The Issue The issue in this case is whether Sumter County comprehensive plan amendment 94D1 adopted on September 20, 1994, by Ordinance No. 94-6 is in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact have been determined: Background The parties Respondent, Sumter County (County), is a local government subject to the comprehensive land use planning requirements of Chapter 163, Florida Statutes. That chapter is administered and enforced by respondent, Department of Community Affairs (DCA). The DCA is charged with the responsibility of reviewing comprehensive land use plans and amendments made thereto. Petitioners, T. D. Farnsworth and James E. Boyd, own property and reside within the northern part of unincorporated Sumter County. Petitioner, Sumter Citizens Against Irresponsible Development (SCAID), is an organization founded by a small group of citizens for the purposes of preserving the "rural lifestyle" of the County, preventing urban sprawl, and ensuring "that development will not be a burden to the taxpayers" of the County. Farnsworth is president of the group while Boyd serves as its treasurer. By stipulation of the parties, petitioners are affected persons within the meaning of the law and have standing to bring this action. Intervenor, Villages of Lake Sumter, Inc. (Villages), is a Florida corporation and the owner and developer of the Tri-County Villages development of regional impact, which is the subject property of this proceeding. Villages submitted oral and written comments during the plan amendment review and adoption proceeding and thus has standing as an affected person to participate in this proceeding. Tri-County Villages To place this dispute in proper perspective, it is necessary to trace the history of the development which has occurred in and around the subject property. As noted earlier, intervenor is the owner and developer of the Tri- County Villages development located in unincorporated Sumter County. Development which predated the existing Tri-County Villages development commenced in approximately 1968 with Orange Blossom Garden North (OBGN). OBGN was an approximately 1,000-acre project owned and operated by Orange Blossom Hills, Inc. as a mobile home retirement community located mostly in the Town of Lady Lake, Florida. That community lies in the northwestern corner of Lake County, which adjoins the northeastern corner of Sumter County. Because the development of OBGN commenced prior to July of 1973, it is vested for purposes of development of regional impact (DRI) review pursuant to Section 380.06(20), Florida Statutes. In 1987, Orange Blossom Hills, Inc. submitted an Application for Development Approval (ADA) with the Town of Lady Lake which requested authorization to develop Orange Blossom Gardens South (OBGS). The OBGS development was an approximately 595-acre extension of the vested OBGN retirement community and was determined by the DCA and Town of Lady Lake to be a DRI. On January 18, 1988, the Town of Lady Lake approved the proposed OBGS development. In 1989, Orange Blossom Hills, Inc. submitted to the Town of Lady Lake and the County an ADA requesting a substantial deviation from the OBGS DRI. The substantial deviation request sought authorization to develop Orange Blossom Gardens West (OBGW). OBGW was planned as an approximately 1,700-acre extension to the OBGS DRI. The Town of Lady Lake approved the substantial deviation request through the issuance of an Amended Development Order on May 7, 1990. The County approved the development within its jurisdiction on May 29, 1990. In September 1993, intervenor, as successor to Orange Blossom Hills, Inc., submitted an ADA to the County which requested a substantial deviation from the OBGS and OBGW DRI's. By submitting this latest development, intervenor sought to add approximately 1,960 acres to the existing OBGS and OBGW DRI's and modify the development already approved by adding a total of 6,250 residential units and 910,000 square feet of commercial square footage. The overall development was renamed Tri-County Villages. The development order approving the substantial deviation for Tri-County Villages was adopted by the County on September 20, 1994. The Challenged Amendment On September 20, 1994, or prior to approval of the Tri-County Villages development substantial deviation, but in conjunction with it, the County adopted plan amendment 94D1 by Ordinance No. 94-6. On November 10, 1994, the DCA determined the amendment to be in compliance. That amendment amended the plan's Future Land Use Map (FLUM) to revise the land use designations on approximately 1,960 acres of land. Specifically, the plan amendment designated as Planned Unit Development (PUD) all areas of the approved OBGW DRI and the additional 1,960 acres referred to in Exhibit 1 of 94D1 as parcels 5 and 8. Prior to the amendment, parcels 5 and 8 had been designated predominantly as agricultural, with small pockets of rural residential. The plan amendment also revised the FLUM by extending the urban expansion area to include all of parcels 5 and 8. Prior to the amendment, only a small section of parcel 8 was included in the urban expansion area. The plan amendment further included several textual revisions to the Future Land Use Element (FLUE), including a revision to FLUE Policy 1.5.7 concerning the ratio of commercial square footage to residential units and the addition of FLUE Objective 1.14 and Policies 1.14.1 - 1.14.6, which essentially incorporated the concept of sector planning into the plan. Finally, the plan amendment revised Policy 2.1.5 of the Sanitary Sewer Element which, subject to submission of appropriate data and analysis, and Department of Environmental Protection approval, reduced the established level of service for sanitary sewer throughout the Tri-County Villages development. The Tri-County Villages DRI and ADA and plan amendment are related in that Section 380.06(6), Florida Statutes, requires that the local government's review of the DRI and corresponding comprehensive plan amendment be initiated and concluded at the same time. In the instant case, the Tri-County Villages ADA served as much of the background data and analysis for the plan amendment. The Tri-County Villages DRI also served as the sector plan for the area covered by the amendment. In addition to the voluminous data and analysis included in the Tri- County Villages ADA, the plan amendment also included detailed data and analysis. The data and analysis accompanying the amendment included a compatibility and land use suitability analysis, a soils analysis, an evaluation of urban sprawl related issues, an analysis of environmental considerations, a population and housing analysis, a concurrency analysis, and an analysis to ensure that the amendment was consistent with the adopted comprehensive plan. The data and analysis collectively demonstrated that the urban development proposed by the amendment was appropriate for the designated area. C. Is the Plan Amendment in Compliance? In their proposed recommended order, petitioners summarize their objections to the plan amendment as follows: (a) the amendment fails to protect agricultural lands, (b) the amendment encourages urban sprawl, (c) the future land use map is internally inconsistent, (d) there is no demonstrated need for 1,960 acres of PUD land use, (e) PUD is not a valid land use category, (f) the amendment does not ensure adequate fire and emergency medical services, (g) the County failed to coordinate with the local school board, (h) there is no reasonable protection from flooding, (i) the amendment does not provide adequate parks and recreational facilities, (j) affordable housing needs are not met, and there is no requirement that the developer install water and sewer facilities at its own expense. These contentions will be discussed separately below. Protection of agricultural lands Under the amendment, 1,960 acres of agricultural land will be converted to urban type uses. Petitioners contend that the amendment fails to protect agricultural land as required by FLUE objective 7.1.2 and Rule 9J- 5.006(5)(g)5., Florida Administrative Code. The cited objective "establishes agriculture as the primary use outside of the urban expansion area" and "insures retention of agricultural activities." If the plan amendment fails to "adequately protect adjacent agricultural areas," the cited rule considers this failure to be a prime indicator that the amendment does not discourage the proliferation of urban sprawl. The rule and objective do not prohibit the conversion of agricultural lands to urban uses. Indeed, FLUE objective 1.2 and the corresponding policies allow for the conversion of suitable agricultural lands as the need for additional urban land is demonstrated. The policies also require that the conversion be done in a well planned, orderly and logical fashion based on need and suitability. The agricultural lands being converted as a result of the plan amendment are appropriate for conversion. The plans, FLUE data and analysis demonstrate that one of the best areas for urban development in the County is the northeast portion of the County which covers the agricultural lands in the plan amendment. This determination was based on an extensive analysis of various factors including soil suitability, environmental constraints, and other planning criteria such as proximity to existing urbanized areas. The evidence establishes that the conversion of agricultural land contemplated by the plan amendment was justifiable because of the extent of urban development already existing in the area and the urban infrastructure currently in place. In addition, future populations will be directed away from the remaining agricultural lands throughout the County and to the development proposed by the plan amendment. The open space required by the PUD and Tri- County Villages amended development order sector plan will also serve to buffer and ensure compatibility of land covered by the plan amendment and the adjacent agricultural and rural lands. In view of the above, it is found that petitioners have not shown to the exclusion of fair debate that the plan amendment fails to protect agricultural land. Urban sprawl In the same vein, petitioners contend that the amendment fails to discourage urban sprawl because of the conversion of 1,960 acres of agricultural land to urban uses. In support of this contention, they cite a number of provisions within Chapter 9J-5, Florida Administrative Code, all dealing with urban sprawl, and which have allegedly been violated. They also point to the fact that large portions of the existing development have not been sold or built out, only 2 percent of the 1,960 acres will be devoted to commercial land use, the multiplier for the plan amendment is in excess of 1.25, which is an indicator of urban sprawl, and no future public facilities and services are planned for the lands covered by the amendment prior to its adoption. The plan amendment includes an evaluation of urban sprawl. That evaluation references FLUE policy 1.2.5.(a), which was adopted by the County specifically as a mechanism for discouraging urban sprawl. A review of that policy indicates that, for a PUD to be allowed in an agricultural area, it must score approximately 50 points based on factors including, but not limited to, proximity to the urban expansion area, proximity to urban services, including water, sewer, and roads, and proximity to other services such as fire protection and emergency medical services. If a proposed amendment or PUD failed to score 50 points, it was deemed to encourage urban sprawl and would not be approved by the County. The plan amendment scored 130 points, well in excess of the 50 point threshold. In addition to satisfying FLUE policy 1.2.5.(a), the plan amendment is consistent with FLUM maps VII-18A and VII-18C, which are the future land use constrained area overlay and urban sprawl evaluation overlay, respectively. As the FLUE data and analysis indicate, these maps were prepared for the purpose of directing urban development into areas most suitable for such development. Map VII-18A demonstrates that the land included in the plan amendment has only slight limitations for urban development. Similarly, Map VII-18C indicates that the land has only slight limitations in regard to urban sprawl. In fact, portions of land covered by the plan amendment are already within an established urban expansion area which is the OBGW DRI. Finally, the PUD mixed land use category and sector plan concept adopted by the plan amendment are planning methods specifically recognized and encouraged by prior DCA policy as reflected in the DCA's Technical Memo Special Edition 4-4 and the urban sprawl provisions incorporated into Rule 9J- 5.006(5)(l), Florida Administrative Code, effective May 18, 1994, as methods of discouraging urban sprawl. Indeed, the rule provides in part that mixed use development and sector planning . . . will be recognized as methods of discouraging urban sprawl and will be determined consistent with the provisions of the state comprehensive plan, regional policy plans, Chapter 163, Part II, and this chapter regarding discouraging the proliferation of urban sprawl. Given the above, it is found that petitioners have not shown to the exclusion of fair debate that the plan amendment encourages urban sprawl. The consistency of the future land Petitioners next argue in general terms that the FLUM does not "reflect policies which call for maintaining agricultural lands, discouraging urban sprawl, promoting land use compatibility, protection from flooding, providing for adequate public recreation facilities, and other objectives," and thus it is internally inconsistent. The FLUM series in the plan as well as the FLUM series as amended by the plan amendment is a pictorial representation of the goals, objectives, and policies of the comprehensive plan. In the absence of any credible evidence to the contrary, it is found that petitioners have failed to show to the exclusion of fair debate that the FLUM is internally inconsistent as alleged in their petition. Demonstrated need Petitioners next allege that the plan amendment "is premature in time and fails to provide demonstrated need" as required by various provisions within Chapter 9J-5, Florida Administrative Code. They further allege that the FLUM "is not based upon adequate surveys, studies, or data regarding the amount of land needed to accommodate anticipated growth." Initially, it is noted that the data and analysis in the plan are not subject to the compliance review process. Chapter 163, Florida Statutes, authorizes the DCA in a compliance review to determine only if the plan or plan amendment is based on appropriate data and analysis and whether the data was collected in a professionally acceptable manner. Planning methodologies used in analysis of the data, such as the calculation of a multiplier, must also be prepared in a professionally acceptable manner. In addition, the DCA may not choose one methodology over another. At hearing, petitioners raised issues concerning the methodology used in calculating the County's residential land use allocation multiplier and contended that other factors such as mortality rates and resale figures should have been used in calculating the multiplier. The preparation of the multiplier in issue came as a result of the DCA's Objections, Recommendations and Comments report. That report recommended that the County provide an analysis which demonstrated that the land use change requested in the plan amendment was based on the amount of additional land needed to accommodate the projected population during the planning time frame (the year 2014) established by the Tri-County Villages Amended Development Order sector plan. Based on historic data, the County calculated a multiplier which depicted the allocation of residential land countywide. The multiplier was 1.87, which means that the County allocated residential land uses approximately 87 percent above its demonstrated need for the planning period. The evidence shows that, in order to allow some degree of development flexibility, a local government will routinely allocate more land than is actually needed. Indeed, a multiplier of 1.87 is low when compared to the other multipliers found in compliance in adjacent local governments as well as in other local governments statewide. In actuality, a 1.87 multiplier is not really the most accurate depiction of the allocation of residential land county-wide because the population for OBGW and the other PUD in the County was not included in the calculation. In an effort to provide a more accurate multiplier, the County added to the equation the projected population for OBGW and the PUD. The resulting revised multiplier equalled 1.46. Petitioners developed a multiplier of their own of 1.88. However, they failed to show that the County's multiplier was not developed in a professionally acceptable manner. Moreover, petitioners' methodology was unacceptable because it did not project its population over the correct planning horizon. Petitioners failed to consider the 2014 planning horizon established by the Tri-County Villages Amended Development Order sector plan which controls the development of land covered by the plan amendment. Instead, petitioners multiplier incorrectly used the 2001 planning horizon established by the plan. In addressing the need for additional residential allocation, the amount of residential land allocated must be a reflection of the population expected through the end of the Tri-County Villages sector plan 2014 planning horizon. The type of development contemplated by the plan amendment and the additional population has not previously occurred in the County. Since development of OBGW commenced in 1992, the building permits issued in the County have increased by 94 percent. Much of this increase can be attributed to OBGW. The number of yearly certificates of occupancy for OBGW has stayed relatively constant and is expected to remain constant throughout the planning horizon. Intervenor's marketing scheme for OBGW seeks to attract retirees predominately from the northeastern part of the United States. The residents are not generally County residents prior to moving to Tri-County Villages. This same marketing scheme will be used for the future development of the Tri-County Villages. Thus, the future Tri-County Villages residents are not expected to be from the County. Tri-County Villages is a new type of development for the County. This new population was not taken into account in the original comprehensive plan which also had a low multiplier. Therefore, the need for residential allocation for this new population was not addressed. Because this new population is a reality which was not comtemplated by the plan, and the plan does not have an excess of allocated residential land, the need for the increased residential densities has been demonstrated. Petitioners have not shown to the exclusion of fair debate that the plan amendment was premature or not based on a demonstrated need. PUD as a land use category Because a planned unit development (PUD) is not "recognized" as a land use category in Rule 9J-5.006(1), Florida Administrative Code, petitioners contend that the use of that category in the plan amendment renders it not in compliance. For purposes of its compliance review, the DCA used the version of chapter 9J-5 which was in effect at the time of the submittal of the plan amendment. Then existing Rule 9J-5.006(1)(a), Florida Administrative Code, which was effective on March 23, 1994, established the generalized land uses which must be shown on the Existing Land Use Map (ELUM). Rule 9J-5.006(4)(a), Florida Administrative Code, requires that these same generalized land uses must be depicted on the FLUM as well. While it is true that PUD is not one of the generalized land uses listed in chapter 9J-5, the two rules cited above both allow a local government to depict other land use categories on the ELUM and FLUM. Because the plan references PUD as a mixed land use category, the County has properly depicted that category on both the ELUM and FLUM. Petitioners have failed to show that PUD as a mixed land use category is not recognized under the rules in existence when the plan amendment was reviewed. Compatibility with adjacent agricultural lands Petitioners have also alleged that the County has "not demonstrated compatibility with adjacent agricultural and rural residential land uses." They point to the fact that the area adjacent to and near the development is a "friendly rural community," and they allege that the development will harm this wholesome atmosphere. The plan allows for the well planned conversion of agricultural lands in the County. One of the requirements of the plan's PUD provisions is that PUD development be buffered from adjacent lands and contain open space. The purpose of this provision is to ensure compatibility. A review of the PUD application and DRI Master Development Plan, both incorporated into the plan amendment, shows that the Tri-County Villages development will provide approximately 1,100 acres of open space. Much of this open space will act as a buffer between the development and the adjacent agricultural and rural land uses. The project will also cluster its development which serves to separate the more urban development from the adjacent agricultural and rural uses. Another mechanism which ensures compatibility is the phased method of development proposed for the project. Under the phasing approach, only contiguous portions of the property will be developed at any given time during the planning period. In addition, existing agricultural uses on the property will continue until such time as the proposed development reaches that property. Given these considerations, it is found that petitioners have not shown to the exclusion of fair debate that the plan amendment is incompatible with adjacent land uses. Levels of service In their amended petition, petitioners assert that the plan amendment is in violation of FLUE objective 7.1.6 and FLUE policy 7.1.6.1, objective 1.1 and policy 1.1.1 of the Capital Improvements Element, Rules 9J-5.005(3), 9J- 5.011(2)2., 9J-5.015(3)(b)1., and 9J-5.016(3)(a) and (b)4., Florida Administrative Code, and Section 187.201(16)(b)6., Florida Statutes, all pertaining specifically or generally to levels of service for recreational facilities, schools, fire protection, emergency medical services and flooding. Policy 1.1.1 of the Capital Improvements Element adopts a recreational facility level of service for such facilities as softball fields, baseball fields, basketball courts, boat ramps and the like. The amount of facilities required is based on population. Under the plan, the County must take the necessary steps to insure that the availability of these facilities is addressed during the concurrency review process and not at the compliance review stage. In other words, when a proposed development