The Issue The issue before the Florida Land and Water Adjudicatory Commission (FLWAC) in this proceeding is whether to grant the Petition to Amend the Boundary of the Gateway Services Community Development District (Petition), dated June 2, 2004. The local public hearing was for purpose of gathering information in anticipation of rulemaking by the FLWAC.
The Issue The issue is whether the City of Winter Springs' (City's) plan amendment adopted by Ordinance No. 2005-29 on June 12, 2006, is in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: The Parties The City was incorporated in 1959 and is located just inside Seminole County in a highly developed area surrounded by the City of Oviedo to its east, the City of Casselberry to the south, the City of Longwood to the west, Lake Jesup to the north, and the City of Orlando a few miles to the southwest. The City adopted the amendment in question. The Department is the state land planning agency charged with the responsibility for reviewing plan amendments of local governments, such as the City. Keewin is a Florida corporation and has a contract to purchase the property that is the subject of the challenged plan amendment. It offered comments in support of the plan amendment during the adoption process. The Association is a Florida Homeowners Association operating as a not-for-profit corporation under Section 720.301, Florida Statutes. It currently comprises approximately 1,378 residential units on 550 acres within the City, including single-family attached and detached dwellings, apartments, and condominiums. The Association is made up of nineteen separate subassociations of residents; however, the Association serves as the "master association." One of the subassociations (Greens Point) lies "a stone's throw" to the east from the subject property, while the others lie further east, separated from the subject property by another residential subdivision known as Wildwood (which is not a part of the Association). Wildwood has a MDR land use category, which is the same land use being sought for the Keewin property. Besides five miles of nature trails, the Association also owns and maintains five parks, a tennis facility, a pool, and a clubhouse. A representative of the Association offered comments, recommendations, or objections to the City during the adoption of the amendment. As a property owner within the City who submitted objections to the plan amendment during its adoption process, the Association meets the definition of an affected person under Section 163.3184(1)(a), Florida Statutes, and accordingly has standing. As discussed below, however, the City and Intervenor (but not the Department) argue that the Association still lacks standing because its Board of Directors never authorized the filing of the initial Petition in this matter. Background In 2005 the City began consideration of an application by Keewin (on behalf of the current owner, Dittmer Properties, Inc.) to change the land use on the 47.7-acre tract of property. The land use change was also accompanied by a proposed change in the zoning of the property; however, that matter is not of concern here. The amendment was initially considered and approved by the City Commission at a meeting conducted on February 13, 2006. An amendment transmittal package was then sent to the Department for its review. After the Department issued an Objections, Recommendations, and Comments Report (ORC Report) on April 20, 2006, which noted four specific objections to the map change, the City provided further information to the Department to resolve these concerns. On June 12, 2006, the City voted to adopt Ordinance No. 2005-29, which approved the map change in issue. On August 4, 2006, the Department published in the Seminole County Edition of the Orlando Sentinel its Notice of Intent to Find the City of Winter Springs Comprehensive Plan Amendment in Compliance. Sometime in September 2006, the Association filed its initial Petition for a hearing to contest the plan amendment. The Petition was apparently dismissed without prejudice by the Department, with leave to file an amended petition. On September 25, 2006, the Association filed its Amended Petition raising the following objections: the new land use would be incompatible with the surrounding land uses; the land use change "further erodes" the City's ability to meet the requirements in its Plan for industrial uses; the amendment will have a "negative overcrowding impact on schools, particularly Highlands Elementary"; the amendment will cause overcrowding of the nearby roadways; the amendment will negatively impact the City's level of service standards for recreational facilities; and the amendment conflicts with various provisions within Florida Administrative Code Rule Chapter 9J-5 and Section 163.3177, Florida Statutes. Authorization by the Board of Directors Citing various provisions within the Articles of Incorporation and the By-Laws, and the sometimes conflicting testimony of two members of the Association's Board of Directors, the City and Intervenor have argued extensively in their Joint Proposed Recommended Order that the Association's Board of Directors did not formally authorize its outside counsel to file the initial Petition in this matter. They point out that under the By-Laws, in order for the Board of Directors to initiate a legal action, as it did here, prior to the filing of a petition, it must have either had a vote of the majority of the Directors at a meeting at which a quorum was present or consent in writing by all members of the Board of Directors. See Art. VI, §§ 6.5 and 6.8, By-Laws. They further contend that the president of the Board of Directors, Paige N. Hinton, had no authority, as she assumed she did here, to advise another member of the Board of Directors, Helga R. Schwarz, that Ms. Schwarz could authorize outside counsel to file a petition with the Department. The affairs of the Association are managed by a Board of Directors made up of seven members. See Art. V, § 5.1, By- Laws. When this matter arose, Ms. Hinton served as president of the Board of Directors while Ms. Schwarz served as its secretary and a member. Both testified at the final hearing. When the plan amendment was first being processed and considered by the City in its early stages, a number of Association residents approached members of the Board of Directors and voiced their concerns with the proposal. Based upon those concerns, the Board of Directors held a special meeting on January 13, 2006, to discuss the issue. All seven directors were present at the meeting. A copy of the minutes of that meeting has been received in evidence as Respondents' Exhibit 3. The minutes are normally prepared by Bonnie J. Whidden, a full-time employee who serves as property manager, and "are not required to be detailed." After preparation by Ms. Whidden, the minutes are then reviewed at the following month's meeting and approved for form. There is no indication in the record that the Board of Director's outside counsel attended the meeting in question. The minutes reflect that the following action was taken at that meeting: The Board discussed the implications facing The Highlands if the Dittmer parcel were to be rezoned from light industrial to medium density residential as proposed by Keewin Real Property. Discussion ensued on impacts to The Highlands' recreational amenities, neighborhood roads, school capacities, and other concerns. The Board agreed that the proposed change in zoning was not in the best interest of The Highlands. The Board agreed to hold a community town hall meeting on the Keewin Large Scale Plan Amendment for The Highlands' residents in order to provide residents with information and to seek their input and feedback prior to the public hearing. The Board discussed committing funds for Clayton & McCulloh's legal services to represent The Highlands' interests on this issue. A motion was made to empower Ms. Schwarz to work with Clayton & McCulloh on this matter and to represent the Association at any city meeting related to the Dittmer rezoning. The motion was seconded and passed unanimously. Discussion ensued regarding having Clayton & McCulloh represent the Association at the city's public hearing on February 13, 2006. Ms. Schwarz would discuss the matter with counsel and apprise Ms. Hinton. Although the minutes refer primarily to the Association's opposition to the rezoning of the property, it is fair to infer that the Board of Directors was opposed to both the rezoning of the property and a change in the land use on the FLUM. According to Ms. Hinton, the Association intended that Ms. Schwarz act as the Board of Director's "primary point of contact with Clayton & McCulloh [its outside counsel] should [the Association] need to petition the [S]tate, and also to speak on behalf of the Association at City [C]ommission meetings for the City of Winter Springs." However, authorization to file a petition with the Department was not discussed at the meeting nor voted on. This is because it would have been premature to do so at that point as the amendment had not yet even been formally considered or adopted by the City. As the minutes disclose, the Board of Directors directed that Ms. Schwarz, a long-time resident and its secretary, represent the Association "at all city meetings" and to liason with its outside counsel. Acting on those instructions, she attended the February 13, 2006, meeting of the City Commission, when the Commission voted to transmit the amendment package to the Department for its preliminary review, and the meeting on June 12, 2006, when the map change was finally approved. (She also attended several meetings of the City Planning and Zoning Board, which presumably considered the zoning change.) At least twice, Ms. Schwarz presented oral objections on behalf of the Association at City Commission meetings. On an undisclosed date before the Association's initial petition was filed, Ms. Hinton spoke with Ms. Schwarz by telephone and advised Ms. Schwarz that pursuant to the Board's decision on January 13, 2006, Ms. Schwarz should instruct its outside counsel to file a petition challenging the new amendment. This information was given to outside counsel, who presumably filed the initial Petition, which was later amended on September 25, 2006. After the January 13 meeting, the Board of Directors was given a number of "updates" concerning the status of the plan amendment throughout the adoption and Department review process, including advice that a petition had been filed by outside counsel with the Department. However, no other formal action was taken by the Board concerning this matter before the initial petition was filed in September 2006. On advice of outside counsel, on November 16, 2006, a special closed meeting of the Board of Directors was called by Ms. Hinton to discuss "pending legal matters," including ratification of the Petition that had previously been filed. One reason for calling this meeting was the fact that the issue of whether the Board of Directors had authorized the petition to be filed had just arisen during the course of discovery for the hearing. A copy of those minutes is not of record since they were not reviewed and approved until the Board of Directors held its December 2006 meeting. Although the record is somewhat confusing (due to conflicting testimony) as to what action was taken at the meeting, it is clear that the Board of Directors (of whom six were present) orally ratified the filing of the Petition by "unanimous consensus." The Amendment The amendment consists only of a change in the FLUM on the subject property from Industrial to MDR. There are no accompanying changes to the text of the Plan. The property is currently vacant, but carries an Industrial land use and PUD zoning. The land uses surrounding the subject property are industrial to the north (across Shepard Road), medium density residential (including multi-family units) to the east, industrial and low density residential to the south, and predominately industrial and commercial to the west. There are "public lands" on the southeast side of the property. Less than one thousand feet west of the subject property