgar Garbutt, submitted written comments in opposition to the Small Scale Comprehensive Plan Amendment at issue before the adoption of SSA 03-07. Intervenor, Barbara S. Harmon, owns a house located at 190 16th Street in Panama City, Florida. Mrs. Harmon and her husband purchased their house in 1994. The Harmon property is located in the Laguna Beach subdivision. Mrs. Harmon was one of the property owners who petitioned the County for adoption of SSA 03-07. The Property The property affected by SSA 03-07 consists of twelve separate parcels of land totaling approximately 2.35 acres located in unincorporated Bay County. The property lies within a two-block area generally situated south of First Avenue, East of Wisteria Lane, and along both sides of 16th Street, which is west of the municipal boundaries of Panama City Beach in what is commonly known as the West Beaches. Two of the parcels subject to the Plan Amendment are located on the Gulf of Mexico south of Front Beach Road. The twelve parcels are not contiguous. The predominant type of structure on these parcels are one-story housing structures used primarily for residential purposes. Some of the structures are used as short-term or long-term rentals. Others, including the Harmons' house, are used as second homes during the summer season, or on weekends. Mrs. Harmon and her husband purchased their house in Bay County in 1994. They reside there six to nine months a year. They also have a residence in Gadsden, Alabama. The Harmons bought their house in Bay County because they wanted a house close to the beach in a clean, quiet neighborhood. The area affected by the Plan Amendment is predominantly residential in character. The area is generally built-out as residential land use. The area has not substantially changed since the Harmons purchased their house in 1994. Background Bay County adopted a Comprehensive Plan in 1990. The 1991 existing conditions map accompanying the Comprehensive Plan shows that most of the property in the West Beaches Area was "predominantly medium density residential with low density residential also being a majority land use category." Mrs. Harmon testified that her house on 16th Street was designated Residential under the County's Comprehensive Plan at the time she purchased it in 1994. In 1994-1995, as part of its Comprehensive Plan evaluation and appraisal process, Bay County's planning staff undertook a "windshield survey" of the West Beaches Area. The windshield survey indicated that Laguna Beach 1st through 7th additions were platted or developed between 1938 and 1954, and consisted primarily of a mix of older single-family houses, mobile homes, multi-family buildings, and church buildings. The windshield survey reflected seasonal resort uses on the south side of Front Beach Road on the Gulf of Mexico. The windshield survey shows that the predominate land use in the West Beaches Area in 1994-1995 continued to be residential, as it was at the time of the 1991 existing conditions map. In December 1999, Bay County adopted amendments to its Comprehensive Plan in which it created the SR FLUM category. Under the Plan, the purpose of the SR FLUM category is "to provide areas for a functional mix of compatible seasonal/resort land uses where the clientele are predominantly seasonal or temporary visitors and tourists." The uses allowed include beach houses, cottages, condominiums, townhouses, apartments or other similar multi-family structures, motels, lodges, restaurants, convenience stores, retreats, and lounges, bars, and other similar uses and public utilities." The criteria for designating areas as SR are "areas with concentrations of accommodations and businesses that are used for non-residential, tourist-oriented purposes." The Plan further provides that "Year-round, permanent residences should not be located in this area." The County's Evaluation and Appraisal Report (EAR), which was the data and analysis relied upon by Bay County for the 1999 plan amendments, defined these seasonal or temporary visitors and tourists as people who visit Bay County for an average 5.385 days. Terry Jernigan, the former Bay County Planning Director, testified that in developing the SR category, the County focused primarily on "typical summertime tourists" who stay for weekend, weekly, and monthly rental periods and attempted to identify areas that were tourist areas or were likely to become transient in nature in the future. Second homeowners and seasonal visitors were not considered when the SR category was developed. The SR Future Land Use Map category has also been applied in the beach areas of unincorporated Bay County located east of the municipal boundaries city of Panama City Beach. Development in that area includes large high-rise condominiums and hotels, bars, T-shirt shops, and night clubs. The SR category was also applied to a number of properties in the West Beaches Area that are indicated as residential uses in the County's official windshield survey, including the parcels that are the subject of the amendment at issue. Mr. Jernigan testified that an indicator of an area that was transient in nature was the large number of signs indicating that the properties were for rent. Mrs. Harmon testified that since she purchased her property in 1994, she had observed no signs advertising rentals in the area in which the properties subject to the amendment are located. Mrs. Harmon was motivated to seek the FLUM amendment from SR to Residential to prevent high-rise development, bars, T-shirt shops, and noise increases that she has observed in the SR category east of Panama City Beach. The applicants for the subject amendment are concerned that the SR category may adversely affect the character of the neighborhood. Development of the Plan Amendment In the spring and early summer of 2002, Bay County began receiving "grass roots petitions" from property owners in the West Beaches Area requesting that either their future land use designation or zoning be changed from SR back to Residential. The petitions stated that the FLUM designations were changed without notice to the property owners. These petitions initially involved 400-500 parcels of land. In response to the grass roots petitions, the County identified several "target areas" where there were a large number of parcels generally contiguous to each other. At the direction of the Board of County Commissioners, on August 28, 2002, County staff sent letters to individuals within the target areas asking them if they wanted the land use designated on their properties changed from SR to Residential and attaching a land use map application form. Allara Mills Gutcher, a County Senior Planner III, testified that the County wanted assurances that the petitioning property owners understood the nature of the change they were requesting. The County's letter directed to the property owners in the target areas not only asked if the owners wanted a land use designation change, but also indicated that a petitioning property owner would be required to pay the County a $1,100 fee to apply for the land use change. Although the letter indicated that the Board was considering waiving the fee, no evidence was presented that the Board made a decision on the waiver or that the approximately 180 property owners to whom the County had written had received further notice from the County regarding the $1,100 fee. Some County property owners, including Mrs. Harmon, complained to the County that the application fee discouraged a number of property owners from submitting FLUM amendment applications. The forms accompanying the County's August 28, 2002, letter also advised the property owners that small scale plan amendments could only be considered in connection with a specific plan of development or hardship, restrictions not contained in either the County's Plan or Chapter 163, Part II, Florida Statutes. Ms. Gutcher testified that only 20 responses to the County's letter were received. The Plan Amendment Summary Sheet on the subject amendment, however, indicates that a result of the mail out was the submittal of an application to change approximately 30 properties along Front Beach Road in another area, Sunnyside Beach, from SR to Residential. This amendment is known as the Centeno amendment, and was adopted by the Board of County Commissioners in December 2002. One of the target areas of the mail out was the Laguna Beach Subdivision area where Intervenor Harmon's property is located. After receiving the County's August 28, 2002, letters and learning of the Centeno/Sunnyside small scale plan amendment, Mrs. Harmon spearheaded an effort to seek the subject small plan amendment in her neighborhood. She worked with County staff on the locations of properties to be included in the proposed amendment. Erroneously included in the first proposed plan amendment was The Laguna Beach Christian Retreat property on Front Beach Road, owned by Petitioners. Mrs. Harmon brought this error to the attention of County staff, and Petitioners' property was removed from the proposed amendment, leaving 16 lots included in the amendment package. County staff initially supported the 16-lot proposed small scale plan amendment in Mrs. Harmon's neighborhood in part because it included properties adjacent to First Avenue on the north and contiguous to properties currently designated Residential on the FLUM. Prior to and at the Planning Commission meeting at which the subject amendment was considered, three individuals owning four of the 16 lots withdrew from the plan amendment application. These withdrawals included the two lots on First Avenue contiguous to the existing Residential FLUM area, a lot on 16th Street, and a lot on Front Beach Road. The Planning Commission recommended approval of the requested FLUM change from SR to Residential on the 12 remaining parcels. County staff did not dispute the appropriateness of the Residential FLUM designation for the subjected properties, but did not support the plan amendment for the remaining 12 lots because of the configuration of the map. Ms. Gutcher testified that her objection was not to the actual land use designation of the subject land parcels, but to the configuration of the Plan Amendment which interspersed parcels designated SR with the residential parcels. The 12 lots subject to the Plan Amendment are not contiguous to existing Residential lands and there are SR lots adjacent to lots that were changed to Residential. Ms. Gutcher, however, stated that adjacency of future land uses is not a requirement of Chapter 163, Part II, Florida Statutes, or Chapter 9J-5, Florida Administrative Code. Ms. Gutcher further testified that although she considered the Plan Amendment "poor planning" and did not support the Plan Amendment, she did not consider the Plan Amendment violative of the Bay County Comprehensive Plan, Chapter 163, Florida Statutes, or Chapter 9J-5, Florida Administrative Code. On June 3, 2003, the Bay County Board of County Commissioners accepted the Planning Commission recommendation and voted to adopt small scale amendment No. SSA 03-07 amending the FLUM designation on the 12 lots from SR to Residential. Internal Consistency Section 163.3177(2), Florida Statutes, and Florida Administrative Code Rule 9J-5.005(5), require that all comprehensive plan amendments, including amendments to the FLUM be consistent with the other provisions of the applicable comprehensive plan taken as a whole. Petitioners allege that the Plan Amendment is internally inconsistent with several discrete provisions contained in the County's Comprehensive Plan; however, when taken as a whole, the Plan Amendment is not inconsistent with the goals and policies of the County's Comprehensive Plan. Because the Plan Amendment at issue here amends the FLUM designation from SR to Residential, of particular significance to the analysis of internal consistency in this case is the County Comprehensive Plan's Residential FLUM Category. Policy 3.3.1. of the Future Land Use Element in the County's Plan provides that "criteria for designating land use categories on the FLUM and attendant standards for development shall be as shown on Table 3A." Table 3A contains the following criteria and standards for the Residential FLUM category: Purpose: To provide areas for a functional, compatible mix of residential land uses, and to protect property values in viable residential neighborhoods. Designation Criteria: Existing residential areas, residential subdivisions recorded with the Clerk of the Court prior to adoption of this Plan, areas adjacent to existing residential areas, "in-fill" of vacant areas otherwise surrounded by urban development, and low density rural community development. Allowable Uses: Those land uses typically associated with residential occupancy including single-family, duplex, triplex, quadraplex, and manufactured housing. These uses are generally coded as 100 to 900 on the DOR Property Use Code Table for property tax purposes. Public utilities, recreation, conservation. Limited public institutional uses and educational facilities (Policy 2.8.1) may also be allowed. The County Comprehensive Plan does not define the terms "residential occupancy" or "residential use." Florida Administrative Code Chapter 9J-5, setting out the minimum criteria for review of comprehensive plans, defines "residential uses" as "activities within land areas used predominantly for housing." Fla. Admin. Code R. 9J-5.003(108). In its compatibility analysis, the County described the subject area as "primarily developed as a single-family use today" "similar to current uses in the area." The area is an existing residential area. The predominant type of structure in the area is one-story residential structures used for housing. Except for one vacant lot, each property that is the subject of the amendment contains a one-story single-family residence. All houses on the amendment properties are used as homes, second homes or long-term rentals. None of the houses included in the Plan Amendment are rented on a short-term basis. The evidence demonstrates that the properties included in the Plan Amendment are now used for housing. All but one of the Plan Amendment properties are coded 100 on the tax code, which is the same as the DOR Property Use Code Table referenced in the Residential FLUM category in Table 3A of the Plan. One lot included in the Plan Amendment is vacant and is coded 0000 on the tax code. The Plan Amendment is consistent with the stated purpose, designation criteria for existing residential areas, and allowable uses for the Residential FLUM designation stated in the County's Comprehensive Plan. Many properties in the West Beaches area are rented; however, according to Mrs. Harmon, most properties that are subject to the Plan Amendment are not rented or are rented on a long-term basis. Neither the provisions of Table 3A describing the Residential FLUM category, nor the definition of "residential use" in Chapter 9J-5, distinguish between owner-occupied and rental housing use. One significance of a land use designation from a planning perspective is its impact on infrastructure. That impact is the same whether a house is rented or owner-occupied. Whether the structures are owner-occupied or rented is not a land use amendment compliance issue. Wendy Grey, Petitioners' expert witness, testified that the configuration of the Plan Amendment is not consistent with those portions of the Goal Statement in the Future Land Use Element of the Plan that express the County's goals "to promote an orderly and efficient pattern of growth and development" and "to promote compatibility between land uses and reduce the potential for nuisances." Ms. Grey opined that leaving some properties designated SR surrounded by Residential properties does not promote an orderly and efficient pattern of growth and development. That portion of the Goal Statement referring to an orderly and efficient pattern of growth and development was taken directly from the intent sections of Chapter 163, Part II, Florida Statutes, and Chapter 9J-5, Florida Administrative Code. The language governs the overall planning process of allocation of future land uses based upon infrastructure, natural resource protection and efficiency in terms of using existing infrastructure. It is based upon the purpose of the Growth Management Act to manage the extent, distribution and timing of future growth, discourage urban sprawl, and maximize existing infrastructure. These are terms of art under the Growth Management Act, and have nothing to do with drawing the polygons on the map. Tony Arrant, the County's expert witness, testified that the predominance of the small scale amendments he has seen focus on specific areas that have other land use classifications next to the parcel amended, just as with the Plan Amendment. Further, the Goal Statement also includes a statement that the plan should "protect viable neighborhoods." The amendment is consistent with this portion of the goal statement by designating an existing residential area for residential use. When read as a whole, the Plan Amendment is consistent with this Goal Statement. Designating residential properties for residential use is also consistent with the Goal Statement in the Housing Element of the Plan and with Housing Element Objective 8.5, which requires that the County preserve and protect the character, compatibility, and aesthetics of residential areas and neighborhoods. To make a land use amendment uniform throughout a block, connected to existing residential land uses, and following street rights-of-way helps with code enforcement issues and is easier for the public to understand. However, these are not compliance issues. The configuration of the Plan Amendment and the symmetry or lack of symmetry of the future land use map is not a compliance issue. Policy 3.2.1 of the Future Land Use Element governs amendments to the FLUM. It does not require any particular map configuration, or that FLUM boundary lines follow street rights- of-way. There is no express requirement in the Plan that FLUM boundaries must always follow roads. Petitioners contend that the Plan Amendment is internally inconsistent with Policy 3.7.2. of the Future Land Use Element of the County's Plan. Policy 3.7.2. prescribes the general criteria for zoning districts shown on an Official Zoning District Map. This policy implements Objective 3.7, which provides that "By 2001, (the County will) adopt a zoning code to further the intent, and implement the objectives and policies of this Plan." The County has not yet adopted a zoning code. Petitioners specifically rely on the following criteria in Policy 3.7.2.: 4. District boundaries will be drawn so as to follow property lines, road rights-of way, geographic features, section lines, or other readily identifiable features. Where possible, district boundaries will be drawn so as to create buffers between potentially incompatible land uses. District boundary lines shall be drawn so as to minimize the potential for nuisances caused by incompatible land uses. Ms. Grey opined that the Plan Amendment is not consistent with Policy 3.7.2. because the FLUM boundary lines do not follow roads and other geographic features, making it difficult to implement Policy 3.7.2. when a zoning code is adopted. Ms. Grey, however, also acknowledged that it would be possible to draw a zoning map that is consistent with the Plan Amendment. Petitioners contend that the Plan Amendment is inconsistent with Future Land Use Element Policy 3.9.1. which defines "compatibility" of land uses. Ms. Grey opined that interspersing SR with Residential land uses does not promote compatibility. The Plan Amendment recognizes the current use of the subject property. Under the broad categories of permissible uses for the SR designation there are many compatible uses. Moreover, Mrs. Harmon testified that she believes Petitioners are entitled to engage in their business activity, and that everyone in the West Beaches Area got along fine until the SR designation was adopted. The Plan Amendment can be viewed to support the compatibility of land uses because it is consistent with the land uses that are already there. Therefore, the Plan Amendment may serve to decrease the possibility of future incompatibility. It will provide a level of security for the areas that are residential in that any redevelopment of other developed properties will have to be reviewed in light of Comprehensive Plan policies requiring protection of viable residential areas. Additionally, Petitioners contend that the Plan Amendment is inconsistent with several of the many policies set forth in the Comprehensive Plan to implement Objective 1.2. Policy 1.2.1.2 states that it is the intent of the Comprehensive Plan to encourage the most appropriate use of land, water and resources consistent with the public interest. The subject property has historically been residential, the current use of the property is residential, and the interest of the public is served in continuing the residential nature of the property as indicated by the responses to the County's letter of August 28, 2002. Policy 1.2.1.3 states that a purpose of the Comprehensive Plan is to overcome "present handicaps." Ms. Grey opined that if the SR category is a handicap, the Plan Amendment does not overcome it because there are still SR parcels around the subject property. However, the Comprehensive Plan does not define "present handicap" and there is no evidence that the SR category is a "present handicap." Policy 1.2.1.4 requires that the Plan deal effectively with future problems that may result from the use and development of land because the Plan Amendment does not address potential incompatible uses between SR and Residential. There are many permissible land uses, including beach houses, cottages, condominiums, townhouses, and apartments in the SR category that are compatible with the Plan Amendment. Moreover, Ms. Grey stated that a zoning map could be drawn consistent with the Plan Amendment. The Plan Amendment recognizes the land uses that currently exist on the subject property. The Plan Amendment is consistent with the land uses already there. Taken as a whole, the Plan Amendment furthers the goals, objectives and policies of the Comprehensive Plan. Data and Analysis Petitioners contend that the amendment is not supported by adequate data and analysis. Ms. Grey opined that there was not adequate data and analysis to demonstrate that residential land use was the most appropriate or suitable for the subject property and within the public interest. Ms. Grey stated that the primary purpose for the Plan Amendment was to respond to individual requests to change the land use classification. She also believed that the lack of homestead exemptions for the majority of the area was data that supported the SR and not the Residential land use classification. Ms. Gutcher, however, testified that she reviewed appropriate data and the Plan Amendment was supported by the types of data and analysis typically provided for FLUM amendments listed in Policy 3.2.1. of the plan. These data included the national wetlands inventory, the ITE Journal for the Traffic Counts, and other data contained in the checklist in Chapter 3 of the Comprehensive Plan. There was sufficient data and analysis to support the Plan Amendment, including the following: (a) the fact that the 1990 Plan designated the area as Residential; (b) the 1994 windshield survey identifying the area as residential; (c) the fact that the actual uses of the properties are for housing; (d) the existing residential character of the area; (e) the property owners' desire that their properties be designated Residential; and (f) the 1991 existing land use map identifying the area that is the subject of this case as "predominantly medium density, residential with low density residential also being a majority land use category." The population projections in the County's EAR are required to include both resident and seasonal populations to arrive at a functional population. This number is then used to plan for the amount of residential, commercial land use authorized. Chapter 9J-5 and Chapter 163, Part II, Florida Statutes, do not differentiate seasonal housing from permanent housing in forecasting future land use needs. There is adequate data and analysis to support the Plan Amendment.