reaches the stage of requesting a building permit, the County may require as a condition of the issuance of that building permit that a developer provide a certain facility. In this regard, it is noted that Chapter 163, Florida Statutes, requires that any development comply with concurrency requirements while the Tri-County DRI Amended Development Order requires that the developer provide for adequate public facilities. Both the plan amendment and the development authorized therein generally address the recreational level of service. However, if no additional facilities are constructed in the future, the plan amendment does not provide adequate baseball fields, softball fields, boat ramps or handball courts consistent with policy 1.1.1. In addressing these potential deficiencies, intervenor represented to the County that as a retirement community, the development would not generate a demand for these types of facilities. That is to say, the retiree population inhabiting the development would be less likely to participate in activities such as baseball or softball. The population would, however, generate a need for other recreational facilities such as golf courses, swimming pools, shuffleboard courts and bocci ball facilities, all of which the development has a surplus. In response to this concern, the County concluded that it was not appropriate to require the construction of certain facilities when the project would not generate a need for them. The County indicated that, during the plan evaluation and appraisal stage required in 1998, an amendment to the plan would be transmitted which would revise the plan to take into account such situations. If such an amendment is not adopted, intervenor will need to provide additional facilities necessary to meet concurrency requirements. There is no established level of service in the plan for fire protection or emergency medical services. Intervenor has, however, addressed these services in the Amended Development Order for the development. As reflected in that order, intervenor donated a five-acre parcel and constructed a fire station adjacent to the development. The station may also be used to house emergency medical services, if needed, although an existing emergency medical service provider is located in close proximity. Intervenor also donated to the County $80,000 for the purchase of fire fighting equipment, and each household pays the County a $30 annual fee for fire protection. Therefore, fire protection and emergency medical services have been addressed. The plan establishes no level of service standard for schools. Because the development is a retirement community, children under age 19 are prohibited. As a consequence, it was determined that impacts to school facilities would be minimal. Intervenor contacted and advised the school board of its retirement community development plans and projected student impacts. In response, the school board concluded that minimal impact was expected as a result of the development. To the extent that the development in the future allows school age children to reside therein, the Amended Development Order specifically calls for a substantial deviation determination pursuant to Section 380.06(19), Florida Statutes, to evaluate the potential impacts to school facilities. As a result of further review, intervenor may be required to provide additional school facilities. The plan establishes a level of service for stormwater drainage in terms of quantity and quality. Based on flooding which has occurred in the existing OBGW development, petitioners suggest that flooding will occur in the development proposed in conjunction with the plan amendment. While such flooding has occurred in the OBGW development, there is no evidence that the flooding was caused by a reduction or violation of the stormwater drainage level of service. Indeed, the evidence shows that the flooding was caused by an unusually heavy period of rainfall in combination with debris clogging the inlets of the stormwater system. The actual stormwater system for OBGW, which was reviewed and approved in the OBGW DRI review process, was designed for and required to meet the plan's drainage level of service. As a concurrency matter, any system designed for the future development contemplated in the plan amendment will also be required to meet the stormwater drainage level of service. Accordingly, it is found that petitioners have not shown to the exclusion of fair debate that the plan amendment violates the plan's level of services standard for stormwater drainage. Affordable housing Petitioners further allege that the plan amendment "fails to provide for affordable housing as required by Objective 3.5 of the Housing Element of the (plan)" in violation of various rules and the state comprehensive plan. The rule alleged to have been violated requires a local government to analyze the affordable housing stock within the local government. The local government must then adopt comprehensive plan goals, objectives, and policies which establish programs to ensure an adequate supply of affordable housing for the present and future residents. Housing Element objective 3.5 and the implementing policies which follow provide one of the mechanisms, coordination with the private sector, which the County uses to address the provision of affordable housing countywide. The provisions of objective 3.5 and the implementing policies place no specific requirements on the private sector. These plan provisions only require that, in addressing the provision of affordable housing, the County work with the private sector. Contrary to petitioners' assertion, neither the plan provisions nor chapter 9J-5 require the plan amendment to address the affordable housing deficiencies countywide. As a DRI requirement, however, the plan amendment does address the provision of affordable housing. A detailed housing analysis was provided in the Tri-County Villages ADA. The analysis included a review of the affordable housing stock pursuant to the East Central Florida Regional Planning Council's housing demand, supply and need methodology. The analysis further concluded that after phase 3, additional affordable housing may be necessary. To address this deficiency, the ADA for the development requires intervenor to reanalyze the available affordable housing consistent with objective 3.5 of the Housing Element. Thus, it is found that petitioners have not shown to the exclusion of fair debate that the plan amendment fails to provide affordable housing. i. Infrastructure funding Finally, petitioners allege that the plan amendment is inconsistent with FLUE policy 1.5.4. That policy provides as follows: All PUDS shall provide for central potable water and sanitary sewer facilities at the developer's expense and provide for fire hydrants and fire flow within the development in accordance with the National Fire Protection Association Standards. Intervenor has created community development districts as a mechanism to fund the development infrastructure. Intervenor is able to raise funds by the sale of bonds through these districts. The residents of the development will ultimately repay the bonds. Even so, petitioners allege that this funding mechanism is inconsistent with the cited policy because the infrastructure is not funded "at the developer's expense." The purpose and intent of the policy was to insure that the County not be obligated to fund infrastructure related to the PUD development. The developer, and ultimately the residents, of the project will fund the infrastructure through the community development districts. The County will not be obligated. This funding mechanism is consistent with policy 1.5.4. in that the County is not responsible for the funding of the PUD-related infrastructure. Accordingly, petitioners have not shown to the exclusion of fair debate that the plan amendment is inconsistent with the cited policy.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining that Sumter County's comprehensive plan amendment 94D1 is in compliance. DONE AND ENTERED this 11th day of July, 1995, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11 day of July, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-6974GM Petitioners: 1. Partially accepted in finding of fact 1. 2. Partially accepted in finding of fact 2. 3. Partially accepted in finding of fact 3. 4-5. Rejected as being unnecessary. 6. Partially accepted in finding of fact 40. 7. Partially accepted in finding of fact 34. 8-9. Rejected as being unnecessary. 10. Partially accepted in findings of fact 7-9. 11-14. Rejected as being unnecessary. Partially accepted in finding of fact 8. Partially accepted in finding of fact 7. Rejected as being unnecessary. Partially accepted in finding of fact 8. 19-21. Partially accepted in finding of fact 2. 22-23. Covered in procedural statement. 24-29. Partially accepted in findings of fact 16-20. 30-41. Partially accepted in findings of fact 21-25. 42. Rejected as being unnecessary. 43-77. Partially accepted in findings of fact 28-36. 78-85. Partially accepted in findings of fact 37-39. 86-95. Partially accepted in findings of fact 40-42. 96-148. Partially accepted in findings of fact 43-49. 149-162. Partially accepted in findings of fact 50-53. 163-166. Partially accepted in findings of fact 54-56. Respondents/Intervenor: With certain changes, the substance of proposed findings 1-53 has been generally incorporated into this recommended order. Note: Where a proposed finding has been partially accepted, the remainder has been rejected as being unnecessary for a resolution of the issues, irrelevant, not supported by the more credible, persuasive evidence, subordinate, or a conclusion of law. COPIES FURNISHED: Linda Loomis Shelley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Dan R. Stengle, Esquire General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Mr. T. D. Farnsworth 12364 County Road 223 Oxford, Florida 34484 Felix M. Adams, Esquire 236 North Main Street Bushnell, Florida 33513-5928 David L. Jordan, Esquire Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Nancy G. Linnan, Esquire Post Office Drawer 190 Tallahassee, Florida 32302-0190 R. Dewey Burnsed, Esquire Post Office Box 491357 Leesburg, Florida 34749-1357
The Issue The issue is whether a text amendment to the general description of the Commercial land use designations of the Comprehensive Plan (Plan) of Respondent, City of Jacksonville (City), adopted by Ordinance No. 2010-401-E on June 22, 2010, is in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: The Parties The City is a municipal entity and is responsible for enacting and amending its Plan. Since 2007, the City has participated in the Pilot Program for adoption of comprehensive plan amendments. Except for amendments based on the Evaluation and Appraisal Report or amendments based on new statutory requirements that specifically require that they be adopted under the "traditional" procedure described in section 163.3184, and small-scale amendments, all other amendments must be adopted under that process. Under the Pilot Program, municipalities have "reduced state oversight of local comprehensive planning," and plan amendments may be enacted in "an alternative, expedited plan amendment adoption and review process." § 163.32465, Fla. Stat. Although the City must send a transmittal package to the Department of Community Affairs (Department) and other designated agencies for their preliminary review, the Department does not issue an Objections, Recommendations, and Comments Report or a notice of intent. Instead, the Department "may provide comments regarding the amendment or amendments to the local government." Id. It may also initiate an administrative proceeding to challenge whether an amendment is in compliance. Id. In this case, the Department did not file adverse comments or initiate a challenge to the City's amendment. Clifton Curtis Horton owns real property located at 7175 Blanding Boulevard, Jacksonville, Florida. Horton Enterprises, Inc., is a Florida corporation that owns and operates a "strip club" known as "New Solid Gold" located on Mr. Horton's property. The club is an "adult entertainment establishment" as defined by the Jacksonville Municipal Code (JMC). See §§ 150.103(c) and 656.1101, JMC. History Preceding the Amendment In order to operate an adult entertainment facility within the City, the facility must have both a correct land use and zoning classification. The location must also satisfy certain distance limitations from schools (2,500 feet), other adult entertainment businesses (1,000 feet), churches (1,000 feet), residences (500 feet), and businesses selling alcohol (500 feet). See § 656.1103(a)(1)-(4), JMC; § 847.0134, Fla. Stat. Prior to 2005, adult entertainment facilities were an authorized use in the Heavy Industrial (HI) land use category. In 2005, the City adopted Ordinance No. 2005-1240-E, which approved a text amendment to the Future Land Use Element (FLUE) of the City's 2010 Plan adding the following language to the Community/General Commercial (C/GC) land use category: "Adult entertainment facilities are allowed by right only in Zoning District CCG-2." See Respondent's Exhibit D. That classification is the primary zoning district within the C/GC land use category. The Ordinance also deleted the following language from the HI land use category: "Adult entertainment facilities are allowed by right." Id. The purpose of the amendment was to change the permissible land use designation for adult entertainment facilities from HI to C/GC with a further condition that the property must also have a CCG-2 zoning classification. At the same time, the City enacted Ordinance No. 2005-743-E, which adopted a new zoning requirement that any adult entertainment facility whose location was not in conformity with the revised land use/zoning scheme must close or relocate within five years, or no later than November 10, 2010. See § 656.725(k), JMC. Because New Solid Gold did not conform to these new requirements, it would have to close or relocate within the five-year timeframe. On an undisclosed date, Horton Enterprises, Inc., and two other plaintiffs (one who operated another adult entertainment facility in the City and one who wished to open a new facility) filed suit in federal court challenging the constitutionality of the City's adult zoning scheme and seeking to enjoin the five-year amortization requirement, as applied to them. See Jacksonville Property Rights Ass'n v. City of Jacksonville, Case No. 3:05-cv-1267-J-34JRK (U.S. Dist. Ct., M.D. Fla.). On September 30, 2009, the United States District Court entered a 33-page Order generally determining that, with one exception not relevant here, the City's zoning and land use scheme was permissible. See Petitioners' Exhibit V. On November 3, 2009, that Order was appealed by Petitioners to the United States Court of Appeals for the 11th Circuit where the case remains pending at this time. The parties' Stipulation indicates that oral argument before that Court was scheduled during the week of December 13, 2010. An Order of the lower court memorialized an agreement by the parties that the five- year time period for complying with the new requirements are stayed until the federal litigation is concluded. See Petitioners' Exhibit JJ. The Court's Order also noted that an "ambiguity" in the Plan arose because the City failed to "remove the language in the general description of the Commercial land use designations acknowledging its intention to locate adult entertainment facilities in the HI category." Id. at 19. This occurred because when adopting the new amendments, the City overlooked conflicting language in the general description of the Commercial land use designations in the FLUE. However, the Court resolved the ambiguity in favor of the City on the theory that the conflicting language was contrary to the City's overall legislative intent in adopting the new land use/zoning scheme and could be disregarded. Id. Thereafter, a new amendment process was begun by the City to delete the conflicting language. This culminated in the present dispute. The Transmittal Amendment - 2010-35-E To eliminate the ambiguity, the City proposed to amend the FLUE by deleting the following language from the general description of the Commercial land use designations: "Adult entertainment facilities are allowed by right in the heavy industrial land use category, but not in commercial." This amendment was numbered as Ordinance No. 2010-35-E. A public workshop was conducted by the City's Planning and Development Department on December 14, 2009. Thereafter, public hearings were conducted by the City Planning Commission on February 11, 2010; by the City Council Land Use and Zoning Committee on February 17, 2010; and by the full City Council on February 9 and 23, 2010. It became effective upon the Mayor signing the Ordinance on February 26, 2010. Although the Ordinance inadvertently referenced section 163.3184 as the statutory authority for its adoption, it also stated that the amendment was being transmitted for review "through the State's Pilot Program." See Petitioners' Exhibit E. As required by the Pilot Program, copies of the amendment were then transmitted to the Department and seven other agencies. No adverse comments were received from any agency. It is undisputed that Petitioners did not attend the the workshop or any hearing, and they did not submit written or oral comments concerning the proposed amendment. When the process for adopting Ordinance No. 2010-35-E began, the City's 2030 Plan was still being reviewed by the Department and had not yet become effective. Consequently, at the Department's direction, the Ordinance referenced the City's then-effective 2010 Plan as the Plan being amended. On February 3, 2010, the City's 2030 Comprehensive Plan became effective, replacing the 2010 Plan. However, the 2030 Plan contained the same conflicting language. Notice of the public hearings for Ordinance No. 2010- 35-E (and other plan amendments adopted at the same time) was published in the Daily Record on January 29, 2010, a local newspaper that the City has used for advertising plan amendments since at least 2003. The parties agree that the legal advertisements complied with the size, font, and appearance requirements of section 166.041(3)(c)2.b. Besides the above notice, an additional notice regarding Ordinance No. 2010-35-E was published in the Florida Times Union on January 31, 2010. The parties agree that this advertisement did not meet the size, font, and appearance requirements of section 166.041(3)(c)2.b. but was published by the City for the purpose of providing additional public notice and to broaden the coverage of the plan amendment. The Adoption Amendment - 2010-401-E Because the 2030 Plan contained the same conflicting language in the Commercial land use descriptions, on May 25, 2010, a draft of Ordinance No. 2010-401-E was introduced at City Council for the purpose of deleting this language. Except for referencing the latest Plan, the language in Ordinance Nos. 2010-35-E and 2010-401-E was identical. While somewhat unusual, this procedure was authorized by the Department because the 2030 Plan became effective during the middle of the amendment process. A copy of the draft Ordinance and schedule for the upcoming hearings on that Ordinance was emailed by the City's counsel to Petitioners' counsel on June 4, 2010. See Petitioners' Exhibit FF. Public hearings on Ordinance No. 2010-401-E were conducted by the Planning Commission on June 10, 2010; by the City Council Land Use and Zoning Committee on June 15, 2010; and by the full City Council on June 8 and 22, 2010. All of the meetings occurred after Petitioners' counsel was given a schedule of the hearings. The amendment became effective upon the Mayor signing the Ordinance on June 24, 2010. Notice of the public hearings for Ordinance No. 2010- 401-E was published in the Daily Record on May 28, 2010. The parties agree that the size, font, and appearance requirements of section 166.041(3)(c)2.b. were met. An additional notice of the public hearings was published in the Florida Times Union on May 30, 2010. The parties agree that this legal advertisement did not meet the size, font, and appearance requirements of section 166.041(3)(c)2.b., but was published by the City for the purpose of providing additional public notice and to broaden the coverage of the plan amendment. Ordinance No. 2010-401-E, as originally proposed, incorrectly referenced section 163.3184, rather than the Pilot Program, as the statutory authority for adopting the amendment. During the hearing conducted by the City Council Land Use and Zoning Committee on June 15, 2010, an amendment to Ordinance No. 2010-401-E was proposed changing the statutory authority to section 163.32465. The City proposed the same amendment for 19 other plan amendments being considered at the same hearing. The amendment was minor in nature and had no effect on the substance of the Ordinance. It is undisputed that Petitioners did not appear or submit written or oral comments at any public hearing regarding Ordinance No. 2010-401-E. On July 21, 2010, Petitioners timely filed their Petition with DOAH challenging Ordinance No. 2010-401-E. Their objections, as later refined in the Stipulation, are both procedural and substantive in nature and are discussed separately below. Petitioners' Objections Substantive Objections As stated in the Stipulation, Petitioners contend that the amendment is not in compliance because it "is inconsistent with the balance of the 2030 Comprehensive Plan, and underlying municipal policies, since it forces adult uses into zones which permit residential and educational uses." To support this claim, Petitioners point out that the C/GC land use category permits a wide range of uses, including commercial uses in close proximity to sensitive uses, such as schools, churches, and residential areas. Petitioners characterize the current range of uses in C/GC as "an excellent planning approach to downtown Jacksonville" and one that promotes a well-reasoned, mixed-use development in the urban area. Because Ordinance No. 2010-401-E "forces" adult uses into the C/GC category where, despite the distance limitations, they will have to co-exist with sensitive uses, Petitioners contend the amendment is inconsistent with Policy (15)(b)3. and Goal (16) of the State Comprehensive Plan, which generally encourage orderly, efficient, and functional development in the urban areas of the City. Further, they assert it would contradict the City's "policy" of separating adult uses from residences, businesses, and schools. Petitioners' primary fear is that if they are required to relocate from HI to C/GC where sensitive uses are allowed, this will generate more complaints from schools, churches, and residents, and result in further zoning changes by the City and more forced relocations. As explained by Mr. Killingsworth, Director of the City's Planning and Development