and running in a north-south direction is U.S. Highway 17-92, a major arterial roadway maintained by the State. (Just across that road is the City of Longwood.) Shepard Road, a two- lane collector road which runs in an east-west direction, adjoins the northern boundary of the subject property and part of the Association and eventually exits to the west into U.S. Highway 17-92 at a major intersection with a traffic signal. Petitioner's Objections Petitioner has challenged the amendment based on compatibility, need, schools, roads, recreational facilities, and alleged violations of various provisions of Florida Administrative Code Rule Chapter 9J-5 and Chapter 163, Part II, Florida Statutes. There are no challenges to the amendments based upon internal inconsistency with the City's plan, inconsistency with the East Central Florida Planning Council's Strategic Regional Policy Plan, or inconsistency with the State Comprehensive Plan. Compatibility. The Amended Petition contains allegations that the MDR designation is incompatible with surrounding land uses, and, in particular, with the Association property that is located to the east of the subject property that is designated as MDR on the FLUM. The ORC Report raised an objection regarding land use compatibility of the amendment with the industrial land use designation to the west. The concern was that the amendment was not supported by data and analysis demonstrating that the amendment was compatible with the industrial use. In response to the objection, the City set forth Plan provisions that require buffering and also provided a Development Agreement in which the developer agreed to build a buffer between the amendment site and the industrial properties to the west. By doing so, the City adequately responded to the objection by indicating that the subject property would contain a buffer to address the potential compatibility concerns with the adjoining industrial property. The MDR designation on the subject property provides a transition from the commercial and industrial uses fronting U.S. Highway 17-92 and is compatible with the MDR to the east. Thus, the MDR use on the subject property is appropriate as a transitional use between the residential to the east and the industrial and commercial properties to the west that front U.S. Highway 17-92. Based on the evidence, it is fairly debatable that the MDR land use is compatible with the industrial use to the west and the MDR to the east. Need for Industrial Lands The Amended Petition alleges that the change from Industrial to MDR "further erodes" the ability of the City to meet requirements in its plan for industrial uses. There is no Plan policy that calls for a certain number of acres of industrial property. Rather, the Plan contains an analysis of the existing industrial acreage and a projection for future acres. Looking only at the industrial land use category, the City has 170 acres, and the plan amendment reduces that number by 47 acres or approximately twenty-eight percent. However, industrial is allowed in other future land use categories besides the industrial category. Moreover, the industrial land use designation has been on the property since at least 1991, but has remained vacant. Thus, the appropriateness of the industrial designation at this location did not come to fruition. By contrast, the City's analysis indicated a need for approximately 328 additional acres of MDR land. The FLUM change on the Keewin property furthers the need for that land use. Also, as found above, the subject property is an appropriate location for the MDR because it serves as a transition, and the property had remained vacant under the industrial future land use designation since 1991. Coordination With Schools The Association has also contended that the amendment "will have a negative overcrowding impact on schools, particularly Highlands Elementary," which lies just north of Shepard Road and serves the Association residents. Unless elected by local option, local governments are not required to have a school facilities element in their comprehensive plans at this time, are not required to have a level of service (LOS) standard in their plan for school facilities, and are not required to implement school concurrency. The City has not elected the local option of school concurrency. At this time, the Department requires only coordination of the plan amendment with the Seminole County School Board (School Board) so that the School Board and the City have a general understanding of the potential implications of the plan amendment. The ORC Report contained an objection regarding coordination of the amendment with the School Board. In response to the objection, the City indicated that it provided notice of the amendment to the School Board and an additional opportunity for School Board comment. The City also provided an analysis from the School Board indicating that the amendment would generate only 76 students. Additionally, in the Development Agreement between the City and the Developer, the Developer agreed to pay $1,235.00 for each residential unit to the School Board in addition to the school impact fees required for each residential unit. The Agreement for this mitigation represents an additional step toward helping to address what is the understanding of the impact on schools and is a further indication of coordination between the land use and school planning. The Department does not currently have a standard to use to measure the adequacy of the dollar amount since school concurrency is not required at this time. Therefore, the City has not established LOS standards. Given these considerations, it is fairly debatable that the City has demonstrated adequate coordination with the School Board regarding school facilities. Impact on Transportation The Association further contends that the LOS on public streets serving the Association's members and serving property owned by the Association will deteriorate. It also contends that traffic flowing from the subject property will overcrowd and/or negatively impact the Association. In support of these contentions, the Association presented the testimony of Harry A. Burns, Jr., a professional engineer, regarding potential traffic impacts based upon his review of the Plan and transportation element. According to the Plan, the segment of U.S. Highway 17-92 north of Shepard Road is currently operating at LOS F, which is below the adopted LOS standard. As noted earlier, U.S. Highway 17-92 is a major arterial very close to the subject property. Although the Plan indicates that U.S. Highway 17-92 is slated for a six-lane project by 2010, the Plan also indicates that it is anticipated the LOS will still remain at F. Mr. Burns opined that Shepard Road and Sheoah Boulevard, a minor two-lane collector road which winds through the Association in a north-south direction, will be "impacted" by the MDR land use designation. He concluded that a traffic study should be done for Sheoah Boulevard because it is a collector road and is in the amendment's impact area. Although he testified that Shepard road would be impacted, he had no information indicating that Shepard Road would be negatively impacted. Also, he did not know whether the plan amendment would result in a reduction in the operating LOS for Shepard Road and Sheoah Boulevard. Petitioner's expert also opined that traffic generated by a change in the land use would have a different trip distribution than traffic generated by industrial. He testified that, from a traffic circulation standpoint, it was likely that residential traffic would be more willing to travel east through the Association than would industrial traffic because the industrial traffic would prefer to access the nearby U.S. Highway 17-92 to the immediate west. He further opined that there were not "attractors" for industrial traffic to travel east through the Association. He admitted, however, that the City's Town Center as well as the Greenway toll road (State Road 417) were located to the east of the subject property. Although the expert believed that the trip generation characteristics of an industrial land use would be different than those for a residential land use, he agreed that he would need to model the trip distribution to accurately determine where the traffic would go. The witness had not done that prior to the hearing. Data and analysis relative to traffic impacts were submitted to the Department by the City and the Florida Department of Transportation (FDOT). Based upon its review of the plan amendment, on March 22, 2006, FDOT provided a letter to the Department in which it determined that an Industrial land use would generate 7,176 average daily trips (ADT) and 1,308 PM (afternoon) peak hour trips. On the other hand, a MDR designation would generate only 3,936 ADT and 394 PM peak hour trips, resulting in a decrease of 3,240 average daily trips. This is a substantial reduction. All experts in this case agreed with the FDOT's assessment. FDOT further concluded that because the "amendment would result in a decrease in daily trips . . . FDOT has no comments on this amendment." The letter did not raise any concerns regarding impacts to U.S. Highway 17-92, a state road under its jurisdiction. The City Engineer and the City's expert planner established that a further traffic study or analysis at this stage was unnecessary because the land use change resulted in a substantial decrease in trips. In addition, the Department's planner opined that reducing the trip generation potential from the amendment parcel is a strategy to reduce the potential traffic on the road network that, in combination with other actions, can have a significant effect on helping improve the coordination between land use and transportation relative to the operating LOS on the roadways. Due to the specific nature and context of this particular amendment, he also agreed that no further general planning or transportation analysis was warranted at this stage. In fact, the reduction helps the Plan better coordinate land use and transportation in terms of the potential trips that might occur on the road system. Coordination of land use and transportation facilities was appropriately addressed at the plan amendment stage through the significant reduction in trip generation potential on the property. Finally, although Petitioner's expert pointed out that the City's Plan indicates that even with scheduled improvements the segment of U.S. Highway 17-92 north of Shepard Road will have deficiencies by the year 2010, he could not say that the amendment would cause LOS deficiencies on that road or indicate with any degree of precision the effect the amendment would have on the LOS. As noted above, he did not perform a traffic analysis of the amendment. Given these considerations, it is found that Petitioner did not demonstrate beyond fair debate that the amendment will result in LOS deficiencies on U.S. Highway 17-92, Shepard Road, or Sheoah Boulevard. Further, it failed to prove beyond fair debate that the amendment is not in compliance with respect to transportation issues. Open Space and Recreational Land and Facilities Contrary to the Association's assertion, the plan amendment will not impact or adversely affect the City's LOS standards for recreational facilities. There have been increased recreational facilities in the City since the Plan was written, which has increased the LOS that is available, and there is no LOS deficiency for parks through the year 2010. Indeed, the LOS will be met even if park lands are not built on the subject property. The Development Agreement between Keewin and the City requires Keewin to include park lands on the subject property. The Agreement specifically provides a paragraph on "Parks and Recreation" which includes the following language in paragraph 4: In accordance with Winter Springs Code Section 20-354 and other applicable provisions of the City’s Comprehensive Plan and Code, the Developer agrees to dedicate an appropriate amount of land as a park for the residents of the Project. Such park shall have recreational facilities built in accordance with the standards of the National Recreational Association. In addition, such