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 concluding that the FLUM Plan Amendment No. SSA 03-07 adopted by the Board of County Commissioners of Bay County in Ordinance No. 03-06 is "in compliance" as defined in Section 163.3184(1)(b), Florida Statutes. DONE AND ENTERED this 23rd day of January, 2004, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of January, 2004. COPIES FURNISHED: Terrell K. Arline, Esquire 3205 Brentwood Way Tallahassee, Florida 32309 Gary K. Hunter, Jr., Esquire Hopping, Green & Sams 123 South Calhoun Street Post Office Box 6526 Tallahassee, Florida 32314 Sherry A. Spiers, Esquire Law Office of Robert C. Apgar 320 Johnston Street Tallahassee, Florida 32303 Colleen M. Castille, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 100 Tallahassee, Florida 32399-2100 Heidi Hughes, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325 Tallahassee, Florida 32399-2100
The Issue Whether Miami-Dade County’s (“the County’s”) comprehensive plan amendment, adopted by Ordinance No. 20-47 on May 20, 2020, is “in compliance,” as that term is defined in section 163.3184, Florida Statutes.1
Findings Of Fact The Parties Petitioner resides, and owns property, in the County. Petitioner made oral or written comments and objections to the County regarding the Plan Amendment during the time period between the County’s transmittal and adoption of the Plan Amendment. The County is a political subdivision of the State of Florida, with the duty and authority to adopt and amend its Comprehensive Plan. See § 163.3167(1), Fla. Stat. Krome is a limited liability company, existing under the laws of the State of Florida, with its principal place of business in the State of Florida. Krome owns the property subject to the Plan Amendment, as well as other property within the area affected by the Plan Amendment, and was the applicant for the Plan Amendment. The Subject Property and Surrounding Uses The Subject Property is 5.97 gross acres (approximately 4.6 net acres) of vacant land located outside of the Urban Development Boundary on the southwest corner of SW 177 Avenue (Krome Avenue) and SW 136 Street. It is the northeast corner of a larger 48.33-acre parcel owned by Krome (the “Parent Tract”). Adjacent to the north of the Parent Tract, across SW 136 Street, is a solar farm operated by Florida Power and Light Company (FPL). To the east, across Krome Avenue, and to the south, including the remaining portion of the Parent Tract, are agricultural lands used for row crops. West and south of the Parent Tract (including the Subject Property), the land is developed predominantly with five-acre rural estates, interspersed with small residential farms and agricultural sites ranging between 10 and 30 acres in size. The Property is located within an approximately 11-mile stretch of Krome Avenue where there are presently no gas service stations. The nearest gas service station to the south of the Property is located approximately three miles away. The nearest gas service station to the north of the Property is located approximately eight miles away. The Plan Amendment The Plan Amendment changes the Future Land Use (“FLU”) designation of the Subject Property from the “Agricultural” to the “Business and Office” land use category. The Business and Office category allows for development of a wide range of sales and services uses, including retail, wholesale, personal and professional services, call centers, commercial and professional offices, hotels, motels, hospitals, medical buildings, nursing homes, entertainment and cultural facilities, amusements, and commercial recreation establishments. The category also allows light industrial development, telecommunication facilities, and residential uses (stand alone or mixed with commercial, light industrial, office, and hotels). Krome sought the Plan Amendment for the ultimate purpose of operating a gas service station and other food and retail uses compatible with, and supportive of, the surrounding agricultural and residential community. In recognition that the “Business and Office” land use designation permits a wide variety of uses, Krome proffered to restrict the permitted uses on the Property by submitting a Declaration of Restrictions to be recorded as a covenant running with the land. County Consideration of Plan Amendment In October 2019, County planning staff issued its Initial Report and Recommendations, suggesting denial of the proposed Plan Amendment. The County’s Community Councils are tasked with providing recommendations on proposed amendments to the Comprehensive Plan. The West Kendall Community Council conducted a public hearing on the proposed Plan Amendment on December 16, 2019, at which members of the public commented on the proposal. A representative of Krome made a presentation at the public hearing and submitted presentation exhibits that included: (1) a proposed Declaration of Restrictions; (2) a County memorandum relating to a separate application to allow the establishment of a gas station at SW 177 Avenue and SW 200 Street in Miami-Dade County; (3) a letter from the Dade County Farm Bureau stating that it had no objection to the Application; and (4) a Petition of Support listing 105 members of the community that elected to express support and recommend approval of the proposal. At the conclusion of the December 16, 2019 hearing, the West Kendall Community Council voted to recommend that the proposed Plan Amendment be adopted with acceptance of the proffered Declaration of Restrictions. After previously deferring the matter at a hearing on October 29, 2019, the Miami-Dade County Board of County Commissioners (the “BCC”) voted on December 17, 2019, to adopt the Plan Amendment on first reading. The County’s Planning Advisory Board (“PAB”) serves as the Local Planning Agency to review any matters referred to it by the BCC, pursuant to section 2-108 of the Miami-Dade County Code. On January 8, 2020, the PAB, acting as the Local Planning Agency, conducted a public hearing to address the proposal. Near the conclusion of the hearing, the chairman of the PAB proposed an amendment to the proffered Declaration of Restrictions such that the maximum gross square feet of enclosed, under-roof construction on the Property, excluding fueling islands, would be reduced from 10,000 square feet to 6,000 square feet. Krome’s representative agreed to the proposed amendment. The PAB then voted to recommend that the BCC adopt the Plan Amendment with acceptance of the revised Declaration of Restrictions. After previously deferring second reading of the ordinance on January 23, 2020, the BCC voted nine-to-three to adopt Ordinance No. 20-47 on second reading at a public hearing on May 20, 2020. As part of its adoption of the Plan Amendment, the BCC accepted Krome’s proffered Declaration of Restrictions containing the provisions outlined below. The adopted Declaration of Restrictions states that it is a covenant running with the land for a period of 30 years, and thereafter automatically renews for 10-year periods. The Declaration of Restrictions expressly allows for “[a]ll uses permitted under Article XXXIII, Section 33-279, Uses Permitted, AU, Agricultural District, of the Miami-Dade County Code” along with an “Automobile gas station with mini mart/convenience store” with a maximum of 15 vehicle fueling positions. The Declaration of Restrictions further provides that “[m]echanical repairs, oil or transmission changes, tire repair or installation, maintenance, automobile or truck washing” are prohibited uses, and it limits the maximum gross square feet of enclosed, under-roof construction to 6,000 square feet. Petitioner’s Challenges In the Amended Petition, Petitioner alleges the Plan Amendment is not “in compliance,” specifically contending that it: (1) creates internal inconsistencies with certain existing Comprehensive Plan policies, in contravention of section 163.3177(2); (2) fails to discourage the proliferation of urban sprawl, as required by section 163.3177(6)(a)9.; and (3) is not “based upon relevant and appropriate data and analysis,” as required by section 163.3177(1)(f). Internal Consistency The Comprehensive Plan gives the County Commission flexibility to appropriately balance the community’s needs with land use, environmental, and other Comprehensive Plan policies. It is inherent in the comprehensive planning process that the Comprehensive Plan contains potentially competing goals, objectives, and policies, and that addressing them entails a balancing act rather than an all-or-nothing choice. The Comprehensive Plan expressly recognizes this balancing act in its Statement of Legislative Intent: The Board recognizes that a particular application may bring into conflict, and necessitate a choice between, different goals, priorities, objectives, and provisions of the CDMP. While it is the intent of the Board that the Land Use Element be afforded a high priority, other elements must be taken into consideration in light of the Board’s responsibility to provide for the multitude of needs of a large heavily populated and diverse community. * * * Recognizing that County Boards and agencies will be required to balance competing policies and objectives of the CDMP, it is the intention of the County Commission that such boards and agencies consider the overall intention of the CDMP as well as portions particularly applicable to a matter under consideration in order to ensure that the CDMP, as applied, will protect the public health, safety and welfare. Accordingly, the Comprehensive Plan must be read as a whole, and a plan amendment should not be measured against only certain policies in isolation. Krome’s expert, Kenneth Metcalf, opined that the Plan Amendment affirmatively furthers several Comprehensive Plan goals, objectives, and policies, including Land Use Policies (“LU”) 1G, 1O, and 8E; Conservation Policy (“CON”) 6E; Community Health and Design Policies (“CHMP”) 4A and 4C; Coastal Management Policies (“CM”) 8A and 8F; and Economic Policy (“ECO”) 7A. Petitioner contends that the Plan Amendment is inconsistent with some of those same policies, as well as other policies. Petitioner contends that the Plan Amendment is inconsistent with Policy LU-1G, which states: Business developments shall preferably be placed in clusters or nodes in the vicinity of major roadway intersections, and not in continuous strips or as isolated spots, with the exception of small neighborhood nodes. Business developments shall be designed to relate to adjacent development, and large uses should be planned and designed to serve as an anchor for adjoining smaller businesses or the adjacent business district. Granting of commercial or other non-residential zoning by the County is not necessarily warranted on a given property by virtue of nearby or adjacent roadway construction or expansion, or by its location at the intersection of two roadways. Petitioner offered no expert testimony to support this contention. By contrast, Mr. Metcalf opined that the Plan Amendment was consistent with the allowance in Policy LU-1G for small neighborhood nodes based on its relationship to the adjacent rural residential and agricultural community, especially given the evidence that such adjacent community lacks existing options for gas and convenience goods. He further explained that use of the word “preferably” in Policy LU-1G indicated a preference, not a bright-line rule or requirement, and that the Comprehensive Plan does not contain a definition of “small neighborhood nodes” or any interim step for designating such nodes. Further, the County’s expert, Alex David, opined that the Plan Amendment is not inconsistent with Policy LU-1G. He first noted that locating business developments in clusters or nodes is preferable, but not compulsory. In addition, he explained that the policy allows for small neighborhood nodes, and that this Plan Amendment fits the concept of a small neighborhood node in terms of its location, scale, and function: Location: The Plan amendment is limited to a portion of a quadrant of the intersection of two roads adjacent to a rural community, so it will not be linear development along the Krome Avenue corridor; Scale: The Plan amendment is considered “small-scale” under the Florida Statutes because it involves less than 10 acres in land area. In addition, the Declaration of Restrictions accepted by the County Commission restricts the extent of land uses (other than those permitted under the AU Zoning District) to a convenience retail limited to a maximum of 6,000 square feet and a gas station with 15 fueling positions; and Function: Neither the Comprehensive Plan nor the County Code define the term “convenience store.” However, many other communities define this use as a small retail establishment intended to serve the daily or frequent needs of the surrounding neighborhood population by offering for sale prepackaged food products, household items, over-the-counter medicine, newspapers and magazines, freshly prepared foods, and even access to an ATM. In rural neighborhoods such as those surrounding the location of the Plan Amendment, a convenience store associated with a gas station is often the only place nearby to buy such items. These stores often also serve as a community gathering spot. Based on these characteristics, Mr. David opined that the Plan Amendment would create a small neighborhood node with a gas and convenience use for the surrounding rural farm community, similar to the nodes to the south along Krome Avenue that serve the surrounding communities there. Mr. David also contradicted Petitioner’s contention that the Comprehensive Plan contains a process for designating nodes. Petitioner contends that the Plan Amendment is inconsistent with Policy LU-1O, which states: “Miami-Dade County shall seek to prevent discontinuous, scattered development at the urban fringe in the Agriculture Areas outside the Urban Development Boundary, through its Comprehensive Plan amendment process, regulatory and capital improvements programs and intergovernmental coordination activities.” Petitioner offered no expert testimony to support this contention. By contrast, Mr. Metcalf opined that the Plan Amendment was not inconsistent with LU-1O because the development contemplated by the Plan Amendment is designed to serve the adjacent existing rural neighborhoods to the southwest that are in need of gas and convenience goods. Mr. David opined that the Plan Amendment is not inconsistent with Policy LU-1O. He explained that this policy aims to ensure that development does not happen in isolation and occurs, instead, where other development already exists. Because the Plan Amendment site is proximate to a contiguous, and nearly continuous grid of, existing development consisting of rural estate residential and small-scale residential farms, the Plan Amendment does not contravene this policy or its purpose. Petitioner contends that the Plan Amendment is inconsistent with Policy LU-1P, which states: While continuing to protect and promote agriculture as a viable economic activity in the County, Miami-Dade County shall explore and may authorize alternative land uses in the South Dade agricultural area which would be compatible with agricultural activities and associated rural residential uses, and which would promote ecotourism and agritourism related to the area's agricultural and natural resource base including Everglades and Biscayne National Parks. Petitioner offered no evidence or expert testimony to support the contention that the Plan Amendment is inconsistent with Policy LU-1P. By contrast, Mr. Metcalf opined that the Plan Amendment was not inconsistent with Policy LU-1P because that policy allows for alternative land uses that are compatible with agricultural uses, such as Krome’s plans for the store to support local agricultural uses and agri-tourism by selling fresh fruit from local groves and diesel for smaller scale agricultural farmers, as provided in the Declaration of Restrictions. Mr. David opined that the Plan Amendment is not inconsistent with that policy. He explained that the Plan Amendment pertains only to a very small portion (less than six gross acres) of a larger agricultural site, which will continue to be actively used for agriculture, and there is no evidence that the Plan Amendment will impair the viability of the agricultural economy in the County. As Mr. David explained, the County previously determined that the amount of land that is needed to maintain a “viable” agricultural industry is approximately 50,000 acres, and according to the County, the County has about 55,206 acres available. The 5.97 gross acres (approximately 4.6 net acres) of land that the Plan Amendment directly impacts is miniscule in comparison. Mr. David also explained how the uses specified in the Declaration of Restrictions are compatible with agricultural activities and associated rural residential uses, as well as promoting economic development in the County’s agricultural area. Petitioner contends that the Plan Amendment is inconsistent with Policy LU-1S, which states: The Miami-Dade County Strategic Plan shall be consistent with the Comprehensive Development Master Plan (CDMP). The Miami-Dade County Strategic Plan includes Countywide community goals, strategies and key outcomes for Miami-Dade County government. Key outcomes of the Strategic Plan that are relevant to the Land Use element of the CDMP include increased urban infill development and urban center development, protection of viable agriculture and environmentally-sensitive land, reduced flooding, improved infrastructure and redevelopment to attract businesses, availability of high quality green space throughout the County, and development of mixed-use, multi-modal, well designed, and sustainable communities. Petitioner offered no expert testimony to support this contention. Petitioner’s reliance on LU-1S is misplaced because that provision requires the Miami-Dade County Strategic Plan to be consistent with the Comprehensive Plan, not the other way around. As such, this policy is irrelevant to the Plan Amendment, as both Mr. Metcalf and Mr. David testified. Petitioner contends that the Plan Amendment is inconsistent with Policy LU-2B, which states: Priority in the provision of services and facilities and the allocation of financial resources for services and facilities in Miami-Dade County shall be given first to serve the area within the Urban Infill Area and Transportation Concurrency Exception Areas. Second priority shall be given to serve the area between the Urban Infill Area and the Urban Development Boundary. And third priority shall support the staged development of the Urban Expansion Area (UEA). Urban services and facilities which support or encourage urban development in Agriculture and Open Land areas shall be avoided, except for those improvements necessary to protect public health and safety and which service the localized needs of these non- urban areas. Areas designated Environmental Protection shall be particularly avoided. Petitioner offered no evidence or expert testimony to support this contention. By contrast, Mr. Metcalf opined that the Plan Amendment was not inconsistent with Policy LU-2B because that policy provides a specific exception for improvements that will serve “localized needs of these non- urban areas,” such as the proposed gas station and convenience store. Mr. David opined that the Plan Amendment is not inconsistent with Policy LU-2B because it does not request, require, or necessitate the expansion of the Urban Development Boundary (“UDB”) or the Urban Expansion Area (“UEA”), nor does it involve or propose the extension of urban services or facilities outside the 2020 UDB or into the Agriculture and Open Land areas. Mr. David explained that gas stations and convenience stores are not “services or facilities,” as those terms are used in the Comprehensive Plan, nor would the gas station or convenience store allowed by the Plan Amendment be an “urban” use. Therefore, urban services and facilities that support or encourage urban development in Agriculture or Open Land areas will continue to be avoided. Mr. David further explained, as County planning staff recognized, the Plan Amendment will not impact key infrastructure and Levels of Service (“LOS”) that exist within the UDB (including, but not limited to, water and sewer, transportation, solid waste, etc.). Although County staff found that, under the Plan Amendment, fire and rescue services for the Property would not meet national industry standards, Mr. David refuted that concern, explaining that the Comprehensive Plan does not require compliance with national industry standards for fire and rescue, nor does the Plan Amendment violate a County LOS standard for fire and rescue. Petitioner contends that the Plan Amendment is inconsistent with Objective LU-7, which states: Miami-Dade County shall require all new development and redevelopment in existing and planned transit corridors and urban centers to be planned and designed to promote transit-oriented development (TOD), and transit use, which mixes residential, retail, office, open space and public uses in a safe, pedestrian and bicycle friendly environment that promotes mobility for people of all ages and abilities through the use of rapid transit services. The Plan Amendment is not located in an existing or planned transit corridor or urban center. Objective LU-7 is not applicable to the Plan Amendment. Petitioner contends that the Plan Amendment is inconsistent with Policy LU-8C, which states: “Through its planning, capital improvements, cooperative extension, economic development, regulatory and intergovernmental coordination activities, Miami-Dade County shall continue to protect and promote agriculture as a viable economic use of land in Miami- Dade County.” Petitioner offered no expert testimony to support this contention. By contrast, Mr. Metcalf opined that the Plan Amendment was not inconsistent with Policy LU-8C. He explained that the policy contained a general directive for the County to promote and protect agriculture, but did not prohibit small scale plan amendments that respond to the existing needs of the surrounding agricultural and rural communities, such as the Plan Amendment. Further, Mr. David opined that the Plan Amendment is not inconsistent with Policy LU-8C. Again, he explained that the Plan Amendment pertains only to a small portion of the Parent Tract, which will continue to be actively used for agriculture; that the uses specified in the Declaration of Restrictions are compatible with agricultural activities and associated rural residential uses; and that those uses will promote economic development in the County’s agricultural area. He also explained that removing the Property from agricultural production would not reduce the number of acres in agricultural production below the threshold needed to sustain agriculture as a viable economic activity in Miami-Dade County. Mr. David further explained that there is no provision in the Comprehensive Plan categorically prohibiting the removal of agricultural land from agricultural production. Petitioner argued that the Plan Amendment would further degrade existing agricultural uses in the area because it could tempt ATV riders to trespass and ride their ATVs over nearby agricultural lands. Mr. David found that speculative concern immaterial to the analysis required by the Comprehensive Plan. Petitioner contends that the Plan Amendment is inconsistent with Policy LU-8E, which states: Applications requesting amendments to the CDMP Land Use Plan map shall be evaluated for consistency with the Goals, Objectives and Policies of all Elements, other timely issues, and in particular the extent to which the proposal, if approved, would: Satisfy a deficiency in the Plan map to accommodate projected population or economic growth of the County; Enhance or impede provision of services at or above adopted LOS Standards; Be compatible with abutting and nearby land uses and protect the character of established neighborhoods; Enhance or degrade environmental or historical resources, features or systems of County significance; and If located in a planned Urban Center, or within 1/4 mile of an existing or planned transit station, exclusive busway stop, transit center, or standard or express bus stop served by peak period headways of 20 or fewer minutes, would be a use that promotes transit ridership and pedestrianism as indicated in the policies under Objective LU- 7, herein. Petitioner offered no expert testimony to support this contention. By contrast, Mr. Metcalf opined that the Plan Amendment was not inconsistent with Policy LU-8E. As an initial matter, Mr. Metcalf explained that this Policy only requires an evaluation of “the extent to which” the subparts are satisfied, and does not set a threshold or a specific methodology. Regarding subpart (i), Mr. Metcalf explained the Plan Amendment addressed an existing and future need for a gas station, convenience retail products, fresh food, and supporting products for the agricultural industry within the general area, which currently lacks these offerings. In addition, he opined that the gas station would respond to a critical need to reduce fuel shortages during hurricane evacuations. As to subparts (ii-iv), Mr. Metcalf opined that the Plan Amendment would not impede provision of services at LOS standards; would enhance hurricane evacuations; would be compatible with nearby uses because the Parent Tract would continue to be used for agriculture, which would serve as a buffer between the Subject Property and adjacent uses; and that the Subject Property does not contain any environmental or historical resources, features, or systems of County significance. Further, Mr. David opined that the Plan Amendment is not inconsistent with Policy LU-8E. He explained, first, that Krome submitted with its application a Comprehensive Plan Consistency Evaluation study prepared by Mr. Metcalf, establishing that the Plan Amendment will help satisfy an existing deficiency in the Plan map by facilitating a convenience retail opportunity to serve the needs of the local population, who currently must drive on Krome Avenue at least three miles one way south of this location to SW 184th Street, or more than eight miles north, and then east on Kendall Drive (SW 88th Street), to reach the nearest equivalent services. In addition, there was significant support for the application by area residents, as evidenced by the petition submitted by Krome and the public testimony in favor of the Plan Amendment. Second, he explained that the Plan Amendment will not impede the provision of services at or above adopted LOS standards, as County staff noted in its report. On the contrary, with regards to traffic, the Plan Amendment may facilitate a reduction in trip generation and vehicle-miles traveled (“VMT”) on Krome Avenue from the existing residential community to the west and south, by providing a nearby convenience that may be reached without driving several miles north or south on Krome Avenue. Third, he opined that the Plan Amendment is compatible with abutting and nearby land uses and would protect the character of established neighborhoods—the large-scale solar power facility to the north, and the remainder of the 50-acre parcel that will remain in agricultural use to the west and south—will provide an appropriate buffer for the surrounding rural estate residential uses. Krome Avenue at this location is a 4-lane divided arterial with a 40-foot median, which also provides a significant buffer between the Plan Amendment site and the uses across Krome Avenue. In its evaluation, County staff recognizes that the “Business and Office” land use designation and the proposed development could be “generally compatible” with the existing agricultural uses and FPL’s Solar Energy Center. Mr. David opined that the assertion that the land use re-designation “would set a precedent for the conversion of additional agricultural land to commercial uses” is speculative and not only unproven, but refuted by the existing commercial development along the Krome Avenue corridor. The existing isolated uses along Krome Avenue, some of which are the same or similar uses that would be allowed by the Plan Amendment, are long-standing and have not led to urban development or infill in the area. Mr. David also testified that there are “very stringent policies” that restrict further development from occurring along Krome Avenue in this area, including Policies LU-3N and LU-3O. Fourth, Mr. David explained that the Plan Amendment will not degrade historical or archaeological resources, features, or systems of County significance, which is further confirmed by County staff’s own analysis. Regarding impacts to environmental resources, before any development proceeds on the Subject Property, the applicant must apply to all relevant state, regional, and local agencies for the applicable and necessary permits and variances, and if the applicant is unable to obtain such approvals due to environmental concerns, the project will not be permitted to proceed. In other words, while there is no evidence of adverse environmental impacts at the plan amendment stage, the applicant will have to satisfy all environmental requirements in subsequent stages of the development process to proceed with the project. Lastly, Mr. David explained that the Plan Amendment site is not located in an Urban Center or within 1/4 mile of an existing or planned transit station, exclusive busway stop, transit center, or standard or express bus stop served by peak period headways of 20 or fewer minutes; thus, the fifth and final consideration of Policy LU-8E is inapplicable to the Plan Amendment. Petitioner contends that the Plan Amendment is inconsistent with Policy LU-8G, which provides criteria for plan amendments that add land to the UDB. Because the Plan Amendment does not add land to the UDB, Policy LU-8G is irrelevant to the Plan Amendment. Petitioner contends that the Plan Amendment is inconsistent with Policy CHD-4A, which states: “Promote increased production and expand the availability of agricultural goods and other food products produced in Miami- Dade County.” Petitioner offered no expert testimony to support this contention. By contrast, Mr. Metcalf opined that the Plan Amendment was not inconsistent with Policy CHD-4A because the proposed store would support the local sale and consumption of goods from the community. Similarly, Mr. David opined that the Plan Amendment is not inconsistent with Policy CHD-4A. He explained that there is no metric associated with this aspirational policy, and noted that the approval of the Plan Amendment pertains only to a small portion of a larger agricultural site, the balance of which will continue to be protected and promoted for agricultural use. Moreover, he explained that the uses allowed by the Plan Amendment through the Declaration of Restrictions are limited to those permitted in the AU Zoning District, plus a fueling and convenience retail service use, which could support the sale and consumption of local agricultural goods. Petitioner contends that the Plan Amendment is inconsistent with Policy CON-6D, which states: “Areas in Miami-Dade County having soils with good potential for agricultural use without additional drainage of wetlands shall be protected from premature urban encroachment.” Petitioner offered no expert testimony to support this contention. By contrast, Mr. Metcalf opined that the Plan Amendment is not inconsistent with the policy because it affects only a five-acre tract, and because the Plan Amendment was justified by the existing demand. Further, Mr. David opined that the Plan Amendment is not inconsistent with Policy CON-6D. He noted, first, that according to the County, the Plan Amendment site does not contain jurisdictional wetlands. Second, he explained the Plan Amendment will not result in premature urban encroachment–i.e., a poorly planned expansion of low-density development spread out over large amounts of land, putting long distances between homes, stores, and work, and requiring an inefficient extension of urban infrastructure and services. According to Mr. David, the adopted Plan Amendment is the opposite of these characteristics because: a) it pertains to a very small site, with a range of permitted uses that is specifically limited by the accepted Declaration of Restrictions; b) it will reduce the distance between residents’ homes and local-serving convenience services; and c) it does not involve the extension of urban infrastructure and services. In addition, Mr. David opined that the term “premature” does not apply to the Plan Amendment, as evidenced by the public support of area residents for the gas and convenience uses and the applicant’s expert analysis of area need. Furthermore, Mr. David established that a gas station with a convenience store is not an “urban” use, and, therefore, the Plan Amendment does not allow “urban encroachment.” Petitioner contends that the Plan Amendment is inconsistent with Policy CON-6E, which states: “Miami-Dade County shall continue to pursue programs and mechanisms to support the local agriculture industry, and the preservation of land suitable for agriculture.” Petitioner offered no expert testimony to support this contention. By contrast, Mr. Metcalf opined that the Plan Amendment was consistent with Policy CON-6E because it affected less than five net acres, only 10 percent of the Parent Tract, and would provide convenience goods for the community and local farmworkers. He further explained, again, that the policy does not prohibit small-scale plan amendments that respond to a local need. Further, Mr. David opined that the Plan Amendment is not inconsistent with Policy CON-6E. He explained that the Plan Amendment does not prevent Miami-Dade County from continuing to pursue programs and mechanisms to support the local agriculture industry and the preservation of land suitable for agriculture. Moreover, the addition of the permitted uses on a small portion of an otherwise agricultural site, which will continue to be used for agricultural production, is not inconsistent with this policy. Urban Sprawl Petitioner alleges that the Plan Amendment fails to discourage the proliferation of urban sprawl, contrary to section 163.3177(6)(a)9, Florida Statutes. Petitioner offered no evidence or expert testimony to support this contention. By contrast, Mr. Metcalf opined that the Plan Amendment would not constitute scattered or discontinuous development because, inter alia, it would introduce uses designed to serve the existing nearby community. Mr. Metcalf opined that the Plan Amendment would allow for non-vehicular trips due to the proximity of the rural neighborhoods and would internalize vehicular trips without requiring access to Krome Avenue, consistent with strategies to discourage urban sprawl. Finally, Mr. Metcalf opined that at least six of the eight criteria provided in section 163.3177(6)(a)9.B. were satisfied by the Plan Amendment. Specifically, he opined that: The Plan Amendment will not have an adverse impact on natural resources or ecosystems; The Plan Amendment promotes the efficient and cost-effective provision or extension of public infrastructure and services because the subject property will not be served by public infrastructure and is already served by emergency services, and because it will reduce demand on roads from nearby neighborhoods, thereby reducing operational and maintenance costs; The Plan Amendment promotes walkable and connected communities and provides for compact development and a mix of uses at densities and intensities by providing convenience goods and services within walking or biking distance to nearby residential neighborhoods and local farm workers; The Plan Amendment promotes the conservation of water and energy by reducing water demands as compared to the former use of the Property, and by reducing existing trip lengths otherwise required to access goods and services; The Plan Amendment indirectly supports the preservation of agricultural areas and activities by providing diesel fuel, selling locally grown produce and other agriculturally supportive products, and by maintaining the agricultural use on the remainder of the Parent Tract; The Plan Amendment creates an improved balance of land uses by providing convenience goods and gasoline/diesel fuel in response to the demands of the neighborhood residents and local farm workers; The Plan Amendment remediates the existing, single use, urban sprawl development pattern by providing a commercial use in a compact urban form at an intensity to allow residents and local farm workers to obtain goods, gasoline, and diesel fuel without leaving the neighborhood; and The Plan Amendment does not impact the criterion for open space, natural lands and public open space. Similarly, Mr. David opined that the Plan Amendment would not result in the proliferation of urban sprawl; he analyzed each of the statutory indicators of urban sprawl in section 163.3177(6)(a)9.A. and found that none are present, meaning that the Plan Amendment does not fail to discourage the proliferation of urban sprawl. In addition, he found that four of the statutory indicators of the Plan Amendment that would discourage the proliferation of urban sprawl, are present. He found that the remainder were not applicable. Specifically, Mr. David opined that the Plan Amendment would meet the following four indicators: Directs or locates economic growth and associated land development to geographic areas of the community in a manner that does not have an adverse impact on and protects natural resources and ecosystems. As Mr. David explained, agriculture is a human development activity. Therefore, the Parent Tract is not in a natural state, nor does it contain natural resources and ecosystems. According to County staff’s own report, the Subject Property does not feature native wetland communities, specimen trees, endangered species, or natural forest communities. There are no jurisdictional wetlands, no water courses, and no federally designated critical habitat on the Subject Property or adjacent properties. The Subject Property is not in a wellfield. Other environmental considerations, including water and stormwater management, and flood protection, are directed through the pertinent permitting agencies at the appropriate time to ensure that any future development minimizes adverse impacts on the general environment. Promotes the efficient and cost-effective provision or extension of public infrastructure and services. As Mr. David opined, the Plan Amendment does not involve or require the provision or extension of County-owned public infrastructure and services. This, therefore, meets the definition of the terms “efficient” and “cost- effective,” since the County will not have to invest time or funding in the extension of such infrastructure and services. The County staff’s own report finds, as a fact, that the amendment would not negatively impact existing infrastructure and service within the UDB. Moreover, the contention that fire and rescue services would not meet national industry standards is irrelevant because: (1) the Comprehensive Plan does not adopt the national industry standard as the LOS; and (2) the Plan Amendment would not negatively impact current estimated travel times for fire and rescue services. Further, as Mr. David testified with respect to the first set of urban sprawl indicators, the Plan Amendment would not disproportionately impact fire and rescue services. V. Preserves agricultural areas and activities, including silviculture, and dormant, unique, and prime farmlands and soils. As Mr. David explained, the Plan Amendment preserves agricultural areas and activities because the balance of the Parent Tract will continue to be preserved as crop land, and because the uses allowed in the proffered Declaration of Restrictions include agricultural uses and a fueling station that could include the sale of diesel, which is in demand for agricultural uses. VII. Creates a balance of land uses based upon demands of the residential population for the nonresidential needs of an area. As Mr. David opined, today the area does not have a balance of land uses, as it is entirely dominated by rural estate residential and agricultural uses. By introducing a gas and convenience use supportive of agriculture, the Plan Amendment will create a better balance of land uses in the area. Today, the local population does not have access to any type of convenience shopping in the vicinity of this location, because it is situated along an 11-mile gap between such uses on Krome Avenue. Contrary to the contention that the applicant failed to demonstrate the use is needed or required by residents, the applicant provided written evidence of support from over 100 neighbors about the need for the proposed nonresidential use and its benefit to their quality of life. Moreover, according to the public hearing record, many residents also attended the public hearings to express their support for the Plan Amendment. Further supporting the finding of need, the corporate representative of Krome testified in detail about the neighborhood’s need for a gas station and convenience store. Data and Analysis Finally, Petitioner alleges that the Plan Amendment “is not based upon the relevant and appropriate data and analysis provided by the County planning staff at the Department of Regulatory and Economic Resources, as required by section 163.3177(1)(f), Florida Statutes.” Petitioner also alleges that the Plan Amendment is based on “the convenience of access to fuel for private property owners in the area and not on relevant data and analysis.” Petitioner’s allegations, both in the Amended Petition and the Joint Pre- Hearing Stipulation, are conclusory and do not supply any discernible rationale for why she contends the Plan Amendment is not based on relevant and appropriate data and analysis. Petitioner offered no evidence or expert testimony to support these contentions. By contrast, Mr. Metcalf opined that the Plan Amendment is based on “relevant and appropriate data and analysis” supporting the Plan Amendment contained in the record. Namely, the following sources constitute such “relevant and appropriate data and analysis”: Mr. Metcalf’s Comprehensive Plan Consistency Evaluation, which contains 78 pages of comprehensive data and analysis supportive of his consistency findings; a petition of support for the Plan Amendment signed by over 100 members of the surrounding community; testimony from community members at various public hearings indicating a need for the Plan Amendment; and a letter from the Dade County Farm Bureau stating that the organization had no objection to the Plan Amendment Further, Mr. David also opined that the Plan Amendment is based on, and supported by, appropriate data and analysis. He explained that the video recordings and the legislative history of the adoption hearings related to the disposition of the Plan Amendment application clearly show that the County Commission duly considered the analysis provided by County staff before making a decision. Commissioners asked staff members thoughtful questions and discussed various findings of the staff report throughout the public hearings. Mr. David explained that County staff’s input is not the only criterion upon which elected officials may rely. Indeed, relevant data and analysis were also submitted by the applicant as part of the Plan Amendment application, including the Comprehensive Plan Consistency Evaluation study prepared by Mr. Metcalf. The Consistency Evaluation study relies on professionally accepted data sources and Mr. Metcalf’s extensive expertise to provide a sound rationale for the requested Plan Amendment. The County Commission considered, and reacted in an appropriate way to, such relevant and appropriate data. The County Commission received and considered community input in the form of public testimony, much of which was in support of the Plan Amendment, as well as the applicant’s petition of support from members of the surrounding community expressing need for local gas and convenience uses. Finally, Mr. David’s expert report itself supplies further data and analysis supporting the Plan Amendment. Other Allegations Petitioner alleges that the Plan Amendment “depletes the Urban Development Boundary and Urban Expansion Areas.” The Comprehensive Plan includes the UDB to distinguish the area where urban development may occur from areas where it should not occur. The Comprehensive Plan defines the UEA as “the area where current projections indicate that further urban development beyond the 2020 UDB is likely to be warranted sometime between the year 2020 and 2030.” Petitioner fails to identify any inconsistency between the Plan Amendment and any UDB or UEA policies based on her assertion that depletion will occur. Moreover, there are no goals, objectives, or policies in the Comprehensive Plan that address the concept of “depleting” the UDB or UEAs. Petitioner also alleges that the County adopted the Plan Amendment “to benefit[] other private property owners and special interests.” Petitioner introduced no evidence to support this allegation, and the allegation is also irrelevant to whether the Plan Amendment is “in compliance.”