Department, Ordinance No. 2010- 401-E does not change the permitted uses in the Commercial or HI land use categories. Those changes in permitted uses were made by Ordinance No. 2005-1240-E in 2005 and are now being litigated in federal court. The purpose of the new amendment is simply "to clear up an inconsistency [noted by the federal court but told that it could be disregarded] that existed in the comprehensive plan." Mr. Killingsworth added that even if the language remained in the Plan, it would have no regulatory weight since the actual language in the C/GC and HI categories, and not the "header" or general description that precedes the category, governs the uses allowed in those designations. Assuming arguendo that the new amendment constitutes a change in permitted uses, the City established that from a use standpoint, adult entertainment facilities (like businesses selling alcohol) are more consistent with the C/GC land use category with the appropriate distance limitations from schools, churches, and residential areas. Further, the placement of adult entertainment facilities on property with a C/GC designation will not necessarily result in their being closer to residential property, as the City currently has a "great deal" of HI land directly adjacent to residential properties, as well as grandfathered enclaves of residential areas within the HI category. The City also established that the HI category is set aside for uses that generate physical or environmental impacts, which are significantly different from the "impacts" of a strip club. Finally, while a plan amendment compliance determination does not turn on zoning issues, it is noteworthy that the CCG-2 zoning district is the City's most intensive commercial district, and that very few schools (all grandfathered) remain within that zoning classification. The preponderance of the evidence supports a finding that the amendment is consistent with the State Comprehensive Plan and internally consistent with the "balance of the 2030 Comprehensive Plan." Procedural Objections Petitioners' principal argument is that the City did not publish a notice for either Ordinance in a newspaper of general circulation, as described in section 166.041(3)(c)2.b., or in the proper location of the newspaper; that these deficiencies violate both state law and a Department rule regarding notice for the adoption of this type of plan amendment; and that these procedural errors require a determination that the amendment is not in compliance. They also contend that because the legal notice did not strictly comply with sections 163.3184(15)(e) and 166.041(3)(c)2.b., both Ordinances are void ab initio.2 As noted above, the City has published legal notices for plan amendments in the Daily Record since at least 2003. The newspaper is published daily Monday through Friday; it has been published continuously for 98 years; it is published wholly in English; it is mailed to 37 zip codes throughout the City and around 20 zip codes outside the City; most of its revenue is derived from classified and legal advertisements; it is considered by the United States Postal Service to be a general circulation newspaper; it is available in newsstands throughout the City; and although much of the newspaper is directed to the business, legal, and financial communities, the newspaper also routinely contains articles and editorial content regarding special events, sporting news, political news, educational programs, and other matters of general interest pertaining to the City that would be of interest to the general public and not just one professional or occupational group. Its publisher acknowledges that the newspaper is a "Chapter 50 periodical," referring to chapter 50 and specifically section 50.031, which describes the minimum standards for newspapers that can be utilized for publishing certain legal notices. Also, its website states that it covers political, business, and legal news and developments in the greater Jacksonville area with an emphasis on downtown. Although Petitioners contend that the legal notice was published in a portion of the Daily Record where other legal notices and classified advertisements appear, as proscribed by section 166.041(3)(c)2.b., and is thus defective, this allegation was not raised in the Petition or specifically in the parties' Stipulation. Therefore, the issue has been waived. Both proposed recommended orders are largely devoted to the issue of whether the Daily Record is a newspaper of general paid circulation as defined in section 166.041(3)(c)2.b. For the reasons expressed in the Conclusions of Law, it is unnecessary to decide that question in order to resolve the notice issue. Petitioners received written notice that the City intended to adopt Ordinance No. 2010-401-E prior to the public hearings, along with a copy of the draft Ordinance and "everything" in the City's file. They also received a copy of all scheduled hearings during the adoption process. See Petitioners' Exhibits EE and FF. Therefore, notwithstanding any alleged deficiency in the published legal notice, they were on notice that the City intended to adopt the plan amendment; they were aware of the dates on which public hearings would be conducted; and they had an opportunity to submit oral or written comments in opposition to the amendment and to otherwise participate in the adoption process. Given these facts, even assuming arguendo that the publication of the legal notice in the Daily Record constitutes a procedural error, there is no evidence that Petitioners were substantially prejudiced in any way. Petitioners also contend that reference by the City to section 163.3184, rather than the Pilot Program, in the draft ordinance during the preliminary stages of the amendment process is a procedural error that rises to the level of requiring a determination that the amendment is not in compliance. This argument is rejected as the error was minor in nature, it was corrected shortly after Ordinance No. 2010-401-E was introduced, it did not affect the substance of the amendment, and it would not confuse a member of the public who was tracking the amendment as to the timing and forum in which to file a challenge. In Petitioners' case, they cannot claim to be confused since they timely filed a Petition with DOAH, as required by section 163.32465(6)(a). Finally, intertwined with the procedural arguments is the issue of whether Petitioners are affected persons and thus have standing to challenge the plan amendment. The parties have stipulated that Petitioners (or their representative) did not attend any meeting regarding the adoption of either Ordinance. Petitioners argue, however, that emails between the parties in May and June 2010, and a telephone conference call on June 3, 2010, involving Petitioners' counsel and the City's then Deputy General Counsel, equate to the submission of written and oral comments regarding the amendment. The parties have stipulated that the following written communications between Petitioners and the City occurred in May and June 2010: Petitioners made a public records request regarding the amendment on May 21, 2010, to Cheryl Brown, Council Secretary/Director, seeking various public documents relating to Ordinance No. 2010-35-E, transmitted by electronic mail and facsimile. On May 27, 2010, counsel for Petitioners exchanged emails with Assistant General Counsel Dylan Reingold regarding pending document requests relating to Ordinance No. 2010-35-E, and Mr. Reingold provided a number of responsive documents. On June 3, 2010, Cindy A. Laquidara, then Deputy General Counsel (but now General Counsel), sent an email to Petitioners' counsel stating: "Below please find the schedule for the passage of the comp plan changes. Call me with questions or to discuss. Take care." On June 4, 2010, counsel for Petitioners exchanged a series of emails with Assistant General Counsel Reingold regarding the status of Ordinance Nos. 2010-35-E and 2010-401-E, as well as the review of the proposed plan amendment by the Department of Community Affairs. On June 4, 2010, Jessica Aponte, a legal assistant with counsel for Petitioners' office, exchanged emails with Jessica Stephens, legislative assistant, regarding the proofs of publication for the legal advertisements relating to Ordinance No. 2010- 35-E. The affidavits of Petitioners' counsel (Petitioners' Exhibits KK and LL) regarding a conversation with the City's then Deputy General Counsel would normally be treated as hearsay and could not, by themselves, be used as a basis for a finding of fact. See § 120.57(1)(c), Fla. Stat. However, the parties have stipulated that they may be used in lieu of live testimony by Petitioners' counsel. See Stipulation, p. 17. The affidavits indicate that the reason for the conference call was "that [Petitioners] were trying to reach a mutually acceptable approach with the City by which enforcement of the City of Jacksonville's amortization ordinance against [them] . . . would be deferred pending the outcome of the appeal to the Eleventh Circuit." Petitioners' Exhibits KK and LL. During that call, counsel also advised the City's counsel that "there were [procedural] problems with the enactment of the subject Comprehensive Plan Amendment and that they would likely be filing challenges to its enactment." Id.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining that the plan amendment adopted by Ordinance No. 2010-401-E is in compliance. DONE AND ENTERED this 11th day of January, 2011, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of January, 2011.
Findings Of Fact Petitioner is an existing special tax district, created on August 18, 1975, by Broward County Ordinance 75-22. (See Exhibit "A"). A legal description of the property which comprises the ITSMTD, and which would comprise the community development district, is contained within Section 1(a) of Ordinance 75-22 (Exhibit "A"). On December 22, 1980, the Board of Supervisors of the ITSMTD adopted a resolution (Exhibit "B") authorizing and directing the proper district officials to file a Petition with the Florida Land and Water Adjudicatory Commission to reestablish the district as a community development district pursuant to Chapter 190, Florida Statutes. The ITSMTD filed its Petition to reestablish the district as a community development district on January 22, 1981. The Petition named five (5) persons to serve as initial members of the Board of Supervisors of the proposed new district. These persons, who presently constitute the Board of Supervisors of the existing district, are Norman A. Cortese, Ellen Mills Gibbs, F. A. Mapleton, Robert E. Huebner and Edward F. Kosnick. The Petition recites that the proposed name of the new district will be the Indian Trace Community Development District, and that the District boundaries will remain the same as the existing special tax district. By letter dated January 29, 1981, the Florida Land and Water Adjudicatory Commission requested the assignment of a Hearing Officer form the Division of Administrative Hearings to conduct the necessary public hearing. The ITSMTD has jurisdiction over approximately 13,000 contiguous acres which lie within the unincorporated area of Broward County, Florida. A map showing the particular location of the property within the jurisdiction of the ITSMTD was presented and received into evidence. (Exhibit "C"). Petitioner presented the following additional Exhibits which were received into evidence: Development orders adopted June 27, 1978 and August 17, 1979 by the Broward County Commission. (Exhibit "D"). The development orders were adopted by the Broward County Commission pursuant to the development of regional impact permitting processes established by Chapter 380, Florida Statutes. These development orders govern or affect development of all land within the ITSMTD. A map which designates the future general distribution, location, and extent of public and private uses of land proposed for the area within the district by the Future Land Use Element of the Broward County Comprehensive Plan. (Exhibit "E"). A proposed timetable for constructing district services and the estimated cost of constructing those services. (Exhibit "F"). An economic impact statement which, based upon available data, estimates the economic impact on all persons directly affected by the proposed action and which sets forth in detail the data and method used in making the estimate. (Exhibit "G"). Proof of publication that public notice of the hearing conducted on March 25, 1981 was published once a week for four (4) consecutive weeks immediately prior to the hearing in the Fort Lauderdale News. (Exhibit "H"). The Future Land Use Plan Element of the Broward County comprehensive Plan which has been adopted by Broward County in compliance with the Local Government Comprehensive Planning Act of 1975. (Exhibit "I"). An agreement between ITSMTD, Arvida Corporation, and the City of Sunrise providing for the purchase of both water and sewer services by the ITSMTD from the City of Sunrise and committing the ITSMTD to make use of a Regional 201 Sewer Plan, when such plan is operational and capable of serving the district. ("Exhibit 'J'"). The ITSMTD was created by Broward County to provide certain services such as water, water management and control, sewers, and roads for an area of land consisting of approximately 13,000 acres. Included within this area of land is the 10,000 acre new community to be developed by Arvida Corporation known as Weston. The new community is a development of regional impact and is subject to two development orders adopted by Broward County (Exhibit "D"). The Weston development is a low density, residential new community which also includes industrial and commercial uses. It is presently planned to be developed over a 25-30 year period of time and will eventually contain 20,500 dwelling units and will have a population of 40,000. The two development orders grant master development approval to the Weston community and grant incremental development approval to the first two increments (approximately 7,000 acres). the third increment is designated for future incremental approval (approximately 3,000 acres presently planned for industrial, commercial, and airport uses). The 7,000 acres of land within Weston which comprise increments 1 and 2 pursuant to the aforementioned development orders have been zoned as a planned unit development. The zoning classification allows the construction of 18,000 dwelling units and the development of 500 acres of business-commercial land. To date, three (3) plats have been approved by Broward County within the Weston community. The Weston development and all proposed uses within the ITSMTD are consistent with the Future Land Use Element of the Comprehensive Plan for the unincorporated areas of Broward County, Florida, including policies and requirements relating to trafficways, open space and parks, and provision for housing (Exhibits "E" and "I"). The area of land within the proposed district is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developed as one functional, interrelated community for the following reasons: The area of land within the ITSMTD is composed of approximately 13,000 acres. 10,000 of the 13,000 acres constitute a development of regional impact, the develop- ment which is subject to two development orders (Exhibit "D"). 7,000 acres of the development of regional impact have been zoned by Broward County as a Planned Unit Development. (Exhibit "D"). These land control devices plan and provide for the development of this area in great detail. The development orders require phasing of the development and provide for the provision of parks, civic sites, schools, roads, and major land uses within the area. (See specifically Article II, A, D, and E of 1978 development order and Sections 1 and 2 of the 1979 development order.) The area of land within the proposed district is subject to and within the jurisdiction of the ITSMTD. The ITSMTD presently has the responsibility for providing water management, water and sewer services, and the construction of trafficways and certain other improvements. the ITSMTD was created for the specific purpose of aiding in the development of the area of land within the proposed district. In adopting Ordinance 75-22, the Broward County Commission observed: "WHEREAS, it is found by the County Commission that to promote the economic, orderly, and planned development of certain land and to best serve the welfare and convenience of the public, a Special Municipal Tax District of Broward County, Florida, should be established pursuant to the Charter of Broward County, Florida." The very location of the area of land within the proposed district and the major boundaries of that area dictate that the area be developed as a self-contained, functional interrelated community. (See Exhibits "C" and "D"). The area within the proposed district is compact and sufficiently contiguous to be developable as an interrelated community, as evidenced by the existence of the ITSMTD, the development orders, and the planned unit development zoning classification. A community development district is the best alternative available for delivering community development services and facilities to the area of land that will be served by the district for the following reasons: The finding supporting creation of the ITSMTD by the Broward County Commission in 1975 that a tax district is necessary for the area to be developed in an economic, orderly, and planned way remains true today. A community development district functioning pursuant to Chapter 190, Florida Statutes, would have the following advantages over the ITSMTD: Chapter 190, Florida Statutes, provides a clear and comprehensive charter for operating the district. The reestablishment of the ITSMTD as a community development district will conform the district to uniform state policy regarding the formation and operation of independent develop- ment districts, and will promote a strengthened state new community policy. A community development district has broad, comprehensive, and flexible powers which will better serve the area of land within the proposed district during the period of its development. The area of land to be served by the district will develop over a 20 to 30 year period of time and the broad flexible powers contained within Chapter 190, Florida Statutes, will give the community development district the ability to meet the changing needs and desires of the new community. The special powers contained within Section 190.012, Florida Statutes, will enable the district to provide a broader range of services to meet the needs of the developing community. Specifically, the Indian Trace Community Development District will be authorized to provide parks and facilities for indoor and outdoor recreational, cultural, and educational uses; fire protection and control services, including fire stations, water mains, fire trucks, and other vehicles and equipment; and to construct security and school buildings and related structures for use in the security and educational system, when authorized by proper governmental authority. The economic impact statement (Exhibit "G") points out several reasons why a community development district would be the best alternative to deliver community development services. Among the important points contained within the economic impact statement are the following: The Environmental Land Management Study Committee recommended implementation of a new communities policy in order to encourage well planned quality developments. Chapter 190, Florida Statutes, has implemented the recommendations of the Committee and has established that new community policy. The State of Florida has determined that Community Development Districts are a better alternative to provide infrastructure improvements than are "paper cities" The reestablishment of the ITSMTD as a Community Development District would avoid municipal formation as a means of infrastructure development. The reestablishment of the ITSMTD as a Community Development District will serve to implement the goals of the Broward County Land Use Plan. The Broward County Land Use Plan contains the following goals: It encourages planned communities with mixed uses, both residential and nonresidential; It determines that growth should be phased with the provision of community services and finds that urban growth should not be permitted in areas where the basic minimum required community services and facilities have not been provided or scheduled for capital improvement either by public or private means; It establishes that the capital costs for the provision and extension of major services, facilities, and transportation networks to benefit new residential or commercial developments should be imposed primarily on those who benefit and not on the existing resident population. The community development services which would be provided to the area of land within the proposed district would not be incompatible with the capacity and uses of existing local and regional development services and facilities for the following reasons: There are no existing regional services of facilities for the area of Broward County within the proposed district. Further, Broward County has neither the plans, nor the capability to provide services and facilities to the area. There are no major trunk water mains or sewer interceptors or outfalls in existence in the area of land within the proposed district. The ITSMTD was created by Broward county to provide services and facilities to service the area of land within the proposed district. In addition, the application for development orders are based, recognized that the ITSMTD would be used to provide infrastructure improvements within the area. The trafficways which have been designed to serve the area within the proposed district and which are required to be built in accordance with the development orders are in accordance with the Broward County Trafficways Plan, which is incorporated by reference in the county future land use element. The ITSMTD is making use of existing local water and sewer facilities. It has entered into a contract with the City of Sunrise to purchase both water and sewer services from the City of Sunrise. (Exhibit "J"). In addition, that agreement commits the ITSMTD to make use of a regional 201 sewer facility when such facility is operational and capable of serving the district. The testimony and documentary evidence establish the following: All statements contained in the Petition are true and correct. The creation of the district would not be inconsistent with any applicable element of the Broward County Comprehensive Plan. The area of land that will be served by the district is amenable to separate district government. On March 24, 1981, the Broward County Board of County Commissioners voted to support ITSMTD's petition to reestablish the district as a community development district.