park shall be protected through deed restrictions . . . which shall ensure the preservation of its intended use, the payment of future taxes, and the maintenance of the park and facilities for a safe, healthy and attractive living environment. The park shall be included in the phasing plan, if any, and shall be constructed and fully improved by Developer at an equivalent or greater rate than the construction of the residential structures for which it serves. Therefore, the subject property will provide its own park and recreation area on-site. There is sufficient land on the site to accommodate on-site park facilities based on the residential densities that might be allowed on the subject property. The Department established that the land use is being adequately coordinated with recreational facilities. There is appropriate coordination between the land use and recreational facilities, and the residents of the subject property would not have to make use of any other city park facilities. Petitioner acknowledges that the Developer's Agreement indicates that the Developer will provide for a park; however, Petitioner still complains that there is not enough detail about the parks to be provided on-site. However, there is no requirement at this stage of the process that such a degree of specificity for parks be provided. The evidence supports a finding that a change to MDR is compatible with adjacent land uses and will have no impact on private parks and recreation areas on adjacent lands. There is insufficient evidence to support a finding that the plan amendment will impact the Association. Indeed, the subject property will have two City parks that service the area and a 315-acre county-owned community park facility less than a mile from the subject property. Consistency With Rule and Statutory Provisions The Amended Petition alleges that the amendment is inconsistent with various provisions of Florida Administrative Code Rule Chapter 9J-5 and Chapter 163, Florida Statutes. However, Petitioner did not present any testimony addressing any of the rule or statutory provisions. Conversely, the evidence presented by Respondents and Intervenor demonstrates that the amendment is consistent with these provisions. Accordingly, it is found that the amendment is not inconsistent with Florida Administrative Code Rules 9J-5.006(3)(b)1., 9J-5.006(2)(a), 9J- 5.006(3)(c)2. and 3., 9J-5.016(1)(a) and (b), 9J-5.016(2)(b), 9J-5.016(3)(b)1. and 5., 9J-5.016(3)(c)5., 9J-5.0055(2)(a), and 9J-5.0055(3)(b) and (d), and Section 163.3177(3), (6)(a) and (e), Florida Statutes, as alleged in the Amended Petition. Trespass and Vandalism Concerns Finally, Petitioner has alleged that residential development of the subject property will increase the unauthorized use of its private recreational facilities and amenities, as well as increase vandalism to its personal property by non-residents. However, allegations regarding potential trespass and unauthorized use of recreational facilities on nearby lands is not a compliance issue under Chapter 163, Florida Statutes. Issues Under Section 120.595(1), Florida Statutes In its Amended Petition filed on September 25, 2006, the Association raised five grounds for determining the plan amendment to be not in compliance: increased traffic that would impact the Association's members; school overcrowding, and particularly the elementary school just north of Shepard Road; inadequate open space and recreation land and facilities, including unauthorized use of Association facilities, as a result of the new development's residents and children; reduced industrial zoning; and inconsistencies with various provisions within Florida Administrative Code Rule Chapter 9J-5 and Chapter 163, Florida Statutes. There is no evidence that the Association has ever participated in a prior proceeding involving the City or Keewin and the same project. The Association representative, Ms. Schwarz, acknowledged that before the Amended Petition was filed, the Association did not consult with any experts regarding the issues raised in that filing. According to Ms. Schwarz, the allegations represented concerns expressed by various members of the Association to the Board of Directors. Most of these concerns are specifically reflected in the minutes of the meeting held on January 13, 2006. However, the Association did consult with outside counsel in drafting the issues in the Petition. This is evidenced by the fact that at least three of the concerns in the Amended Petition (traffic, school overcrowding, and inadequate open space and recreational facilities) were previously discussed in detail in a letter from outside counsel to the City on February 7, 2006, or just before the City Commission initially met to consider the amendment. Although the case was originally scheduled to be heard in February 2007, on October 31, 2006, Intervenor filed its demand for an expeditious hearing under Section 163.3189(3), Florida Statutes. Accordingly, by Order dated November 1, 2006, this case was rescheduled to be heard on November 29, 2006, under the mandatory fast track timelines in that statute. Because of this short timeframe, Association counsel represented during a status conference on November 10, 2006, that he was experiencing difficulty in interviewing and hiring outside experts on such short notice, particularly with the intervening Thanksgiving holidays. This was confirmed by Ms. Hinton at final hearing, who represented that if the hearing had been held in February 2007, the Association had planned on hiring a number of experts. Even so, on short notice, the Association was able to engage the services of a professional engineer who offered expert testimony on the traffic issue. The remainder of its evidence was presented through lay witnesses, by cross- examination of the other parties' experts, and by documentation. No direct evidence was affirmatively presented on the issue of whether the plan amendment was in conflict with various provisions of Department rules or Florida Statutes. As to all other issues, even though the Association did not prevail on any of its claims, it did present some evidence, albeit minimal in some respects, in support of its position. There is no evidence, direct or circumstantial, to support a finding that the Association's primary motive in filing its Petition was to simply harass the City or developer, delay the project (which will be built on the property after the land use change is approved and building permits obtained), or needlessly increase the cost of litigation for those parties.
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. 2005-29 is in compliance. Jurisdiction is retained to consider the City's Motion for Sanctions Against Petitioner and Intervenor's Motion for Sanctions, Fees and Costs filed under Sections 120.569(2) and 163.3184(12), Florida Statutes, if renewed within 30 days after issuance of the final order. DONE AND ENTERED this 3rd day of January, 2007, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd of January, 2007.
The Issue Whether Hernando County Comprehensive Plan Amendment CPAM 1702, adopted by Ordinance No. 2018-12 on June 12, 2018, is “in compliance,” as that term is defined in section 163.3184(1)(b), Florida Statutes (2017).1/
Findings Of Fact The Parties and Standing Petitioner, Heinrich Bracker (“Petitioner”), owns property and resides in Hernando County. His property is adjacent to the Plan Amendment Area. Petitioner submitted oral or written comments regarding the Plan Amendment during the transmittal hearing. The County is a political subdivision of the State of Florida with the duty and responsibility to adopt and amend a comprehensive growth management plan pursuant to section 163.3167, Florida Statutes. Cemex owns property and operates a business within the County, and seeks to develop the Plan Amendment Area for limerock mining. Cemex provided oral or written comments to the County during both the transmittal and adoption hearings on the Plan Amendment. Existing Conditions The Plan Amendment Area is 730 undeveloped acres currently designated for future Residential use, a portion of which is also subject to a Regional Commercial Overlay district. The Plan Amendment Area contains deposits of hard limestone, a material which is utilized in the construction of roads, as well as other uses requiring high-quality limestone. The Plan Amendment Area is bounded on the north by County Road 484/Fort Dade Avenue, portions of which are a canopy road. The property north of Fort Dade Avenue is designated Mining, and is the site of Cemex’s existing Brooksville South limestone mining operation (the “Brooksville Quarry”). Traveling west, Fort Dade Avenue turns south, roughly forming the western boundary of the Plan Amendment Area. The majority of the property west of the Plan Amendment Area is designated Residential, although the northwestern most area is designated Rural and a small section at the southwest corner is designated Commercial. The Spring Hill African American Cemetery (“the Cemetery”) is located at the western corner of the Plan Amendment Area boundary, south of Fort Dade Avenue. Traveling south, Fort Dade Avenue intersects with State Road 50, a four-lane divided highway known as Cortez Boulevard, which forms the southern boundary of the Plan Amendment Area. The property southwest of Cortez Boulevard is designated Commercial and is developed with a mix of commercial and industrial uses. The property to the southeast is designated Rural and is largely undeveloped, with the exception of the Bayfront Health Brooksville Hospital (“the Hospital”). The Hospital is located across Cortez Boulevard from the Plan Amendment Area. The site is a designated Planned Development and is developed with the Hospital and appurtenant medical and commercial uses. The eastern boundary of the northern half of the Plan Amendment Area is Eureka Drive, a local street providing access to several residences east of the Plan Amendment Area, including Petitioner’s residence. There is no physical boundary on the southeast portion of the Plan Amendment Area. All of the property east of the Plan Amendment Area is designated Residential, with the exception of the northeast corner, which is Rural. This area is primarily developed with low density rural residential uses. Many of the residences are accessed from Ft. Dade Avenue. In summary, the Plan Amendment Area is bordered by primarily Residential to the east and west, predominately Rural to the south, and Mining to the north. The Plan Amendment The Plan Amendment changes the future land use designation of 573.47+ acres of the Plan Amendment Area from Residential to Mining (“the Mining Area”), and the remaining 156.53+ acres from Residential, with a Regional Commercial Overlay, to Commercial (“the Commercial Area”). The Plan Amendment adds the following text to the County Comprehensive Plan, Section D: SECTION D: FUTURE LAND USE MAPPING CRITERIA & LAND USES ALLOWED MINING CPAM-17-02 shall meet the following stricter standards: Criteria 1: Blasting techniques shall incorporate the best available techniques and methods to minimize adverse impacts to natural and manmade features. The blasting techniques shall be designed and implemented to minimize impacts to adjoining land uses. Criteria 2: A “Good Neighbor Policy” is required prior to rezoning the property for mining to address any potential damage that may occur as a result of mining activities. Criteria 3: The applicant will provide right-of-way to the County in a manner required by the County Engineer for a California Street to Citrus Way future transportation corridor in accordance with the Functionally Classified Roadways Map for Hernando County and the MPO Long Range Transportation Map. Criteria 4: When mining ceases on the property, the applicant shall provide for the portion of the identified future transportation corridor from Fort Dade Avenue to SR 50 along the eastern portion of the property as part of the mining reclamation requirements in a manner required by the County Engineer. Criteria 5: There shall be a minimum 200- foot setback and buffer from the mining property line in mining area adjacent to the historic cemetery in