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity enter a final order determining that the Plan Amendment adopted by Miami-Dade County Ordinance No. 20-47, on May 20, 2020, is “in compliance,” as that term is defined by section 163.3184(1)(b), Florida Statutes. DONE AND ENTERED this 16th day of April, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Mary K. Waters Post Office Box 700045 Miami, Florida 33170 Christopher J. Wahl, Esquire Miami-Dade County Attorney's Office Suite 2810 111 Northwest 1st Street Miami, Florida 33128 Alannah Shubrick, Esquire Shubin & Bass, P.A. Third Floor 46 Southwest 1st Street Miami, Florida 33130 Tom Thomas, General Counsel Department of Economic Opportunity Caldwell Building, MSC 110 107 East Madison Street Tallahassee, Florida 32399-4128 Janay Lovett, Agency Clerk Department of Economic Opportunity Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128 S SUZANNE VAN WYK Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of April, 2021. James Edwin Kirtley, Assistant County Attorney Miami-Dade County Attorney's Office Stephen P. Clark Center, Suite 2810 111 Northwest First Street Miami, Florida 33128 Mark E. Grafton, Esquire Shubin & Bass Third Floor 46 SW 1st Street Miami, Florida 33133 David Winker, Esquire David J. Winker, P.A. 2222 Southwest 17th Street Miami, Florida 33145 Dane Eagle, Executive Director Department of Economic Opportunity Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128
The Issue Whether the City of Fernandina Beach (“City” or “Respondent”) Future Land Use Map Amendment, adopted by Ordinance 2019-08 (“FLUM Amendment”), qualifies as a small scale development amendment to the City Future Land Use Map (“FLUM”); and, if so, whether the FLUM Amendment is “in compliance” as that term is used in section 163.3187(5)(a), Florida Statutes (2018).1/
Findings Of Fact The Parties and Standing ATC is a not-for-profit Florida corporation with a substantial number of members who reside in, own property in, or operate businesses in the City. ATC is an affected person under chapter 163, part II. ATC’s Petition for Administrative Hearing was timely filed. Members of ATC submitted oral and written comments on the FLUM Amendment to the City prior to and at the adoption public hearing. Sierra Club is a national nonprofit organization with 67 chapters, including the Nassau County Sierra Club Group with a substantial number of members who reside in, own property in, or operate businesses in the City. Sierra Club participates in activities and outings on the Egans Creek Greenway (“Greenway”) for its members and the general public and has organized and participated in the removal of invasive species in the Greenway. Sierra Club is an affected person under chapter 163, part II. Sierra Club’s Petition for Administrative Hearing was timely filed. Members of Sierra Club submitted oral and written comments on the FLUM Amendment to the City prior to and at the adoption public hearing. Petitioners have standing to maintain these proceedings because they are affected persons and presented (or had their attorney or representative present) comments at the adoption hearing of the proposed FLUM Amendment. The City is a municipal corporation of the State of Florida with the duty and authority to adopt and amend a comprehensive plan, pursuant to section 163.3167. The City provided timely notice to the parties and followed the plan amendment procedures required by the City’s codes and chapter 163, part II. The subject property is located within the City’s jurisdiction. Amelia Bluff is a Florida limited liability company conducting business in the City. By virtue of its ownership of the property that is subject to the FLUM Amendment and this dispute, Amelia Bluff is affected by the challenge to the FLUM Amendment and has standing to intervene in this proceeding. The Subject Property The Property is part of a larger parcel of approximately 15.07 acres (the “School Board Property”) that was previously owned by the School Board of Nassau County (the “School Board”). The School Board Property was essentially undeveloped, though it had been used as outdoor classroom space for the high school. The School Board Property is located on the east side of Citrona Drive and is bounded on the west by Fernandina Beach High School/Middle School. The School Board Property is bounded on the south by the Hickory Street right-of-way, which is an access to the Greenway. Across from the Hickory Street right-of-way is Shell Cove, a residential subdivision that, according to the City Staff Report, is zoned R-2 with a Medium Density Residential FLUM designation. Shell Cove, which is completed, is of greater density than the proposed Amelia Bluff subdivision. The School Board Property is bounded on the north by a tract of undeveloped property. According to the City Staff Report, the property to the north is zoned R-1 with a LDR FLUM designation. The School Board Property is bounded on the east by 200 to 400 feet of publicly-owned, predominantly wetland property. That property merges into the western edge of the main channel of Egans Creek. The Egans Creek Greenway then extends eastward from the western edge of Egans Creek. The School Board Property includes a relatively steep bluff running generally from the northwest corner of the Property at Citrona Drive, diagonally to the southeast to the Hickory Street right-of-way. The elevation of the upland portion of the School Board Property, which is the portion proposed for development, is from 18 to 20 feet above sea level at its northwest corner, to 11 to 12 feet above sea level at its southeast corner. Roughly 3.76 acres of the School Board Property at and east of the toe of the bluff consists of jurisdictional wetlands, dominated by wetland vegetation, at an elevation of 1 to 2 feet above sea level. The upland portion of the School Board Property includes the 10.29 acres of the proposed subdivision. Those uplands were, at the time of the June 2016 purchase by Amelia Bluff, fully wooded with predominantly hardwood species, interspersed with pine, holly and other species. The 10.29 acres of the proposed subdivision are appropriately zoned R-1 for low-density residential development. The Property that is the subject of the FLUM Amendment consists of approximately 6.40 acres of uplands within the 10.29 acres of the proposed subdivision. The Property is designated on the FLUM as Conservation. The remainder of the proposed subdivision is designated on the FLUM as LDR. The evidence indicates that there is no difference in the nature of the tree cover in the 6.4 acre Property and in the remaining acreage of the proposed subdivision. Maritime Forest/Maritime Hammock There was a good deal of testimony directed to the issue of whether the trees on the Property constitute a “maritime forest” or an imperiled “maritime hammock.” The tree cover on the Property, as established by the tree survey, consists largely of live oak, laurel oak, and water oak, interspersed with magnolia, pine, red maple, and other species. Ms. Jetton described the cover of the Property as maritime forest, and stated that “maritime forest” is identified as an imperiled community in the Florida Natural Areas Inventory (“FNAI”) and designated in the Egans Creek 2015 Greenway Management Plan (“Greenway Management Plan”) as such. Although a “maritime hammock” is designated as an imperiled vegetative community, a “maritime forest” is not. Ms. Jetton later clarified her testimony, stating that “I probably shouldn't have said ‘hardwood hammock.’ I'm accustomed to using that term in the Florida Keys. I know this is a maritime forest, but it is composed of hardwood trees, live oak trees, pine trees.” When asked about the terms “maritime forest” and “maritime hardwood hammock,” she stated that “it was a faulty use of my words. I should have stuck with ‘maritime forest.’” There was little to suggest that the Property contains a “maritime hammock,” which is a specific type of imperiled vegetative community identified in the FNAI and the Greenway Management Plan. Mr. Gerald indicated that it did not. Rather, Mr. Gerald indicated that the type of “maritime forest” that exists on the Property, i.e., a forest on a barrier island, is “very common throughout the mainland, throughout Nassau County, Duval County, St. Johns, Clay, all the way out through pretty much all of North Florida.” It is not an imperiled or unique community, as is a maritime hammock. The Ecological Assessment of Egans Creek Greenway indicates that maritime hammock communities associated with the Greenway “are located along the eastern part of the Greenway,” with another near an indeterminate stretch of Jasmine Street and bisected by a wide and deep canal that is not surficially connected to Egans Creek, and a third set at the southern portion of the Greenway that appear to be adjacent to a beach dune community. There is nothing in the Ecological Assessment to suggest that a maritime hammock community exists to the west of the Greenway. The evidence is insufficient to support a finding that the Property contains an imperiled “maritime hammock” as described in the FNAI and the Ecological Assessment of Egans Creek Greenway. There is little question that the Property is a beautifully wooded tract. However, the issue is not whether the Property merits preservation, but whether the FLUM Amendment, that will allow for the development of the Property as the Amelia Bluff subdivision, is inconsistent with the Comprehensive Plan. Egans Creek Greenway The Greenway is a system of approximately 317 acres of publicly-owned waterways, marshes, and wetlands that extends in a north-south direction through Amelia Island, separating the City’s beaches from its downtown and commercial areas. Egans Creek is not an Aquatic Preserve or Outstanding Florida Water. Egans Creek flows into the Amelia River and the Fort Clinch State Park Aquatic Preserve. The Greenway is a regional drainage facility that receives untreated stormwater from areas including part of the original plat of the City. Water quality in Egans Creek is degraded, though the creek is not designated as “impaired.” The City’s Greenway Management Plan provides that “[t]he primary purposes of the project are to protect this sensitive natural area from development,” and that “[a]ll of the property encompassed in this project will be designated as recreational/wetlands and protected in the City’s future land use plan.” The Greenway extends from the western bank of the Egans Creek channel eastward. The Greenway is separated from the Property by 200 to 400 feet of publicly-owned, predominantly wetland property, the first hundred feet or so of which is dense willow/wax myrtle/Chinese tallow shrub, and then brackish march to the Egans Creek channel. Procedural History of the Amelia Bluff Subdivision In June 2016, Amelia Bluff entered into a contract to purchase the 15.07-acre School Board Property from the School Board. The School Board Property includes the 6.4-acre Property. Amelia Bluff proposed to develop the upland portion of the School Board Property, including a significant portion of the Property, for the proposed subdivision. On September 27, 2016, the School Board filed an application to vacate a 60-foot right-of-way known as Gum Street extending through the School Board Property in connection with the School Board’s intent to sell the School Board Property to Amelia Bluff, memorialized as City Planning Advisory Board (“PAB”) Resolution 2016-24. On August 10, 2017, the School Board, Amelia Bluff, and the City executed a Memorandum of Understanding (“MOU”), which memorialized the parties’ understanding of the conditions of the City’s agreement to vacate a portion of Gum Street extending through the School Board Property. The MOU stipulated that Amelia Bluff would (i) provide access to the abutting properties owned by the Florida Department of Transportation (“FDOT”) located on the eastern boundary of the School Board Property through the creation of a City right-of-way to connect Hickory Street to the property owned by the FDOT; (ii) transfer the wetlands portion of the School Board Property to the City for conservation; and (iii) donate $115,000 to the City for land conservation efforts, to be paid at the conclusion of all legal challenges and/or appeals for all subdivision approvals. On August 15, 2017, the City adopted: (i) Ordinance No. 2016-40, which vacated a portion of Gum Street; and (ii) Resolution 2017-123, which approved the MOU. On November 29, 2017, the School Board conveyed the School Board Property to Amelia Bluff. On February 16, 2018, Amelia Bluff filed an application for preliminary plat approval for the subdivision. On March 9, 2018, in accordance with the MOU, Amelia Bluff conveyed to the City approximately 3.76 acres of jurisdictional wetlands in two parcels (3.63 acres and 0.13 acres in size) and dedicated to the City approximately 0.917 acres for the right-of-way connection between Hickory Street and the FDOT property. The City accepted the conveyance of wetlands and dedication of right-of-way on March 20, 2018, pursuant to Resolutions Nos. 2018-39 and 2018-40, respectively. On April 11, 2018, the PAB reviewed the application for preliminary plat and issued a recommendation of approval. On May 1, 2018, the Commission approved the preliminary plat for the Amelia Bluff subdivision. On May 10, 2018, the City’s Technical Review Committee (“TRC”) reviewed and approved the preliminary plat for technical completeness and issued a compliance letter on May 14, 2018 (SPR 2017-09), authorizing the commencement of subdivision infrastructure improvements. In August 2018, Amelia Bluff commenced work on subdivision infrastructure improvements. On October 18, 2018, Amelia Bluff applied for final subdivision plat approval. The City and Amelia Bluff determined that the Property was designated Conservation under the Comprehensive Plan and would require a Comprehensive Plan amendment to change the FLUM designation of the Property from Conservation to LDR. On November 15, 2018, Amelia Bluff filed the application for the FLUM Amendment to change the Conservation designation of the Property. City professional staff reviewed the FLUM Amendment application and determined that the FLUM Amendment sought by Amelia Bluff was consistent with the Comprehensive Plan and Land Development Code, and furthered the objectives of the Comprehensive Plan. The determination was memorialized in a Staff Report prepared for consideration by the PAB prior to the PAB’s regular meeting on January 9, 2019. On January 9, 2019, the PAB reviewed the applications for the FLUM Amendment and final plat and issued recommendations of approval for the FLUM Amendment (PAB 2019-01) and final plat (PAB 2018-26). On February 19, 2019, the Commission approved the FLUM Amendment on first reading. On February 21, 2019, Amelia Bluff stopped work on the subdivision infrastructure improvements pursuant to the City’s request. On April 16, 2019, the Commission adopted: (i) Ordinance No. 2019-08, which approved the FLUM Amendment to change the FLUM designation of the Property from Conservation to LDR, allowing up to four residential dwelling units per acre; and (ii) Resolution 2019-57, which approved the final subdivision plat. Because of Petitioners’ pending challenge, the effective date of Ordinance No. 2019-08 is delayed. The Ordinance provides: “If challenged within 30 days after adoption this Ordinance may not become effective until the state land planning agency or the Administration Commission, respectively, issues a final order determining that the adopted ordinance is in compliance pursuant to Section 163.3187, Fla. Stat.” Similarly, Resolution 2019-57 provides “[t]his Resolution shall become effective on the same date as Ordinance 2019-08 (a small scale Future Land Use Map Amendment that becomes effective pursuant to Section 163.3187, Fla. Stats.)” Thus, development may resume without any further action by the Fernandina City Commission if the FLUM Amendment becomes effective. Other Governmental Authorizations On December 28, 2017, the St. Johns River Water Management District (“SJRWMD”) issued Amelia Bluff an Environmental Resource Permit, No. 151737-1 (“ERP”), which notice was recorded in Official Records Book 2177, Page 1100 of the Public Records of Nassau County, Florida on February 15, 2018. On May 14, 2018, the Florida Department of Environmental Protection (“FDEP”) issued Amelia Bluff Permit No. 0003152-107-DWC, which authorized Amelia Bluff to construct a domestic wastewater collection/transmission system on the site, and accepted Amelia Bluff’s Notice of Intent to Use the General Permit for Construction of Water Main Extensions for PWSs. The Proposed Subdivision The proposed subdivision consists of 30 lots, designed with two entrances from Citrona Drive, and two cul-de-sacs. The legal description for the final plat approved on April 16, 2019, in Resolution 2019-57, describes the proposed subdivision as containing “10.29 acres more or less.”3/ In addition to the property conveyed to the City or dedicated to the city as right-of-way, the final plat depicts Tract “C” (0.25 acres) as a “recreation/open space tract” that is removed from development. The proposed subdivision was initially designed with stormwater detention ponds near the front of the subdivision, near Citrona Drive and away from the bluff. However, placement at that location would have required extensive grading and tree clearing to direct the flow of water against its natural flow direction. After discussion with City staff, the decision was made to reconfigure site drainage so that stormwater would be directed via overland flow and drainage structures from northwest to southeast, generally following site topography. Stormwater from lots, sidewalks, and streets will be directed to two dry detention ponds located at the southeast portion of the subdivision, and adjacent to the bluff. By allowing stormwater to follow the natural topography, grading and clearing for stormwater purposes will be minimized. The two dry detention ponds are connected by a 12-inch pipe approximately 100 feet in length that is designed to equalize water levels in the ponds. The ponds have a discharge structure in the southernmost pond that is designed to discharge treated stormwater after a 25-year storm to the bottom of the bluff. Efforts were made to design utilities, the stormwater system, and the roadways and associated structures to avoid particular specimen trees within the rights-of-way. In addition, Tract “C” located near the northwest corner of the subdivision, as well as portions of Tract “A” in the vicinity of the dry detention ponds were preserved due to an abundance of trees at those locations. The subdivision is designed with a 25-foot wetland buffer that prohibits removal of native vegetation or other disturbance within 25 linear feet of the jurisdictional wetlands. The buffer encompasses the entirety of the bluff. It was noted during the hearing that the buffer terminates near the southwest corner of the proposed subdivision. It was explained, credibly, that the 25-foot buffer is to buffer wetlands, and that there were no wetlands within 25 feet of the southwest corner that required a buffer. It was also noted that several lot lines extended into the wetland buffer. The buffer will be marked and restrictions recorded. Much of the evidence offered by Petitioners was directed to concern that the disturbance of the Property and removal of trees would destabilize the “relic dune” upon which the proposed subdivision is to be built. The testimony regarding that issue was conclusory, and not based on site- specific studies. However, Dr. McPhillips noted that there is residential development up and down the Greenway, and that the adjacent Shell Cove subdivision had experienced no evidence of dune collapse. Work Completed to Date In June 2016, after Amelia Bluff contracted to purchase the School Board Property, the owner representative, Wirt Beard, met with City planning staff to engage in preliminary discussions regarding the development of the proposed subdivision. At that time, Amelia Bluff and the City planning staff noted that the Property was subject to a Conservation designation on the FLUM. The planning director at the time, Marshall McCrary, indicated that it was his opinion that the FLUM Conservation designation was a “scrivener’s error,” and that it would be taken care of. Considerable discussions regarding the abandonment of the Gum Street right- of-way then commenced, and the Conservation designation was essentially disregarded. Nonetheless, there is no question but that Amelia Bluff knew and understood at that time that the Property was not designated for development. Amelia Bluff’s decision to proceed with development planning and construction was not taken without considerable support by the City. Despite the fundamental issue of whether the proposed subdivision could go forward in light of the unresolved Conservation designation, the City proceeded with a number of actions that would have led Amelia Bluff to the reasonable conclusion that the matter was, in fact, being “taken care of.” As set forth previously, the City entered into the MOU with Amelia Bluff and the School Board that required Amelia Bluff to establish a City right-of-way through the Property to connect Hickory Street to FDOT property and to transfer roughly 3.76 acres of wetlands on the Property to the City for conservation, upon which the City would vacate a portion of Gum Street extending through the Property. Ordinances approving the MOU and vacating the Gum Street right-of-way were adopted on August 15, 2017. The sale of the School Board Property to Amelia Bluff was then closed on November 29, 2017. On March 9, 2018, in accordance with the MOU, Amelia Bluff conveyed the 3.76 acres of jurisdictional wetlands to the City, and dedicated 0.917 acres for the FDOT right-of-way. The City accepted both by resolution on March 20, 2018. On February 16, 2018, Amelia Bluff filed its application for preliminary plat approval. On April 11, 2018, the PAB reviewed the application for preliminary plat and recommended approval, which was approved by the Commission on May 1, 2018. On May 10, 2018, the TRC issued a compliance letter authorizing the commencement of subdivision infrastructure improvements. Amelia Bluff commenced work on infrastructure improvements for the Project in August 2018. When work was suspended on February 21, 2019, pursuant to the City’s request, the stormwater collection system was substantially complete, stormwater ponds had been cleared and constructed, and the stormwater collection system had been installed. In addition, roads had been cleared and curbs installed. City Commission FLUM Amendment Meetings The undersigned viewed and listened to every minute of the City Commission meetings of February 19, 2019; March 19, 2019; and April 16, 2019. The exclusive theme of those meetings was whether the Conservation designation of the Property was a “scrivener’s error.” The staff presentations were directed solely to the historic zoning and land use designations of the Property. Aerial photographs going back to 1943, and plats going back nearly as far, formed the temporal starting point of the presentations. Charts, maps, and plans were presented and discussed that showed the Property to be subject to a residential “zoning map” designation starting in 1961 and extending through the 1990 FLUM. The Property then became subject to a Wetlands Protection zoning map designation in 1993 and FLUM designation in 1997. In 2005, the Property appeared with a LDR designation in the City GIS FLUM Map. The Property was then made subject to the Conservation designation in 2006, a designation that was adopted by City ordinance. Regardless of how the Property became subject to the Conservation designation, that is its official designation, adopted by ordinance, reviewed by the state land planning agency, and not subject to any timely challenge. The staff presented little or no “data and analysis” as to the compliance of the FLUM Amendment itself with the Comprehensive Plan for consideration by the Commission. The discussion of the FLUM Amendment by the Commissioners involved the alleged “scrivener’s error,” the cost associated with litigating a Bert Harris Act “takings” claim if the FLUM Amendment was denied, the cost of acquiring the Property from Amelia Bluff and the source of funds to do so, and nothing more. Though the evidence establishes that the Commission had “data and analysis” as to the compliance of the FLUM Amendment to the Comprehensive Plan, there was not a whisper of acknowledgment or direct evidence of consideration. Several Commissioners, and particularly Mr. Chapman and Mr. Kreger, made statements that their votes to approve the FLUM Amendment were driven solely by the assumption that the Conservation designation was an error, with Commissioner Chapman discussing the cost of buying the Property in lieu of other sensitive lands in the community, stating that “I cannot justify giving up . . . 452 acres of land for six, I just can’t do it,”4/ and Vice-Mayor Kreger stating explicitly at the April 16, 2019, meeting that “to me, this is a mapping error, . . . I made the motion and I will vote yes on this.”5/ The undersigned is convinced that, at least as to the public discussions of the issue, little consideration was given to whether the FLUM Amendment was consistent with the Comprehensive Plan. If the issue in this case was whether the Commission actually considered available data and analysis supporting consistency, the evidence would suggest the answer is “no.” However, the issue in this de novo proceeding is whether data and analysis that was available to the Commission at the time of the adoption of the FLUM Amendment, and whether that data and analysis, together with any subsequent analysis, establishes that the FLUM Amendment is “in compliance” with the Comprehensive Plan under a “fairly debatable” standard. Available Data and Analysis Section 163.3177(1)(f) requires all plan amendments to be based upon relevant and appropriate data and an analysis by the local government that may include, but is not limited to, surveys, studies, and other data available at the time of adoption of the plan amendment. Section 163.3177(2) requires the elements of the Comprehensive Plan to be supported by data and analysis. Likewise, section 163.3177(6)(a)8. requires FLUM amendments to be based upon an analysis of data. Section 163.3178(2) states that a local government’s coastal management element of its Comprehensive Plan must be based upon studies, surveys, and data. When the application for the FLUM Amendment was filed, Amelia Bluff provided the City with a substantial volume of information for consideration by City staff, and to which the Commission had access at the time it voted to approve the FLUM Amendment. The surveys, studies, and data included: a site survey prepared by Manzie & Drake Land Surveying; engineering plans for the proposed subdivision, including water and sewer design and stormwater system design prepared by Gillette & Associates, Inc.; a wetland delineation, wetland survey, and documents conveying all wetlands to the City; a topographic survey; preliminary and final plats which include a depiction of the upland/wetland buffer; stormwater modeling data and site drainage calculations prepared by Gillette & Associates, Inc.; the SJRWMD ERP; a geotechnical and soils report for the stormwater model and roads prepared by AGES of Jax, Inc.; a tree survey with input from an arborist; and a wildlife assessment prepared by LG2 Environmental Solutions, Inc. Challenges to the Plan Amendment Small Scale Development Amendment Section 163.3187 applies to “small scale development amendments,” which may be adopted when “[t]he proposed amendment involves a use of 10 acres or fewer.” Petitioners allege that the FLUM Amendment is not a small scale development amendment since the 6.4 acre FLUM Amendment is part of a use, i.e., the proposed subdivision, that is greater than 10 acres in size. The FLUM Amendment is designed to change the land use category on the 6.4-acre Property. Both Ms. Gibson and Mr. Teeple testified credibly that the size of a FLUM amendment application is the acreage of the property on which the land use category is to be changed. Mr. Teeple testified that, in his extensive experience, he was unaware of any instance in which the 10-acre threshold was applied to the applicant’s total acreage, on the size of a “parent parcel,” or on the overall size of a development of which a FLUM amendment parcel was a part. Ms. Jetton testified on behalf of Petitioners that the Amelia Bluff subdivision is the “use,” which includes “the lots, the driveways, the stormwater ponds, the entire use,” although only the land use designation on the 6.4 acres would be amended. She asserted that the FLUM Amendment “should have been for the Conservation land with an explanation along with it that it would be part of a use that includes” the entire proposed subdivision. Her opinion as to “use” notwithstanding, Ms. Jetton testified that if the FLUM Amendment had occurred prior to the plat approval, “and they only offered the Conservation land as a small scale amendment, then that would have met the statute,” and the FLUM Amendment would properly be for the 6.4 acres for which the land use category change was being sought. Ms. Jetton, and Petitioners, rely exclusively on St. George Plantation Owners Association, Inc. v. Franklin County, Case No. 95-5124GM (Fla. DOAH Feb. 13, 1997; Fla. ACC Mar. 27, 1997). That case will be discussed in the Conclusions of Law herein. The preponderance of the evidence demonstrates