Recommendation Based upon the Findings of Fact and Conclusions of Law hereby submitted, the Hearing Officer recommends that the Florida Land and Water Adjudicatory Commission grant the Petition of the ITSMTD and adopt a rule which will reestablish the ITSMTD as the Indian Trace Community Development District. DONE and ENTERED this 10th day of April, 1981, in Tallahassee, Leon County, Florida. WILLIAM E. WILLIAMS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings This 10th day of April, 1981. COPIES FURNISHED: Robert M. Rhodes, Esquire Messer, Rhodes, Vickers & Hart Post Office Box 1876 Tallahassee, Florida 32302 David W. Wilcox, Esquire Office of the Governor Room 209, The Capitol Tallahassee, Florida 32301 Philip Shailer, Esquire 540 N. W. Fourth Street Suite B Ft. Lauderdale, Florida 33301 Donald R. Hall, Esquire 540 N.W. Fourth Street Ft. Lauderdale, Florida 33301
The Issue The sole issue to be addressed is whether the amendment of the boundaries of The Crossings at Fleming Island Community Development District meets the applicable criteria set forth in Chapter 190, Florida Statutes, and Chapter 42-1, Florida Administrative Code.
Recommendation Based upon the foregoing findings of fact and conclusions of law, the undersigned Administrative Law Judge recommends that the Governor and Cabinet, sitting as the Florida Land and Water Adjudicatory Commission, pursuant to Chapters 190 and 120, Florida Statutes, and Chapter 42-1, Florida Administrative Code, amend the boundaries of The Crossings at Fleming Island Community Development District as requested by the Petitioner by formal adoption of the proposed rule attached to this Report of Findings and Conclusions as Exhibit 3. DONE AND ENTERED this 22nd day of December, 1998, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 22nd day of December, 1998. COPIES FURNISHED: Robert Bradley, Secretary Florida Land and Water Adjudicatory Commission Executive Office of the Governor 2101 Capitol Tallahassee, Florida 32399-0001 Elizabeth C. Bowman, Esquire Jonathan T. Johnson, Esquire Hopping, Green, Sams and Smith, P.A. 123 South Calhoun Street Post Office Box 6526 Tallahassee, Florida 32314 David Schwartz, Esquire Office of the Governor Florida Land and Water Adjudicatory Commission The Capitol, Room 209 Tallahassee, Florida 32399-0001
Findings Of Fact Respondent, Mid-Keys Development Corporation (Mid-Keys), is the owner of Lot 98, Stirrup Key Subdivision, Monroe County, Florida; a property located on Florida Bay, a natural waterbody, and within that part of Monroe County designated as an area of Critical State Concern. On September 12, l989, Monroe County issued to Mid-Keys building permit No. 8920001017 to construct a single-family home on Lot 98. As permitted, the home would be constructed 20 feet landward of the top of a dike or berm which runs along the rear of the property, as well as approximately 20 feet landward of a mangrove fringe which parallels the shoreline of the property. 1/ Petitioner, Department of Community Affairs (Department) pursuant to Section 380.07, Florida Statutes, appealed the issuance of the subject permit, and contends that, as permitted, construction of the home would violate Monroe County's comprehensive plan and land development regulations. Succinctly, the Department contends that under existent regulations the proposed home must be set back 50 feet from the landward limit of the mangrove fringe. Central to the dispute in this case are the provisions of Section 9.5- 286, Monroe County Land Development Regulations (MCLDR) which provide: Sec. 9.5-286. Shoreline setback. All buildings and structures, other than docks, utility pilings, walkways, non- enclosed gazebos and fences and similar structures shall be set back twenty (20) feet from the mean high tide lines of man-made waterbodies and/or lawfully altered shorelines of natural waterbodies. All buildings other than docks, utility pilings, walkways, non-enclosed gazebos and fences and similar structures shall be set back fifty (50) feet from natural waterbodies with unaltered shorelines or unlawfully altered shorelines, measured from the landward limit of mangroves, if any, and where mangroves do not exist from the mean high tide line. (Emphasis added) The regulations do not, however, expressly define the location of the shoreline for purposes of assessing whether it is altered or unaltered, and thereupon rests the basis for the parties' dispute. In this regard, Mid-Keys contends that the development of Stirrup Key legally altered the shoreline, which it suggests a extends to the higher high tide line, and the Department contends that such development did not alter the shoreline, which it a suggests extends to the mean high tide line. The creation of Stirrup Key Subdivision. Stirrup Key is an island in Florida Bay, a natural waterbody, comprising approximately 50 acres. Currently the key is platted as Stirrup Key Subdivision; a residential community which is attached to Key Vaca by a short causeway. The character of Stirrup Key as it exists today is, however, decidedly different from what existed less than two decades ago. In March 1972, when Stirrup Key was purchased by William T. Mills, it was a low-lying island with an average elevation of two feet or less mean high water (MHW) and it was virtually untouched by man. Portions of its shoreline were covered with red mangroves, followed upland by transitional a species such as black mangrove, white mangrove, and buttonwood, and portions of its higher elevations contained some hammock. Following his acquisition of Stirrup Key in 1972, Mr. Mills, consistent with regulations existent at that time, sought and obtained the approval of all governmental agencies necessary to develop the key as it currently exists. Pertinent to this case, the Florida Department of Pollution Control (currently known as the Department of Environmental Regulation) on June 24, 1974, issued to Mr. Mills a dredge and fill permit and water quality certification to excavate on Stirrup Key an upland lagoon to minus 5.0 feet mean low water, together with an access channel, with the spoil from the excavation to be placed on upland, landward of mean high water. As a condition, the permit provided that "[n]o spoil below MHW but in upland spoil area diked along shoreline" and "[m]angrove fringe along shoreline will be preserved." Notably, the plans which were submitted to the Department of Pollution Control by Mr. Mills, and which were attached to the permit, established the boundary of the island at the mean high water line and designated the mean high water line as the shoreline. Also pertinent to this case, the State of Florida, Board of Trustees of the Internal Improvement Trust Fund, on July 22, 1974, issued to Mr. Mills a permit to dredge 72,265 cubic yards of material (1,265 cubic yards from sovereignty submerged land) from a proposed upland boat basin, together with an access channel and two circulation channels, with the spoil to be deposited on the uplands, and to construct a dike around the entire perimeter of Stirrup Key above the mean high water line. The Trustee's permit also provided that "[n]o spoil shall be deposited below mean high water but in upland spoil area diked along shoreline" and "[t]he mangrove fringe along shoreline will be preserved." Consistent with the foregoing permits, Mr. Mills undertook the development of Stirrup Key. In so doing, he constructed a dike around the entire perimeter of the island, with the toe of the dike landward of MHW, removed the transitional vegetation landward of MHW, and filled the area landward of MHW with limestone fill to an elevation of 4 to 9 feet MHW. Also consistent with his permits, Mr. Mills preserved the mangrove fringe along the shoreline. 2/ While the wetlands system of Stirrup Key has been altered by the removal of the upland transitional vegetation and the filling of the area lying landward of MHW, the function of the shoreline mangrove fringe has not been altered by the development of the island. That fringe, which extends approximately 3,000 feet along the shoreline and which measures from 60 to 100 feet in width at Lot 98, continues to provide, among other things, wildlife habitat for numerous species of birds; fisheries habitat for food, cover and refuge; shoreline stabilization; and storm surge abatement. In 1976 the plat of Stirrup Key Subdivision, which encompassed all the lands of Stirrup Key, was approved by Monroe a County and filed of record. That plat, as well as the survey of Lot 98, demonstrate that the boundaries of Stirrup Key follow the mean high water line. The Monroe County comprehensive plan and land development regulations. The Monroe County comprehensive plan, effective September 15, 1986, provides: 11. FUTURE LAND USE ELEMENT Sec. 2-101. Introduction. A fundamental component of any comprehensive land management program is a series of discrete policy statements by which individual land use decisions will be judged in the future. Indeed, a basic tenet of contemporary land management theory and the Local Government Comprehensive Planning Act, Sections 163.3161 et seq., Fla. Stat. is that land use decisions shall be consistent with a comprehensive plan. After a comprehensive plan or element or portion thereof has been adopted in conformity with this act, all development undertaken by, and all actions taken in regard to development orders by, governmental agencies in regard to land covered by such plan or element shall be consistent with such plan or element as adopted. All land development regulations enacted or amended shall be consistent with the adopted comprehensive plan or element or portion thereof. 163.3194(1), Fla. Stat. The Comprehensive Plan for Monroe County contemplates that the land use policy element and implementing regulations will be closely coordinated and designed to ensure fair and consistent land use decision-making. Incorporating the policy statements into the implementing regulations will go a long way toward overcoming many of the due process deficiencies that plague land use decision- making. Under this Plan, a request for development approval will be judged, not on the basis of an intuitive perception of the County's needs, the identity of the applicant, or the clamor of opponents, but on the adopted policies set out in the Plan. If the requested approval is inconsistent with these adopted policies, it should be denied, or the policies should be changed through the established procedure for amendments. If the proposed development is consistent with the Plan, it should be approved. Linking individual decisions to adopted policies will help to bring consistency, fairness, and a comprehensiveness to the development review process. The purpose of this element of the Monroe County Comprehensive Plan is to establish official land use policies that will guide future land use decisions in the County . . . . Sec. 2-102. General. A. OBJECTIVES 1. To establish a land use management system that protects the natural environment of Monroe County. Sec. 2-103. Natural Environment. The Florida Keys constitute a unique and irreplaceable natural resource of local, regional, state, national and international value. The Florida Keys are an island archipelago constituting a tropical experience accessible by automobile from the a continental United States. As such, the Keys are a vacation and residential resource unmatched in beauty, character and security in the continental Untied States. The natural environment of the Florida Keys -- uplands, wetlands, and nearshore waters -- is the central element of this distinctive character. In the Florida Keys, a distinct visual character, native and tropical vegetation, water-dependent recreation, distinct culture and an oceanic experience come together to make a desirable place to live and visit. It is essential, therefore, that the natural environment of Monroe County be conserved, and where appropriate, enhanced and restored. All future actions, both public and private, should be carried out in a way so as to ensure that the essential ingredients of Monroe County character are preserved and protected for existing and future generations. OBJECTIVES To manage and control the use of land so that the natural environment of Monroe County is protected. POLICIES To protect natural, undisturbed lands from significant disturbance. To protect threatened and endangered species and their habitats from human activities that would expose such species to displacement or extinction. To conserve the habitat of endemic species of plants and animals. Sec. 2-115. Enforcement A major component of any future land use element is the need to strictly enforce implementing regulations. If Monroe County is to achieve the promise of this Plan, it is essential that all persons involved in the land development process adhere to the requirements of this Plan and that the integrity of the development review process be protected. Marine Resources The great value attributed to Monroe County's marine resources is due to their crucial role in the local economy, and in providing a wide range of natural amenities and services. Health and integrity of the marine system is a fundamental prerequisite if these resources are to continue to provide social, economic, and environmental benefits that we have at times taken for granted. Mangroves, seagrass, and coral reefs, all of which are susceptible to pollution and dredging, are extremely important in providing food and shelter for myriad forms of marine life, providing storm protection, and maintaining water quality. If uses and activities such as dredge and fill, destruction of natural vegetation, use of pesticides and fertilizers, improper sewage and solid waste disposal continue indiscriminately and uncontrolled; the ability of the marine system to function effectively will deteriorate, thereby resulting in the loss of many natural services and socioeconomic benefits to society. Therefore, it is imperative that such uses and activities be carefully regulated so as to insure conservation and protection of resources and long-term maintenance of their productivity. Marine Resources Management Policies Recognizing the crucial role that the marine environment plays in the local economy, the protection, conservation, and management of marine resources will be viewed as an issue requiring the County's utmost attention. In an effort to protect and conserve marine resources, emphasis will be placed on protecting the entire marine ecosystem. To this end, maintenance of water quality; protection of marine flora and fauna, including shoreline vegetation; and preservation of coral reefs will be regarded as being absolutely essential to maintaining the integrity of the marine system. Generic Designations All marine grass beds in waters off the Florida Keys. All patch reef coral and other reef formations found in the surrounding waters off the Keys. All shore-fringing mangrove and associated vegetation extending up to 50 feet laterally upland from the landward limit of the shoreline mangrove. Management Policies These biotic communities will be preserved to the fullest extent possible. The Monroe County land development regulations, likewise effective September 15, 1986, provide: Sec. 9.5-3. Rules of construction In the construction of the language of this chapter, the rules set out in this section shall be observed unless such construction would be inconsistent with the manifest intent of the board of county commissioners as expressed in the Monroe County Comprehensive Plan, or an element or portion thereof, adapted pursuant to chapters 163 and 380, Florida Statutes (1985). The rules of construction and definitions set out herein shall not be applied to any section of these regulations which shall contain any express provisions excluding such construction, or where the subject matter or context of such section is repugnant thereto. A. Generally: All provisions, terms, phrases and expressions contained in this chapter shall be liberally construed in order that the true intent and meaning of the board of county commissioners may be fully carried out. Terms used in this chapter, unless otherwise specifically provided, shall have the meanings prescribed by the statutes of this state for the same terms. In the interpretation and application of any provision of this chapter, it shall be held to be the minimum requirement adopted for the promotion of the public health, safety, comfort, convenience and general welfare. Where any provision of this chapter imposes greater restrictions upon the subject matter than a general provision imposed by the Monroe County Code or another provision of this chapter, the provision imposing the greater restriction or regulation shall be deemed to be controlling. f. Nontechnical and technical words: Words and phrases shall be construed according to the common and approved usage of the language, but technical words and phrases and such others as may have acquired a peculiar and appropriate meaning in law shall be constructed and understood according to such meaning. m. Boundaries: Interpretations regarding boundaries of land use districts on the land use district map shall be made in accordance with the following, as partially illustrated in figure 1 [following this section]: Boundaries shown as following or approximately following the shorelines of any key or causeway or other island shall be construed as following the mean high water line of such island or key. In many instances, the boundary lines have been intentionally drawn seaward of the shoreline so that the shoreline itself will be visible. Sec. 9.5-286. Shoreline setback All buildings and structures, other than docks, utility pilings, walkways, non- enclosed gazebos and fences and similar structures shall be set back twenty (20) feet from the mean high tide line of man-made waterbodies and/or lawfully altered shorelines of natural waterbodies. All buildings other than docks, utility pilings, walkways, non-enclosed gazebos and fences and similar structures shall be set back fifty (50) feet from natural waterbodies with unaltered shorelines or unlawfully altered shorelines, measured from the landward limit of mangroves, if any, and where mangroves do not exist from the mean high tide line. (Emphasis added) The shoreline, altered or unaltered? While the Monroe County land development regulations do not expressly define the term "shoreline" with reference to a specific point for purposes of determining whether a shoreline has been lawfully altered or unaltered, a reading in pari materia of the rules of construction and the shoreline setback requirements compels the conclusion that such determination is made by reference to the mean high water line of Stirrup Key when it was developed. This definition of shoreline is consistent with Section 177.28(1), Florida Statutes, which defines the legal significance of the mean high water line as: Mean high-water line along the shores of land immediately bordering on navigable waters is recognized and declared to be the boundary between the foreshore owned by the state in its sovereign capacity and upland subject to private ownership . . . . It is likewise consistent with the peculiar and appropriate meaning in law that has established the shoreline at the mean high water line. See: Shively v. Bowlby, 152 U.S. 1, 14 S.Ct. 548 (1894), Borax Consolidated v. City of Los Angeles, 296 U.S. 10, 56 S.Ct. 23, reh. denied 296 U.S. 664, 56 S.Ct. 304 (1935), Axline v. Shaw, 35 Fla. 305, 17 So. 411 (1895), Board of Trustees of the Internal Improvement Trust Fund v. Walker Ranch General Partnership, 496 So.2d 153 (Fla. 5th DCA 1986), and Helliwell v. State, 183 So.2d 286 (Fla. 3rd DCA 1966). It is also consistent with the expressed intent of the developer of Stirrup Key and the governmental agencies that permitted such development, and it is consistent with Monroe County's land development regulations which define boundaries of islands which are shown as following the shoreline to be at the mean high water line. 3/ Accordingly, the shoreline of Stirrup Key, and more particularly Lot 98, is unaltered and a 50-foot setback from the landward limit of existing mangroves is mandated by the MCLDR.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Land and Water Adjudicatory Commission enter a final order reversing Monroe County's decision to issue permit number 8920001017, and deny Mid-Keys' application for such permit. It is further recommended that such final order specify those items set forth in paragraph 8, Conclusions of Law, as the changes necessary that would make Mid-Keys' proposal eligible to receive the requested permit. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 25th day of June 1990. WILLIAM J. KENDRICK 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 25th day of June 1990.