the northwest corner of the parcel. Criteria 6: There shall be a minimum 400- foot setback and buffer from the property line to the nearest mining area adjacent to the SR 50 right-of-way. The existing treed area along SR 50 within this setback shall be preserved as an undisturbed visual buffer. Criteria 7: Protection of the Fort Dade Tree Canopy. The following steps will be taken to protect the Fort Dade tree canopy: A minimum 200-foot setback and buffer shall be provided along Fort Dade Avenue between the tree canopy and mining activities; An enclosed overhead conveyor to move materials from the [Brooksville Quarry] to the existing facilities shall be required[;] The enclosed overhead conveyor shall be constructed to a height and location that will minimize or prevent damage to the tree canopy; Criteria 8: To compensate for the loss of viable wildlife habitat, Cemex shall be required to mitigate through the provision of a conservation easement over other property that provides a viable wildlife habitat adjacent to the Florida Ecological Greenways Network. The type and amount of habitat necessary to mitigate impacts shall be identified by the comprehensive wildlife survey. The final mitigation location and acreage shall be determined prior to rezoning the property for mining. Criteria 9: The mining reclamation plan shall be designed in a manner that allows for the long-term end use and redevelopment of the property as a viable mixed-use community. The Mining Process During the mining of limestone, the soil above the limestone, or “overburden,” is removed by bulldozers and other heavy equipment in phases as mining progresses. This overburden is stockpiled and set aside for future reclamation use. The limestone is fractured using techniques such as blasting and mass excavator machinery. The excavated limestone is loaded onto haul trucks within the quarry, which transport the material to a primary crusher that reduces the size of the material. In the instant case, the primary crusher will be located and utilized in the Mining Area. The crushed material will then be placed on a conveyer that will transport it across Fort Dade Avenue for further processing at the Brooksville Quarry. Blasting during the mining process generates three potential off-site impacts: ground vibration, air overpressure, and flyrock. Ground vibrations are the result of energy from a blast that manifests as vibrations transmitted through the earth away from the immediate blast site. The state has established ground vibration limits in Florida Administrative Code Chapter 69A-2. Air overpressure is the airborne shockwave or acoustic transient generated by an explosion. Air overpressure is measured in decibels, and Florida’s standard is a maximum of 133 decibels. Flyrock is the term describing pieces of limerock that are thrown into the atmosphere during a blast. Flyrock may exceed the boundaries of a mining site and land on adjacent or neighboring property. The occurrence of flyrock can be minimized by maintaining good mining practices. The Reclamation Process After mining is complete, the Mining Area will be reclaimed. The Plan Amendment requires the mining reclamation plan to be designed in a manner that allows for the long-term end use and redevelopment of the property as a viable mixed-use community. The reclamation process entails the replacement of the overburden soils on the bottom of the quarry floor to a thickness of about eight feet, creating a finished grade approximately 16 feet above the historic high ground water level. Utility lines and other infrastructure to support redevelopment of the Mining Area may be installed in this area. The rest of the overburden soil will be used for sloping on some of the quarry walls. In addition to the requirements of the Plan Amendment, the reclamation process must meet the requirements of the State Department of Environmental Protection and the County Comprehensive Plan and Land Development Regulations (“LDRs”). Petitioner’s Challenges Petitioner alleges the Plan Amendment is not “in compliance” because it (1) creates internal inconsistencies with the existing comprehensive plan; (2) is not supported by data and analysis; and (3) fails to create meaningful and predictable standards for the use and development of land. Internal Consistency Section 163.3177(2) directs that “the several elements of the comprehensive plan shall be consistent,” in furtherance of the major objective of the planning process to coordinate the elements of the local comprehensive plan. Petitioners challenge the Plan Amendment as inconsistent with the following goals, objectives, and policies of the existing comprehensive plan. FLU Objective 1.01H First, Petitioner challenges the Plan Amendment as inconsistent with Future Land Use (“FLU”) Objective 1.01H, which reads as follows: “Protect established residential areas and provide for redevelopment of historically platted lands.” (emphasis added). Petitioner argues that the Plan Amendment fails to protect his and surrounding residences in close proximity to the Mining Area, as well as the adjacent Residentially-designated properties, from the adverse effects of limerock mining. The comprehensive plan recognizes the inherent inconsistency between residential and mining uses. The Mapping Criteria for the Mining land use category describes its purpose as “[t]o allow for the extraction of mineral resources where the impact on major residential areas will be minimal.” The term “established residential area” is not defined in the comprehensive plan. The relevant dictionary definition of “establish” reads:4/ 3a: to make firm or stable b: to introduce and cause to grow and multiply//establish grass on pasturelands 4a: to bring into existence: FOUND //established a republic b: BRING ABOUT, EFFECT// established friendly relations 5a: to put on a firm basis: SET UP//establish his son in business b: to put into a favorable position c: to gain full recognition or acceptance of the role//established her as a star There are nine lots along Eureka Drive, which adjoins the Plan Amendment area to the northeast. Eight of the nine lots are developed as residential, some with appurtenant structures. Some of the residences are mobile homes while others are site built. Two of the residences are new construction, including Petitioner’s residence. The area is developed as low density, rural residential. There are no non-residential uses in the area. Residential use has been brought into effect in the area and, as evidenced by the new construction, is continuing to grow. The residential area to the northeast of the Plan Amendment area is an established, although not major, residential area. In analyzing whether the Plan Amendment creates an internal inconsistency with Objective 1.01(H), the focus is on whether the established residential area is “protected” from the adverse effects of the proposed mining use. Comprehensive Plan Objective 1.01(S) and its implementing policies require the County to establish buffers in its LDRs as a part of the development review and approval process. The County has adopted LDRs which govern the height, opacity, and width of buffers required between differing land uses. The mining activity authorized pursuant to the Plan Amendment will be subject to the LDRs during the permit approval process. In addition to the direction to adopt LDRs addressing buffers, the Comprehensive Plan directly addresses required buffers between mining uses and contiguous properties. The Comprehensive Plan requires a minimum 100-foot setback with a visual buffer from the property line of the Plan Amendment Area to any construction or mining activity on the property. Cemex’s planning expert testified that this setback was sufficient to protect the adjoining residential uses from the impacts of the mining activity. Petitioner’s planning expert opined that the setback ought to be a minimum of 1000 feet, based upon his familiarity with the requirements of Polk County and research into setbacks in other counties. He introduced no support for his opinion other than that these are the standards required in other jurisdictions. Petitioner’s expert prepared and introduced an exhibit overlaying two different setback distances, 300 feet and 1000 feet, on an aerial photograph of the residential area northeast of the Plan Amendment Area. The exhibit shows those distances from the property line of the Plan Amendment area into the adjoining properties. The relevance was unclear, since setbacks and buffers are required to be established on the property proposing the new land use, not vice versa. Petitioner’s expert witness testimony was not persuasive. The fact that the comprehensive plan includes a mandatory 100-foot setback, which applies to this development scenario, is the best evidence of “protection” afforded by the comprehensive plan. The setback may be increased during the permitting phase when the plans go through review under the LDRs. Petitioner did not prove that the Plan Amendment is inconsistent with FLU Objective 1.01H. FLU Objective 1.07F Petitioner next challenges the Plan Amendment as internally inconsistent with FLU Objective 1.07F and Policy 1.07F(7), which read as follows: Create a self-contained medical campus incorporating the use of the Brooksville Regional Medical Center and surrounding lands by providing for hospital and health care-related uses. * * * (7) The Brooksville Regional Medical Center Planned Development District and its health care-related activities shall be protected from encroachment by incompatible land uses. An infrastructure analysis shall be used to demonstrate that adequate public facilities will be provided, prior to the issuance of any development order. (emphasis added). Petitioner’s expert, James Studiale, testified that he believes the Plan Amendment is inconsistent with Policy 1.07F(7) because the Mining Area will encroach upon the Brooksville Regional Medical Center Planned Development District (the “District”). Studiale stated that he believes that encroachment occurs when one use is “hurting” another use because it is so near. Petitioner introduced the testimony of Dennis Clark, who was accepted as an expert in drilling and blasting, blasting seismology, and mining planning and practices. Mr. Clark testified that mining uses impact surrounding uses by both ground vibration and air overpressure, as well as potential for fly rock. He expressed opinions that the hospital and its occupants will be impacted to varying degrees “depending on the blast and the density of the rock and the compositions.” Mr. Clark agreed that, in order to understand the potential impacts of a mining operation with respect to the hospital, he would need to know the number of blast holes in a particular blast, the loading parameters for the blast holes, the amount of stemming on top of the explosives in the blast holes, the locations of the blast holes, the orientation of the blast holes, the type of detonators used, the sequence and timing of the blasts, as well as the physical condition of the hospital. Mr. Clark agreed that blasting in close proximity to structures can be done safely, and admitted that he has personally blasted safely within three feet of a hospital wall. Petitioner argues that the potential impacts of mining, including ground vibration, air overpressure, and flyrock, will encroach upon, and negatively impact, or “hurt,” the district and its healthcare-related activities, in violation of Objective 1.7 and Policy 1.7(F). Petitioner’s argument was not persuasive. Policy 1.07F(7) does not bear on external impacts to the District. As Respondents’ planning expert, Charles Gauthier, explained, the District is a customized future land use designation with “inward looking” policies. The language of Policy 1.07F(7) calls for protection against encroachment of incompatible uses within the District, and Objective 1.07F works in concert with Policy 1.07F(1) to prohibit retail commercial or general office development as a primary use. As noted by both Mr. Gauthier and County Planning and Zoning Director, Ronald Pianta, the intent of Policy 1.07F is to prevent infiltration of nonmedical-related uses that would consume land