that it is the established and accepted practice of the City and the regional council to base the determination of whether an amendment is a small scale amendment on the size of the property subject to modification. That determination is consistent with the plain language of the statute and is accepted as reflecting an accurate application of the standards for a small scale FLUM amendment. Internal Inconsistency In the Joint Pre-hearing Stipulation, Petitioners identified the specific goals, objectives, and policies of the Comprehensive Plan that they assert render the FLUM Amendment inconsistent with the Comprehensive Plan. Each of those goals, objectives, and policies is addressed as follows: Policy 5.07.09. The City shall prohibit any development activity that would potentially endanger lives and/or harm property, water quality, and quantity or any other valued environmental system resulting from an alteration to existing drainage structures and natural drainage patterns. Ms. Gibson testified that the City applied this policy and found that it was met as evidenced by modifications to the original stormwater system design and the permitting of the stormwater system by the city and the SJRWMD. As originally configured, the stormwater system would have required significant regrading and virtual clear-cutting of the entire Property to allow stormwater to flow against the natural topography of the land to the front of the proposed subdivision adjacent to Citrona Drive. With input and direction from the City, the system was redesigned to direct stormwater generally from the high point of the property to its low point at the southeastern corner, following the natural topography of the proposed subdivision. All stormwater is to be directed to the permitted stormwater facility. The 25-foot upland buffer is not designed or intended to treat stormwater. The stormwater system consists of dry detention ponds, which are preferred by the SJRWMD. The vertical percolation rate is calculated at 42.8 feet per day. The horizontal percolation rate was calculated at 0.6 feet per day. Mr. Gillette testified that the stormwater system was designed to manage 100 percent of the stormwater from a 25-year storm event, which exceeds the City requirement of a system capacity to handle a 10-year storm event. The treatment volume does not include infiltration and percolation of stormwater. Mr. Desilet reviewed the drainage plans and calculations and determined that they were in compliance with the City Land Development Code. He further confirmed that Amelia Bluff received a stormwater permit from the SJRWMD as required by the Local Development Order. The system is designed and engineered such that flow from the proposed subdivision in its post-development state does not exceed flow from the proposed subdivision in its pre-development state. The system is designed to hold and treat stormwater on site from a 25-year storm. After that, stormwater will be allowed to “pop-off” to the stormwater drain and culvert. Nonetheless, the preponderance of the evidence establishes that any water leaving the site will be treated stormwater, meeting both permitting and water quality standards. Mr. Gillette testified that the modeling performed in support of the stormwater system indicates that for a mean storm event (5.4 inches of rain), pre-development stormwater outfall from the proposed subdivision is 3.8 cubic feet per second (“CFS”), while post-development outfall is expected to be 0.67 CFS. For a 25-year storm event, pre-development stormwater outfall from the proposed subdivision is 16 CFS, while post- development outfall is expected to be 5.6 CFS. Mr. Desilet testified that the engineered stormwater system proposed by Amelia Bluff “addresses water quality by providing the minimum required treatment volume and infiltration under [SJRWMD] guidelines.” As such, he testified that under rules governing the SJRWMD, “[i]f the specified volume required by the pervious area of the site is provided, and it's shown that it infiltrates in the system and it meets other site criteria in the [SJRWMD] code, it is presumed to meet state water quality standards.” Consistent with Mr. Desilet’s testimony, Florida Administrative Code Rule 62-40.432(2)(a), which is applicable to the SJRWMD, provides that “[w]hen a stormwater management system complies with rules establishing the design and performance criteria for such systems, there shall be a rebuttable presumption that the discharge from such systems will comply with state water quality standards.”6/ The stormwater system complied with the applicable rules, thus leading the SJRWMD to issue a stormwater permit to Amelia Bluff. There was no persuasive evidence introduced to rebut the presumption that state water quality standards would be met. The City reviewed Amelia Bluff’s stormwater plans for compliance with the City’s Land Development Code and determined that water quality was addressed, and that the data and analysis regarding stormwater from the proposed subdivision was compliant with the Comprehensive Plan. The evidence offered to establish that the stormwater system designed for the proposed subdivision would “endanger lives and/or harm property, water quality, and quantity or any other valued environmental system resulting from an alteration to . . . natural drainage patterns” was not persuasive. The evidence does not establish beyond fair debate that the FLUM Amendment is inconsistent with Comprehensive Plan Policy 5.07.09. Policy 5.07.12. The City shall require low-impact development strategies or conservation-based landscape planning and installation, water efficient irrigation, and appropriate measures that promote conservation of water resources and reduction of non-point source pollution as part of sustainable water management for new public and private development. New waterfront development shall be designed so that stormwater runoff and erosion are retained on-site or are channeled so as not to degrade water quality of adjacent waters. Ms. Gibson testified that the City required Amelia Bluff to apply low-impact development strategies, including its dedication of all wetlands to the City; the requirement of the 25-foot, naturally vegetated wetland buffer; modifications to the stormwater system to account for the natural topography of the land; and modification and realignment of infrastructure to preserve significant trees. Mr. Teeple testified that the proposed density of less than three units per acre is less than the four units per acre allowed under the LDR designation, thus supporting his opinion that Amelia Bluff applied a low-impact development strategy. Petitioners’ alternatives to the low-impact development strategies identified by Ms. Gibson included clustering all development onto that portion of the proposed subdivision currently designated as LDR, requiring swales in lieu of a “focused” drainage pattern, and increasing the width of the buffer. The City’s decision to accept Amelia Bluff’s proposed subdivision as consistent with its low-impact development policy was supported by data and analysis, and was a legislative decision to accept the plans and specifications as being in compliance with the Comprehensive Plan. There are different ways to measure the effectiveness of low-impact development strategies, and people may -- and do -- disagree as to the appropriate means to accomplish the policy. The issue is not, however, which strategies should be implemented, but whether the City’s decision to accept Amelia Bluff’s strategy was beyond fair debate. The evidence does not establish beyond fair debate that the FLUM Amendment is inconsistent with Comprehensive Plan Policy 5.07.12. Objective 5.08. - Wetlands Protection and Preservation Petitioners assert that the FLUM Amendment is inconsistent with Objective 5.08. of the Comprehensive Plan, which provides as follows: The City shall direct incompatible land uses away from wetlands, and shall protect and preserve wetlands from physical and hydraulic alterations, in order to maintain the following functions: natural biological functions . . . natural drainage systems impacting sedimentation patterns, salinity distribution, flushing characteristics . . . shielding other areas from wave action, erosion, or storm damage; storage areas for stormwater and flood waters; natural recharge areas; and natural water filtration processes that serve to purify water. Objective 5.08. is implemented through the City’s wetland Comprehensive Plan policies. Petitioners allege that the proposed FLUM Amendment is inconsistent with the following policies: Policy 5.08.05. The City shall continue to ensure the protection and mitigation of wetlands, consistent with existing state and federal regulations, and shall ensure the following: Land uses which will have little or no adverse impact on wetlands; Standards and criteria for wetlands which possess significant functional value; and Activities that would provide direct public benefits and that would exceed those benefits lost to the public as a result of the degradation or destruction of wetlands. Policy 5.08.06. The City shall protect wetlands from impacts of adjacent development, and shall ensure through regulations included in the Land Development Code: Proper siting of development structures and infrastructure, including clustering of development away from wetlands; Location of buffer zones of native vegetation around wetlands and surface water bodies to prevent erosion, retard runoff, and provide habitat; and Setback of buildings and other structures from wetlands and water bodies. Policy 5.08.08. In instances in which development is proposed that is adjacent to a wetland, the boundary of a wetland transition area shall be established by an on-site field survey . . . . The City shall maintain land development regulations which ensure that the transition area provides a buffer between wetlands and upland development. Such buffer shall ensure existing vegetation is not disturbed; where new vegetation is required, plants or ground cover native or appropriate to a wetlands transition area shall be used. The data and analysis established clearly that the Property encompassed by the FLUM Amendment includes no wetlands, and that the proposed subdivision will result in no direct degradation, destruction, or impact to wetlands. Ms. Gibson testified that the Wetlands Protection and Preservation objective and policies were advanced in several ways, including the dedication of all wetlands on the School Board Property to public ownership so as to protect and preserve the wetlands, the creation of the wetland buffer between wetlands and the upland development, and the requirement -- enforced through the plat and engineering documents, Homeowners’ Association covenants, and City code provisions -- that native vegetation be maintained in the buffer. Petitioners argued that wetlands are adjacent to the proposed subdivision, that stormwater can drain from the proposed subdivision to the wetland, and that, ipse dixit, there will be an adverse affect on the wetlands. That allegation was not proven, and is inconsistent with the SJRWMD stormwater permit creating a presumption that the stormwater system complies with water quality standards. The City’s decision to accept Amelia Bluff’s proposed subdivision as consistent with its wetland protection and preservation objective and policies was supported by data and analysis, and was a legislative decision to accept the plans and specifications as being in compliance with the Comprehensive Plan. The evidence does not establish beyond fair debate that the FLUM Amendment is inconsistent with Comprehensive Plan Objective 5.08., or Policies 5.08.05, 5.08.06, or 5.08.08. Objective 5.10. - Wildlife Planning. The City shall encourage development and management of resources in a manner which sustains local wildlife, their habitat and the ecological services of the land, and shall protect significant habitats of populations of threatened or endangered species in accordance with the provisions of the Endangered Species Act (ESA) 16 USC 1531, and Florida Administrative Code Division 68A. Objective 5.10. is implemented through the City’s wildlife management Comprehensive Plan policies. Petitioners allege that the proposed FLUM Amendment is inconsistent with the following policies: Policy 5.10.01. When reviewing development proposals for public or private development, the City shall take into account the following strategies: * * * Preserve native vegetation and habitat types; Preserve forested areas, the understory and native soil associations; and Avoid activities that dehydrate landscape features or alter seasonal water flows or duration of inundation to wetlands, hammocks or water bodies. Policy 5.10.02. The City shall protect significant habitats for native wildlife and vegetation in areas of known environmentally sensitive habitats, including habitats of endangered species. The Land Development Code shall be updated with regulations to ensure that prior to the issuance of development permits in such areas, detailed inventories and assessments of impacts of development shall be conducted. If on-site habitat will be disturbed by new development, the habitat shall be relocated or the impacts mitigated, if viable by virtue of its size, configuration, and connecting habitat. . . . Mr. Teeple testified that the donation of wetlands and the efforts taken, as described herein, to minimize impacts to trees on the Property, is consistent with the Comprehensive Plan. When confronted with the fact that the proposed subdivision will not “preserve the forested areas, the understory, and the native soil associations,” Mr. Teeple testified credibly that Policy 5.10.01 “doesn't say ‘preserve all native vegetation and all habitat types.’ It's incongruous with the nature of development.” The data and analysis demonstrate that Amelia Bluff made efforts to preserve native vegetation and forested areas on the property, as described herein, though it is without question that the Property will be subject to the normal impacts of low- density development. Compliance with the stormwater standards is sufficient to demonstrate that there will be no adverse water quality or water quantity impacts from the stormwater collection and management system, and that the system will not alter seasonal water flows or duration of inundation to wetlands, hammocks, or water bodies. Dr. McPhillips testified as to her concern that the buffer vegetation on the northern -- and more elevated -- side of the proposed subdivision will be desiccated, and that the vegetation on the southern -- and lower -- side near the dry detention ponds will, from time to time, become saturated. Her concern was that trees at the buffer would not be able to generate interfacial friction between the roots and soil to stabilize them under any appreciable wind load. However, Dr. McPhillips was not familiar with the adjacent Shell Cove subdivision, which has similar characteristics, or the requirements of the SJRWMD and the calculations required for a stormwater permit. Her opinions were not supported by specific facts as to how the site will hold or drain water, and were more in the nature of “pure opinion” testimony based on her admittedly extensive professional education and experience. The data and analysis was adequate to establish that the stormwater management system would not result in adverse impacts resulting from the system, including dehydration of landscape features. As to Policy 5.10.02, the evidence indicated that the City Land Development Code required detailed inventories and assessments of impacts of development. As part of the data available to the City, Amelia Bluff provided a wildlife survey. The survey established that the Property contained no environmentally sensitive habitats, including habitats of endangered species. The known environmentally sensitive habitats in the form of wetlands have been protected through conveyance to public ownership and the establishment of naturally vegetated buffers to protect off-site habitat. The City’s decision to accept Amelia Bluff’s proposed subdivision as consistent with its wildlife planning objective and policies was supported by data and analysis, and was a legislative decision to accept the plans and specifications as being in compliance with the Comprehensive Plan. The evidence does not establish beyond fair debate that the FLUM Amendment is inconsistent with Comprehensive Plan Objective 5.10., or Policies 5.10.01 or 5.10.02. Objective 5.11. - Tree Preservation and Urban Forestry. The City shall commit to preservation of community trees and the urban forest to improve air quality, community health, quality of life, aesthetics, and energy conservation. Objective 5.11. cannot be read in isolation from the policies adopted to implement the objective. Those policies include Policy 5.11.09., which requires the City’s Land Development Code to “protect and retain existing trees and require replacement of trees lost to land clearing,” with the objective of “achiev[ing] no net loss of trees per development site,” as well as “[m]aintenance of a Tree Fund for payments in lieu of replanting or mitigation of protected trees.” Mr. Platt testified that the City’s objective has been met through a number of strategies and policies applied to Amelia Bluff. Mr. Platt and Ms. Gibson testified that individual lots will be required to submit a land clearing application at the time of the single-family home permit, and the lot grading and tree removal associated with each individual lot will be reviewed on a parcel-by-parcel basis at that time. The City's Land Development Code has provisions for the protection of noninvasive, healthy trees larger than five inches in diameter at breast height (“DBH”) within five feet of a home footprint. For any tree in the protected class that must be removed, the City has a mitigation and minimum planting ordinance which requires that any tree planted as part of mitigation be a noninvasive, native tree, at a minimum of two and a half inches DBH and eight feet in height. In addition to the foregoing, the City Land Development Code has a provision that allows for up to 50 percent of on-site mitigation to be accomplished through an “inch-for-inch” payment to a tree mitigation fund. That provision is, according to Mr. Platt, rarely used, though it is consistent with Policy 5.11.09 described above. As indicated previously, Amelia Bluff set aside several areas of the proposed subdivision, both within the Property and within the remaining generally indistinguishable acreage, for protection of both important specimen trees and clusters of trees, most notably Tract “C” (0.25 acres) near the northwest corner of the proposed subdivision, areas around the dry detention ponds (0.17 acres), and tree “islands” in the cul- de-sacs. In addition, Amelia Bluff worked with the City to realign roadways and utilities to avoid particular trees. Petitioners assert that Objective 5.11. has not been met because the overall forest will be altered, not only through the installation of infrastructure, but also through the clearing that will be necessary for homes and driveways. Petitioners argue that the inevitable thinning of the forest and damage caused through construction activities will weaken the remaining trees, and diminish the storm protecting qualities of an unbroken forest. The City’s decision to accept Amelia Bluff’s proposed subdivision as consistent with Objective 5.11. was supported by data and analysis, including the tree survey and the retention/removal plan. It was a legislative decision to accept the plans and specifications, when considered in conjunction with the related policies and the City’s Land Development Code, as being in compliance with the Comprehensive Plan. People clearly, and in good faith, disagree as to the best means of preserving the urban forest. Development, even of low density, by its very nature entails a modification of the natural state. However, the issue is whether the City’s determination that the FLUM Amendment, including protections proposed by Amelia Bluff, was, beyond fair debate, in error. The evidence does not establish beyond fair debate that the FLUM Amendment is inconsistent with Comprehensive Plan Tree Preservation and Urban Forestry Objective 5.11. Objective 6.05. - Open Space. Open spaces shall be protected within urbanized areas for their aesthetic, health, environmental, and economic benefits. The City shall continue to maintain standards in its land development regulations for the provision and maintenance of open space in the community, including in private developments and publicly owned lands. Objective 6.05. is implemented through the City’s open space Comprehensive Plan policies. Petitioners allege that the proposed FLUM Amendment is inconsistent with the following policy: Policy 6.05.03. Privately-owned open space, such as those within subdivisions or PUD developments, which consist of a conservation future land use or contains environmentally sensitive lands, shall be protected through the acquisition of conservation easements. There was surprisingly little or no testimony offered by anyone other than Ms. Gibson and Mr. Teeple regarding the consistency of the FLUM Amendment with this objective and policy. Mr. Teeple testified to the difficulty in applying Policy 6.05.03 -- despite the provision that open space “within subdivisions or PUD developments, which consist of a conservation future land use . . . shall be protected through the acquisition of conservation easements” -- due to “the out- of-sequence process that we're going through by dealing with land use last.” Had the FLUM Amendment been considered “in- sequence,” there would have been no subdivision to which Policy 6.05.03 would have applied. Several witnesses testified that had the sequence of events not been skewed by Mr. McCrary’s ill- advised statement that the “scrivener’s error” would be taken care of, a number of issues created as a result of the amendment of the FLUM after plat approval would not have been problems. This appears to be one. It does appear that Policy 6.05.03. was designed to apply to open space lands within a developed subdivision, ensuring through a conservation easement that such designated open space lands would not be encroached upon. That scenario does not present here. The evidence establishes that all of the “environmentally sensitive lands” on the School Board Property were conveyed to the City. Though the Property is forested, it is of a nature common throughout north Florida, and not imperiled “maritime hammock.” Amelia Bluff conveyed all wetlands on the Property to the City. Amelia Bluff also placed 0.25 acres into “recreation/open space, preserved significant stands and individual trees, and donated $115,000 to the City for land conservation efforts. The City’s decision to accept Amelia Bluff’s proposed subdivision as consistent with Objective 6.05. and Policy 6.05.03. was supported by data and analysis as described above. Though a facially credible argument can be made that the Property is land designated as Conservation within a “subdivision”, under the specific -- and peculiar -- facts of this case, the legislative decision to adopt the FLUM Amendment as being consistent with the Comprehensive Plan, when considered in conjunction with the related policies and the City’s Land Development Code, was fairly debatable. Objective 6.10. - Egans Creek Greenway. The City shall protect Egans Creek Greenway for its value as a recreational asset, for its significance as an outstanding natural resource, and for its role in providing wildlife habitat. The Amelia Bluff subdivision does not front onto the Egans Creek Greenway. Rather, the easternmost edge of the Property is from 200 to 400 feet removed from the Greenway. The Greenway was protected by the dedication of all wetlands that were part of the School Board Property to the City. The Greenway is further protected by the establishment of the 25-foot naturally vegetated upland buffer. As established herein, any stormwater discharged from the dry detention ponds is not reasonably expected to result in the violation of water quality or water quantity standards established by the SJRWMD or the City. While recognizing the value of the Egans Creek Greenway, the evidence does not demonstrate that the proposed subdivision will impair the Egans Creek Greenway’s value as a recreational asset, its significance as an outstanding natural resource, or its role in providing wildlife habitat, and does not establish beyond fair debate that the FLUM Amendment is inconsistent with Comprehensive Plan Objective 6.10. Policy 1.02.04. Decision on amendments to the FLUM shall be based on an analysis of the suitability and compatibility of the proposed use, based on the following factors: Type and density or intensity of surrounding uses; Zoning districts in the surrounding area; Demonstration of adequate water supply and water supply facilities; Appropriateness of the size of the parcel compared to the proposed use; Physical condition of the site, and the suitability of soils and topography for the proposed use; Suitability of the site based on the presence or absence of natural resources, environmentally sensitive lands, flood zones, or historic resources; Compatibility factors; Impact on adopted levels of service standards and quality of service standards; and Location in a Coastal Upland Protection Zone (CUPZ). Petitioners’ argument on this point is essentially that the FLUM Amendment is not supported by relevant data and analysis in the form of the assessments called for in the policy. That argument is separate and apart from the issue of whether the FLUM Amendment creates an internal inconsistency with the policy. As set forth herein, the data available to the City, and the analysis of that data, met the substantive requirements of Policy 1.02.04. Thus, the record does not support a finding that the FLUM Amendment is inconsistent with Policy 1.02.04. Data and Analysis Petitioners’ last argument is, as expressed in section II.a.(3) of the Joint Pre-hearing Stipulation, the FLUM Amendment is inconsistent with various provisions of section 163.3177, including that the proposed FLUM Amendment be based on “accurate” data and analysis. In that regard, section 163.3177(1)(f) provides that: All . . . plan amendments shall be based upon relevant and appropriate data and an analysis by the local government that may include, but not be limited to, surveys, studies, community goals and vision, and other data available at the time of adoption of the . . . plan amendment. (emphasis added). Section XI of the Joint Pre-hearing Stipulation then identifies the following issues as remaining for disposition: Whether the [FLUM] Amendment is based upon appropriate data and analysis including the character of the undeveloped land, soils, topography, natural resources, and suitability of the property for the proposed use in accordance with Section 163.3177(6), Florida Statutes. Whether the development . . . ensures the protection of natural resources and the compatibility of adjacent land uses as required under Section 163.3177(3). Whether the development . . . directs future land uses that are incompatible with the protection of wetlands and wetland functions in violation of section 163.3177(6), Florida Statutes. Whether the development . . . will adversely impact water, wetlands, wildlife, habitat, soils, native vegetative communities, existing natural preserve areas, and other natural and environmental resources pursuant to Section 163.3177(2), (6), Florida Statutes. (emphasis added). Ms. Gibson testified that the FLUM Amendment is supported by information described in paragraph 73, and described in further detail throughout these Findings of Fact. The availability of the data was corroborated by Mr. Platt, Mr. Desilet, Mr. Gillette, and Mr. Gerald. Though there was little evidence that the data and analysis was fully considered by the Commission,7/ the evidence established that there was substantial data “available at the time of adoption of the . . . plan amendment,” and that the data was, at a minimum, analyzed and considered by City staff. Consistency of the FLUM Amendment with section 163.3177(2), (3), and (6) has been addressed in conjunction with the specific Comprehensive Plan objectives and policies set forth in detail herein. Based thereon, Petitioner did not prove beyond fair debate that the FLUM Amendment is not based upon relevant and appropriate data and analysis, or are otherwise inconsistent with section 163.3177(1)(f), (2), (3), and (6). Conclusion In analyzing the consistency of the FLUM Amendment with the Comprehensive Plan, the undersigned gave full attention to not only the witnesses and evidence produced by the parties, but also to the public comment taken during the evening of July 15, 2019. This project has clearly evoked a great deal of justifiable passion from people who are concerned, invested, and involved in their community. However, the burden applicable in proceedings of this nature -- beyond fair debate -- is substantial. The decision that was made by the City officials was, as discussed herein, a legislative decision. Regardless of the extent that their attention may have been misdirected to the issue of whether the adopted and valid Conservation designation was a “scrivener’s error,” the data and analysis in support of the FLUM Amendment was available. Under the specific facts of this case, the decision of the elected City officials to approve the FLUM Amendment, regardless of their publicly stated reasons, was one that reasonable persons could differ over, and was therefore “fairly debatable.”