The Issue The issues to be determined in this appeal are whether the decision of the Board to approve Flexible Development Application FLD2019-01002 (Application) filed by Edgewater Valor cannot be sustained by substantial competent evidence before the Board, or that the decision of the Board departed from the essential requirements of law.
Findings Of Fact Edgewater Valor proposes to develop an 80-unit attached dwelling with 164 associated off-street parking spaces on 2.931 acres of property it owns. The property is located at 1026 Sunset Point Road and 1919 Edgewater Drive in Clearwater, Florida. The proposal consists of three buildings and a structured parking platform with a pool and deck on the west side of the parking platform. Sixty percent of the 164 parking spaces is garage parking, with the rest as exposed surface parking. Two of the buildings, both in the T district, are proposed at a height of 86 feet measured from base flood elevation. The third building, in the MDR district, is proposed at a height of 38 feet measured from base flood elevation. The buildings in the T district are set back 152 feet from the east property line. The building in the MDR district is set back 75 feet from the east property line. The proposal includes landscaping and setbacks that exceed the Board's requirements for approval. The Application requests Level Two approval of flexibility for a building height of 86 feet from base flood elevation in the T zoning district. A Level One approval allows a building height of up to 50 feet, and up to 100 feet as a Level Two approval. The Application also requests Level Two approval of flexibility for an attached dwelling use in the MDR zoning district. The attached dwelling has a building height of 38 feet from base flood elevation, where up to 40 feet is allowed as a Level Two approval and flexibility from lot width in the MDR zoning district. Edgewater Valor owns 2.437 acres of the property which is zoned T with an underlying Comprehensive Plan Future Land Use category of Resort Facilities High (RFH). The remaining 0.494 acres is zoned MDR with an underlying Comprehensive Plan Future Land Use category of Residential Medium (RM). The property to the north of the proposed development is zoned T and is currently developed as a Comfort Suites hotel. The property to the south is zoned Office (O), MDR, and Preservation (P). There is a vacant automobile service station adjacent to the proposed development to the southwest, and a multi-family development to the south across Sunset Point Road. The property to the east is zoned MDR and P with single-family detached dwellings and attached dwellings further east along Sunset Point Road. The property to the west is zoned Commercial (C) and P. EDNA's boundaries are Sunset Point Road north to Union Street, and Edgewater Drive east to Pinellas Trail. The neighborhood consists of 400 homes that are mostly single-family, single-story detached dwellings. The proposed development would be located in the southwest corner of the neighborhood at the intersection of Edgewater Drive and Sunnydale Drive. The Comfort Suites hotel is located directly across from the proposed development on the opposite corner of Sunnydale Drive and Edgewater Drive. Sunnydale Drive travels east away from Edgewater Drive and dead-ends as a cul-de-sac with mostly single- family detached dwellings.
The Issue Whether Sarasota County Comprehensive Plan Amendment Number 2017-B (the Plan Amendment) adopted by Ordinance Number 2018-006 (the Ordinance) is "in compliance," as that term is defined under section 163.3184(1)(b), Florida Statutes (2018).
Findings Of Fact The Parties and Standing Ibis Road is a limited liability company that applied to the County for the comprehensive plan amendment adopted by the Ordinance, in conjunction with a Development of Critical Concern and a rezoning to Village Planned Development for a property it owns along Ibis Street in unincorporated Sarasota County. Ibis Road owns approximately 533 acres designated under the County's Village/Open Space (VOS) Resource Management Area (RMA) future land use overlay. The County is a political subdivision of the state. The County adopted the Ordinance that approved the Plan Amendment on July 11, 2018. Petitioner Keath Cuyler appeared and objected at the May 23, 2018, adoption hearing, and is a citizen of the County. Petitioner Cuyler resides at 8300 Ibis Street, Sarasota, Florida, located in unincorporated Sarasota County, near and proximate to the lands that are subject to the Plan Amendment. Petitioner Cuyler testified he owns approximately 37 acres and shares his west and south property line with Ibis Road's property. He hunts on his property and likes its rural character. He is concerned about traffic since the entrance to the Village Planned Development would be near his property, which now fronts on an infrequently used dirt road. Petitioners Mitchell Goldberg and Ronald Newmark appeared and objected at the May 23, 2018, County adoption hearing and are citizens of Sarasota County. They co-own ten acres abutting Ibis Road's Village Planned Development. These Petitioners utilize their property for raising and riding horses. The entrance to Ibis Road's Village Planned Development is adjacent to their property and they are concerned that traffic and lights would disturb the horses and affect the rural nature of their property. Dismissed Petitioner David Anderson testified that he opposed Ibis Road's Village Planned Development because it would impact the rural character of his community, which was the reason he had moved from Washington, D.C., to Florida. The Petitioners and dismissed Petitioner Anderson deferred technical questions regarding the allegations of their challenge to their expert planner. The Comprehensive Plan The County's Comprehensive Plan (Comp Plan) adopted October 25, 2016, is the applicable version of the plan. The County's Comp Plan sets forth a listing of the material within it, entitled "The Components of the Plan." This section outlines seven categories of "Primary Components" of the Comp Plan and the remainder of the document is classified as "support material," used to explain the Primary Components. The list of Primary Components includes the Goals, Objectives, and Policies of each chapter, and such other components as the Future Land Use Map Series and the Future Thoroughfare Plan. The County's expert witness testified that the Primary Components are used to evaluate consistency with the County's Comp Plan. She also testified that the support material is not used as criteria for evaluating development proposals. The Future Land Use (FLU) Element of the County's Comp Plan is divided into two chapters. Chapter 7 of the County's Comp Plan contains the base or underlying FLU provisions and the FLU Map. Under Chapter 7 of the County's Comp Plan, most of the private land east of the County's Urban Service Area Boundary is designated as either Rural with a maximum density of one dwelling unit per five acres, or Semi-Rural with a maximum density of one dwelling unit per two acres. Chapter 8 of the County's Comp Plan contains the alternative FLU provisions called Sarasota 2050. Sarasota 2050 is a system designed to encourage preservation of open space by allowing transfer of density into developments called Villages and Hamlets. Sarasota 2050 allows owners of Rural or Semi-Rural FLU designated property to develop at higher densities than allowed under those FLU designations. Sarasota 2050 maps the unincorporated area of the County as RMAs. Outside of the Urban Service Area, it shows RMAs for "Publicly Owned Lands and Lands Protected for Preservation," the connecting environmental corridors called "Greenways," and others. Map 8-3: RMA-3 designates three large VOS RMAs outside of the County's Urban Service Area Boundary for Village Land Use. The three areas are referred to as the North Village Area, Central Village Area, and South Village Area. Ibis Road's property lies within the South Village Area. Within these Village Areas, there are multiple property owners. Sarasota 2050 offers the property owners significant density incentives, as well as opportunities for non-residential development if they develop their properties according to the Sarasota 2050 Village criteria. Approval of a Village requires rezoning to the Village Plan Development zoning district and approval of a Village Master Development Plan. Each Village must have at least one Village Center. Villages have a minimum open space requirement of 50 percent and the remainder of the Village is called the Developed Area. The Developed Area is comprised of the Village Center and the Neighborhoods. Each Neighborhood has its own Neighborhood Center. There may be several Villages within each Village Area. The maximum size of a Village is 3,000 acres and the minimum size is 1,000 acres. The long-range plan of the County, as reflected in Sarasota 2050, is for all of the lands within each Village Area to be developed as Villages. VOS Policy 1.3 provides that "Neighborhoods form the basic building block for development within the [VOS] RMA and are characterized by a mix of residential housing types that are distributed on a connected street system and the majority of housing is within a walking distance or ¼ mile radius of a Neighborhood Center." Neighborhood Centers may have "a combination of parks, schools, public type facilities such as churches and or community centers and may contain Neighborhood Oriented Commercial Uses that are no greater than 20,000 square feet of gross floor area and internally designed to specifically serve the needs of that Neighborhood." Sarasota 2050 does not require that Neighborhood Centers contain commercial or office development or that houses in the Neighborhoods be within walking distance of commercial or office uses. VOS Policy 1.2.A more specifically sets forth requirements for Villages. Villages Villages are a collection of Neighborhoods that have been designed so that a majority of the housing units are within a walking distance or ¼ mile radius of a Neighborhood Center. Villages shall be supported by internally designed, mixed-use Village Centers (designed specifically to serve the daily and weekly retail, office, civic, and government use and services needs of Village residents), and the Village shall be surrounded by large expanses of Open Space that are designed to protect the character of the rural landscape and provide separation between Villages and existing low density rural development. The minimum size of a Village is intended to be sufficient to support a public elementary school. There is no requirement that residential development within the Village be within walking distance of commercial or office uses. A table in VOS Policy 1.2.A sets forth the maximum and minimum sizes, densities, and percentages of land uses within a Village. Two asterisked footnotes allow deviations from the table: *Projects may be less than 1,000 acres of Developed Area, if said project adheres to the requirements found in Policy VOS2.1(a)1, Developed Area Minimum Size. **After an initial Village Master Development Plan has been approved for a Village Area (North, Central, South), the gross leasable square footage may be reduced or eliminated and the minimum land area percentages adjusted for each additional contiguous Village Master Development Plan within that Village Area where it is demonstrated that the non-residential needs of the Village will be served within that Village Area in a manner consistent with the purposes of this chapter. Every Village must have a Village Center that includes non-residential uses. In practice, not every Village Center was required to include a commercial use, as described in the second asterisked footnote to VOS Policy 1.2.A. The County's witness testified that an initial Village in a Village Area was required to have a commercial component. However, an exception could be made for reduction or elimination of the commercial component for a new Village development in the same Village Area. Each new Village subsequent to the initial Village in a Village Area was evaluated to see if it could support its own commercial use, or whether it could be supported by the commercial component of other Villages in the Village Area. In addition, the exception should be "consistent with the purposes of [Chapter 8 of the County's Comp Plan]," and the subsequent Village was contiguous to the first Village. The Village Areas have multiple property owners. VOS Policy 2.6 addresses the possibilities that the property owners may apply for Village approval all together or in separate Village Master Development Plans. When they apply for approval separately, the policy provides that Village Master Development Plans subsequent to the first one "may be considered as related to the initial Village," with no requirement for contiguity. The initial Village Master Development Plan sets a framework for subsequent Villages in that particular Village Area. This includes the location of the school, the commercial center, and the primary road systems. The initial Village Center is required to have a commercial component. When subsequent Villages seek approval, the County evaluates how they would be connected, so that they complement each other. LT Ranch Village was the initial Village approved in the South Village Area, and it sets the framework for the entire Village Area. It has a Village Center that includes 300,000 square feet of commercial retail development. A typical Publix shopping center with a Publix and a few other in-line restaurants and stores is approximately 60,000 to 80,000 square feet. Subsequent Villages, such as that proposed by Ibis Road, may be developed within the South Village Area. Where it is shown that the commercial needs of subsequent Villages within the South Village Area may be met by the LT Ranch Village Center, subsequent Villages need not include a commercial component. The evidence established that Ibis Road provided a market study to the County to show that the commercial needs of its residents would be met by the LT Ranch Village Center. Thus, except for contiguity, Ibis Road's Village development is an illustration of the intent behind Sarasota 2050. The Plan Amendment The Plan Amendment would delete the word "contiguous" from the double-asterisked footnote exception in VOS Policy 1.2.A. The Plan Amendment would apply to all properties designated under the VOS RMA FLU overlay, i.e., in each of the three Village Areas. The change would allow the County to approve a reduction or elimination of commercial/office uses within the Village Center of a Village subsequent to the initial Village, which is not contiguous with the initial Village. To obtain this exception, the property owner would still demonstrate that the initial Village already serves the non-residential needs of the new Village, and the reduction is otherwise consistent with the purposes of Chapter 8 of the County's Comp Plan. County staff reviewed the Plan Amendment for consistency with the remainder of the Comp Plan, and specifically referenced the original adoption of the double-asterisked footnote in 2014. The staff report stated that "[t]he analysis for the 201[4] amendment recognized that smaller subsequent Villages may not be of sufficient size to support their own non- residential uses (Village Center), and that the initial, larger Village could provide sufficient non-residential services to support the entire Village Area." Thus, County staff concluded that removal of the word "contiguous" from the double-asterisked footnote "would not impede on the intent of Policy VOS 1.2.A." On February 15, 2018, the County's Planning Commission held a duly noticed public hearing and received public comments, reviewed the Plan Amendment, and by Resolution unanimously recommended approval. On March 14, 2018, the Board of County Commissioners held a duly advertised transmittal stage public hearing pursuant to Section 163.3184(3) and (15) and by Resolution approved the Plan Amendment for transmittal to the Florida Department of Economic Opportunity (DEO). DEO, the Southwest Florida Regional Planning Council, the Florida Department of Transportation, the Florida Department of Environmental Protection, the Florida Department of Agriculture and Consumer Services, and the Southwest Florida Water Management District reviewed the Plan Amendment and had no objection to or comments on the Plan Amendment. The DEO reviewed the Plan Amendment and determined there was "no provision that necessitates a challenge of the Ordinance adopting the amendment." On May 23, 2018, the Board of County Commissioners held a duly-noticed public hearing and took public comment. The hearing was continued to the duly-noticed hearing on July 11, 2018, at which time the Plan Amendment was adopted by the Ordinance. Petitioners' Objections The Petitioners contend that the Plan Amendment is inconsistent with the purpose, intent, and core principles of Chapter 8 of the County's Comp Plan, including VOS Objective 1, VOS Policy 1.1, VOS Policies 1.2.A and 1.4 (the first, fourth, sixth, seventh, and eighth bullet points), and the definition of urban sprawl. Central to the Petitioners' claims of inconsistency are the concepts of compactness, walkability, interconnectedness, and development with a mix of uses. The Petitioners' expert witness testified that removing the term "contiguous" caused inconsistency with the County's Comp Plan because it was inconsistent with the concepts of a compact development that is walkable, interconnected, and has a mix of uses. "Walkability" to the commercial component of a Village Center was a contention of the Petitioners. The Petitioners' expert testified that the rule of thumb for "walkability" was how far one can walk in 15 minutes. He did agree with the County and Ibis Road's expert witnesses that there is no requirement for Neighborhoods to be within any fixed distance of a Village Center, no requirement of walkability from residential development to the Village Center, and no requirement of walkability from a residence to any commercial/office use. VOS Policy 1.3 requires that the majority of the housing within a Village be within walking distance or one- quarter mile of a Neighborhood Center, but does not require that the Village Center be within walking distance from the Neighborhoods themselves. "Walkability" is used with respect to Neighborhoods and Neighborhood Centers, only the term "pedestrian friendly" is used with respect to Villages. "Pedestrian friendly" means that a range of pedestrian options are provided such as bicycle/pedestrian facilities, larger sidewalks, multimodal trails, accessibility, and lighting, the things that make it more comfortable for the pedestrian or the non-vehicle user. The Petitioners' contend that a Village Center must be walkable from all areas of a Village. However, the allowable maximum size of 3,000 acres for a Village would not accommodate the walkability described by the Petitioners' expert. There is no requirement in the County's Comp Plan for a specific location of a Village Center. The evidence established that in the South Village Area, the initially approved LT Ranch Village covers an area three or four times the distance from north to south as it does from east to west and its Village Center is located at the northernmost point. Based on the allowable size of a Village and the lack of any requirement as to the location of the Village Center, "walkability" to the Village Center would not be possible. For example, the distance from the southernmost Neighborhood of LT Ranch Village to its Village Center is about three and one-half to four miles. The Core Principles and the Introduction The "Core Principles" of the Sarasota 2050 RMA system are set forth on the first page of Chapter 8 of the County's Comp Plan. This page generally describes the objectives of Sarasota 2050, but these are not Goals, Objectives, and Policies of the Comp Plan, and are not Primary Components of the Comp Plan. The County views the "Core Principles" as support material that it does not use to evaluate the consistency of development proposals with the Comp Plan. The