within the District. The second sentence in Policy 1.07F(7) supports this interpretation because the sentence calls for an infrastructure analysis to demonstrate adequate public facilities prior to issuance of any development order. Mr. Gauthier explained that it would be illogical to view the adequate public facilities requirement as extending beyond the District. Even Petitioner’s planning expert, Mr. Studiale, agreed that the purpose of the District is to protect the area around the Hospital for medical-related uses. Assuming, arguendo, that Objective 1.07F and Policy 1.07F(7) were interpreted to regulate uses outside of the District, Petitioner did not establish that the Plan Amendment would “hurt” the District or its activities. Mr. Clark’s testimony regarding off-site impacts was speculative and dependent upon many factors within the exclusive control of the mining operators. The Plan Amendment requires Cemex to design and implement blasting techniques to minimize impacts on adjoining land uses. Based on Mr. Clark’s testimony, off-site impacts, including ground vibration, air overpressure, and flyrock, can be controlled and minimized by careful scheduling, spacing, orientation, and timing of blasts. As such, Petitioner did not prove the Plan Amendment would “hurt” District operations. Petitioner did not prove the Plan Amendment is inconsistent with FLU Objective 1.07F and Policy 1.07F(7). Mining Element Goal 1.08 Next, Petitioner alleges the Plan Amendment is inconsistent with Mining Element Goal 1.08, which reads as follows: Hernando County shall protect its citizens, air, land and water resources from the adverse effects of resource extraction and ensure that the disturbed areas are reclaimed to wholesome condition as soon as reasonably possible. Goal 1.08 is implemented by four objectives and implementing policies that set standards for earthen dams, mining setbacks, berms and buffers, and reclamation activities. Petitioner does not allege that the Plan Amendment is inconsistent with any of the objectives and policies implementing Goal 1.08. The Plan Amendment requires the reclamation of the Mining Area for purposes of redevelopment for mixed uses upon the completion of mining activities. The County Comprehensive Plan is formatted with goals, objectives, and policies which describe how the County’s programs, activities, and land development regulations will be initiated, modified, or continued to implement the comprehensive plan in a consistent manner. § 163.3177(1), Fla. Stat. In the context of the Community Planning Act, goals are statements of long-term vision or aspirational outcomes and are not measurable in and of themselves. Goals must be implemented by intermediate objectives and specific policies to carry out the general plan goals. With regard to Goal 1.08, Petitioner did not allege that the Plan Amendment was inconsistent with any of the implementing objectives or policies. The County introduced evidence that it has adopted standards for earthen dams, mining setbacks, berms and buffers, and reclamation activities, as required by Goal 1.08 and its implementing policies. Petitioner introduced no evidence that the Plan Amendment failed to comply with any of those standards. Objective 1.10B and Policy 1.10B(3) The last internal inconsistency alleged by Petitioner is with Mining Element Objective 1.10B and Policy 1.10B(3), which read as follows: For all land added to the mining category, protect ecological features and natural resources from the adverse impacts of resource extraction. * * * Resource extraction shall not be allowed in areas of habitat known to support viable populations of threatened and endangered species. Petitioner asserts that the Plan Amendment allows mining in an area known to support a viable population of gopher tortoise, a listed threatened species. According to the Listed Species Survey (the “Flatwoods Report”) conducted by Cemex’s environmental consultant, 54 gopher tortoise burrows were discovered in the abandoned citrus habitats on-site. The parties introduced conflicting evidence of whether 54 burrows constituted a viable population of gopher tortoise. Petitioner’s expert, Thomas St. Clair, offered testimony based on the Flatwoods Report and not on any independent survey or knowledge of the subject property. The Flatwoods Reports lists nine different threatened or endangered species, describes their habitat preferences, their likelihood of occurrence on the site, and their listed status. Mr. St. Clair indicated that the Flatwoods Report concludes the site does not support a viable population of any of the other eight species, and that, in his opinion, the report suggests there is a viable population of gopher tortoises. His precise testimony was, “[B]ased on the fact that there is not a statement about whether or not there’s a viable population, we might conclude – and I conclude – that there is a viable population of gopher tortoises on the site.” This testimony amounts to an argument that two negatives make a positive. The argument was not persuasive. When pressed by the undersigned, Mr. St. Clair expressed his opinion that a viable population is “one where you have active reproduction and that population is sustaining itself over time.” He testified that, based on the presence of both “abandoned and active burrows” on a large area indicates a viable population. Mr. St. Clair later said the combination of “active and inactive burrows” in the area led him to conclude the population was viable. The Gopher Tortoise Survey incorporated in the Flatwoods Report mapped all active and inactive, but not abandoned, burrows on the site. The map indicating the location of the 54 burrows does not distinguish between active and inactive burrows. Nor was there any testimony to distinguish active from inactive burrows on the site. All of the burrows could be either active or inactive. Mr. St. Clair’s testimony was not persuasive. The most persuasive evidence on the issue was offered by Cemex’s expert, Lee Walton. Mr. Walton is a gopher tortoise expert and the author of the Flatwoods Report. He testified that the gopher tortoise habitat on site is poor quality, located in degraded orange groves, with limited food resources. When he surveyed the property in 2017, there were 54 burrows; down from 61 burrows identified when he surveyed the property six years earlier. He also noted the absence of juvenile tortoises during both surveys. Juveniles are necessary to support a viable population. Finally, Respondents introduced a report prepared by The Gopher Tortoise Council, dated July 24, 2013, which indicates that a minimum viable population of gopher tortoises is 250 adults. The report refers to groups of less than 50 tortoises as “small non-viable populations.” Petitioner did not prove that the Plan Amendment Area includes habitat known to support a viable gopher tortoise population. Petitioner did not prove the Plan Amendment is inconsistent with Objective 1.10B and Policy 1.10B(3). Data and Analysis Section 163.3177 requires plan amendments to “be based upon relevant and appropriate data and an analysis by the local government.” The statute provides, “[t]o be based on data means to react to it in an appropriate way and to the extent necessary indicated by the data available on that particular subject at the time of adoption of” the plan amendment at issue. Id. Further, “data must be taken from professionally accepted sources.” § 163.3177(1)(f)2., Fla. Stat. The statute does not require original data collection by local governments. In his Proposed Recommended Order, Petitioner generally argues that the Plan Amendment is “not based upon and fails to react appropriately to relevant, appropriate, or professionally acceptable data and analysis,” but identifies no specific data or analysis that is contrary to the Plan Amendment. Petitioner does highlight the fact that the County has 13,000 acres currently designated for mining use, arguing that the conversion of this property to mining use is not supported on that basis. The Plan Amendment is supported by extensive data identifying the Plan Amendment Area as located within the Hernando County Brooksville Ridge, which contains viable and valuable deposits of limestone known as Suwannee limestone; expert geologist, Mark Stephens’ confirmation that a reserve of this limestone exists beneath the Mining Area; and the location of the Plan Amendment Area adjacent to the existing Brooksville Quarry, which allows efficiencies in production and processing of the limestone on site. The Plan Amendment is based on data from the County and from the Bureau of Economic and Business Research at the University of Florida that, although the Mining Area is currently designated for Residential use, market conditions are such that residential development in the area is not likely in the near future. This finding is further supported by data documenting an excess supply of residentially designated property in the County. The Plan Amendment is supported by Dr. Henry Fishkind’s analysis, based on data available at the time the Plan Amendment was adopted, that the Plan Amendment will generate $38 million in net fiscal revenue to the County during the 20-year lifespan of the mining operation. Petitioner did not introduce any relevant credible data or analysis which contradicted the voluminous data submitted in support of the application. Petitioner did not prove the Plan Amendment is not supported by relevant and appropriate data and analysis, or that it does not react to available data and analysis in an appropriate way. Meaningful and Predictable Standards Finally, Petitioner alleges the Plan Amendment is inconsistent with section 163.3177(1), which requires that a local comprehensive plan “shall establish meaningful and predictable standards for the use and development of land and provide meaningful guidelines for the content of more detailed land development regulations.” In his Petition, Petitioner alleged the Plan Amendment “eliminates from the County’s Comprehensive Plan existing meaningful guidelines focused on residential growth for the content of more mine zoning.” Petitioner further alleged that the Plan Amendment fails to provide meaningful and predictable standards for protecting, preserving, enhancing, conserving, and restoring Hernando County’s environmentally sensitive natural resources. Petitioner did not cite to any particular aspect of the change in use or any particular language of the Plan Amendment alleged to fall short of meaningful and predictable standards. The Plan Amendment does not delete or eliminate any provision of the existing Comprehensive Plan. The Plan Amendment changes the future land use designation of the Plan Amendment Property and adds text setting criteria to be followed in the mining and reclamation process. These criteria are in addition to other regulations imposed on mining and reclamation uses through the Mining Element and the County’s land development regulations. Petitioner argues in his Proposed Recommended Order that the Plan Amendment does not provide meaningful standards for the development of land because it does not react appropriately to relevant, appropriate, or professionally- acceptable data and analysis. That argument is a simple restatement of his data and analysis challenge, which was not proven. Petitioner alternately argues that the development standards in the Plan Amendment are not predictable because they conflict with other existing provisions of the Comprehensive Plan. This is another repackaging of Petitioner’s internal inconsistency argument, which was not proven. Petitioner did not prove that the Plan Amendment fails to provide meaningful and predictable standards for the use and development of land or for the establishment of more detailed land development regulations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity enter a final order determining that Plan Amendment CPAM 1702, adopted by Hernando County Ordinance 2018-12, on June 12, 2018, is “in compliance,” as that term is defined by section 163.3184(1)(b), Florida Statutes. DONE AND ENTERED this 1st day of May, 2019, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of May, 2019.