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity enter a final order determining that the City of Fernandina Beach Comprehensive Plan FLUM Amendment adopted by Ordinance No. 2019-08 on April 16, 2019, is “in compliance,” as that term is defined in section 163.3184(1)(b), Florida Statutes. DONE AND ENTERED this 16th day of September, 2019, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 16th day of September, 2019.
The Issue Whether the Small Scale Comprehensive Plan Amendment No. 2003-03 (Plan Amendment) to the City of Miami Future Land Use Map (FLUM), adopted by Ordinance No. 12492, is "in compliance" as defined by Section 163.3184(1)(b), Florida Statutes, and whether Petitioners have standing as “affected person[s]” as defined by Section 163.3184(1)(a), Florida Statutes, in this proceeding.
Findings Of Fact Background The Parties Petitioners, Dr. Ellen Monkus, James Veber, and Gonzalo De Ramon, reside in Spring Garden, a historic neighborhood located within the City of Miami, across the Miami River and to the north of the property subject to the Plan Amendment. Petitioners do not own or operate a port facility, or property on which a port facility is located or property that falls within the definition of “Port of Miami River” found in the City’s Comprehensive Plan. See Finding of Fact 53. Petitioners do not own property within the East Little Havana neighborhood. Petitioners are members of the Spring Garden Civic Association (Association) and Mr. Veber is the president of the Association. Dr. Monkus is a physician and retired from the University of Miami School of Nursing. Mr. De Ramon is a senior vice president for community development for Bank of America; a board member of the Miami-Dade Affordable Housing Advisory Board; and the chair of the Housing Committee for the Homeless Trust. Petitioners are “affected person[s]” and have standing to participate in this proceeding. See Findings of Fact 26-31. The City is a political subdivision of the State of Florida. The City initially adopted its Comprehensive Plan in 1989, and it was most recently revised in April 2004. RAD owns the 6.31-acre parcel (the Property), which is subject of the Plan Amendment. RAD submitted comments to the City at both City Commission hearings held on January 22, 2004, and February 26, 2004. RAD is an “affected person” and has standing to participate as a party in this proceeding. The Property The parties stipulated that the Property is located on the south side of the Miami River in the East Little Havana neighborhood.2 The Property is situated on the part of the Miami River known as the “middle river.” See Finding of Fact 35. The Property is bordered by Northwest 7th Street and South River Drive to the south, a Dade County maintenance facility and a fire station to the west, and a marine maintenance facility to the east. See Intervenors’ Exhibits 1 and 2, for two photographs and identifications of the surrounding area.3 The Property has been vacant for at least ten years. The Property was designated “Industrial” on the City’s FLUM prior to the challenged Plan Amendment, which changed the land use to “Restricted Commercial.” See Endnote 4. Across the Miami River to the north are “Medium Density Multifamily” and “Single Family Residential” land use designations where the Petitioners reside. The Small Scale Plan Amendment Application On or about November 4, 2003, RAD’s predecessor in interest filed with the City an application (Application), requesting a change in land use designation for the Property from “Industrial” to “Restricted Commercial” by amending the FLUM of the Comprehensive Plan.4 The Application was submitted at the same time as applications for a zoning change and a major use special permit (MUSP), because RAD intends to develop a mixed-use project (the Development Project) on the Property. As stipulated, the Application included all items required by all applicable statutes and ordinances for the requested Plan Amendment. Prior to the submission of the land use change Application, the Miami River Commission (MRC) and the Miami River Commission Urban Infill Working Group and Greenways Subcommittee (MRC Subcommittee) reviewed the Development Project.5 The composition of the MRC (18 members) is determined by Section 163.06, Florida Statutes, and includes a neighborhood representative from Spring Garden, the Chair of the Miami River Marine Group, and the Chair of the Marine Council. The MRC acts only in an advisory capacity to the City on issues affecting the Miami River. The MRC provides the Commission with “an official statement” on items impacting the Miami River. When the MRC reviews proposed projects, it determines only if the projects comply with the Miami River Greenway Action Plan6 and the Miami River Corridor Urban Infill Plan (UIP),7 which is the MRC’s strategic plan. Although adopted by the MRC in 2002, the UIP has not been adopted by the City and is not binding on the City’s decisions. After reviewing the Development Project, the MRC Subcommittee voted to recommend to the MRC that it be approved, subject to conditions to which RAD agreed. Upon receiving the MRC Subcommittee’s recommendation, the MRC unanimously (of the members present) voted to recommend approval of the Development Project based on the findings that it is consistent with the UIP and the Miami River Greenway Action Plan (Greenway Plan). The Greenway Plan is incorporated into the UIP, but is a separate plan. See Endnote 6. The MRC submitted a letter, which reflected its recommendation, to the City’s Planning and Zoning Department (P&Z Department) and presented its recommendation to the Commission at the Commission’s January 22, 2004, and February 26, 2004, meetings.8 The P&Z Department reviewed the Application and presented its analysis and favorable recommendation to the City’s Planning Advisory Board (PAB). On December 17, 2003, after a public hearing, the PAB voted to recommend approval of the land use change. The Application was presented to the Commission at public hearings held on January 22, 2004 (“First Reading”), and February 26, 2004 (“Second Reading”), (collectively the Commission Hearings), at which time the P&Z Department provided its written analysis and recommendation for approval of the Application.9 (The application for the zoning change was also presented to the Commission on January 22, 2004. On February 26, 2004, the Commission also considered the Plan Amendment, the zoning change, and the MUSP application.) The P&Z Department’s recommendation for approval of the Plan Amendment took into consideration that “the change to ‘Restricted Commercial’ is also a logical designation and will allow greater flexibility in developing the property in a manner that will be beneficial to the surrounding area.” The analysis also stated that “the existing land use pattern in this neighborhood should be changed” because, in part, the Plan Amendment “promotes and facilitates economic development and growth of job opportunities in the City” under Goal LU-1 and “encourage[s] a diversification in the mix of d [sic] commercial activities” under Policy LU-1.3.6. The analysis concluded by stating that the “Concurrency Management Analysis pertaining to concurrency demonstrates that no levels of service would be reduced below minimum levels” due to redevelopment of the Property, as required by Land Use Policy 1.1.1. See Finding of Fact 42. The Commission voted to approve RAD’s request for a land use change at both the First and Second Readings and adopted Ordinance No. 12492, which amended the FLUM. (The Commission also approved the zoning change and the MUSP.) The Challenge Petitioners challenge the internal consistency of the Plan Amendment with certain goals, objectives, and policies of the Comprehensive Plan and the sufficiency of data and analysis to support the Plan Amendment. Standing Introduction RAD and the City contend that Petitioners lack standing to maintain this proceeding, because they do not qualify as “affected person[s]” as defined by Section 163.3184(1)(a), Florida Statutes. Petitioners reside in Spring Garden, a historic neighborhood in the City of Miami, located across the Miami River and to the north of the Property. RAD and the City, however, assert that Petitioners failed to submit oral or written comments, recommendations, or objections “during the period of time beginning with the transmittal hearing for the plan amendment and ending with the adoption of the plan amendment.” § 163.3184(1)(a), Fla. Stat. The prescribed time period will be referred to as the “Comment Period.” Comment Period The parties agree that the Comment Period ended on February 26, 2004, the date on which the Commission voted to adopt the Plan Amendment, but disagree as to the beginning date of the Comment Period. The Commission holds two publicly noticed hearings for small scale amendments, because the City uses ordinances as the means by which small scale plan amendments are implemented. The Department of Community Affairs (Department) does not review or issue a notice of intent regarding small scale plan amendments. § 163.3187(3)(a), Fla. Stat. The Comment Period commenced at the first of those hearings—the First Reading. Petitioners’ Comments, Objections, and Recommendations As noted, on January 22, 2004, the Commission held its First Reading on the land use change and the zoning change. See Intervenor’s Exhibit 5. Mr. Dickman advised that he was “representing the neighborhood of Spring Garden” regarding the two items. Prior to presenting the testimony of two witnesses, Mr. Dickman further advised that he was “representing Spring Garden Civic Association.” The Commission’s Chairman advised that both items were on the agenda and that Mr. Dickman would technically be entitled to two presentations, but that normally “everybody comes up and says what they’ve got to say on both” and this was understood by Mr. Dickman. Mr. Dickman put into the record approximately over 100 signatures collected from neighbors and appears to reflect, in part, residents on the north side in Spring Garden and south of the Miami River. These signatures appear to be part of Petitioners’ Exhibit 2, including Petitioners’ Exhibit 1, a one- page sheet including the name and signature of Mr. De Ramon. The signatories opposed the requested MUSP, the land use amendment, and the re-zoning to allow the construction of the project. In particular, the “Petition in Opposition” states in part: “The proposed height and bulk of this project is out of scale with the single family and low density character of the Historic Spring Gardens Neighborhood and surrounding areas . . . .” It does not appear that Petitioners, Dr. Monkus and Mr. Veber signed the Petition, although each Petitioner testified during the First Reading and Mssrs. Veber and De Ramon testified during the Second Reading. During the Second Reading, Mr. Dickman announced that he was “representing the homeowners in Spring Garden.” During both hearings, Mr. Dickman opposed the Development Project and the MUSP, the zoning change, and the land use change. During the final hearing, Mr. De Ramon stated that he had legal representation at the First and Second Readings. It is a fair inference that he was referring to Mr. Dickman. Mr. Veber states that he retained Mr. Dickman to represent him at the Second Reading. During both hearings before the Commission, Petitioners’ objections and comments mainly addressed the following issues: RAD’s alleged failure to demonstrate hardship based on the current land use; the Development Project’s design, height, and density; the alleged need for mixed income housing in the neighborhood; “gentrification”; traffic; alleged light pollution; Petitioners’ contention that the Property’s zoning should be low-density residential; Petitioners’ contention that the Property should be used as a senior residential community or park; RAD’s sound study; the Development Project’s feasibility analysis; and the increase in neighborhood property values. Based upon the weight of the evidence and fair inferences to be derived from the evidence, it is concluded that Petitioners made comments, objections, and/or recommendations regarding the Plan Amendment during the Comment Period. Data and Analysis Petitioners contend that the Plan Amendment is not in compliance with Florida Administrative Code Rule 9J-5.005(2), because the Plan Amendment is not based on relevant and appropriate data, which was collected and applied in a professionally acceptable manner. Petitioners argue that the Plan Amendment is inconsistent with Section 163.3177(6)(a), Florida Statutes, because there is insufficient data and analysis to support the Plan Amendment. Petitioners did not prove that the data and analyses considered by and available to the City in approving the Plan Amendment was insufficient to support approval of the plan Amendment. See Conclusions of Law 92-96. Moreover, approval of the Plan Amendment is supported by substantial data (in existence at the time the Plan Amendment was adopted) and appropriate analysis. Approval of the Plan Amendment is consistent with the City’s analysis of the location of the Property and the surrounding neighborhood. The Property is located on the lower part of the “middle river,”10 close to downtown, and is situated near public transportation, the City’s major employment areas, and the Civic Center.11 The Civic Center, which includes medical facilities and the Criminal Justice Center, is near Northwest 12th Avenue and north of and close to the Miami River. The Property is east of Northwest 12th Avenue and south of the Miami River. The Property is located within an area designated by the City for urban infill. The UIP specifically designates the Property (within the middle river) as an urban infill site, which means that the Property is considered “ripe” for redevelopment. (The Property’s urban infill designation post- dates the 1992 Miami River Master Plan.) Urban infill is also part of the “Eastward Ho” planning concept, which encourages urban infill growth where there is sufficient infrastructure to support it. (The “Eastward Ho” program was created by the Department to encourage a philosophy of development that the City has embraced, although it is not a part of the Comprehensive Plan.) Urban infill is encouraged in order to prevent further westward urban sprawl, which results in over-development in the suburbs, impacting the roadways and the environment. Urban sprawl may occur when land is developed at a very low density, i.e., by using significant parcels of land for a limited number of activities, which, in turn, may yield an inefficient use of land and infrastructure. It was not proven that the Plan Amendment is urban sprawl or will lead to the proliferation of urban sprawl. Also, Petitioners did not prove that there is an over-allocation of residential land uses in the City. See Sierra Club, infra, Final Order at 9-10. Eastward Ho promotes the return of residents to the City and encourages residential, commercial, and retail redevelopment in the City. Properties that are especially appropriate for urban infill are those that are vacant, underdeveloped, underutilized and/or blighted and are located near public facilities, major employment areas, and transportation. Such properties are considered ideal for mixed-use development of residential and commercial uses, which promote efficient use of public facilities. Land designated as Industrial may be used in a manner that promotes the increased employment opportunities goal of the urban infill concept, but, by definition, it is not likely to be used in a manner that would meet other goals of urban infill such as the promotion of mixed-use projects that also include residential development and promote efficient use of public facilities. The Property’s location is suitable for urban infill because it is near public transportation, it benefits from natural amenities afforded by being on the Miami River, and it is located in an area that the City is trying to revitalize. Furthermore, the Property is not currently used for marine industrial purposes; indeed, it has long been vacant. The Plan Amendment was also subjected to a concurrency management analysis, the purpose of which was to determine whether existing public facilities are sufficient to support the levels of additional development permitted under the Restricted Commercial land use designation sought by RAD. See City’s Exhibit 2. The result of the concurrency management analysis (which included consideration of the potential demands on the City’s roadways, potable water supplies, sanitary sewer transmission systems, storm sewer capacity, and solid waste capacity) was a determination that potential development of the Property under the Restricted Commercial designation would not cause a breach of the LOS standards applicable to the City’s facilities and resources. The City’s analysis of the Plan Amendment also included consideration of the MRC letter of recommendation, City planning staff’s general knowledge of the UIP, the Miami River Master Plan,12 and a housing shortage in the City identified by a quasi-City agency known as the Downtown Development Authority. The Applicant prepared an economic impact analysis, which was in existence at the time the City considered the Plan Amendment.13 Leaving a piece of property vacant in hopes that in the future it can be used with its current land use designation is not supported by good planning principles. Petitioners’ expert, Mr. Luft, stated that a high- density residential land use is not necessarily incompatible with marine industrial uses-“[t]hey can co-exist,” depending on how the project is developed. But, Mr. Luft opined that the Plan Amendment is inappropriate and inconsistent with the Port of Miami River goals, objectives, and policies referred to herein, because approving a potential high-density residential land use next to an industrial use, creates uncertainty as to how the marine industry will be protected, necessarily creating an “incompatible environment.” Nevertheless, Mr. Luft also testified that Restricted Commercial is one of a number of reasonable land use designations to consider for the Property. He also agreed that the middle river could support a mixed-use development of residential and commercial that could serve the needs of the neighborhood. Further, Mr. Luft concurred that the City should consider what is beneficial for the City as a whole. Internal consistency Background In general, Petitioners allege that the Plan Amendment is inconsistent with Section 163.3177(6)(a), Florida Statutes, because no goals, objectives, or policies of the Comprehensive Plan supplement the Plan Amendment and that the Plan Amendment is inconsistent with several provisions of the Comprehensive Plan discussed below. Petition at 7. The FLUM “is a planning instrument designed to guide the future development and distribution of land uses within the city in a manner that is consistent with the goals, objectives and policies of the Miami Comprehensive Neighborhood Plan (MCNP). The [FLUM] is a generalized map that does not depict areas less than 2 acres.” There are numerous goals, objectives, and policies within the Comprehensive Plan that supplement the Restricted Commercial land use designation sought by RAD. See, e.g., Joint Exhibit 1, Goal LU-1, Objective LU-1.3, Goal LU-3, and supporting Policies. Petitioners did not prove that the Plan Amendment is inconsistent with the goals, objectives, and policies in the Comprehensive Plan cited by Petitioners. Port of Miami River Element Petitioners contend that the Plan Amendment is inconsistent with Objective PA-3.1, Policy PA-3.1.1, Policy PA 3.1.2, Policy PA-3.1.3, Objective PA-3.3, Policy PA-3.3.1, and Policy LU-1.3.1, because the Plan Amendment “allows the encroachment of the High Density Multifamily Residential land use into a heretofore Industrial land use reserved for the Port of Miami marine related industries.” Petition at 8. Petitioners further allege that the Plan Amendment does not comply with Section 163.3177(2), Florida Statutes,14 because the Plan Amendment is inconsistent with the Comprehensive Plan goals, objectives, and policies which are aimed at retaining the current land use designation of Industrial on those properties along the Miami River intended for marine industrial use. Petition at 7. “Port of Miami River” is a defined term, which includes approximately 14 privately-owned shipping companies that were in existence at the time that the Comprehensive Plan was adopted.15 All of the goals, objectives, and policies use the defined term Port of Miami River. Thus, these goals, objectives, and policies apply solely to that defined term. The Port of Miami River definition refers to “companies” because those companies needed to be legally defined as a port in connection with U.S. Coast Guard regulations. Nevertheless, the Port of Miami River is not a publicly run port. (Mr. Olmedillo and Ms. Slazyk opined that the Port of Miami River is not a land use element, i.e., there is no land use designation in the FLUM referring to Port of Miami River.) At the time that the Comprehensive Plan was adopted, a private shipping company did not own the Property, nor was it used for marine industrial purposes. Instead, it appears that the Miami News occupied the Property. Based on an examination of the Certificates of Use maintained in the City’s public records and other evidence of record relative to the Property, it does not appear that the Property has ever been owned by any of the shipping companies operating on the Miami River at the time of the City’s adoption of the Comprehensive Plan. Objective PA-3.1 and Policies PA-3.1.1, PA-3.1.2, and PA-3.1.3 in the Port of Miami River Element of the Comprehensive Plan require the City to take certain actions through its “land development regulations” (LDRs). LDRs are zoning ordinances, which implement the Comprehensive Plan. See Joint Exhibit 1, “Interpretation of the Future Land Use Plan Map.” With respect to Objective PA-3.3, no persuasive evidence was presented regarding the City’s Port of Miami River planning activities or the Plan Amendment’s alleged inconsistency with the City’s obligation to coordinate its Port of Miami River planning activities with other agencies. Regarding Policy PA-3.3.1, Petitioners offered no persuasive evidence on the subject of the City’s Intergovernmental Coordination Policies with respect to the Port of Miami River and how the Plan Amendment is inconsistent with the City’s obligation to use its Intergovernmental Coordination Policies as the instrument by which it “support[s] the functions of the Port of Miami River.” Petitioners did not prove that the Plan Amendment is inconsistent with these Comprehensive Plan provisions. Land Use Element Petitioners allege that the Plan Amendment is inconsistent with goals, objectives, and policies of the land use element of the Comprehensive Plan, specifically Goal LU-1, Objective LU-1, Objective LU-1.1, Policy LU 1.1.3, Objective LU- 1.5, Objective LU-1.6, and Goal LU-2, because the Plan Amendment “puts existing residential neighborhoods at risk by introducing an incompatible land use.” Petition at 8. Although the City’s review of any application for a comprehensive plan amendment involves consideration of the Comprehensive Plan as a whole, the land use element of the Comprehensive Plan is of primary concern in the instant case because it sets forth the goals, objectives, and policies that directly concern land use. As stated in the P&Z Department’s analysis, the Plan Amendment is consistent with Goal LU-1, and consistency with Goal LU-1 necessarily includes consistency with the objectives and policies that further that goal. The key part of Goal LU-1 that is relevant to the Plan Amendment is maintaining a land use pattern that protects and enhances the quality of life in the City’s residential neighborhoods. The Plan Amendment is not incompatible with and is likely to maintain the land use pattern in the adjacent mixed-use residential neighborhood of East Little Havana and is likely to afford East Little Havana residents access to needed retail and service uses not currently available on the vacant Property and provide East Little Havana residents some relief from their existing older, overcrowded housing. The Plan Amendment is consistent with the land use pattern of the area and is also complementary to the nearby land uses. Approximately 15 percent of the boundaries of the Property are industrial land uses, while the remaining 85 percent include a variety of other land use designations. The Plan Amendment will likely have a positive impact on the area due to the riverwalk and mix of uses that are likely to bring economic revitalization to the area. Petitioners allege in their Petition that the Plan Amendment is inconsistent with “Objective LU-1.” “Objective LU- 1,” however, does not exist. Objective LU-1.1 is concerned with the need for LDRs to foster “a high quality of life in all areas,” with particular regard to the provision of public facilities. The concurrency management analysis performed with regard to the Plan Amendment indicated that the levels of service would not fall below the minimum required levels. With respect to Policy LU-1.1.3, Petitioners did not prove that the Plan Amendment is likely to destabilize the existing land uses and will result in the encroachment of an incompatible land use. Moreover, Policy LU-1.1.3 is a recitation of the protections provided by the City’s zoning ordinance, and is therefore irrelevant to the issues in this case. Policy LU-1.3.1 mandates that the City “provide incentives for commercial redevelopment and new construction” in certain designated areas including the River Corridor. Petitioners did not offer persuasive evidence as to the relevance of this policy. In any event, it is likely that approval of the Plan Amendment, which is likely to facilitate development of a long vacant property, will encourage commercial redevelopment and construction. Ms. Slazyk stated that the East Little Havana neighborhood in which the Property is located is a “Target Area” designated to receive funding for the purpose of revitalization, affordable housing and economic development. Petitioners offered no persuasive evidence that demonstrated that the Plan Amendment is inconsistent with Objective LU-1.5. The Property is designated as a contaminated Brownfield Site and the goals of the Comprehensive Plan include “clean[ing] up” Brownfields. (A Brownfield site has some levels of contamination that make redevelopment difficult without the expenditure of potentially large sums of money for environmental cleanup.) The Plan Amendment will allow a land use designation that could allow the development of a mixed-use project (subject to separate approval) that will include a view corridor of the river and a publicly accessible river walk via a 20-foot-wide greenbelt on each side of the Property. See Pre-Hearing Stipulation at 11. Moreover, Objective LU-1.5 sets forth requirements for LDRs, and is therefore irrelevant to the issues in this case. Objective LU-1.6 provides that the City will regulate property development to insure consistency with the Comprehensive Plan. This proceeding is not concerned with the consistency of the Development Project with the Comprehensive Plan. Therefore, Objective LU-1.6 is irrelevant to this proceeding. However, even if approval of the Plan Amendment is considered to be a regulation of the development of property, such approval is consistent with the Comprehensive Plan because it furthers the Comprehensive Plan’s goals, objectives, and policies. One policy in particular with which the Plan Amendment complies is Policy LU-1.1.11, which designates the City as an Urban Infill Area and states that “[p]riority will be given to infill development on vacant parcels.” The Plan Amendment will allow the Property, which has been vacant for more than 10 years, to be developed as urban infill. Petitioners did not present persuasive evidence proving the relevancy of Goal LU-2, i.e., that the Property contains historic, architectural, or archaeological resources. See Finding of Fact 82. Petitioners did not prove that the Plan Amendment is inconsistent with these Comprehensive Plan provisions. Housing Element Petitioners further contend that the Plan Amendment is inconsistent with Goal LU-2, Goal HO-2, Objective HO-2.1, and Policy HO-2.1.4 on the basis that “it places high density residential development in an area known as the ‘middle river’ far from the area on the Miami River generally accepted as ‘city center.’” Petition at 8. Petitioners have presented no persuasive evidence proving that these housing element goals, objective, and policy restrict high-density development to the “city center.” See Endnotes 10 and 11. Persuasive evidence established that the Plan Amendment is in compliance with the housing element of the Comprehensive Plan. With respect to Goal LU-2, Petitioners did not prove that the Property contains any of “Miami’s historic, architectural and archaeological resources,” which is the subject matter of Goal LU-2. See Joint Exhibit 3, tab l. Petitioners did not prove that the Plan Amendment is inconsistent with these Comprehensive Plan provisions.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued concluding that the Plan Amendment adopted by City of Miami in Ordinance No. 12492 is “in compliance” as defined in Section 163.3184(1)(b), Florida Statutes. DONE AND ENTERED this 3rd day of September, 2004, in Tallahassee, Leon County, Florida. S CHARLES A. STAMPELOS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of September, 2004.
Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made: DCA is the state land planning agency with the power and duty to exercise general supervision over the administration and enforcement of Chapter 380, Florida Statutes, including Areas of Critical State Concern, and all rules and regulations promulgated thereunder. See, Section 380.031(18), Florida Statutes. The City of Key West is in the Florida Keys Area of Critical State Concern. See, Section 380.0552(3), Florida Statutes and Rule 27F-8, Florida Administrative Code. Since the City is in the Florida Key's Area of Critical State Concern, City ordinances regulating land development do not take effect until DCA approves them "by rule." See, Section 380.0552(9), Florida Statutes. See also, Section 380.05(6), Florida Statutes (which provides that no proposed land development regulation in an Area of Critical State Concern shall become effective until DCA has adopted a rule approving such regulation.) In pertinent part, Section 380.0552, Florida Statutes provides: 380.0552 Florida Keys Area; protection and designation as area of critical state concern.-- PRINCIPLES FOR GUIDING DEVELOPMENT.--State, regional, and local agencies and units of government in the Florida Keys Area shall coordinate their plans and conduct their programs and regulatory activities consistent with the principles for guiding development as set forth in chapter 27F-8, Florida Administrative Code, as amended effective August 23, 1984, which chapter is hereby adopted and incorporated herein by reference. For the purposes of reviewing consistency of the adopted plan or any amendments to that plan with the principles for guiding development and any amendments to the principles, the principles shall be construed as a whole and no specific provision shall be construed or applied in isolation from the other provisions. However, the principles for guiding development as set forth in chapter 27F-8, Florida Administrative Code, as amended effective August 23, 1984, are repealed 18 months from July 1, 1986. After repeal, the following shall be the principles with which any plan amendments must be consistent: To strengthen local government capabilities for managing land use and development so that local government is able to achieve these objectives without the continuation of the area of critical state concern designation. To protect shorelines and marine resources, including mangroves, coral reef formations, seagrass beds, wetlands, fish and wildlife, and their habitat. To protect upland resources, tropical biological communities, freshwater wetlands, native tropical vegetation (for example, hardwood hammocks and pinelands), dune ridges and beaches, wildlife, and their habitat. To ensure the maximum well-being of the Florida Keys and its citizens through sound economic development. To limit the adverse impacts of development on the quality of water throughout the Florida Keys. To enhance natural scenic resources, promote the aesthetic benefits of the natural environment, and ensure that development is compatible with the unique historic character of the Florida Keys. To protect the historical heritage of the Florida Keys. To protect the value, efficiency, cost- effectiveness, and amortized life of existing and proposed major public investments, including: The Florida Keys Aqueduct and water supply facilities; Sewage collection and disposal facilities; Solid waste collection and disposal facilities; Key West Naval Air Station and other military facilities; Transportation facilities; Federal parks wildlife refuges, and marine sanctuaries; State parks, recreation facilities, aquatic preserves, and other publicly owned properties; City electric service and the Florida Keys Co-op; and Other utilities, as appropriate. To limit the adverse impacts of public investments on the environmental resources of the Florida Keys. To make available adequate affordable housing for all sectors of the population of the Florida Keys. To provide adequate alternatives for the protection of public safety and welfare in the event of a natural or man-made disaster and for a post-disaster reconstruction plan. To protect the public health, safety, and welfare of the citizens of the Florida Keys and maintain the Florida Keys as a unique Florida resource. * * * MODIFICATION TO PLANS AND REGULATIONS.--Any land development regulation or element of a local comprehensive plan in the Florida Keys Area may be enacted, amended, or rescinded by a local government, but the enactment, amendment or rescission shall become effective only upon the approval thereof by the state land planning agency. The state land planning agency shall review the proposed change to determine if it is in compliance with the principles for guiding development set forth in chapter 27F-8, Florida Administrative Code, as amended effective August 23, 1984, and shall either approve or reject the requested changes within 60 days of receipt thereof. Further, the state land planning agency, after consulting with the appropriate local government, may, no more often than once a year, recommend to the Administration Commission the enactment, amendment, or rescission of a land development regulation or element of a local comprehensive plan. Within 45 days following the receipt of such recommendation by the state land planning agency, the commission shall reject the recommendation, or accept it with or without modification and adopt it, by rule, including any changes. Any such local development regulation or plan shall be in compliance with the principles for guiding development. (Emphasis supplied.) In sum, any land development regulations adopted by the City must be submitted to DCA for approval or rejection pursuant to Section 380.0552(9). Such regulations become effective when approved by DCA. In evaluating an Ordinance submitted pursuant to Section 380.0552(9), DCA will look to the Principles for Guiding Development found in Section 380.0552(7), Florida Statutes. DCA is directed to approve a proposed ordinance if it is in compliance with the Principles for Guiding Development; conversely, DCA is without authority to approve a proposed amendment which is not in compliance with the Principles for Guiding Development. On September 3, 1991, the City adopted Ordinance 91-25 (the "Ordinance") which provides for a 180 day moratorium on certain development activities in the City. The Ordinance prohibits ...the approval of Community Impact Assessment Statements and site plans for projects falling within the scope of the city's CIAS ordinance, where the proposed density or intensity of use is inconsistent with the permitted density or intensity under the future land use map of the city's pending comprehensive plan or the property is situated in an area designated as coastal high hazard or wetlands on the Future Land Use Map of the City's pending comprehensive land use plan... A building moratorium, such as that set forth in the Ordinance, constitutes a land development regulation as defined in Section 380.031(8), and Rule 28-20.19(4), Florida Administrative Code. Therefore, the moratorium could not take effect until approved by DCA by rule. A Community Impact Assessment Statement ("CIAS"), as defined in Section 34.04, Key West Code, describes expected impacts of proposed development on specified City resources and infrastructure. While a CIAS is not a development order, the City requires a CIAS as a precondition to the granting of a building permit for most large projects in the City. A developer is required to submit a CIAS for a proposed residential or hotel/motel development of ten or more habitable units or a proposed commercial development of 10,000 square feet or more. A CIAS is intended to ensure that the impacts a proposed project will have upon public facilities and the social and economic resources of the community are considered in the planning process and to avoid surprises during the planning process. The City will reject a CIAS that it finds to be incomplete or misleading. The City Commission held its first hearing on the Ordinance on June 18, 1991. At least five public hearings before the City Commission were held prior to the City's adoption of the Ordinance. The 1981 City of Key West Comprehensive Plan (the "Existing Comprehensive Plan") sets forth certain parameters and standards for the issuance of development orders. The Existing Comprehensive Plan has been approved by the Administration Commission in Chapter 28-37, Florida Administrative Code. The City of Key West land development regulations and certain amendments to the Existing Comprehensive Plan have been approved by DCA in Chapter 9J-22, Florida Administrative Code. The City is required by the States's growth management statute, Part II of Chapter 163, Florida Statutes, to submit to DCA a new comprehensive plan. Since the City is in an Area of Critical State Concern, the new comprehensive plan will not take effect until it is approved by DCA by rule. The Existing Comprehensive Plan remains in effect until a new plan is adopted. At the time the Ordinance was adopted, the City was in the process of preparing a new comprehensive plan to guide future development. By adopting the moratorium, the City sought to provide itself with an opportunity to effectively implement a new comprehensive plan. The City submitted a proposed new comprehensive plan (the "Pending Comprehensive Plan") to DCA on December 2, 1991. DCA and the City are currently involved in negotiations over whether the Pending Comprehensive Plan is in compliance with the state's growth management law, Chapter 163, Florida Statutes, and the rules promulgated thereunder, Rule 9J-5, Florida Administrative Code. The Pending Comprehensive Plan was still in the draft stages at the time the Ordinance was adopted. As indicated above, the City adopted the moratorium for projects requiring a CIAS in an effort to ensure that the City would be able to effectively implement a new comprehensive plan. The City is faced with numerous development-related problems which it attempts to address in the Pending Comprehensive Plan. These problems include: Water Quality Water Resources - The City draws all of its water from the Biscayne Aquifer. The water is pumped from wellfields on the mainland in Dade County and is transported through a single pipe to Monroe County to provide water to the Florida Keys population. While there is no immediate problem with the availability of water for the City, the Florida Keys Aqueduct Authority and the South Florida Water Management District (SFWMD) are in the process of preparing a water supply plan for Dade County and the Keys. These agencies recently informed all Monroe County local governments that they are approaching the limit of water that can be supplied from the aquifer and it is expected that there will be limitations on any further increases in consumption and/or consumptive use permits. The City and DCA contend that the moratorium will help the City to effectively analyze and address these issues in its new comprehensive plan. Chapter 4 of the Pending Comprehensive Plan would require the City to develop a plan for potable water resources, including replacement of the aging water main, providing for emergency supplies, and emphasizing the need to conserve water. Sewer System - Sewage treatment in the City of Key West is a serious problem. The treated effluent is currently dumped into the Atlantic Ocean and has been implicated in the degradation of the environmentally sensitive and unique coral reefs. Chapter 4 of the Pending Comprehensive Plan would direct the City to substantially improve its wastewater treatment level of service, prevent system infiltration, fix leaky pipes, and reduce the pollution of the surrounding waters. Stormwater Runoff - The waters surrounding the island of Key West have been designated Outstanding Florida Waters, pursuant to Chapter 403, Florida Statutes. The runoff generated by rains in the City is currently channeled into these waters either directly or via canals. The Existing Comprehensive Plan does not contain extensive guidance regarding stormwater runoff. Chapter 4 of the Pending Comprehensive Plan would direct the City to conduct a half million dollar study over the next two years to examine, develop, and implement a stormwater management plan. Section 4-2.1(d) of the Pending Comprehensive Plan would also require improved levels of service for stormwater runoff. Hurricane Evacuation - The evacuation of people out of the Florida Keys during a hurricane is an important element in the planning process for the City. The Existing Comprehensive Plan does not provide any standards for hurricane evacuation. Chapter 2 of the Pending Comprehensive Plan requires the City of Key West to develop a feasible hurricane evacuation plan and coordinate its implementation with the County. The City has taken no action on this directive to date. A model is being developed within the Monroe County Comprehensive Plan for the safe evacuation of residents from the Florida Keys. The model will include updated information based upon the Pending Comprehensive Plan. The inclusion of new development into the model is complicated. By temporarily limiting new development, the City can provide more certainty to this planning process. Wetlands and Environmental Protection - The Pending Comprehensive Plan seeks to strengthen and clarify the Existing Comprehensive Plan provisions regarding wetlands and habitat protection by reducing densities within wetlands, salt ponds, and coastal high hazard areas and requiring the adoption of amended land development regulations which extensively improve the City's environmental protection requirements. Residential Housing and Conversion to Transient Units - There have been a significant number of conversions from residential to transient units (hotels, motels, and other tourist accommodations) in the City during the last several years. The increase in "transient" persons exacerbates the strain upon public facilities, especially transportation facilities. The Existing Comprehensive Plan offers little protection to residential areas from commercial and transient intrusion. The Future Land Use Element of the Pending Comprehensive Plan attempts to guide and plan the locations of conversions. Transportation - Many roads in the City are currently operating at poor levels of service, including U.S. Highway 1, the main arterial roadway in the City. The City has never had a specific plan to improve the levels of service. The City is required under the growth management statute (Chapter 163) to provide adequate levels of service on the roads within the City. Chapter 2 of the Pending Comprehensive Plan proposes to implement an extensive traffic circulation system over the next twenty years which will include roadway improvements, revised levels of service, and nonmotorized transportation provisions. Solid Waste - Currently, the City's solid waste is disposed at a local landfill. The City's solid waste disposal facility is currently operating under a year old consent order that directs the facility to be closed within three years. The Existing Comprehensive Plan states that the City is to provide adequate public facilities, but does not explain what constitutes "adequate". The Existing Comprehensive Plan does not provide a plan for the impending closure. The Pending Comprehensive Plan would require the City to provide the funding for solid waste disposal improvements. The clear goal of the Ordinance was to delay the approval of certain CIAS applications, site plans and building permits for 180 days while work continued on the Pending Comprehensive Plan. The City contends that the moratorium will help it to effectively implement the policies which it anticipates will be incorporated in the new comprehensive plan when it is finally in place. The Ordinance provided that the 180 day moratorium would begin on the effective date of the administrative rule approving the Ordinance. The City and DCA were concerned that normal administrative rulemaking time periods would defeat the purpose of the Ordinance. Normal rulemaking pursuant to Section 120.54, Florida Statutes, generally takes between 90 to 120 days. Many local governments experience a significant increase in development proposals immediately prior to the adoption of a new comprehensive plan. Many of these proposals are prompted by a fear as to the impact of the new plan and seek to acquire vested rights under the old plan. The City and DCA were concerned that such an increase in development proposals might complicate the planning process by rendering some aspects or assumptions of a new plan moot before the plan could even be adopted. Moratoria are frequently used by local governments in order to complete an effective comprehensive plan without the need for changes. In the year immediately proceeding the adoption of the Pending Comprehensive Plan by the City Commission (from September 1990 through September 1991), the City received seven CIAS applications. No CIAS applications had been received during the year prior. The City contends that many of the 1990/1991 applications were motivated by an attempt to obtain vested development rights. However, no persuasive evidence to support this speculation was presented. The City Commmission did not consider any reports, studies or other data in connection with the enactment of the Ordinance. At the time the Ordinance was adopted, the City Commission did not make any specific determinations that there were any immediate dangers to the public health, safety or welfare of the community nor was the Ordinance enacted as an emergency ordinance. After its adoption by the City Commission, the Ordinance was transmitted to DCA on September 5, 1991 for approval pursuant to Section 380.0552(9), Florida Statutes. The only information transmitted to DCA was a copy of the Ordinance. As indicated above, the City and DCA were concerned that normal administrative rulemaking time periods would defeat the purpose of the City's Ordinance. The City Planner contacted DCA to request approval of the Ordinance by emergency rule. The City Planner and DCA concurred in the conclusion that the purpose of the Ordinance would be defeated if it was not immediately implemented. The City Commission did not specifically ask or authorize the City Planner to request DCA to enact the Ordinance by emergency rule. The City's concerns included, among other things, that the conversions of residential properties to transient tourist accommodations would accelerate during the process of finalizing the Pending Comprehensive Plan. In addition, the City expects that its new comprehensive plan will reexamine the densities in coastal high hazard areas. By adopting a moratorium, the City sought to insure that any new developments will comply with the new densities ultimately adopted. On September 18, 1991, DCA filed the rule packet for the Emergency Rule with the Secretary of State and the Emergency Rule became effective on that date. DCA did not prepare an economic impact statement for the Emergency Rule. The rule packet consisted of: (a) a Certification Of Emergency Rule; (b) the Notice Of Emergency Rule; (c) a Statement Of The Specific Facts And Reasons For Finding An Immediate Danger To The Public Health, Safety And Welfare, (the "Statement of Specific Reasons") and (d) a Statement of the Agency's Reasons for Concluding that the Procedure Used Is Fair under the Circumstances (the "Agency Conclusions"). The Notice of Emergency Rule appeared in the September 27, 1991 edition of the Florida Administrative Weekly. In the Statement of Specific Reasons, DCA concluded that: ...Generally, a [comprehensive] plan revision process stimulates an accelerated rate of permit requests. Accelerated permitting including the acquisition of vested rights during a planning period will severly erode the City's ability to effectively revise and implement the comprehensive plan. Such accelerated development will also lead to further deterioration of current hurricane evacuation clearance time for the City. This action will increase the existing potential for loss of life and injury to person [sic] and property, will cause further deterioration of level [sic] of service on existing roadways and will lead to irreversible environmental degradation. Therefore this rule must be adopted by emergency procedures because of the potential immediate danger to the public health, safety and welfare. In the Agency Conclusions, DCA concluded: The emergency rulemaking is fair because (1) it immediately approves the ordinance as adopted by the City of Key West Commission and (2) normal rulemaking would moot the intent of the adopted ordinance since the City of Key West would be required to continue accepting applications for building permits, site plans, of [CIAS's] covering work projects or both, as set forth in Section 2 of ordinance 91-25 until the Department's rule approving the ordinance becomes effective. DCA's Statement of Specific Reasons was not reviewed or discussed with the City or its planner prior to its preparation. In deciding to promulgate the Emergency Rule, DCA considered the major public facilities and natural resource problems confronting the City and the City's proposed strategy to deal with these problems in the Pending Comprehensive Plan. DCA concluded that an immediate danger to the public health, safety, and welfare currently exists within the City justifying the approval of the Ordinance by emergency rule. The evidence clearly indicates that the City is facing many significant problems from a planning perspective. Petitioner contends, however, that there is no evidence that any of those problems present an "immediate" threat to the public health, safety or welfare. For the reasons set forth in the Conclusions of Law below, this contention is rejected. On October 10, 1991, DCA filed a rule packet for the Proposed Rule with the Secretary of State. The rule packet consisted of the Notice Of Proposed Rule 9J-22.013, the Estimate of Economic Impact on All Affected Persons (the "EIS",) a Statement of the Facts and Circumstances Justifying Proposed Rule 9J-22.013 (the "Statement of Facts"), a summary of the Proposed Rule, a Comparison with Federal Standards, a Statement of Impact on Small Business and the text of the Proposed Rule. The Notice of Proposed Rule 9J-22.013 appeared in the October 18, 1991 edition of the Florida Administrative Weekly. On October 24, 1991, DCA filed a Notice of Change with the Secretary of State, stating that the correct number for the Proposed Rule was 9J-22.014, since 9J-22.013 had already been used. The Notice of Change appeared in the November 1, 1991 edition of the Florida Administrative Weekly. DCA did not consider any appraisals, data, reports or other studies concerning the economic impact that could result from the imposition of a moratorium. Instead, DCA followed the approach it had used in approving prior ordinances enacted by the City and concluded that its role in reviewing the Ordinance for compliance with the Priniciples Guiding Development did not require an examination of the economic impact of the underlying policy decisions reached by the City Commission in adopting the Ordinance. The EIS states that: Costs and benefits will occur as a result of this ordinance and were considered by the City prior to adoption of the ordinance. The City did not provide any information to DCA on the economic impacts of the Ordinance or on the impact of the Ordinance on the value of properties affected by it. The evidence was unclear as to the extent to which the City Commission considered economic impacts in deciding to adopt the Ordinance. Several public hearings were held in connection with the adoption of the Ordinance and DCA assumed that interested parties had an opportunity to express their concerns regarding the economic impact of the Ordinance at these hearings. DCA did not inquire as to the number of projects under review by the City at the time the Ordinance was passed nor did it seek a determination as to whether any projects with vested rights were affected by the Ordinance. The City Planning Department has retained a consultant, as required by the Ordinance, to conduct an economic study of existing conditions and projections for future growth. The purpose of this study is to assist in developing future amendments to the Ordinance. The study is not final and was not considered by the Key West City Commission when the Ordinance was enacted. DCA concluded that the proposed moratorium adopted by the Key West City Commission was consistent with the Principles for Guiding Development. Therefore, DCA concluded that Section 380.0552 required it to approve the Ordinance. Petitioner has not presented any persuasive evidence to establish that the Ordinance is in any way inconsistent with the Principles for Guiding Development. Petitioner owns 6.8 acres of vacant real property on Atlantic Boulevard in the City. He purchased the property in 1974 with the intent to develop it. Petitioner's property is located in an R-2H zoning district. The City's future land use map designates Petitioner's property as multi-family. Petitioner has spent approximately $71,000.00 to hire architects, engineers, surveyors, planners, biologists and attorneys to aid him in preparing to develop the subject property. In 1989, Petitioner submitted applications for a Department of Environmental Regulation Surface Water Management permit, and an Army Corps of Engineers dredge-and-fill permit, but neither of those permits have been issued to date. Generally the City requires a developer to obtain these "higher-order" permits prior to issuing a building permit. Petitioner has never applied for or installed sewer service, water service or any other utility service to the property. Since he acquired the property, Petitioner has not cleared any vegetation on the property except for minor trimming adjacent to the roadway which was required by the City for safety purposes. In June of 1989, the City passed a resolution notifying the Department of Environmental Regulation that it opposed Petitioner's application to place fill upon the property. On April 10, 1991, Petitioner submitted a CIAS to the City for a proposed 96 unit residential development in three buildings on the subject property. Before the Ordinance was enacted, the City Planner prepared a report dated July 3, 1991 reviewing Petitioner's CIAS as required by the CIAS ordinance. In that review, the City Planner concluded: The project is located in the R-2H zoning district and conforms to all provisions of that district, thus requiring no variances or special exceptions. On August 6, 1991, the Key West City Commission considered Petitioner's CIAS. The City Commission refused to approve the Petitioner's CIAS application. Specifically, the City Commission determined that Petitioner's CIAS application was incomplete and that the "submerged land district" designation ("SL") applied to the Petitioner's property as an overlay zoning district because Petitioner's property is located in an area which is deemed to include wetlands and mangroves. The City Commission requested that the CIAS address the "submerged land district" before the CIAS application could be deemed complete. The City Planner was not present at the August 6, 1991 City Commission meeting. The "submerged land district" in Section 35.07(f), City of Key West Code, provides that the density and site alteration of "environmentally sensitive areas including but not limited to wetland communities, mangroves, tropical hardwood hammocks and salt ponds shall be zoned with a maximum density of one (1) unit per acre. Site alteration shall be limited to a maximum of ten percent of the total size." The "submerged land district" overlay zone applies to any parts of the property which fall within the description of "environmentally sensitive areas" in Section 35.07, City of Key West Code. Because there is confusion over the interpretation and applicability of the SL district and because the SL land use district does not appear on the City's official zoning map, it was not considered in the preparation of the July 3 Report. The evidence in this case was inconclusive as to whether Petitioner's property is located in a SL district and/or whether Petitioner's CIAS for his property can be approved under the City regulations in place prior to the adoption of the Ordinance. On August 22, 1991, Petitioner submitted an amendment to the CIAS as well as a Site Plan. The amendment to the CIAS contests the City's conclusion that Petitioner's property should be considered part of a SL district. As set forth above, during this time period, the City had began consideration of the Ordinance. The first hearing on the Ordinance was held on June 18, 1991 and the Ordinance was passed by the City Commission on September 3, 1991. The City Planner notified Petitioner by letter dated October 11, 1991, that his CIAS Site Plan review and approval had been "stayed" because of the enactment of the Ordinance and because of the project's "inconsistencies with the City's Pending Comprehensive Plan." Petitioner requested an exception from the effect of the Ordinance pursuant to the procedure contained in the Ordinance. A hearing was held before the City Commission and the request was denied.