Petitioners' expert conceded that the "Core Principles" provide context but should not be relied on as the sole basis for a finding of inconsistency. Even if the Core Principles were a Primary Component of the Comp Plan, they do not contain a requirement regarding commercial/office uses in the Village Center or proximity of these uses to residences within the Village. Thus, the Plan Amendment is not inconsistent with the Core Principles. The "Introduction" following the page of Core Principles is also viewed as support material rather than as a Primary Component of the County's Comp Plan. It generally describes Sarasota 2050's purpose as an incentive system to "encourage[] a compact development form," but does not address commercial/office uses within Village Centers, or set forth any standards that could be deemed inconsistent with the Plan Amendment. Thus, the Plan Amendment is not inconsistent with this support material. VOS Objective 1 and VOS Policy 1.1 VOS Objective 1 states the objective of preventing urban sprawl by guiding the development of lands outside the Urban Service Area into compact, mixed-use, pedestrian friendly Villages within a system of large areas of permanent open space. The Petitioners argued that the Plan Amendment's deletion of a contiguity requirement would be inconsistent with VOS Objective 1. The Petitioners' expert testified that "compact, mixed-use, and pedestrian friendly" to a layman meant creating the ability to walk to a commercial use such as a restaurant, as exemplified in a downtown or mixed-use area. However, VOS Objective 1 describes why Sarasota 2050 guides the development of land outside of the Urban Service Area into "compact, mixed-use, pedestrian friendly Villages" and is not a categorical prohibition against urban sprawl. "Compact" is not defined in the County's Comp Plan. The criteria for Sarasota 2050 Villages are that 50 percent of the Village that is not open space is Developed Area broken up into Neighborhoods with a majority of the housing within walking distance of a Neighborhood Center, and at least one Village Center. The Petitioners did not prove that excepting a second Village from providing unnecessary commercial/office uses violated the compactness of a Village or the requirement for mix uses. "Pedestrian friendly" is also not defined, but is more a matter of pedestrian safety than proximity to particular uses. The Plan Amendment does not prevent the Villages from being compact, mixed-use, or pedestrian-friendly. VOS Policy 1.1 also requires a connected system of roads encouraging alternative means of transportation such as pedestrians, bicycles, and transit. Removal of the requirement for one Village to be contiguous with another does not affect achievement of this policy. VOS Policy 1.2.A VOS Policy 1.2.A provides the general requirements for Village development, including an internal, mixed-use Village Center. As found above, the double-asterisked footnote was added in 2014 to reduce or eliminate the requirement of a commercial use within the Village Center where it is demonstrated that there is already an existing Village Center within that Village Area with a commercial component, and the commercial needs of the new Village will be served by that existing Village Center "in a manner consistent with the purposes of [Chapter 8 of the County's Comp Plan]." The Petitioners' expert admitted that the double- asterisked footnote was an exception that allowed for greater flexibility when approving Village developments without undermining the other policies of the Comp Plan. The Petitioners' expert opined that removal of the word "contiguous" from the double-asterisked footnote would be inconsistent with VOS Policy 1.2.A because it would result in development of a new Village without any non-residential land uses. However, the double-asterisked footnote's exception would have that same result whether or not the word "contiguous" was present. The County's expert witness testified that the Plan Amendment did not result in an inconsistency with VOS Policy 1.2.A, because the intent of the policy was that each Village Area, not each Village, meet the daily and weekly non- residential, including commercial, needs of the residents of the Village Area. Thus, deleting the word "contiguous" would not have a negative effect on this intent. VOS Policy 1.4 The Petitioners relied on bullet points within VOS Policy 1.4. The Petitioners contended that the first bullet point of VOS Policy 1.4, which requires a mix of uses within a Village, expressly mandated commercial development within every Village. However, the Policy should be read in conjunction with the double-asterisked footnote of VOS Policy 1.2.A. The double- asterisked footnote provides for reduction or elimination of commercial uses in a Village Center as described in the above findings. The County's and Ibis Road's experts testified that the Plan Amendment was not inconsistent with the first bullet point of VOS Policy 1.4 because it only requires a mix of uses within each Village, which can be achieved without having a commercial use. The fourth bullet point of VOS Policy 1.4 expressly provides that the Village Center must be conveniently served by regional bus service. This language does not contemplate that the Village Center must be a walkable distance from the residences. The language does not require that every Village Center have commercial uses. The Petitioners also relied on the sixth bullet point of VOS Policy 1.4 referencing "compact design" of a Village linking one Neighborhood to another. This language is specific to the connections between Neighborhoods within a Village, not the relationship of multiple Villages to one another. The compact design within a Village is not related to contiguity between Villages. The Petitioners relied on the seventh bullet point of VOS Policy 1.4 to support their argument of internal inconsistency. The language requires Villages to include interconnected streets to balance the needs of all users. This language is relevant to development within Villages, not the relationship between one Village and another. Finally, the Petitioners relied on the eighth bullet point of VOS Policy 1.4 to support their argument of internal inconsistency. This provision calls for a Village to have pedestrian-friendly components such as sidewalks, lighting, and signage. This language addresses the development of the internal components of a particular Village. The language is not relevant to the relationship between Villages. Attorneys' Fees Ibis Road did not prove by a preponderance of the evidence that the Petitioners and dismissed Petitioner Anderson participated in this proceeding for an improper purpose. Ibis Road did not prove by a preponderance of the evidence that the Petitioners, dismissed Petitioner Anderson, or the Petitioners' attorney should be sanctioned for filing a pleading, motion, or paper for an improper or frivolous purpose. There was an arguable basis for the Petitioners' claims of inconsistency presented through the expert testimony of Thomas Hawkins. Mr. Hawkins is a certified planner and was accepted as an expert in comprehensive land use planning. Summary The Petitioners did not prove beyond fair debate that the Plan Amendment causes Chapter 8, or any other portion, of the County's Comp Plan to be internally inconsistent.
The Issue The issue to be determined in this case is whether the Leon County Development Review Committee’s preliminary conditional approval of a site and development plan for the Brookside Village Residential Subdivision is consistent with the Tallahassee-Leon County 2030 Comprehensive Plan (“Comp Plan”) and the Leon County Land Development Code (“Code”).
Findings Of Fact The Parties Petitioner Moore Pond Homeowners Association, Inc. (“Moore Pond”), is a Florida not-for-profit corporation whose members are residents of Moore Pond, a single-family subdivision bordering the Project to the east. Petitioner Ox Bottom Manor Community Association, Inc. (“Ox Bottom Manor”), is a Florida not-for-profit corporation whose members are residents of Ox Bottom Manor, a single-family residential subdivision bordering the Project to the west. Respondent Golden Oak is a Florida limited liability company. Golden Oak is the applicant for the Project and the owner of the property on which the Project will be developed. Respondent Leon County is a political subdivision of the State of Florida, and has adopted a comprehensive plan that it amends from time to time pursuant to chapter 163, Florida Statutes. Land Use Designations The Project is located on land that is designated as Residential Preservation on the Future Land Use Map of the Comp Plan, and is in the Residential Preservation zoning district established in the Code. Residential Preservation is described in both as “existing homogeneous residential areas” that should be protected from “incompatible land use intensities and density intrusions.” Policy 2.2.3 of the Future Land Use Element (“FLUE”) of the Comp Plan permits residential densities within Residential Preservation of up to six dwelling units per acre (“du/a”) if central water and sewer services are available. Central water and sewer services are available in this area of the County. The Project is located within the Urban Services Area established by the FLUE, which is the area identified by the County as desirable for new development based on the availability of existing infrastructure and services. The Project The Project is a 61-lot, detached single-family residential subdivision on a 35.17-acre parcel. To avoid adverse impacts to approximately 12 acres of environmentally sensitive area in the center of the property, the Project places the single-family lots on the periphery of the property with access from a horseshoe-shaped street that would be connected to Ox Bottom Road. The environmentally sensitive area would be maintained under a conservation easement. The “clustering” of lots and structures on uplands to avoid environmentally sensitive areas is a common practice in comprehensive planning. The Comp Plan encourages clustering or “compact” development to protect environmentally sensitive features. The Project would include a 25-foot vegetative buffer around most of the perimeter of the property. There is already a vegetative buffer around a majority of the property, but the vegetative buffer will be enhanced to achieve 75 percent opacity at the time of additional planting and 90 percent opacity within five years. The buffers would include a berm and privacy fence. The proposed buffers exceed the requirements in the Code. In the course of the application and review process for the Project, Golden Oak made changes to the site and development plan to address concerns expressed by residents of the neighboring subdivisions. These changes included an increase in lot sizes abutting lots within Moore Pond and Ox Bottom Manor; a reduction in the number of lots from 64 to 61; and an expansion and enhancement of buffers. In addition, Golden Oak revised the proposed covenants and restrictions for the Project to incorporate minimum square footage requirements and to prohibit second-story, rear-facing windows on homes abutting lots in Moore Pond and Ox Bottom Manor. The Development Review Committee approved the Project, subject to the conditions outlined in the staff report and an additional condition regarding buffers. Compatibility Petitioners contend the Project would be incompatible with adjacent residential uses in Moore Pond and Ox Bottom Manor and, therefore, the Project should be denied because it violates the provisions of the Comp Plan and Code that require compatibility. Petitioners rely mainly on FLUE Policy 2.2.3, entitled “Residential Preservation,” which states that “Consistency with surrounding residential type and density shall be a major determinant in granting development approval.” Although Moore Pond and Ox Bottom Manor are also designated Residential Preservation, Petitioners claim the Project would be incompatible because of the differences in development type and density. The Project is the same development type (detached, single-family) and density (low density, 0-6 du/a) as the surrounding development type and density. Petitioners assert that the Project is a different development type because it is “cluster housing.” Cluster housing is not a development type. Clustering is a design technique. The clustering of detached, single-family houses does not change the development type, which remains detached, single-family. Petitioners object to the density of the Project of 1.73 du/a, but their primary concern is with the Project’s “net density” or the density within the development area (outside of the conservation easement). Most of the lots in the Project would be about 1/8 to 1/4 of an acre, with the average lot size being 0.26 acres. In contrast, the lots in Moore Pond range from 1.49 to 12.39 acres, with the average size being 3.08 acres. The lots in Ox Bottom Manor range from .53 acres to 0.96 acres, with the average size being 0.67 acres. There is also a significant difference in lot coverage between the Project and the two adjacent subdivisions. The witnesses for the County and Golden Oak never acknowledged the reasonableness of Petitioners’ claim of incompatibility or the notion that owners of large houses on large lots would object to having on their border a row of small houses on small lots. However, the objection of Moore Pond and Ox Bottom Manor residents was foreseeable. The gist of the arguments made by Oak Pond and the County is that the Project is compatible as a matter of law. Respondents demonstrated that the applicable provisions of the Comp Plan and Code, as interpreted by the County, treat a proposed Residential Preservation development as compatible with existing Residential Preservation developments. Put another way: a low density, detached single-family development is deemed compatible with existing low density, detached single- family developments. No deeper analysis is required by the County to demonstrate compatibility. Petitioners’ claim of incompatibility relies principally on FLUE Policy 2.2.3(e), which states in part: At a minimum, the following factors shall be considered to determine whether a proposed development is compatible with existing or proposed low density residential uses and with the intensity, density, and scale of surrounding development within residential preservation areas: proposed use(s); intensity; density; scale; building size, mass, bulk, height and orientation; lot coverage; lot size/configuration; architecture; screening; buffers, including vegetative buffers; setbacks; signage; lighting; traffic circulation patterns; loading area locations; operating hours; noise; and odor. Petitioners attempted to show that the application of these factors to the Project demonstrates it is incompatible with Moore Pond and Ox Bottom Manor. However, Policy 2.2.3 also sets forth guiding principles for protecting existing Residential Preservation areas from other types of development on adjoining lands. No guidelines are included for protecting Residential Preservation areas from proposed low density residential development. The County asserts that this reflects the County’s determination that low density residential development is compatible with existing Residential Preservation areas and, therefore, Policy 2.2.3 does not require that the Project be reviewed using the listed compatibility factors. The County showed that its interpretation of FLUE Policy 2.2.3 for this proceeding is consistent with its past practice in applying the policy. Respondents also point to Table 6 in FLUE Policy 2.2.26, which is a Land Use Development Matrix which measures a parcel’s development potential based on certain land use principles contained in the FLUE, including the parcel’s potential compatibility with surrounding existing land uses. The Matrix shows that a proposed low density residential land use “is compatible/allowable” in the Residential Preservation land use category. Petitioners argue that the Project is incompatible, using the definition of “compatibility” in section 163.3164(9), Florida Statutes: “Compatibility” means a condition in which land uses or conditions can coexist in relative proximity to each other in a stable fashion over time such that no use or condition is unduly negatively impacted directly or indirectly by another use or condition. Petitioners contend the Project would unduly negatively impact Moore Pond and Ox Bottom Manor. Respondents contend it would not. However, as explained in the Conclusions of Law, this definition in chapter 163 is not an extra criterion for approving or denying the Project. Without abandoning their argument that Policy 2.2.3 does not require a compatibility analysis for the Project, both Golden Oak and the County performed compatibility analyses because of the objections raised by adjacent residents. Golden Oak’s expert planner analyzed compatibility on a larger scale by looking at subdivisions within a quarter-mile radius of the Project site. She found a range of densities and lot sizes, including one subdivision with a higher density and smaller lot size. However, nothing in Policy 2.2.3 or the other provisions of the Comp Plan suggests that the incompatibility of a proposed development with an existing, adjoining development is permissible if the proposed development is compatible with another development within a quarter of a mile. Still, her analysis showed the County’s past practice in interpreting and applying the relevant provisions of the Comp Plan and Consistency Code is consistent with the County’s position in this proceeding. Respondents’ compatibility analyses were based in part on legal factors. For example, it was explained that under the Comp Plan, residential density is always applied as gross density rather than net density. This policy is reasonable because it encourages clustering and compact development which helps to achieve important objectives of the Comp Plan, such as the protection of sensitive environmental features. However, it does not follow that because clustering has benefits, it cannot cause incompatibility. Clustering is a well-established growth management technique, despite the fact that clustering can cause some adverse impacts when it increases densities and intensities on the border with adjoining land uses. Such impacts are addressed with buffer requirements. This approach strikes a reasonable balance of the Comp Plan’s goals, objectives, and policies. If the buffer requirements are inadequate, as Petitioners claim, that is an issue that cannot be addressed here. Petitioners also contend the Project is inconsistent with sections of the Code that require compatibility. For example, section 10-6.617 pertains to the Residential Preservation zoning district and states that, “Compatibility with surrounding residential type and density shall be a major factor in the authorization of development approval.” Section 10-7.505(1) provides that each development shall be designed to “be as compatible as practical with nearby development and characteristics of land.” These general statements in the Code are implemented through the more specific requirements in the Code for proposed new developments. Petitioners did not demonstrate that the Project is inconsistent with any of the specific requirements of the Code for the reasons already discussed. The County showed that its interpretations of section 10-7.617 and section 10-7.505(1) for this proceeding are consistent with its past practice in applying these provisions. Summary Compatibility for purposes of land use determinations is not in the eye of the beholder, but is determined by law. The County’s growth management laws incorporate professional planning principles and use development techniques and density ranges, which provide flexibility in achieving important objectives, such as environmental protection. The focus is not on lot-to-lot differences, but on maintaining stable communities and neighborhoods. The preponderance of the evidence, which includes the County’s past interpretation of, and practice in applying, the compatibility provisions of the Comp Plan and Code, demonstrates that the Project is consistent with all requirements for approval.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Leon County Board of County Commissioners enter a final order approving the Project, subject to the conditions outlined by the Development Review Committee in its written preliminary decision dated August 18, 2017. DONE AND ENTERED this 26th day of December, 2017, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of December, 2017. COPIES FURNISHED: Justin John Givens, Esquire Anderson & Givens, P.A. 1689 Mahan Center Boulevard Tallahassee, Florida 32308 Alex Nakis 6036 Heartland Circle Tallahassee, Florida 32312 Mark Newman 6015 Quailridge Drive Tallahassee, Florida 32312 Gene Sherron 6131 Heartland Circle Tallahassee, Florida 32312 Jessica M. Icerman, Assistant County Attorney Leon County Room 202 301 South Monroe Street Tallahassee, Florida 32301 (eServed) Carley J. Schrader, Esquire Nabors, Giblin and Nickerson, P.A. Suite 200 1500 Mahan Drive Tallahassee, Florida 32308 (eServed) Gregory Thomas Stewart, Esquire Nabors, Giblin and Nickerson, P.A. Suite 200 1500 Mahan Drive Tallahassee, Florida 32308 (eServed) Kerry Anne Parsons, Esquire Nabors, Giblin & Nickerson, P.A. 1500 Mahan Drive Suite 200 Tallahassee, Florida 32308 (eServed) Gary K. Hunter, Jr., Esquire Hopping, Green & Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314 (eServed) Erin J. Tilton, Esquire Hopping Green & Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314 (eServed) Jeremy Vincent Anderson, Esquire Anderson & Givens, P.A. Suite B 1689 Mahan Center Boulevard Tallahassee, Florida 32308 (eServed) Vince S. Long, County Administrator Leon County Suite 202 301 South Monroe Street Tallahassee, Florida 32301 Herbert W. A. Thiele, County Attorney Leon County Suite 202 301 South Monroe Street Tallahassee, Florida 32301 (eServed)