The Issue The issues in these cases are whether two community development district petitions should be granted: the first, a Petition to Contract Lakewood Ranch Community Development District 2; and the second, a Petition to Establish Rule [sic] for Lakewood Ranch Community Development District 5.
Conclusions Under Section 190.003(6), Florida Statutes (2000), a "community development district" (CDD) is "a local unit of special-purpose government which is created pursuant to this act and limited to the performance of those specialized functions authorized by this act; the boundaries of which are contained wholly within a single county; the governing head of which is a body created, organized, and constituted and authorized to function specifically as prescribed in this act for the delivery of urban community development services; and the formation, powers, governing body, operation, duration, accountability, requirements for disclosure, and termination of which are as required by general law." (All of the following statutory citations are to the year 2000 codification of the Florida Statutes.) Sections 190.006 through 190.046 constitute the uniform general law charter of all CDDs, which can be amended only by the Florida Legislature. Section 190.011 enumerates the general powers of CDDs. These powers include the power of eminent domain inside the district and, with the approval of the governing body of the applicable county or municipality, outside the district for purposes related solely to water, sewer, district roads, and water management. Section 190.012 lists special powers of CDDs. Subject to the regulatory power of all applicable government agencies, CDDs may plan, finance, acquire, construct, enlarge, operate, and maintain systems, facilities, and basic infrastructures for: water management; water supply, sewer, and wastewater management; needed bridges and culverts; CDD roads meeting minimum county specifications, street lights, and certain mass transit facilities; investigation and remediation costs associated with cleanup of environmental contamination; conservation, mitigation, and wildlife habitat areas; and certain projects within or without the CDD pursuant to development orders from local governments. After obtaining the consent of the applicable local government, a CDD may have the same powers with respect to the following "additional" systems and facilities: parks and recreation; fire prevention; school buildings; security; mosquito control; and waste collection and disposal. Section 190.046(1) provides for the filing of a petition for contraction of a CDD. Under paragraphs (f) and (g) of Section 190.046(1), petitions to contract a CDD by more than 250 acres "shall be considered petitions to establish a new district and shall follow all of the procedures specified in s. 190.005." Section 190.005(1)(a) requires that the petition to establish a CDD be filed with FLAWAC and submitted to the County. The petition must describe by metes and bounds the proposed area to be serviced by the CDD with a specific description of real property to be excluded from the district. The petition must set forth that the petitioner has the written consent of the owners of all of the proposed real property in the CDD, or has control by "deed, trust agreement, contract or option" of all of the proposed real property. The petition must designate the five initial members of the Board of Supervisors of the CDD and the district’s name. The petition must contain a map showing current major trunk water mains and sewer interceptors and outfalls, if any. Both the petition to contract District 2 and the petition to establish District 5 meet those requirements. Section 190.005(1)(a) also requires that the petition propose a timetable for construction and an estimate of construction costs. The petition must designate future general distribution, location, and extent of public and private uses of land in the future land-use element of the appropriate local government. The petition must also contain a Statement of Estimated Regulatory Cost. Both the petition to contract District 2 and the petition to establish District 5 meet those requirements. Section 190.005(1)(a) also requires the petitioner to provide a copy of the local government’s growth management plan (the local government comprehensive plan). District 2 and SMR have done so. Section 190.005(1)(b) requires that the petitioner pay a filing fee of $15,000 to the county and to each municipality whose boundaries are within or contiguous to the CDD. The petitioner must serve a copy of the petition on those local governments, as well. District 2 and SMR have met those requirements. Section 190.005(1)(c) permits the county and each municipality described in the preceding paragraph to conduct an optional public hearing on the petition. Such local governments may then present resolutions to FLAWAC as to the proposed property for the CDD. Manatee County has exercised this option and has adopted a resolution in support of the contraction of District 2 and establishment of District 5. Section 190.005(1)(d) requires a DOAH ALJ to conduct a local public hearing pursuant to Chapter 120, Florida Statutes. The hearing "shall include oral and written comments on the petition pertinent to the factors specified in paragraph (e)." Section 190.005(1)(d) specifies that the petitioner must publish notice of the local public hearing once a week for the four successive weeks immediately prior to the hearing. District 2 and SMR have met those requirements. Under Section 190.005(1)(e), FLAWAC must consider the following factors in determining whether to grant or deny a petition for the establishment of a CDD: Whether all statements contained within the petition have been found to be true and correct. Whether the establishment of the district is inconsistent with any applicable element or portion of the state comprehensive plan or of the effective local government comprehensive plan. Whether the area of land within the proposed district is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developable as one functional interrelated community. Whether the district is the best alternative available for delivering community development services and facilities to the area that will be served by the district. Whether the community development services and facilities will be incompatible with the capacity and uses of existing local and regional community development services and facilities. Whether the area that will be served by the district is amenable to separate special-district government. Factor 1 Some statements in the original petition to contract District 2 were not true and correct and had to be revised. As revised, all statements in the petition were shown by the evidence to be true and correct. All statements in the petition to establish District 5 were shown by the evidence to be true and correct. There was no evidence to the contrary. Factor 2 In these cases, the evidence was that the proposed contraction of District 2 and establishment of District 5 are not inconsistent with any applicable element or portion of the state comprehensive plan or of the local government comprehensive plan. There was no evidence to the contrary. (A different and more detailed review is required to determine that future development within the proposed CDDs will be consistent with all applicable laws and local ordinances and the Manatee County Comprehensive Plan. Establishment of a CDD does not constitute and should not be construed as a development order or any other kind of approval of the development anticipated in the CDD. Such determinations are made in other proceedings.) Factor 3 In these cases, the evidence was that the areas of land within District 2, as proposed to be contracted, and within proposed District 5 are of sufficient size, are sufficiently compact, and are sufficiently contiguous for each proposed CDD to be developable as a functional, interrelated community. There was no evidence to the contrary. Factor 4 In these cases, the evidence was that District 2, as proposed to be contracted, and proposed District 5 are the best alternatives available for delivering community development services and facilities to the areas that will be served by those two proposed CDDs. There was no evidence to the contrary. Factor 5 In these cases, the evidence was that the proposed community development services and facilities will not be incompatible with the capacity and uses of existing local and regional community development services and facilities. There was no evidence to the contrary. Factor 6 In these cases, the evidence was that the areas to be served by District 2, as proposed to be contracted, and proposed District 5 are amenable to separate special-district government. There was no evidence to the contrary. REPORT AND CONCLUSIONS SUBMITTED this 22nd day of January, 2001, in Tallahassee, Leon County, Florida. ___________________________________ J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of January, 2001. COPIES FURNISHED: Erin McCormick Larrinaga, Esquire Fowler, White, Gillen, Boggs, Villareal and Banker, P.A. Post Office Box 1438 Tampa, Florida 33601-1438 Jose Luis Rodriguez, Esquire Governor's Legal Office The Capital, Room 209 Tallahassee, Florida 32399-0001 Donna Arduin, Secretary Florida Land and Water Adjudicatory Commission Executive Office of the Governor 2105 The Capitol Tallahassee, Florida 32399 Barbara Leighty, Clerk Growth Management and Strategic Planning The Capitol, Suite 2105 Tallahassee, Florida 32399 Charles Canaday, General Counsel Office of the Governor Department of Legal Affairs The Capitol, Suite 209 Tallahassee, Florida 32399-0001
The Issue Whether Orange County Comprehensive Plan Amendments 2015-2- P-FLUE-1 and 2015-2-A-5-1, adopted by Ordinance 2016-17 on July 12, 2016 (the Plan Amendments), are “in compliance,” as that term is defined in section 163.3184(1)(b), Florida Statutes (2016).1/