The Issue The issue in this case is whether Town of Yankeetown (Town) plan amendment 08-01 (adopted by Ordinance 2007-10) and plan amendment 08-CIE1 (adopted by Ordinance 2008-03), as modified by remedial amendment 09-R1 (adopted by Ordinance 2009-02) (together, referred to as the Plan Amendments or the Revised Comprehensive Plan), are "in compliance" as defined in Section 163.3184(1)(b), Florida Statutes (2009).1
Findings Of Fact The Town is located in the southwest corner of Levy County. The Town is bounded on the east by the Town of Inglis, on the north by unincorporated Levy County, on the west by the Gulf of Mexico, and on the south by the Withlacoochee River. The Town has significant planning challenges due to its geographic location. The maximum elevation in the Town is 10 feet, and the entire Town is located in the 100-year floodplain and Coastal High Hazard Area (CHHA). The Town is located in a rural area north of the banks of the Withlacoochee River and is surrounded by wetlands and environmentally-sensitive land. The Town is located at the end of County Road 40, and is separated from the nearest intersection of major roads (State/County Road 40 and U.S. 19) by the Town of Inglis. The Plan Amendments are a community-generated plan that incorporates the results of an extensive community visioning survey conducted by the Town and numerous public meetings that exceeded the public participation requirements for plan amendments contained in Florida Administrative Code Rule Chapter 9J-53 and Chapter 163, Florida Statutes. The Plan Amendments resulted in a Revised Comprehensive Plan for the Town. IWI is a legal entity that owns land within the Town and submitted oral or written comments on the Plan Amendments during the period of time beginning with the transmittal hearing for the Plan Amendments and ending with the adoption of the Plan Amendments. IWI contends that the Plan Amendments are not "in compliance" for several reasons. Population Projections and Need In its pleadings, IWI contended that "[t]here is inadequate data regarding projected population growth and the infrastructure needed to support the projected population growth for both the short term (five years) and the long term (horizon of the plan)"; "[t]he Plan Amendment is not in compliance with [Section] 163.3177(6)(a) Florida Statutes, by failing to provide future land use categories that are based on need"; and "[t]he Plan Amendment is not in compliance with the requirements of 9J- 5.006, Florida Administrative Code, demonstrating that future land use is based on need." Prehearing Stipulation § 2.H., U., and GG. However, its expert planning witness, Gail Easely, conceded that the data and analysis submitted by the Town was adequate to demonstrate that the residential land uses in the Revised Comprehensive Plan are based on need. IWI limited its contention on this point to the alleged inadequacy of the data and analysis to support the Revised Comprehensive Plan's new Light Industrial land use and revised commercial land use designations. The Revised Comprehensive Plan designates the same areas for commercial as the currently effective Comprehensive Plan, with the exception of one parcel that was changed from commercial to Light Industrial. The Revised Comprehensive Plan designates the commercial parcels near the Withlacoochee River as Commercial Water Dependent and the other commercial parcels as Commercial Neighborhood, totaling approximately 51 acres. Of the 51 acres of commercially-designated land, approximately 26 acres are currently developed and 25 acres are vacant and undeveloped. Of the 26 developed commercial acres, 19 parcels are currently developed and utilized as residential. There is no shortage of land available for commercial development in the Town. Inglis, a town located adjacent and to the east of Yankeetown, and Levy County near Yankeetown provide "more than adequate" existing commercial buildings on the market to serve the residents of Yankeetown and surplus vacant commercially- designated land to serve the future needs of Yankeetown. There is no shortage of commercial potential near the Town. The evidence was that it is acceptable for a local government to plan for the future need for the availability of commercial and industrial lands by maintaining the existing proportionate of availability of land use categories. Alternatively, it is acceptable to plan to mimic the proportions found to exist in other communities. This is essentially how the Town planned its allocation of commercial and industrial lands in its Revised Comprehensive Plan. IWI also contended that the intensity standards for commercial and industrial land uses in the Revised Comprehensive Plan unduly restrict commercial development. The existing Comprehensive Plan did not have explicit intensity standards and criteria for commercial land uses. After extensive debate at numerous public hearings, the Revised Comprehensive Plan established a floor/area ration (FAR) of 0.07, which limits the size for each single structure to a maximum of 3,000 square feet. It also allows for multiple 3,000 square foot structures on larger parcels in a "campus style" development. These standards and criteria reflect the existing, built environment of the Town and the Town's vision of itself. Existing commercial buildings run from 960 square feet to 3,600 square feet. Although the existing Comprehensive Plan did not have an FAR ratio, other standards--such as setbacks, square footage required for on-site septic tanks, drainfields, and parking, a 50 percent open space ratio, and a building height restriction of 35 feet--restricted commercial development in a manner similar to the Revised Comprehensive Plan. Petitioner's expert economist, Dr. Fishkind, testified that the restrictions on intensity of commercial land uses are not financially feasible because not enough revenue can be generated to make a profit, given the cost of land in Yankeetown. His testimony was refuted by his University of Florida colleague, Dr. James Nicholas, who was called as an expert economist for the Town. Dr. Nicholas pointed out that there was some commercial use in the Town and that economics would lower the cost of land in the Town if it is too expensive to allow the kind of commerce desired by the Town to make a reasonable profit. Businesses requiring more space to make sufficient revenue could locate outside the Town but close enough in Inglis or Levy County to serve Yankeetown as well. The character of the Town, its limited projected population growth, and the availability of commercial development nearby in Inglis and in Levy County all support the Town's decision to limit the intensity of commercial land use, and to maintain the existing amount of land available for commercial and light industrial uses. 15. Rules 9J-5.006(1)(a)(3) and 9J-5.006 (4)(a)(3) require the designation of some industrial lands, and the Revised Comprehensive Plan changes the designation of six acres of land located to the west of the intersection of County Roads 40 and 40-A from "Commercial" to "Light Industrial." Since industrial uses are generally not compatible with residential uses, the Light Industrial parcel is separated from residential parcels by commercial. The Light Industrial parcel is allocated for more intense commercial uses (such as fishing trap and boat storage) or reserved for economic development of light industrial uses that may wish to locate in Yankeetown, such as aquaculture. The existing ratio of residential to commercial land is adequate to supply the existing need as reflected by the existing surplus, vacant, and unused commercial lands. The Plan Amendments maintain residential lands and commercial lands in their general designations with refinements to the categories. The existing ratio and availability of vacant commercial land indicate that there is no deficit in any category, and maintaining the existing residential/commercial ratio preserves the existing character of the Town. Urban Service Area versus Urban Service Boundary IWI contends that "[t]he Plan Amendment is not in compliance with [Section] 163.3177(14), Florida Statutes, by failing to ensure that the urban service boundary was appropriately adopted and based on demonstrated need." This contention has no merit. Section 163.3177(14), Florida Statutes, encourages a local government to adopt an "urban service boundary." If one is adopted, there must be a demonstration "that the amount of land within the urban service boundary does not exceed the amount of land needed to accommodate the projected population growth at densities consistent with the adopted comprehensive plan within the 10-year planning timeframe." If a local government chooses to adopt an "urban service boundary" under Section 163.3177(14) and a community vision under Section 163.3177(13), Florida Statutes, it may adopt plan amendments within the urban service boundary without state or regional agency review. See § 163.3184(17), Fla. Stat. The Revised Comprehensive Plan does not use the term "urban service boundary," and the Town did not intend to adopt one under Section 163.3177(14), Florida Statutes, nor did it seek to avoid state and regional agency review of plan amendments under Section 163.3184(17), Florida Statutes. Instead, as explained on page 6 of the Revised Comprehensive Plan, it uses the term "urban area" to designate an area allowed to receive development rights from the sending area, namely the Residential Environmentally Sensitive (formerly Conservation) land use district. The Revised Comprehensive Plan uses the term urban service "area" (rather than "boundary") as the area located generally between County Roads 40 and 40-A that can receive development rights transferred from the Residential Environmentally Sensitive land use district. This area is depicted as "Urban Service Area Overlay Zones" Map 2008-02 of the Future Land Use Map (FLUM) series to more clearly designate the area on a larger scale than the FLUM map of the entire Town (Map 2008-05). The existing FLUM series also used the term "urban area" to depict the transfer of development rights receiving area. Financial Feasibility and Capital Improvements IWI’s expert, Dr. Henry Fishkind, testified that he ran his Fiscal Impact Analysis Model for the Town and concluded that the Revised Comprehensive Plan is not financially feasible because the Town cannot generate sufficient operating revenue to cover its operating costs without increasing property tax rates. Dr. Fishkind was not asked to explain how his computer model works, give any specific modeling results, or explain how he reached his conclusion. The Town's expert, Dr. James Nicholas, refuted his University of Florida colleague's testimony on this point as well. Essentially, Dr. Nicholas testified that a small and unique community like Yankeetown can choose to limit its operating costs by relying on volunteers and part-time employees. In this way, it can operate on a bare-bones budget that would starve a more typical and larger community. It also could choose to increase property tax rates, if necessary. Recent amendments to Chapter 163, Florida Statutes, in Senate Bill 360, the "Community Renewal Act," which became effective June 1, 2009, postponed and extended until December 1, 2011, the statutory requirement to maintain the financial feasibility of the five-year capital improvements schedule (CIS) for potable water, wastewater, drainage, parks, solid waste, public schools, and water supply. However, the Town concurred with Petitioner in requesting findings of fact and conclusions of law on this issue in case Senate Bill 360 is struck down in a pending constitutional challenge. The Plan Amendments include a CIE (Chapter 8) with a five-year CIS and a table to identify sources of revenue and capital projects sufficient to achieve and maintain the adopted levels of service, supported by data and analysis submitted with the Remedial Amendments. The Town's CIS five-year lists projects to achieve and maintain the adopted level of service (LOS) standards and identifies funding sources to pay for those projects. It describes the projects and conservatively projects costs and revenue sources. The CIS identifies revenue sources and capital projects for which there are committed funds in the first three years and identifies capital projects for which funds have not yet been committed in year four or year five. CIS is adequate to achieve and maintain the adopted level of service and is financially feasible. Stormwater and Drainage A drainage LOS is adopted in Revised Comprehensive Plan Policy 4.1.2.1, which states: "All new development and expansion of existing residential development greater than 300 square feet of additional impervious coverage shall meet requirements under Chapter 62-25, F.A.C. for Outstanding Florida Waters." The exemption of minor residential improvements of 300 square feet or less is reasonable and does not violate Rule Chapter 9J-5 or Chapter 163, Florida Statutes. The Department's ability to require retrofitting for existing drainage problems is limited by Rule Chapter 9J- 5.011(2)(c)5.b.i., which states that the Rule "shall not be interpreted or applied to [m]andate that local governments require existing facilities to be retrofitted to meet stormwater discharge water quality standards or stormwater management level of service standards." Nonetheless, the Town agreed in the Compliance Agreement to adopt appropriate policies and provide additional data and analysis on this issue. Policy 4.1.2.13 requires that the "Established Storm Water Drainage Committee shall monitor storm water facilities in [the] town, oversee maintenance functions, and evaluate and recommend capital improvements projects and funding sources." To pay for stormwater capital improvement projects, Policy 4.1.2.14 in the Plan Amendments states: "Yankeetown shall adopt a storm water utility fee ordinance and establish storm water utility fees by December 31, 2009 to provide necessary funding for capital improvements to the Town's storm water drainage facilities and maintenance of storm water drainage facilities." In accordance with the Compliance Agreement, the Town modified CIS Table 1 by adding $120,000 to FY 2011-2012 (Year 5) for the stormwater drainage improvement project and adding Note 5 to Table 1, which states: "Anticipated to be funded by a 75%/25% matching grant from SWFWMD, DEP or DCA. The matching (town) funds will be obtained from the proposed stormwater improvement fund. If no grants can be obtained and the stormwater improvement fund is not approved[,] the project will be funded from the general fund reserves and long term loans." Because the stormwater utility fee ordinance must still be adopted, and these funds are not technically committed at the time of adoption of the Plan Amendments, the stormwater capital improvement project was placed in year 5 (2011-1012) of the CIS. As funding becomes available and committed, the project may be moved to an earlier year in required annual updates to the CIS. Drainage also is addressed in new Objective 4.3.2 and in new Policies 4.3.2.1. through 4.3.2.5. The Town has addressed stormwater and drainage appropriately in the Revised Comprehensive Plan. Proportionate Share and Concurrency Management Policy 4.1.2.6 in the Public Facilities Element states: "The Town shall consider, and adopt as appropriate, a means to ensure that new development shares proportionate responsibilities in the provision of facilities and services to meet the needs of that development and maintain adopted level of service standards." Policy 8.1.3.4 in the CIE of the Revised Comprehensive Plan states: The Town shall consider, and adopt as appropriate, a means to ensure that new development shares a proportionate cost on a pro rata basis in the provision of facilities and services necessitated by that development in order to maintain the Town’s adopted level of service standards. Proportionate costs shall be based upon, but not limited to: Cost for extension of water mains, including connection fees. Costs for all circulation and right-of-way related improvements to accommodate the development for local roads not maintained by Levy County. Costs to maintain County Road 40 and 40[-]A and any other road within the town that are maintained by Levy County shall be governed by the Levy County Proportionate Share Ordinance and Yankeetown will continue to adopt and ensure the level of service is maintained [through] coordination mechanisms between the two planning departments. Costs for drainage improvements. Costs for recreational facilities, open space provision, fire protection, police services, and stormwater management. Although the Town does not have any public facility deficiencies, Rule Chapter 9J-5 requires that the CIE address "[t]he extent to which future development will bear a proportionate cost of facility improvements necessitated by the development in order to adequately maintain adopted level of service standards"; and include a policy that addresses programs and activities for "[a]ssessing new developments a pro rata share of the costs necessary to finance public facility improvements necessitated by development in order to adequately maintain adopted level of service standards . . . ." Fla. Admin. Code R. 9J-5.016(3)(b)4. and (c)8. Policy 8.1.3.4 meets this requirement. The statute forming the basis of IWI’s contentions regarding proportionate fair share is Section 163.3180(16)(a), Florida Statutes, which requires local governments "to adopt by ordinance a methodology for assessing proportionate fair-share mitigation options." The evidence was that the requirements of this statute will be met by the Town's Proportionate Fair Share Concurrency Management Ordinance, which had been drafted and scheduled for adoption hearings at the time of the final hearing, and which will implement Policy 8.1.3.4. IWI did not present any evidence regarding the alleged lack of a concurrency management system in the Revised Comprehensive Plan and did not prove that the Revised Comprehensive Plan fails to meet the requirements of Rule 9J- 5.055 for concurrency management. The Town is exempt from maintaining school concurrency requirements. Objective 8.1.3 and Policies 8.1.3.1 through 8.1.3.6 of the Revised Comprehensive Plan meet the requirements of Rule 9J-5.055 for concurrency management. Policy 8.1.3.6 states: "The Town shall evaluate public facility demands by new development or redevelopment on a project by project basis to assure that capital facilities are provided concurrent with development." Policy 8.1.3.3 states: "The Yankeetown Land Development Code shall contain provisions to ensure that development orders are not issued for development activities which degrade the level of service below the adopted standard as identified in each comprehensive plan element. Such provisions may allow for provision of facilities and services in phases, so long as such facilities and services are provided concurrent with the impacts of development." The Town has a checklist system to track the specific impact of each development order on LOS concurrent with development. As indicated, a Proportionate Fair Share and Concurrency Management Ordinance had been drafted and scheduled for adoption hearings. Wastewater Treatment and Water Quality The Town is located entirely within the 100-year floodplain and coastal high hazard area. See Finding 2, supra. This presents challenges for wastewater treatment. The adoption of the Revised Comprehensive Plan followed public meetings and workshops held with representatives of DCA, including Richard Deadman, and expert Mark Hooks, formerly with the State of Florida Department of Health and Rehabilitative Services and now with the State of Florida Department of Health. The Plan Amendments include Policy 8.1.3.1.1, which states in part: Due to the location of the town within the 100 year flood plain and within the Coastal High Hazard Area (CHHA), there are no plans to provide central wastewater treatment until a regional system can be developed in conjunction with the neighboring town of Inglis and Levy County, and constructed outside the Coastal High Hazard Area east of U.S. Highway 19. In the interim period before a regional central wastewater system is available, the Town shall require in all land use districts: a. Yankeetown shall develop a strategy to participate in water quality monitoring of the Withlacoochee River; b. develop an educational program to encourage inspection (and pump-out if needed) of existing septic tanks; c. all new and replacement septic tanks shall meet performance based standards (10mg/l nitrogen). The Town's approach to wastewater treatment under the circumstances is sound both economically and from planning perspective and is sufficient to protect natural and coastal resources, including water quality, and meet the minimum requirements of Rule Chapter 9J-5 and Chapter 163, Florida Statutes. There is direction in the State Comprehensive Plan to: "Avoid the expenditure of state funds that subsidize development in high-hazard coastal areas." § 187.201(8)(b)3., Fla. Stat. This direction is also found in Chapter 163.3178(1), Florida Statutes, and in Rule 9J-5.012(3)(b)5., which require local governments to limit public expenditures that would subsidize development in the CHHA. It also is impractical for the Town, with a population of 760 people, to fund and operate a central wastewater system. It is logical and economical to do this in partnership with the adjoining Town of Inglis and Levy County, which could share in the costs and provide a site for a regional wastewater facility located nearby but outside of the CHHA. In contrast, this approach was not a viable option for the entirety of the Florida Keys. The Town already has begun water quality testing under Policy 8.1.3.1.1.a. The Town will be required to prepare educational programs to encourage inspection of existing septic tanks (and pump-out, if needed) under Policy 8.1.3.1.1.b. and under new Policy 4.3.1.2. In the short-term, while the Town pursues a regional treatment facility located outside the CHHA, Policy 8.1.3.1.c. in the Revised Comprehensive Plan will be implemented by new Policy 4.1.2.1.IV.B., which states: Yankeetown shall require that all new or replacement sanitary sewage systems in all land use districts meet the following requirements: All new or replacement sanitary sewage systems shall be designed and constructed to minimize or eliminate infiltration of floodwaters into the system and discharge from the system into floodwaters. Joints between sewer drain components shall be sealed with caulking, plastic or rubber gaskets. Backflow preventers are required. All new or replacement sanitary sewage systems shall be located and constructed to minimize or eliminate damage to them and contamination from them during flooding. The DCA has objected and recommended, and Yankeetown has concurred that all new and replacement septic systems are to be performance-based certified to provide secondary treatment equivalent to 10 milligrams per liter maximum Nitrogen. Performance-based treatment systems that are accepted as achieving the 10 mg/l nitrogen standard have already been tested by the National Sanitation Foundation and approved by the State of Florida Department of Health. Performance-based systems achieving the 10 mg/l nitrogen standard have been certified and approved for use in Florida and are now available on the market "in the $7,200 range" for a typical two- or three-bedroom home, and there are systems that would meet the 10mg/l nitrogen standard for commercial and multi-family buildings. Compliance with the performance-based 10 mg/l nitrogen standard is measured at the treatment system, not in the receiving water, and additional nutrient removal and treatment occurs in the drainfield soils. Performance-based treatment systems also require an operating permit and routine inspection and maintenance, unlike conventional septic tanks. The United States Environmental Protection Agency stated in its 1997 report to Congress: "Adequately managed decentralized wastewater systems are a cost-effective and long- term option for meeting public health and water quality goals." The existing Comprehensive Plan addresses wastewater in Chapter 4, Policy 13-2, which states: "Prohibit the construction of new publicly funded facilities or facilities offered for maintenance in the coastal high hazard area (including roads, water, sewer, or other infrastructure)." It also is addressed in the existing Comprehensive Plan in: Chapter 1, Policies 3-1 and 3-2 (Vol. II p. 11); and Chapter 4, Policies 1-2-1 and 1-2-7 (Vol. II, pp. 32, 34). A more in-depth analysis of the Town's previous approach to wastewater treatment is found in Volume III, Infrastructure Element, pp. 107-109 ("Facility Capacity Analysis, Sanitary Sewer"), which expresses similar long-term and interim approaches to wastewater treatment. The Revised Comprehensive Plan removes confusing and out-of-date references to "class I or other DOH-approved aerobic systems" used in the existing Comprehensive Plan. The Plan Amendments contemplate that the Town will pursue a long-term solution of a regional wastewater facility with the Town of Inglis and Levy County to be located outside the CHHA. The Revised Comprehensive Plan is adequate to protect the natural resources in Yankeetown and includes a short-term requirement that all new and replacement septic tanks meet the 10 mg/l nitrogen standard measured at the performance-based treatment system, together with a long-term requirement that the Town pursue a regional wastewater treatment plant to be located outside the CHHA. The Plan Amendments include: Objective 4.1.3; Policies 4.1.3.1 through 4.1.3.3 and 4.1.2.8 through 4.1.2.11; Policy 5.1.4.4; Policy 7.1.22.6; Policy 8.1.3.1; Policy 10.1.2.1; and Policy 10.1.2.3. These provisions move the Town in the direction of a regional central wastewater treatment located outside the CHHA and establish appropriate interim standards. Petitioner contended that the Town has allocated money for a new park when it needed a new central wastewater treatment facility. But the evidence was that the money for the new park came from a grant and could not be used for a new central wastewater treatment facility. Protection of Natural Resources and Internal Consistency The Future Land Use Element (FLUE) and the FLUM in the Revised Comprehensive Plan contain "Resource Protection" and "Residential Environmentally Sensitive" land use designations. In the existing Comprehensive Plan, these lands are designated Public Use Resource Protection and Conservation, respectively. The Plan Amendments reduce density in the Residential Environmentally Sensitive land use district, which contains a number of islands, to a maximum gross density of one dwelling unit per ten gross acres and maximum net density of one dwelling unit per five acres of uplands. Policy 1.1.2.1 in the Plan Amendments would allow development rights to be transferred from the Residential Environmentally Sensitive land to the development rights area receiving zone located between County Roads 40 and 40-A, as shown in Map 2008-02. The current Conservation designation for those lands sets a "maximum density of 1 unit per 5 acres"; and Policy 1-2 in the existing Comprehensive Plan allows the transfer of development rights within the Conservation district "as long as gross density does not exceed 1 dwelling unit per 5 acres." Under Policy 1-2 of the existing Comprehensive Plan, a minimum of "two (2) acres of uplands" is required for a development in the Conservation land use district. Likewise, under Policy 1.1.2.1.2 of the Plan Amendments, a minimum of "two (2) contiguous natural pre-development upland acres" is required in the Residential Environmentally Sensitive land use district. Although allowed, few if any transfers of development rights actually occurred under the existing Comprehensive Plan. To provide additional incentive to transfer development out of the "Residential Environmentally Sensitive" land use district and into the urban receiving area, Policy 1.1.2.7.F. of the Plan Amendments would allow the land owner to retain private ownership and passive recreational use on the "sending" parcel, including one boat dock. All other development rights on the sending parcel would be extinguished. Besides facilitating the transfer of development rights, it is expected that use of boat docks on the islands will decrease environmental damage from boats now grounding to obtain access to the islands. Although the policies for Environmentally Sensitive Residential and Conservation Lands are slightly different, the minor differences do not fail to protect natural or coastal resources or fail to meet the minimum criteria set forth in Rule Chapter 9J-5 and Chapter 163, Florida Statutes. Numerous policies in the Plan Amendments establish standards and criteria to protect natural and coastal resources, including: Policy 1.1.2.1.7(i), restricting dredging; Policies 1.1.1.2.10, 5.1.5.7, and 5.1.6.10, restricting the filling of wetlands; Policy 5.1.6.7, establishing wetlands setback buffers; Policy 5.1.6.4, establishing nutrient buffers; Policy 5.1.5.1, limiting dredge and fill; Policies 1.1.3.4 and 5.1.5.5, establishing standards and criteria for docks and walkways; Policy 5.1.16.1, protecting certain native habitats as open space; Policy 1.1.1.3, establishing low-impact development practices for enhanced water quality protection; and Policy 5.1.5.1, protecting listed species, including manatees. These provisions are more protective than the provisions of the existing Comprehensive and are supported by data and analysis. The Plan Amendments acknowledge and protect private property rights and include Objective 1.1.11 (Determination and Protection of Property Rights), providing for vested rights and beneficial use determinations to address unintended or unforeseen consequences of the application of the Plan Amendments in cases where setbacks cannot be achieved for specific development proposals due to lot size or configuration. FLUE Policy 1.1.1.2.8 and Conservation and Coastal Management Element Policy 5.1.6.4 in the Plan Amendments sets out procedures, standards, and criteria (including mitigation) for variances from the 150- foot Nutrient Buffer Setback. Taken as a whole, the Plan Amendments protect natural and coastal resources within the Town. Internal Consistency Docks, Open Space, and Dredge and Fill IWI contends that the Plan Amendments are internally inconsistent because policies addressing docks, open space, and dredging requirements use different language and with different meanings in different contexts. Policies in the Revised Comprehensive Plan establish 100 percent open space requirements for certain natural habitats, namely: (a) submerged aquatic vegetation; (b) undisturbed salt marsh wetlands; (c) salt flats and salt ponds; (d) fresh water wetlands; (e) fresh water ponds; and (f) maritime coastal hammock. Pile-supported, non-habitable structures such as boat docks and walkways are allowed if sited on other portions of a site. (Conservation and Coastal Management Element Policies 5.1.5.7, 5.1.6.7, 5.1.6.10, and 5.1.16.1). Other policies limit dredging to maintenance dredging. Policy 5.1.5.1 states that the Town will: Prohibit all new dredge and fill activities, including construction of new canals, along the river and coastal areas. Maintenance dredging of existing canals, previously dredged channels, existing previously dredged marinas, and commercial and public boat launch ramps shall be allowed to depths previously dredged only when the applicant demonstrates that