The Issue The issue in this case is whether the City's Future Land Use Map (FLUM) Amendment for Site 7 is "in compliance," as defined in Section 163.3184(1)(b), Florida Statutes.1
Findings Of Fact The City of Groveland is located in Lake County, mostly north of State Road 50 and the northeastern corner of the Green Swamp. The core of the City is in the vicinity of the intersections of State Road 50 with State Road 33 (to the south) and State Road 19 (to the north). There are many lakes and wetlands within the City and surrounding the City in Lake County. The Green Swamp was designated an Area of Critical State Concern by the Florida Legislature in 1979. It consists of approximately 500 million acres south from the City through south Lake County and into Polk County. It is bordered on the east by U.S. Highway 27 and on the west extends over the County line into Sumter County. The Green Swamp is important as a statewide resource to Florida because it is one of the last remaining intact ecosystems in Florida. It is one of Florida's largest wetland systems, second only to the Everglades. It includes the headwaters of five rivers, and provides recharge to the Floridan Aquifer, the primary source of drinking water for Florida. It is an ecologically and hydrologically significant resource. It provides habitat for many endangered species including gopher tortoise, scrub jay, and wood stork. In 2003, the City annexed the parcels known in this proceeding as Sites 4, 5, 6, and 7 from Lake County into the City. All of the parcels are located east of State Road 33 and south of State Road 50 and within the boundaries of the Green Swamp. Sites 4, 5, and 6 total 171.1 acres of wetlands bordering Sumner Lake and the City's boundaries before annexation. Site 7 consists of 361 acres (264 acres of uplands and 97 acres of wetlands). (There is an approximately 70-acre County "enclave" in the middle of Site 7 which remained in Lake County.) Site 7 currently is used to grow citrus. It is connected to the City through the other three sites and Sumner Lake. At the time of annexation (and until City plan amendments are found to be "in compliance"),4 the future land use designation for Sites 4, 5, and 6 was Lake County Rural/Conservation. Site 7 had and still has its Lake County future land use designations. Its 97 acres of wetlands are designated Lake County Rural/Conservation, which allows one dwelling unit per 10 acres, while the 264 acres of uplands are designated as Lake County Transition, which allows one unit per 5 acres, or one unit per acre if the “timeliness” criteria under the Lake County Comprehensive Plan are met. These parcels were the subject of the City's FLUM amendments adopted on August 2, 2004. The FLUM amendments changed the designation of Sites 4, 5, and 6 from County Rural/Conservation to City Conservation. These City designations have been found to be "in compliance." The FLUM amendments also changed the future land use designation of Site 7's 97 acres of wetlands to City Conservation, and its 264 acres of uplands to City of Groveland Green Swamp Single Family Rural Development (GSRD), which allows two dwelling units per acre. With a transfer of development rights from the undevelopable wetlands to the developable uplands, which would be allowed under both the City's and the County's comprehensive plans, the maximum number of dwelling units allowed on Site 7 under the City's designation would increase to 532, up from the 57 allowed under the current County designations. Compliance Issues As indicated in the Preliminary Statement, DCA's Petition and SOI alleged that the City's Plan, as amended by the Site 7 FLUM amendment, is not "in compliance" because: (1) it is inconsistent with Rule Chapter 9J-5 because it fails to discourage the proliferation of urban sprawl, as required by Rule 9J-5.006(5); (2) it is internally inconsistent with the City's Future Land Use Element (FLUE) Policies 1-1.10.1 (land use allocation), 1-1.10.2 (promoting orderly compact growth), and 1-1.10.3 (coordination with Lake County to reduce urban sprawl), and Intergovernmental Coordination Element (ICE) Policy 7-1.1.3 (land use planning of adjacent lands); (3) it is inconsistent with the Green Swamp Guiding Principles; (4) it is inconsistent with Section 163.3177(6)(a) and (8), Florida Statutes, and Rule 9J-5.005(2)(a), because it does not react appropriately to the data and analysis on environmental site suitability; and (5) it is inconsistent with State Comprehensive Plan Public Facilities Goal 17(a) and Policies 17(b)1.-2. Urban Sprawl It is no longer disputed that there is a demonstrated need for the additional residential development allowed by the Site 7 FLUM amendment. The real contention by DCA is that the development should not occur at Site 7. DCA's urban sprawl argument focuses on five of the 13 "primary indicators that a plan or plan amendment does not discourage the proliferation of urban sprawl": 4. As a result of premature or poorly planned conversion of rural land to other uses, fails adequately to protect and conserve natural resources, such as wetlands, floodplains, native vegetation, environmentally sensitive areas, natural groundwater aquifer recharge areas, lakes, rivers, shorelines, beaches, bays, estuarine systems, and other significant natural systems. * * * Fails to maximize use of existing public facilities and services. Fails to maximize use of future public facilities and services. Allows for land use patterns or timing which disproportionately increase the cost in time, money and energy, of providing and maintaining facilities and services, including roads, potable water, sanitary sewer, stormwater management, law enforcement, education, health care, fire and emergency response, and general government. Fails to provide a clear separation between rural and urban uses. Fla. Admin. Code R. 9J-5.006(5)(g). Indicator 4 DCA's argument as to Indicator 4 is two-fold: Site 7 is surrounded by rural land; and increasing densities will harm the natural resources of the Green Swamp. Site 7 is immediately surrounded by generally rural uses. As indicated, wetlands and Sumner Lake are to the immediate northwest. Directly to the north of the northernmost portion of Site 7 is a sprayfield owned and operated by the City of Clermont. North of the sprayfield is an open water body. The east side of Site 7 adjoins a marshy area on the west side of Lake Palatlakaha. The south side of Site 7 abuts CR 565 and low wetlands areas, with Lake Wash and other rural lands and wetlands farther south. While immediately surrounded by rural lands (City Conservation, County Rural/Conservation, and County Transition), Site 7 is located approximately 3,000 feet (not three miles, as DCA's primary witness on this issue believed as late as her deposition in this case) south of State Road 50, a highly traveled, major road that connects West Central Florida to East Central Florida. Site 7 is in a fast-growing area less than two miles southeast of the center of the City. Immediately to the north of Sumner Lake is the Westwood residential subdivision which lies along the southern boundary of State Road 50. Existing homes are scattered around the sprayfield. Westwood is located within the City’s boundaries and in the Green Swamp. It has a future land use designation of Green Swamp Single Family Low Density Development (GSLD), which allows up to four single-family detached homes per acre. This corresponds to the Lake County Ridge designation it had at the time it was annexed into the City. Westwood currently is under construction, with many homes already occupied. Along the northern side of State Road 50 north of Westwood is a parcel within the City designated on the FLUM as Commercial, which is proposed to be used for a Publix grocery store, and the Green Valley Country Club, an existing golf course community. To the west of Site 7 is an existing golf course and water ski community known as the Swiss Ski School. It is located within unincorporated Lake County in the Green Swamp and has a Planned Unit Development (PUD) approval for 296 residential units. To the west of the Swiss Ski School lie Stewart Lake and Olsen Lake and their associated wetlands, which are in the Green Swamp in the unincorporated County and have County designations of Rural/Conservation and Transition. Farther west, along State Road 33 and still in the Green Swamp, lie developments having FLUM designations of GSSFLD allowing up to four units per acre. Both those developments lie within City limits. To the south of Site 7, and in unincorporated Lake County, with a County designation of Transition, lies a subdivision along Monte Vista Road which is vested for residential development partly at a density of two units per acre and partly at one unit per acre. Although there will be wetlands and Sumner Lake in City Conservation designations between Site 7 and developments to the north and west in the City, leapfrog development is not a concern for Site 7 and its surrounding area. To the extent Site 7 is separated from other urban or suburban uses in the City by lakes, wetlands, and conservation lands, no urban, suburban or even rural development of those conservation lands should be expected, so that "leaping over" those undeveloped lands should not be considered an indicator of sprawl. For these reasons, it is found that the Site 7 FLUM amendment is not premature. Nor is the conversion from agricultural use to residential use poorly planned. The development will be compact and orderly, and public facilities and services are available. Natural resources already receive a significant amount of protection in the plan. The development of Site 7 will promote conservation of natural resources by allowing only uplands to be developed onsite and allowing a density of up to two units per acre. A lower density would be an inefficient use of developable land. An inefficient land use pattern encourages the premature conversion of environmentally significant lands. Indicators 6 and 7 DCA's arguments as to Indicators 6 and 7 essentially are that some public facilities and services will have to be extended to Site 7, that there are places in the City capable of development using only existing public facilities and services, and that the City has planned for future public facilities and services elsewhere--namely, in the North Overlay, which is described below. As for existing public facilities and services (Indicator 6), development under the site 7 FLUM amendment will receive the same public services of law enforcement, fire, emergency services, and schools as are currently available to Site 7, at a lower residential density, under the existing Lake County Transition land use. Pursuant to an interlocal agreement with Lake County, the City already provides law enforcement services not only to Site 7 and surrounding areas in the City, but also to adjacent areas in unincorporated Lake County. As the City already provides public services in the area, it will be more cost-efficient to spread those costs among more homeowners. The proposed amendment will allow more homeowners to share these costs. DCA's only response to these facts, some of which were not known by DCA's expert witness, was that "the increased population on the site may require additional staff and facilities to serve the population." DCA's PRO, at 41. As for water and sewer, as indicated, a connection to central water and sanitary sewer is available at State Road 50, approximately 3,000 feet from Site 7 (a fact also not known by DCA's expert witness until shortly before the hearing). The developer will be required to pay for the cost of the new lines to Site 7. After those lines are installed, nearby property owners can voluntarily connect to central water and sewer. A few of the nearby property owners who have septic tanks have indicated an interest in connecting to the Site 7 sewer lines. For these reasons, the proposed amendment would result in an efficient use of central water and sanitary sewer facilities. As for future public facilities and services (Indicator 7), in 2003, as a result of a settlement agreement between the City and DCA on the City's 2003 plan amendment, the City proposed and adopted the "Groveland North Overlay" area and associated policies as a plan for future growth. The North Overlay was found to be "in compliance," is part of the City's FLUE, and is designated on Map 1-7 of the City’s FLUM series. The North Overlay is located to the north of the existing City limits and consists of several thousand acres. It is identified as an area in which future annexations are likely to take place in order to meet growth needs. The area is adjacent to parcels already annexed by the City, designated for urban densities, and planned for public facilities. It allows for a mix of uses. It shows that the City had identified a growth strategy to meet its need for the planning timeframe and beyond. It was established to ensure that, as land in the North Overlay was annexed into the City, new development would not develop as urban sprawl, but rather would be managed in a way which created a more effective land use pattern. While adopting the North Overlay, the City has a policy to annex land only on a voluntary basis. It does not exercise its rights under Section 171.0413, Florida Statutes, to require contiguous, compact unincorporated territory to annex. For this reason, it is difficult for the City to foresee with certainty which lands will annex into its municipal boundaries. In addition, starting in the mid-1990's, before adopting the North Overlay, the City began to annex land to the south in the Green Swamp. At that time, the City began the process of amending its comprehensive plan to include provisions to comply with the Principles for Guiding Development in the Green Swamp. In late 2000, the City embarked on a study to guide development and facilitate municipal expansion in the Green Swamp. The DCA provided funding for the study through a technical assistance grant. DCA also provided feedback for the study. The City hired a private consulting firm to do the study and produce a series of four quarterly reports. The final report is entitled "City of Groveland Small Area Study Final Report November 1, 2001." The Small Area Study considered an area of approximately 2,580 acres in the Green Swamp, which the City reasonably projected may be annexed. The geographic boundaries of the study were larger in the first three phases of the study, but were constricted for the final report at the request of DCA planner, Bob Dennis, to be closer to State Road 33. In addition, future annexations were projected to be phased, with areas closer to State Road 33 projected to occur before areas farther away from there. Site 7 is even farther away from State Road 33 and entirely outside the final boundaries of the Small Area Study. But the Small Area Study was not intended to bind the City, or restrict the City's annexation rights and powers, or change the City's policy of voluntary annexation. In other words, the projected annexations and phasing did not preclude consideration of out- of-phase or out-of-area annexations. The DCA grant required the Small Area Study to evaluate the area south of Groveland using several criteria, including upland area, utility availability and expansion, road/transportation network, Lake County land use designation, current land use activities, environmental assessment impacts, and the Green Swamp rules. The Small Area Study recommended that the City adopt two land use categories to apply to residential development in the Green Swamp: a land use category allowing a maximum of four units per acre, and another land use category allowing a maximum of two units per acre. A requirement of 60 percent open space and limitations on impervious surface for residential development also were recommended. For the protection of the Green Swamp and the Floridian Aquifer, the study also recommended that clustered development be encouraged and that central water and sewer be provided. The Small Area Study also recommended that wetlands be designated a Conservation land use. The Small Area Study also recommended that the plan require an upland buffer of 50 feet from the edge of the wetland line and that all development be prohibited in wetlands and floodplains. The City adopted those recommendations, as well as others. All of those plan amendments were found be DCA to be "in compliance." One of those amendments, FLUE Policy 1.3.11, prohibits any structure in the Green Swamp to be located within fifty feet of a wetland line. This requirement exceeds the St. Johns River Water Management District (SJRWMD) performance standards for wetland buffers, which require an average uplands buffer of 25 feet, with a minimum buffer of 15 feet, as well as the standard included in the plan’s Conservation Policy 7.3.5, which applies only to development located outside of the Green Swamp, and requires an average buffer of 50 feet, with a minimum buffer of 25 feet. FLUE Policy 1.3.3 and Conservation Policy 7.13.1 prohibit all development in the wetlands and floodplains for land located within the Green Swamp. This policy is more stringent than the Guiding Principles and Rule 9J-5. Rule 28- 28.008(1) provides performance criteria for development in flood-prone areas, which may be adopted in land development regulations applying in Lake County portions of the Green Swamp. Rule 9J-5.013(3)(b) requires that land uses be distributed to allow wetland impacts to be minimized and mitigated. The City also implemented the recommendations of the Small Area Study for the two residential land use categories. As already indicated, the City adopted the GSLD land use category, allowing a density of up to four units per acre. FLUE Policy 1.1.17. It also adopted the GSRD land use category in FLUE Policy 1.1.18, allowing a density of up to two single family detached homes per acre. Both categories require that at least 60 percent of the property remain in open space and that development be clustered on the least environmentally sensitive portions of the site. The amendments adopting the GSLD and GSRD land use categories were found by DCA to be "in compliance" and consistent with the Principles of Guiding Development in the Green Swamp. However, those categories were