Findings Of Fact The Parties and Standing Petitioners, Seerina Farrell, Ariel Horner, Adele Simons, Marjorie Holt, and Kelly Semrad (the Individual Petitioners), own property and reside in the County. The Individual Petitioners submitted written or verbal comments, recommendations, or objections to the County during the period of time beginning with the transmittal hearing for the Plan Amendments and ending with the adoption of same (the Comment Period). Petitioner, Ronald Brooke, owns property and resides in the County. Petitioner Brooke submitted written or verbal comments, recommendations, or objections to the County during the Comment Period. Petitioner, Corner Lakes, owns property adjacent to the property subject to the Plan Amendments and operates a business in the County. Corner Lakes, by and through its representative, submitted comments, recommendations, or objections to the County during the Comment Period. The County is a political subdivision of the State of Florida with the duty and responsibility to adopt and amend a comprehensive growth management plan pursuant to section 163.3167. Intervenor Banksville is one of the co-applicants for the Plan Amendments and owns real property directly affected by the Plan Amendments. Banksville timely submitted oral or written comments to the County in support of the Plan Amendments during the Comment Period. Intervenor CHCG is one of the co-applicants for the Plan Amendments and is the agent of one of the owners of property directly affected by the Plan Amendments. CHCG timely submitted comments to the County in support of the Plan Amendments during the Comment Period. The Rybolt Intervenors are owners of property directly affected by the Plan Amendments and submitted comments to the County in support of the Plan Amendments during the Comment Period. The Property The property subject to the Plan Amendments is 2,796 acres of land located in eastern Orange County between State Road 50 (SR 50 or Colonial Drive) on the south and the Orange/Seminole County line on the north. The property lies wholly within the Econlockhatchee River Basin (Econ River Basin) and is open, active pasture land. The southern portion of the property is bounded on the west by South Tanner Road, a county road that intersects with SR 50 on the southwest corner of the subject property. Just beyond South Tanner Road to the west lies the Econlockhatchee Sandhills Conservation Area (ESCA). The northern portion of the subject property is directly adjacent to the County-mandated area buffering the Econlockhatchee River (Econ River). The subject property is bounded on the east by existing vested residential neighborhoods known as “rural settlements.” Corner Lake rural settlement is adjacent to the southern portion of the property, and Lake Pickett rural settlement is adjacent to the northern portion. Both of the adjoining rural settlements are served by Chuluota Road, another county road which intersects with SR 50 just beyond the frontage of the subject property. Chuluota Road runs north, where it intersects with Lake Pickett Road, which roughly bisects the subject property, and continues to run north to its intersection with McCulloch Road at the Seminole County border. The ESCA is approximately 710 acres of undeveloped property east of the Econ River previously used as pasture. Intervenors, Rolling R. Ranch and Rybolt, conveyed the property to the St. Johns River WMD in November 2008. The following language in the Agreement for Sale or Purchase is relevant to the case at hand: It is the intention of the Seller [Intervenors Rolling R. Ranch and Rybolt] to develop Seller’s Retained Lands into a mixed use project with Development of Regional Impact review and approval for substantial density. . . . Buyer expressly agrees Buyer, as a neighboring property owner, shall not require any buffering or setbacks on Seller’s Retained Lands. In the event any local authority requires a setback between the Property and the Seller’s Retained Lands, Buyer will accept 50% of such setback to be placed upon the Property up to a maximum of 35 feet. No roads, swales, ditches, fencing, landscaping, or other improvements shall be constructed by Seller within any setback area on the Property. The ESCA is owned by the St. Johns River WMD and, in part, by the County. The ESCA is a significant natural resource managed for a public benefit, namely, protection of the Econ River Basin, within which the Plan Amendments are located. The ESCA also hosts hiking and horseback riding trails and is open to the public for passive recreation use. The Plan Amendments The Plan Amendments comprise both a text amendment to the Future Land Use Element (FLUE) of the County’s Comprehensive Plan and an amendment to the County’s FLUM. The Text Amendment The text amendment creates “Lake Pickett” (LP) as a new future land use category within FLUE Goal 6: Protection of Rural Land Resources and Other Assets. LP is codified in FLUE Objective 6.8, which limits the application of the category to the area designated as the “Lake Pickett Study Area,” or LPSA, established on the County’s FLUM by the corresponding map amendment, and describes the geographic boundaries of the LPSA. Acknowledging that the new category will allow dense development within rural areas, Objective 6.8 provides that “[t]he LP designation manages the transition of development from surrounding rural neighborhood densities and preservation areas to more dense development clustered towards the center of the [LPSA].” Objective 6.8 provides that “[c]ompatibility is ensured on LP designated lands through the use of ‘Transect Zones’,” among other practices. “Transect Zones allow development to occur by gradually transitioning from less to more dense development.” The objective continues, as follows: Each Transect Zone shall have a stated density unique to that Transect, and each series of Transect Zones shall build upon each other from the least dense Transect to the most dense Transect. Transect Zones allow contiguous rural character to be preserved which may include like-to-like lot configurations along the boundary. Objective 6.8 is implemented by new Policies 6.8.1 through 6.8.15, which establish “Guiding Principles” for all future development in the LPSA; define the type, density and intensity of development in each Transect Zone; provide for buffers and other compatibility measures along the perimeter; and provide requirements for open space, community space, agricultural uses, community centers, the street network, trail system, a “green infrastructure plan,” neighborhood schools, and service by public infrastructure, including water and wastewater. Policy 6.8.2 provides for the following Transect Zones: T1 Natural/Wetland: “[N]atural lands” and areas that will remain undeveloped and/or designated for agriculture use, passive recreation, conservation, or related activities ” T2 Rural: “[S]parsley settled lands in open or cultivated states.” The policy allows an “average density” of two dwelling units per acre (2du/acre). T3 Edge: “[P]redominately single-family detached residential uses within walkable neighborhoods” and includes community buildings, community gardens and parks, and “central focal point uses” which are undefined. The policy allows an “average density” of 5du/acre, a maximum floor area ratio (FAR) of .25, or a combination thereof. T4 Center: Allows a “mix of residential . . . and non-residential uses, including commercial, office, service, and civic uses that serve a Lake Pickett community as well as the surrounding area.” The policy allows an “average residential density” of 6du/acre and an “average non- residential intensity” of .15 FAR. The policy requires location of “higher concentrations of development” within the “most southerly portion” of the Lake Picket Study Area “adjacent to SR 50, at a maximum FAR of 1.0.” Policy 6.8.8 calls for development of two separate communities: one north and one south of Lake Pickett Road. Policy 6.8.9 requires development to be organized into neighborhoods, maximum size of 125 acres each, organized around a “centralized focal point” such as a park, community garden, community center, civic building or use, day care facility, or “a similar type of use.” Neighborhoods shall contain a mix of housing styles and/or lot sizes “located within a 1/4-mile from the centralized focal point,” which shall “average a minimum of one acre in size,” and be connected to trails or “complete streets.” Policy 6.8.14 requires all development within the LPSA to be served by public water, wastewater, and reclaimed water facilities operated by the County, but acknowledges the County may require the developer to prepay for a portion of the capacity necessary to serve the development. Objective 6.9 and its implementing policies dictate the process for the property owners to obtain a FLUM amendment to LP. The FLUM amendment application must include a draft Conceptual Regulating Plan (CRP), a proposed development program, a justification statement, an Orange County Public Schools (OCPS) Consistency Determination Application, a Transportation Study, and a proposed community meeting schedule. The CRP is described as “a general and illustrative representation of the proposed development and location of the transects.” Policy 6.1.9 requires the following items to be depicted on the CRP, or attachments thereto: General location of Transect Zones; General location and types of the proposed agricultural uses (if applicable), natural areas, and transitional treatments; Location of existing and planned major roadways, trails or other transportation nodes; Location of potential and required connections, including external connections to adjacent roadways and those between the two Lake Pickett communities, and required internal connections between neighborhoods; General location of public school sites and a copy of the application for a Capacity Enhancement Agreement with OCPS; Net developable area for the project and for each of the Transect Zones; and Overall proposed community development program. According to Policy 6.1.9, a “CRP shall be provided during the transmittal process, and shall be refined throughout the review process” for the FLUM amendment. Properties obtaining the LP FLUM designation must be rezoned to Lake Pickett Planned Development (LP PD). The PD Regulating Plan (PD-RP) establishes the final locations of Transect Zones, open space and preservation areas, streets, neighborhoods, schools, trails, and parks. The text amendment does not require the PD-RP to be incorporated with the FLUM amendment to LP. The proposed development plan, including average densities and intensities by Transect Zone “shall be included and adopted as part of the Lake Pickett PD-RP.” The policy provides the development program “shall be substantially consistent with the program submitted with the CRP and approved with the LP FLUM amendment.” If the developer requests to increase the development totals for a Lake Pickett PD-RP, such change must be approved through an application to amend the Comprehensive Plan. The Map Amendment The FLUM amendment redesignates 1,237 acres of land, the southern portion of the LPSA, from the Rural to the LP category. The property encompasses “Lake Pickett South,” which is roughly bounded by Lake Pickett Road on the north, East Colonial Drive to the south, Chuluota Road on the east, and South Tanner Road on the west. The ESCA lies west of South Tanner Road, the property’s western boundary. The applicants proposed a FLUM amendment for the North Lake Pickett Community, which was not approved by the County and is not considered in the case sub judice. The property subject to the amendment is currently undeveloped and has a FLUM designation of Rural with a density limitation of 1du/10 acres. The LPSA is located wholly outside of the County’s Urban Service Area (USA). USA/RSA Concept The County employs the USA concept as “an effective fiscal and land use technique for managing growth.” The USA identifies areas where the County has primary responsibility for providing infrastructure and services to support urban development. The County has an overarching goal to direct its growth to the USA. FLUE Objective 1.1 states the County “shall use urban densities and intensities . . . to direct development to the [USA] and to facilitate such development.” Policy 1.1.1 states, “Urban uses shall be concentrated within the [USA]” except as specified in particular designations. Policy 1.2.2 requires that “Urban development during the 2007-2030 planning period . . . will occur only in the [USA]” and established exception areas. As part of its year 2000 update to the Comprehensive Plan, the County amended the plan consistent with a “strategy to focus development within the County’s USA.” See Policy 6.2.1. The USA boundary and acreage are based on the supply of usable land needed to accommodate the County’s population and employment forecasts through the year 2030. Policy 1.2.2 prohibits urban development outside the USA boundary, with certain inapplicable exceptions, during the 2007-2030 planning period. Residential development densities allowed within the USA range from Low Density Residential (LDR), up to a maximum of 4du/acre, to High Density Residential (HDR), up to a maximum of 50du/acre. That portion of the County outside the USA is designated as the Rural Service Area (RSA). The RSA designation is a tool for “managing agricultural lands, environmental lands, and historic resources.” To preserve and promote the “intended rural character” of the RSA, the County regulates the scale, density, and intensity of new development in the RSA. The only FLUE category correlating with the RSA is “Rural,” in which the County limits residential development to a maximum density of 1du/10 acres. Zoning Districts which correspond with the Rural land use category are Agriculture 1 (A-1), Agriculture 2 (A-2), Agriculture Residential (A-R), and Rural Country Estate Residential (R-CE-5). Exceptions to RSA Density Limitation The FLUE recognizes specific, established exceptions to the density limitation of residential development at 1du/10 acres within the RSA. These include Rural Settlements, Growth Centers, Specific Area Plans (SAP), and the Innovation Way (IW) Overlay. 