dredging activity will not contribute to water pollution or saltwater intrusion of the potable water supply. Applicant must also demonstrate that development activities shall not negatively impact water quality or manatee habitat. Maintenance dredging is prohibited within areas vegetated with established submerged grass beds except for maintenance dredging in public navigation channels. This prohibition does not preclude the minor dredging necessary to construct "pile supported structures such as docks and walkways that do not exceed 4’ in width and constructed in accordance with OFW and Aquatic Preserve regulations," which are specifically exempted and allowed by Policy 5.1.5.7 of the Plan Amendments. Additional dredging and filling activities (beyond installation of pile supports) would not be required for docks sited where adequate water depth exists. Docks and walkways allowed under Policy 5.1.5.7 are not counted as open space. The policies concerning docks and walkways can be reconciled and do not render the Plan Amendments internally inconsistent. Low-Impact Development Policies IWI also contends that policies in the Plan Amendments requiring and encouraging low-impact development (LID) practices (which are not required or mandated under minimum requirements of Rule Chapter 9J-5 F.A.C. and Chapter 163, Florida Statutes, but adopted for additional water quality protection) are internally inconsistent. The Plan Amendments require LID practices for some new uses (new subdivisions, planned unit developments, and commercial development) and encourage them for existing uses. The Plan Amendments require or encourage these practices in different land use districts, which address different commercial or residential uses, and also discuss these practices in different elements of the Revised Comprehensive Plan, which addresses different purposes and concerns, including the FLUE (Chapter 1), the Public Infrastructure Element (Chapter 4), and the Coastal Management Element (Chapter 5). FLUE Policy 1.1.1.3 states that: In addition to complying with Outstanding Florida Water (OFW) standards, all new subdivisions, planned unit developments, and commercial development in all land use districts shall utilize "low impact" development practices appropriate for such use including: Landscaped biofiltration swales; Use native plants adapted to soil, water and rainfall conditions; Minimize use of fertilizers and pesticides; Grease traps for restaurants; Recycle storm water by using pond water for irrigation of landscaping; Dry wells to capture runoff from roofs; Porous pavements; Maintain ponds to avoid exotic species invasions; Aerate tree root systems (for example, WANE systems); Vegetate onsite floodplain areas with native and/or Florida-friendly plants to provide habitat and wildlife corridors; Rain barrels and green roofs where feasible; and Use connected Best Management Practices (BMPs) (treatment trains flowing from one BMP into the next BMP) to increase nutrient removal. Existing development shall be encouraged, but not required to use the above recommendations and shall not be considered nonconforming if they do not. In the Residential Low Density land use district, FLUE Policy 1.1.2.2.5 states: "All (a) new planned unit residential developments or (b) new platted subdivisions of 2 or more units (construction of 1 single family dwelling unit or duplex is exempt) shall utilize 'low impact' development practices for storm water management. Individual dwelling units and duplexes are encouraged to utilize those 'low impact' development practices that may be required or recommended in the Land Development Regulations." In the Residential Highest Density land use district, FLUE Policy 1.1.2.3.3 states: "Existing platted parcels are encouraged to utilize site suitable storm water management such as connecting to swales where available. All (a) new planned unit residential developments or (b) new platted subdivisions of 2 or more units (construction of 1 single family dwelling unit or duplex is exempt) shall utilize 'low impact' development practices for storm water management. Individual dwelling units and duplexes are encouraged to utilize those 'low impact' practices that may be required or recommended in the Land Development Regulations." In the Resource Protection and Public Use land use districts, FLUE Policies 1.1.2.5 and 1.1.2.6. require LID practices for all development. In the Neighborhood Commercial land use district, FLUE Policy 1.1.2.7.6 requires LID practices for "all development." In the Commercial Water-Dependent land use districts, FLUE Policy 1.1.2.8.9 requires LID practices for "all new commercial development." In the Light Industrial land use district, FLUE Policy 1.1.2.9.2 requires LID practices for "all development." These policies can be reconciled. The use of slightly different language in a particular district, or creation of an exemption for existing uses, does not render the policies internally inconsistent. Policy 4.2.2.2 of the Public Infrastructure Element (Chapter 4) of the Plan Amendments requires the adoption of land development regulations (LDRs) establishing minimum design and construction standards for new subdivisions, planned unit developments, and commercial development that will ensure that post development runoff rates do not exceed predevelopment runoff rates and encourage the same LID practices set out in FLUE Policy 1.1.1.3. IWI also contends that the inclusion of the phrase "as appropriate for such use" in the LID policies is internally inconsistent. To the contrary, it acknowledges that some of the listed practices may not be appropriate for a proposed specific use. For example, subsection (d) on "grease traps for restaurants" would not be appropriate if no restaurant is proposed. Under Section 163.3202, Florida Statutes, the Town has a year to adopt implementing LDRs providing further details, standards, and criteria for low-impact development BMPs for specific uses and within specific districts. The use of the phrase "as appropriate for such use" in the low-impact development policies allows for the exercise of engineering discretion in formulating LDRs. It does not render the policies internally inconsistent. Setbacks and Variances IWI also contends that the Plan Amendments are internally inconsistent because buffers contain different setback distances and allow for a variance to the setback buffers. The policies addressing setbacks can be read together and reconciled. The Plan Amendments include two types of setback buffers adopted for different purposes: (1) for structures, a 50-foot setback from the river and wetlands in Policies 1.1.1.2.7 and 5.1.6.7; (2) for sources of nutrient pollution other than septic systems (such as fertilized and landscaped areas and livestock sources), a 150-foot nutrient buffer setback from the river in Policies 1.1.1.2.8 and 5.1.6.4; and (3) for septic systems, special setbacks in Policy 1.1.1.2.11 (which is referred to in the nutrient buffer setback policies). These different setback policies were adopted for different purposes and are not internally inconsistent. Data and analysis supporting the establishment of these different setbacks further explains the different purposes of the different types of setbacks adopted in the Revised Comprehensive Plan. The availability of variances to the 150-foot nutrient buffer setback allows some use on a parcel to ensure protection of private property rights in the event of an unforeseen taking of all use on a specific parcel where an applicant cannot meet the setback but can meet the listed criteria for a variance and provide the mitigation required for impacts. Protection of private property rights is a competing concern that must be addressed under Chapter 163, Florida Statutes, and Rule Chapter 9J-5. The Plan Amendments need not address every possible or potential set of facts and circumstances. Additional detail can be provided in implementing LDRs adopted under Section 163.3202, Florida Statutes. Specific implementation and interpretation of policies and LDRs applicable to any particular development proposal will be made by the Town during application review process. Seemingly inconsistent policies can be reconciled by applying the most stringent policy. Seemingly inconsistent policies also could be reconciled by application of a specific exemption, variance, or beneficial use determination. Site-specific application and interpretation of policies and LDRs in development orders, and issues as to their consistency with the goals, objectives, and policies of the Revised Comprehensive Plan, can be addressed under Section 163.3215, Florida Statutes. Small Local Governments IWI contends that the Town was not held to the same data and analysis standards under Section 163.3177(10)(i), Florida Statutes, as larger local governments. Under that statute and Rule 9J-5.002(2), the Department can consider the small size of the Town, as well as other factors, in determining the "detail of data, analyses, and the content of the goals, objectives, policies, and other graphic or textual standards required " Prior to adoption of the remedial amendments, the Town was unable to utilize GIS mapping. However, for the remedial amendments, GIS mapping was provided with the assistance of the Regional Planning Council. IWI did not prove beyond fair debate that the Town's data and analyses were insufficient under Chapter 163, Florida Statutes, and Rule Chapter 9J-5. State and Regional Plans IWI also contends, for essentially the same reasons addressed previously, that the Plan Amendments are inconsistent with State Comprehensive Plan provisions on water resources, natural systems, and public facilities and Withlacoochee Strategic Regional Policy Plan provisions on natural resources, fisheries, and water quality. A plan is consistent with the State Comprehensive Plan and regional policy plan if, considered as a whole, it is "compatible with" and "furthers" those plans. "Compatible with" means "not in conflict with" and "furthers" means "to take action in the direction of realizing goals or policies of the state or regional plan." § 163.3177(10)(a), Fla. Stat. Using those definitions, IWI failed to prove beyond fair debate that the Revised Comprehensive Plan, as a whole, is inconsistent with the State Comprehensive Plan or the Withlacoochee Strategic Regional Policy Plan.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order finding the Plan Amendments to be "in compliance." DONE AND ENTERED this 30th day of October, 2009, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 2009.
Findings Of Fact Based upon the record evidence, the following Findings of Fact are made: The City of Oakland Park and Its Roadways The City of Oakland Park is an incorporated municipality located in Broward County, Florida. It is situated in the geographic center of the County. A six-lane divided expressway, I-95, runs north/south through the middle of the City. Among the major east/west thoroughfares in the City is Oakland Park Boulevard. It is a six-lane divided roadway that is functionally classified by the Florida Department of Transportation as an urban principal arterial. The roadway is lined almost exclusively with commercial development. I-95 can be accessed at Oakland Park Boulevard. The Stroks' Property and Its Surroundings Mr. and Mrs. Strok own 20.709 acres of contiguous land in the City. The land is among the few remaining undeveloped properties in the City. The Stroks' property abuts Oakland Park Boulevard to the south. Its southernmost point is a relatively short distance to the west of the Oakland Park Boulevard/I-95 interchange. At present, Oakland Park Boulevard provides the only vehicular access to the Stroks' property. Commercial development lies immediately to the east and to the west of that portion of the Stroks' property fronting on Oakland Park Boulevard. Further north on the property's western boundary is a residential neighborhood of single family homes. Single family homes also lie to the east of the Stroks' property north of Oakland Park Boulevard, but they are separated from the property by a canal. Oakland Park Boulevard, in the vicinity of the Stroks' property (Segment 366), is heavily travelled. Currently, it is operating well over its capacity and therefore, according to standards utilized by the Florida Department of Transportation, is providing a Level of Service (LOS) of "F." There are no formal plans at the moment to expend public funds on capital improvements that would increase the capacity of Oakland Park Boulevard. Whether the Stroks' property is ultimately used primarily for commercial purposes or for single family residential purposes, the development of the property will increase the traffic volume on this segment of Oakland Park Boulevard, as well as other roadway segments in the County that are now operating over capacity, but are not programmed for any capital improvements. As a general rule, however, commercial development generates more traffic than single family residential development. The City's 1989 Comprehensive Plan Future Land Use Map The City adopted its 1989 comprehensive plan on April 5, 1989. Adopted as part of the plan was a Future Land Use Map (FLUM), which was based upon appropriate surveys, studies and data concerning the area. Over Petitioners' objections, all but a small portion of the Stroks' property was designated for commercial use on the FLUM. 1/ Under the City's two prior comprehensive plans, the Stroks' entire property was designated for commercial use. "Commercial uses" are defined in Chapter IV, Section 1.32 of the City's 1989 comprehensive plan as "activities within land areas which are predominantly connected with the sale, rental and distribution of products, or performance of services." Furthermore, Chapter IV, Section 3.02(C) of the plan provides as follows with respect to lands designated for commercial use on the FLUM: Each parcel of land within an area designated in a commercial land use category by the City's land Use Plan Map must be zoned in a zoning district which permits any one or more of the following uses, but no other uses: Retail uses. Office and business uses. Wholesale, storage, light fabricating and warehouses uses, if deemed appropriate by the City. Hotels, motels and similar lodging. Recreation and open space, cemeteries, and commercial recreation uses. Community facilities and utilities. a. Special Residential Facility Category (2) development . . . . b. Special Residential Facility Category (3) development . . . . Non-residential agriculture uses. Residential uses are permitted in the same structure as a commercial use provided that the local government entity applies flexibility and reserve units to the parcel and: The residential floor area does not exceed 50% of the total floor area of the building; or The first floor is totally confined to commercial uses. Recreational vehicle park sites at a maximum density of ten (10) sites per gross acre if permanent location of recreational vehicles on the site is permitted by the City land development regulations, or twenty (20) sites per gross acre if such permanent location is prohibited by the local land development regulations, subject to allocation by the City government entity of available flexibility or reserve units. Transportation and communication facilities. The decision to designate in the City's 1989 comprehensive plan almost all of the Stroks' property for commercial use was not made without consideration of the adverse impact commercial development would have on traffic in the vicinity of the Stroks' property. Although it was recognized that such development would add more traffic to the already congested roadways in the area than would single family residential development, the prevailing view was that the additional traffic that would be generated by commercial development, as compared to that which would be generated by single family residential development, would be relatively insignificant. The designation of the major portion of the Stroks' property for commercial use is not inherently incompatible with the designations assigned other parcels of property in the surrounding area. The Stroks' property was designated for commercial use under Broward County's 1989 comprehensive plan. The Broward County Charter mandates that the land use plans of the County's incorporated municipalities be in substantial conformity with the County's land use plan. Goals, Objectives and Policies The City's 1989 comprehensive plan also includes various goals, objectives and policies. Those of particular significance to the instant case provide in pertinent part as follows: Goal 1- Protect and enhance the single family residential, multiple-family residential, non-residential and natural resource areas of Oakland Park. Objective 1.1- By November 1989, or when required by legislative mandate, revise the development code to assure that all new development . . . avoids traffic problems now impacting the City . . . . Policy 1.1.5- By November 1989, or when required by legislative mandate, the development code shall be amended to specify that no development permit shall be issued unless assurance is given that the public facilities necessitated by the project (in order to meet level of service standards specified in the Traffic Circulation, Recreation and Infrastructure policies) will be in place concurrent with the impacts of the development. A concurrency management system shall be included that specifies the latest DCA and City criteria for what constitutes "assurance" in addition to budgeted projects or signed development agreements. Goal 2- To develop an overall transportation circulation system which will provide for the transportation needs of all sectors of the community in a safe, efficient, cost effective and aesthetically pleasing manner. Objective 2.1- Provide for a safe, convenient and efficient motorized and non-motorized transportation system. Policy 2.1.1- Monitor annual traffic accident frequencies by location. Policy 2.2.2- Improve selective enforcement at high accident locations. Policy 2.1.4- Within one year of Plan submission, or when required by legislative mandate, provide safe and convenient on-site traffic flow through development review procedures. Policy 2.1.7- Reduce the amount of through traffic on local streets and collectors through the implementation, within three years of plan adoption, of a Local Area Traffic Management Program (LATMP) . . . . Policy 2.1.11- Improve the efficiency of traffic flow on existing roadways by implementing the policies of Objective 2.1. Objective 2.2- After November 1989, or when required by legislative mandate, coordinate the traffic circulation system with existing and future land uses as shown on the Future Land Use Map. Policy 2.2.1- After November 1989, or when required by legislative mandate, provide a Development Management System that will allow development to occur in concurrence with the Future Land Use Map and in concert with development of the traffic circulation system. Provide daily and peak hour LOS "D" on all arterial and collector roadways where existing plus committed traffic allows, and maintain traffic conditions on all other roadways segments. Provide daily and peak hour LOS "C" on all local roadways. LOS shall be based on the 1985 Highway Capacity Manual and the FDOT Generalized Daily and Peak Hour Level of Service Maximum Volumes. Other methods may be utilized but are subject to technical review and acceptance by the City. Policy 2.2.2- Within 120 days of plan adoption, adopt a list of local roadway segments where traffic operations are at LOS "C" or better. This list may be based on the February 21,1989 run of the Broward County TRIPS model, which includes traffic generated by committed development or other sources as appropriate. Policy 2.2.3- After 1989, or when required by legislative mandate, the City will only issue development permits for projects impacting links identified from Policy 2.2.1, under the following circumstances: There is an approved Action Plan accompanying the traffic impacts of the proposed development, where an Action Plan refers to any combination of accepted transit, ride- sharing, transportation systems management methods, etc. methods of traffic impact mitigation. The necessary improvements to provide LOS "C" are under construction, under contract for construction or the City Council determines they will be under contract during the same fiscal year. The necessary improvements to provide LOS "C" are included in an enforceable development agreement. Policy 2.2.4- Within 120 days of plan adoption, adopt a list of arterial and collector roadway segments where traffic operations are at LOS "D" or better. This list shall be based on the February 21, 1989 run of the Broward County TRIPS model, which includes traffic generated by committed development. Policy 2.2.5- After November 1989, or when required by legislative mandate, the City will issue development permits for projects impacting links identified from Policy 2.2.1, under the following circumstances: There is an approved Action Plan accompanying the traffic impacts of the proposed development, where an Action Plan refers to any combination of accepted transit, ride- sharing, transportation systems management methods, etc. methods of traffic impact mitigation. The necessary improvements to provide LOS "D" are under construction, under contract for construction or the City Council determines they will be under contract during the same fiscal year. The necessary improvements to provide LOS "D" are included in an enforceable development agreement. Policy 2.2.6- Within 120 days of plan adoption, adopt a list of arterial and collector roadway segments where traffic operations are worse than LOS "D" and there is a scheduled improvement in the City 2010 Traffic Circulation Plan. Traffic operations shall be based on the February 21, 1989 run of the Broward County TRIPS model, which includes traffic generated by committed development. These links will be identified as "Planned Improvement Facilities" and the LOS will be "Maintained" within 10% of identified existing plus committed conditions, where traffic conditions are measured by volume to capacity ratios. Policy 2.2.7- After November 1989, or when required by legislative mandate, the City will only issue development permits for projects impacting links identified from Policy 2.2.3, under the following circumstances: The proposed impacts will "Maintain," within 10% of existing plus committed traffic conditions and the scheduled 2010 improvement will be able to operate at LOS "D" once constructed. There is an approved Action Plan accompanying the traffic impacts of the proposed development, where an Action Plan refers to any combination of accepted transit, ride- sharing, transportation systems management methods, etc. methods of traffic impact mitigation. The necessary improvements to provide LOS "D" are under construction, under contract for construction or the City Council determines they will be under contract during the same fiscal year. The necessary improvements to provide LOS "D" are included in an enforceable development agreement. Policy 2.2.8- Within 120 days of plan adoption, adopt a list of arterial and collector roadway segments where traffic operations are worse than LOS "D" and there is no scheduled improvement in the City 2010 Traffic Circulation Plan. 2/ Traffic operations shall be based on the February 21, 1989 run of the Broward County TRIPS model, which includes traffic generated by committed development. These links will be identified as "Constrained Facilities" and the LOS will be "Maintained" within 10% of identified existing plus committed conditions, where traffic conditions are measured by volume to capacity ratios. Policy 2.2.9- After November 1989, or when required by legislative mandate, the City will only issue development permits for projects impacting links identified from Policy 2.2.5, under the following circumstances: The proposed impacts will "Maintain," within 10% of existing plus committed traffic conditions. There is an approved Action Plan accompanying the traffic impacts of the proposed development, where an Action Plan refers to any combination of accepted transit, ride- sharing, transportation systems management methods, etc. methods of traffic impact mitigation. Policy 2.2.10- The City will annually update existing traffic counts and review updated Broward County Trips assignments. Based on the update the City may reclassify any roadway segment within the City. The City may also reclassify a roadway segment if development from outside the City has effected traffic conditions within the City. Policy 2.2.11- Subsequent to plan adoption, modify the land development regulations such that after 1989, or when required by legislative mandate, require trip generation studies from all proposed development within the City and traffic impact studies for developments generating more than 10% of adjacent roadway capacity and allow development contingent upon the provision of LOS Standards. Objective 2.4- Provide for the protection of existing and future rights of way from building encroachment. Policy 2.4.2- Modify land development regulations to ensure consistency with the Broward County Trafficways Plan right-of-way requirements during development review activities. Goal 9- To ensure the orderly and efficient provision of all public services and facilities necessary to serve existing and future local population needs. Objective 9.2- By November 1989, or when required by legislative mandate, provide that development or redevelopment proposals are approved consistent with existing service availability or coincident with the programmed provision of additional services at the adopted level of service standards and meets existing and future facility needs. Policy 9.2.1- Within one year of Plan submission, or when required by legislative mandate, revise development procedures to review development proposals cognizant of the City's adopted level of service standards, existing levels of service and where appropriate, the timeframe for implementation of additional facility improvements. Policy 9.2.2- After 1989, or when required by legislative mandate, condition the approval of proposed development or redevelopment projects on the basis of project related needs being concurrently available at the adopted level of service standards specified in Policy 9.2.4. Policy 9.2.3- After November 1989, or when required by legislative mandate, allow for phasing of development related infrastructure improvements concurrently with project impacts on public facilities. Policy 9.2.4- The Level of Service (LOS) for capital facilities shall be: * * * for Arterials and Collectors- LOS "D" or "Maintain" for Local Roadways- LOS "C" ADT, PSDT and PKHR Objective 9.3- By November 1989, or when required by legislative mandate, provide that private developers participate on a proportionate share basis in any facility improvement costs necessary to maintain LOS standards. Policy 9.3.2- Establish a preference for the actual construction of adjacent site road improvements in lieu of impact fee payments. Policy 9.3.3- By November 1989, or when required by legislative mandate, establish in the land development regulations a process for assessing new development on a pro rata share of the costs necessary to finance public facility improvements in order to maintain the adopted level of service standards specified in Policy 9.2.4. Development Review Requirements Chapter IV, Section 4 of the City's 1989 comprehensive plan prescribes development review requirements. It provides in pertinent part as follows: Following the effective date of the Land Use Plan, the City shall not grant a permit for a proposed development unless the City has determined that public facilities are adequate to serve the needs of the proposed development or unless the developer agrees in writing that no certificate of occupancy shall be issued for the proposed development until public facilities are adequate to serve its needs. Public facilities may be determined to be adequate to serve the needs of a proposed development when the following conditions are met. Traffic circulation . . . public facilities and services will be available to meet established level of service standards, consistent with Chapter 163.3203(g) Florida Statutes and the concurrence management policies included within this Plan. Local streets and roads will provide safe, adequate access between buildings within the proposed development and the trafficways identified on the Broward County Trafficways Plan prior to occupancy. Capital Improvements Implementation Chapter VII of the plan deals with the subject of capital improvements implementation. It contains a section which addresses the matter of level of service standards. This section provides in pertinent part as follows: The minimum criteria for Comprehensive Plans requires that Level of Service Standards for the City of Oakland Park be included for public facilities described in the plan. The Level of Service Standards for the City of Oakland Park are provided in the following Table 2. Subsequent to the adoption of this Comprehensive Plan, all future development approvals will be conditioned upon the provision of services at the local level of service standards. Table 2 sets forth the following level of service standards for roadways: Principal Arterials- LOS "D" or "Maintain" Minor Arterials- LOS "D" or "Maintain" Collectors- LOS "C"- AADT, 3/ PSDT 4/ PKHR 5/ Submission and Approval of the Stroks' Plat On June 6, 1989, the Stroks submitted to the County Commission for its approval a final plat of their property. The plat reflected the Stroks' plan to have 15 single family dwelling units, 180,000 square feet of office space and 36,000 square feet of commercial space constructed on the property. County staff analyzed the plat to ascertain the impact that the proposed development would have on traffic. In performing their analysis, they relied on the County's TRIPS computer model. Broward County assesses impact fees against a developer where it is projected that a development will add traffic to road segments in the County that are over-capacity, but are planned for improvement. The TRIPS computer model is used to determine the amount of the assessment. County staff did a TRIPS run on the Stroks' plat on September 13, 1989 and determined that the development proposed in the plat would generate a total of 6,879 trips on road segments throughout the County, including over-capacity road segments that were not planned for improvement, as well as over-capacity road segments that were planned for improvement. 6/ The County Commission approved the Stroks' plat on September 19, 1989. A short time earlier, the City Council had also approved the plat. Petitioners' Motives Petitioners are all residents of the City of Oakland Park. In filing their petitions challenging the City's 1989 comprehensive plan, they were motivated only by a desire to improve the quality of life in their city. They had no ulterior motive. They filed the petitions because they felt that it was in the best interest of the City that they do so.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Community Affairs issue a final order finding that the City of Oakland Park's 1989 comprehensive plan is "in compliance," within the meaning of Section 163.3184(1)(b), Florida Statutes. DONE and ORDERED this 18th day of May, 1990, in Tallahassee, Florida. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of th Division of Administrative Hearings this 18th day of May, 1990.