not yet assigned to all land considered in the Small Area Study, much less land outside its final boundaries. The appropriateness of GSRD for Site 7 is the issue in this case. Indicator 8 DCA's arguments as to Indicator 8 essentially focus on the timeliness provision in Lake County's Transition designation and the requirement to provide some new public facilities and services as a result of the City's Site 7 FLUM amendment. See Finding 4, supra. Development of Site 7 under Lake County's Transition designation would be limited to one unit per five acres. Site 7 would not qualify for development at one unit per acre under the timeliness provision, which requires more than 40 percent of the surrounding area within a mile radius, and 60 percent of the surrounding area within a two-mile radius, to be developed at a density of one unit per acre or greater.5 In addition, development of Site 7 under the City's FLUM amendment would make one unit per acre development of the 70- acre County "enclave" within Site 7 timely, which in turn may make one unit per acre development of other County land in the vicinity timely under Lake County's Transition designation. In effect, DCA fears that the City's Site 7 FLUM amendment will have a "domino effect" that will trigger rapid, wholesale conversion of rural County Transition land that can be developed at one unit per five acres to Transition land "timely" for development at one unit per acre. But DCA did not prove that its fear is reasonable. DCA also fears that the City's Site 7 FLUM amendment ultimately will result in too much residential development in the Green Swamp. But future County land use designation changes that will harm the Green Swamp will be subject to challenge by DCA. In any event, whether the City's FLUM change at issue in this case is timely depends on a number of factors besides just the timeliness provision of Lake County's Transition designation. Indicator 8 addresses allowing "land use patterns or timing which disproportionately increase the cost in time, money and energy, of providing and maintaining facilities and services," not just patterns or timing that increases those costs. (Emphasis added). DCA did not prove that extending water and sewer lines will be a disproportionately high cost for the developer to pay and pass on to homeowners. The water and sewer lines will be placed along an existing right-of-way and will be required to be extended approximately 3,000 feet to reach Site 7. Longer lines have been installed within City limits. Also, as discussed above relating to Indicators 6 and 7, the Site 7 FLUM amendment will allow a greater sharing of expenses of facilities and services. Indicator 9 As to Indicator 9, there is some merit to DCA's argument that the Site 7 FLUM amendment fails to provide a clear separation between rural and urban uses. But this is partly because of the lakes and wetlands between Site 7 and those urban uses. In addition, there are some urban-like uses between Site 7 and other urban uses in the City. See Finding 14, supra. Internal Consistency DCA's Petition and SOI alleged that the Site 7 FLUM amendment is internally inconsistent with other parts of the City's comprehensive plan addressing urban sprawl considerations: FLUE Policies 1-1.10.1, 1-1.10.2, and 1- 1.10.3; and ICE Policy 7-1.1.3. After the Site 7 FLUM amendment was adopted, the City further amended its comprehensive plan. FLUE Policies 1-1.10.1, 1-1.10.2, and 1- 1.10.3 became, respectively: Policy 1.1.2; Objective 1.6 and Policy 1.6.1; and Policy 1.6.2. ICE Policy 7-1.1.3 was replaced by ICE Policy 11.1.1, and there was no objection to substituting the new, equivalent policy for purposes of this proceeding. FLUE Policy 1.1.2 states: The City shall designate land use on the [FLUM] to accommodate needs identified within the Comprehensive Plan supporting document (i.e., Data Inventory & Analysis). The City shall allocate a reasonable amount of land above identified needs to avoid economic impacts which a controlled supply of land places on land values and market potential. As found, it is undisputed that the Site 7 FLUM amendment is internally consistent with this policy. In its response to the ORC, the City adequately demonstrated that it had a need for additional residential land to accommodate its future population. Moreover, the ratio between the City's future land use needs and population growth is only slightly more than 1:1. The Site 7 FLUM amendment does not create an over- allocation of land uses in relation to its estimated population growth. Again, DCA's challenge is to the location of Site 7. FLUE Objective 1.6 states: "Discourage urban sprawl through a future land use pattern which promotes orderly, compact development." FLUE Policy 1.6.1 states: Land use patterns delineated on the [FLUM] shall promote orderly, compact growth. The City shall encourage growth and development in existing developed areas where public facilities and services are presently in place and in those areas where public facilities can provide the most efficient service. Land shall not be designated for growth and development if abundant undeveloped land is already present within developed areas served by facilities and services." Based on the findings as to the urban sprawl indicators, supra, DCA did not prove that the Site 7 FLUM amendment is internally inconsistent with FLUE Objective 1.6 and Policy 1.6.1, much less that internal consistency is beyond fair debate. FLUE Policy 1.6.2 states: "The City of Groveland shall coordinate with Lake County through a Joint Planning Agreement to develop an areawide [sic] planning approach by 2010, taking into account environmental suitability, functional relationships and areas where public facilities and services are available or proposed to be available by year 2020." ICE Policy 11.1.1 states: "The City of Groveland shall continue to work closely with Lake County, Lake County School Board, other municipalities and affected regional, state and national government agencies to coordinate the comprehensive planning effort of the City with those agencies affected, through the provision of information and participation on committees and working parties." DCA did not prove that the Site 7 FLUM amendment is internally inconsistent with FLUE Policy 1.6.2 or ICE Policy 11.1.1, much less that internal consistency is beyond fair debate. To the extent that internal consistency requires that the local government to comply with the intergovernmental coordination provisions in its comprehensive plan when it proposes and adopts plan amendments, DCA also did not prove that the City failed to do so, much less that its failure to comply is beyond fair debate. The City regularly coordinates its plan amendments with Lake County. The City provided a copy of its 2004-02 amendment package to Lake County when the amendment was transmitted to DCA, as was indicated to DCA in the transmittal amendment cover letter to DCA. A local government’s submittal to an adjacent local government of a copy of an amendment under review is a common way for a local government to coordinate amendments with other local governments. The City also regularly coordinates planning issues with Lake County and other Lake County municipalities by attending meetings of their planning departments. Obviously, the Site 7 FLUM amendment was adopted long before FLUE Policy 1.6.2's 2010 target for a joint planning agreement. At this time, there is no voluntary joint planning strategy with which it can be argued that this amendment is inconsistent. At the hearing, DCA was permitted to also argue internal inconsistency with new plan provisions adopted in July 2005, and found to be “in compliance” in September 2005 (but not provisions adopted in September 2005 and under DCA challenge at the time of the hearing).6 Newly adopted Sanitary Sewer Objective 5.3 reads: MAXIMIZE EXISTING FACILITIES AND DISCOURAGE URBAN SPRAWL. The City shall maximize existing sanitary sewer facilities within its service area and promote compact efficient growth patterns. This objective must be read in conjunction with related Sanitary Sewer Policy 5.3.1, which requires all new development in the City to connect to the central sanitary sewer system, as well as with FLUE Policy 1.1.18, which requires all development in land designated GSRD to connect to central water and sanitary sewer utilities. Density is related to the ability to provide central sewer and water services. If a developer runs new water and sewer lines, which he must do at his own cost in the City, compact density will make development more economical for those services and will encourage an efficient land use pattern. A density of two units per acre is financially feasible for providing central water and sewer to Site 7, whereas the evidence was that a density of one unit per five acres, as urged by DCA, is not cost-effective for Site 7, at least given the developer's $6.5 million land acquisition cost. As the use of septic tanks is not an option in the City for any new development, a contiguous and compact form of development is essential not only for the property in question, but also for future development sites. Development of Site 7 will be connected to an existing City-owned and operated wastewater treatment plant, which has adequate capacity for the maximum of 532 homes allowed by the amendment. As the amendment will allow a compact development pattern of two units per acre and will maximize the use of an existing sewer facility, it is not internally inconsistent with ICE Objective 5.3. Newly-adopted ICE Objective 11.2 requires the City to implement a strategy to ensure the efficient provision of urban services, sound urban development, and accommodation of growth. The objective identifies negotiating interlocal agreements with Lake County and other local governments for joint planning areas and for providing public services. ICE Objective 11.2 requires future intergovernmental coordination and is not self-implementing. The Site 7 FLUM amendment is not internally inconsistent with ICE Objective 11.2. Guiding Principles The Guiding Principles were adopted by rule by the Administration Commission in 1974 and subsequently were approved by reference by the Legislature. See Rule 28-26.003; Ch. 79-73, § 5, Laws of Florida (1979). Preceding Rule Chapter 9J-5 and modern Florida statutory requirements for local comprehensive plans, the Guiding Principles actually were adopted to provide guidelines for the adoption of land development regulations. See Rule 28-26.004 and Rule Chapter 28-28, Land Planning-Part VII Boundary and Regulations for the Green Swamp Area of Critical State Concern-Lake County; § 380.0551(2), Fla. Stat. The City's plan contains goals, objectives, and policies that are consistent with the Guiding Principles. Nonetheless, DCA contends that the Site 7 FLUM amendment is inconsistent with the following objectives to be achieved under the Green Swamp Guiding Principles, Rule 28-26.003(1): Minimize the adverse impacts of development on resources of the Floridan Aquifer, wetlands, and flood-detention areas. Protect the normal quantity, quality and flow of ground water and surface water which are necessary for the protection of resources of state and regional concern. Protect the water available for aquifer recharge. * * * (j) Protect the natural flow regime of drainage basins.7 One of the primary reasons for designating the Green Swamp as an area of Critical State Concern is its relatively high aquifer recharge capabilities. This results from the relative proximity of the surficial aquifer to the ground surface, together with relatively high rate at which water percolates through the soils overlying the surficial aquifer. The relatively high aquifer recharge rate results in a relatively high potentiometric surface in the underlying Floridan aquifer (Central Florida's primary drinking water source) and drives the groundwater system throughout Central and Southwest Florida. Florida contains many areas of no recharge, but low- to-moderate recharge characteristics are common throughout Florida. Within the Green Swamp, there are areas of low, moderate, and high aquifer recharge, depending primarily on the proximity of the surficial aquifer to the ground surface and the characteristics of the overlying soils. In the area of Site 7, the surficial aquifer is approximately 150 feet below ground surface. Site 7 has both Type A (sandy, upland) soils, which have a high infiltration rate, and Type B (wetlands) soils. The area has been regionally mapped by SJRWMD as having a net recharge rate of 0-4 inches (low) on the western side of the site, and 4-8 inches (moderate) on the eastern part of the site. As such, these recharge characteristics of Site 7 can be said to be "common" for the Green Swamp. As for groundwater contamination, a map of the Floridan Aquifer Groundwater Vulnerability admitted into evidence by DCA showed that the groundwater for Site 7 and the surrounding area are "more vulnerable" to contamination. However, DCA did not present a map for other parts of the Green Swamp or the rest of Florida for comparison purposes, and its expert witness on the subject was unable to quantify vulnerability or directly compare Site 7 to other parts of the Green Swamp and the rest of Florida. However, he did testify that areas of "high vulnerability" extend all the way to the west of Tallahassee and that the western part of the Green Swamp generally is more vulnerable to groundwater contamination than the eastern part, where Site 7 is, because the surficial aquifer is at or near the ground surface in the western part of the Green Swamp. As to the natural flow regime of drainage basins, Site 7 lies in the Oklawaha River Drainage Basin. The natural local drainage of Site 7 is into the Palatlakaha River via several smaller drainage sub-basins: Sumner Lake Outlet, Palatlakaha Reach, Lake Wash Outlet, and Pine Island Outlets. The Palatlakaha is a major tributary to the Oklawaha River. DCA did not prove that the Site 7 FLUM amendment will adversely impact the natural flow regime of the drainage basin Site 7 is in. DCA did not prove that Site 7 has any hydrologic or environmental characteristics that would require more protection than other parts of the Green Swamp. It follows that DCA did not prove a need for Site 7 to have a lower density than is allowed under the GSRD land use category already approved by DCA for the Green Swamp. Similar residential densities also have been approved in other parts of the Green Swamp. A plan's goals, objectives and policies must be considered when evaluating the impacts of development allowed by a land use category. The FLUM, the goals, objectives, and polices are interrelated. See § 163.3177(6)(a), Fla. Stat. The hydrologic features and functions addressed in the Guiding Principles are protected in the plan, and those protections have been found by DCA to be consistent with the Guiding Principles. Those plan provisions will guide development to ensure that the aquifer, wetlands, flood detention areas, groundwater, surface water, Lake Sumner, and the natural flow of the drainage basin will be appropriately protected. The essence of DCA's argument that the Site 7 FLUM amendment is inconsistent with the Guiding Principles is that, regardless of how much protection the plan's provisions afford, the Site 7 FLUM will allow approximately ten times the various impacts of development--e.g., impacts on wetlands, reduction of aquifer recharge due to increased impervious surfaces, water quality impacts, and water quantity impacts-- at one unit to five acres under the current Lake County Transition designation, so that adverse impacts are not minimized, and resources are not protected, as envisioned in the Guiding Principles. There are several flaws in DCA's argument, even assuming the impact factor of ten. First, the logical extension of DCA's argument would be that minimization and protection require no additional adverse impacts. If so, development at one unit per acre under Lake County Transition's timeliness provisions--a fivefold increase in impacts, under DCA's rationale--also would be inconsistent with the Guiding Principles. Second, planning should be based on reality,8 and DCA did not prove that residential development would occur on Site 7 at one unit to five acres. To the contrary, while continued development of small parcels in areas designated Lake County Transition is plausible, the evidence was that it is financially infeasible to develop Site 7 as a whole residentially at that density.9 For that reason, while ordinarily it is appropriate only to compare potential impacts from different possible land use designations, in this case it is appropriate to consider the impacts of the current use of Site 7 as an orange grove when deciding whether the Site 7 FLUM amendment is consistent with the Guiding Principles. The evidence was clear that, under all the criteria in the Guiding Principles cited by DCA, residential development under the Site 7 FLUM amendment is far preferable to the continued use of the property as an orange grove10--the likely if not absolutely clear result of maintaining Lake County's Transition designation.11 Third, as mentioned in Finding 57, supra, it was clear from the evidence that DCA has found residential land use designations of two units per acre and greater not only elsewhere in the Green Swamp, both in the City and elsewhere, to be consistent with the Guiding Principles, and DCA failed to explain why those densities would be consistent with the Guiding Principles elsewhere but not at Site 7. Again under this issue, DCA in effect fears that the City's Site 7 FLUM amendment will have a "domino effect" that will ultimately result in the entire Green Swamp being designated for two-unit per acre residential densities. But the entire Green Swamp is not like Site 7. Future County land use designation changes that actually will harm the Green Swamp will be subject to challenge by DCA, and it is unreasonable to assume that DCA will allow densities of two units per acre throughout the Green Swamp if it is allowed at Site 7. Environmental Suitability For essentially the same reasons DCA argues inconsistency with urban sprawl rules and plan provisions and with the Guiding Principles, DCA also contends that the City did not react appropriately to data and analysis indicating Site 7's alleged environmental unsuitability for residential development at two units per acre. Based on the previous findings, DCA did not prove that allegation.12 State Comprehensive Plan DCA alleges that the Site 7 FLUM amendment is inconsistent with the State Comprehensive Plan's Public Facilities goal and two related policies. Public Facilities Goal (a) addresses the need to protect substantial investments in existing public facilities. Related Policy (17)(b)1. provides incentives for developing land in a way that maximizes the uses of existing public facilities. Public Facilities Policy 17(b)2. promotes the "rehabilitation and reuse of existing facilities, structures, and buildings as an alternative to new construction." As discussed above in the urban sprawl findings, the Site 7 FLUM amendment encourages the efficient use of existing public facilities. The increase in density, which the amendment allows, may be viewed as a land use incentive that encourages the maximization of existing public facilities both as to Site 7 and as to surrounding properties that may later connect to City utilities. The amendment furthers Public Facilities Goal (a) and Policy (b)(1). The Site 7 FLUM amendment also does not undermine or conflict with Policy (b)(2). The City’s plans to rehabilitate a downtown community redevelopment area (CRA) will not be adversely affected by development allowed by the proposed amendment. Also, there is insufficient land within the CRA to accommodate the City’s projected housing and land use needs. The amendment is not inconsistent with this policy.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order finding the City's Site 7 FLUM amendment to be "in compliance." DONE AND ENTERED this 28th day of November, 2005, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of November, 2005.