1. Rural Settlements When the Comprehensive Plan was adopted in 1991, some “pockets” of existing development at densities greater than 1du/10 acres were intentionally excluded from the USA. These “rural settlements” are essentially “grandfathered” from the prohibition against urban densities within the RSA. Rural settlements recognize the need to maintain agricultural areas and rural uses in the RSA, while providing for rural communities. Some rural settlements “allow a transition of rural uses adjacent to the [USA] while avoiding development in active agricultural areas.” Pursuant to Policy 6.2.1, rural settlements may not be expanded beyond their current boundaries and the County may not establish any new rural settlements.2/ Rural Settlement (RS) categories were established at a range of densities between 1du/5 acres (RS 1/5) to 2du/acre (RSLD 2/1). These categories recognize and preserve the development patterns that existed at the time the Comprehensive Plan was adopted. Not all rural settlements were built out at the time of plan adoption. No plan amendments may be approved within rural settlements to RSLD (2du/acre) or higher densities, except for certified affordable housing projects. No plan amendments may be approved for densities in rural settlement at densities higher than 1du/acre. Lake Pickett South is located adjacent to the Corner Lake rural settlement, which is designated LDR and is built out at 4du/acre. Pursuant to Policy 6.2.15, new residential development in a rural settlement is restricted to a density of 2du/acre, which may only be located in limited areas adjacent to higher density or intensity urban development in adjacent municipal jurisdictions. 2. Specific Area Plans In 1995, the County created a Village land use classification to realize a long-range planning concept for Horizon West, a 16,846-acre development in west Orange County. FLUE Goal 4 and Objective 4.1 describe the purpose of the classification, as follows: GOAL FLU4 HORIZON WEST. It is Orange County’s goal to ensure sustainable, quality development in Southwest Orange County to allow a transition from rural to urban uses while protecting environmental quality. OBJ FLU4.1 The Village land use classification has been designed to address the need to overcome the problems associated with and provide a meaningful alternative to the leap-frog pattern of sprawl now occurring in western Orange and eastern Lake County; create a better jobs/housing balance between the large concentration of employment in the tourism industry and surrounding land uses; create a land use pattern that will reduce reliance on the automobile by allowing a greater variety of land uses closer to work and home; and, replace piecemeal planning that reacts to development on a project-by-project basis with a long-range vision that uses the Village as the building block to allow the transition of this portion of Orange County from rural to urban use through a specific planning process that uses a creative design approach to address regional, environmental, transportation, and housing issues. The Village land use classification shall be implemented through the adoption of Specific Area Plans (SAPs) for the Villages and a Town Center. FLUE Goal 4 is a long-range planning tool undertaken by the County in cooperation with the state land planning agency pursuant to section 163.3245, titled “Sector Plans.” This alternative to the Development of Regional Impact state review process was initiated by the 1998 Legislature to “promote and encourage long-term planning for conservation, development, and agriculture on a landscape scale,” and to “avoid duplication of effort” of data-gathering and analysis for developments of regional impact “while ensuring the adequate mitigation of impacts to applicable regional resources and facilities[.]” FLUE GOAL 4, Objective 4.1, and their implementing policies comprise 40 pages of the County FLUE and comprehensively govern the development planning for the area. The concept envisions development of a series of master planned “Villages,” ranging from 1,000 to 3,500 acres, with between two and four neighborhoods complete with diverse housing types, shops, workplaces, schools, parks, and civic facilities. Each Village is modeled on “an urban development pattern,” complete with a Village center, containing a mix of residential, office, commercial, institutional and public uses to serve surrounding neighborhoods; neighborhood centers, with a school, park, or other “focal point,” and convenience retail operations and offices to serve the immediate neighborhoods; and neighborhoods with open space, varying lot sizes and housing types, locating higher density housing closer to the neighborhood center. The approval process for Horizon West Village SAPs, includes development first of a recommended plan, based on public and County staff input on a presentation of alternative master plans at public workshops, then refinement of the recommended plan, through additional informational workshops, and submittal of a Final Master Plan to the County for review. The Village SAP is structured to require a minimum net density of 5du/acre. Thus, Horizon West is a specific exception to the density limit of 1du/10acres in the RSA. In the case at hand, the Intervenors have not applied for a SAP. However, the LPSA text amendment mirrors many of the development characteristics of Horizon West Village concept. 3. Growth Centers The Growth Center FLUE designation is available only as a Joint Planning Area with an outside jurisdiction (i.e., adjoining county or municipal government). Growth Centers recognize urban development outside of, and adjacent to, the unincorporated areas of the County. The County has established two Growth Centers: a Northwest Growth Center and a Growth Center/Resort located in the southeast. The density and intensity of the growth centers is established through a Planned Development (PD) process. 4. Innovation Way Overlay District The Innovation Way (IW) Overlay is established by FLUE Objective 5.1, which reads as follows: The Innovation Way Overlay is a conceptual transect-based overlay designation where the County envisions a transit-ready, multi- modal mixed-use, walkable community with sustainable economic development, adequate public infrastructure, and the protection and resource management of environmentally sensitive areas. The IW Overlay utilizes transect-based planning and “incremental urbanism” to “design complete communities requiring walkable streets, mix of uses, transportation options, and housing diversity.” FLUE Policy 5.1.5. The IW “Conceptual Urban Form” is adopted on the County FLUM as the “generalized and illustrative location and extent of transect zones that collectively depict the desired urban form for Innovation Way.” Similar to the plan amendment process provided for LP, the IW plan amendment process requires rezoning through as a PD, which will determine the adopted boundaries and locations of transect zones. The “proposed location of the transects shall be illustrated on the [Conceptual Regulating Plan] during the [FLUM] amendment process and finalized in the approved IW-PD- RP.” FLUE Objective 5.2. The IW Overlay district utilizes transect zones T1 through T5, and T-SD, a special district zone. Zone T3 accommodates neighborhood development which must be “walkable, highly connected by streets, trails and pedestrian paths, and adequately served by parks and open space.” Each neighborhood must contain a central “focal point.” Although the specific density will be set in the PD-RP, FLUE Policy 5.1.7 establishes a “planned yield” of 3-4du/acre within T3, with a range of 1-10du/acre. Zone T4 accommodates town centers within IW, and provides “a mix of residential, office, retail, light industrial, and high-tech/clean-tech uses.” FLU Policy 5.1.7 establishes a “planned yield” of 7du/acre within T4, with a range of 4- 20du/acre. The development pattern of the LP district is substantially similar to the urban form described for IW, and the use of transect-based planning to transition from surrounding rural development to more dense development within RP. Expansion of the USA The County allows for expansion of the USA boundary only in limited circumstances. FLUE Objective 1.3 and implementing policies provide a process for evaluating applications for expansion of the boundary. An applicant must submit data and analysis to demonstrate that the development would not constitute urban sprawl and is needed to satisfy acreage demands of the projected population. FLUE Policy 1.2.4 lists the applications which have met the criteria and are recognized as expansions to the USA boundary. The list contains approximately 38 developments ranging in size from 1.23 acres to 2,549 acres. In the case at hand, Banksville and CHCG have not applied for an expansion of the USA to encompass the LPSA. In fact, Jim Hall, one of the developer’s consultants, expressed his dismissal of an expansion to the USA to accommodate LPSA because expansions have “a ton of rules” associated with them. Challenges to the Plan Amendments A. Internal Inconsistency Petitioners allege the Plan Amendments are internally inconsistent with a number of Comprehensive Plan goals, objectives, and policies. Principle among them are the goals, objectives, and policies establishing the USA/RSA development framework: FLUE Goal 1, Objective 1.1, Policy 1.1.1, Objective 1.2, Policies 1.2.1 and 1.2.23/; Goal 6, Objective 6.1, and Policies 6.1.1, 6.1.2, and 6.1.3. The implicated goals, objectives, and policies read, as follows: GOAL FLU1 URBAN FRAMEWORK. Orange County shall implement an urban planning framework that provides for long-term, cost-effective provision of public services and facilities and the desired future development pattern for Orange County. OBJ FLU1.1 Orange County shall use urban densities and intensities and Smart Growth tools and strategies to direct development to the [USA] and to facilitate such development (See FLU1.1.2.B and FLU1.1.4). The [USA] shall be the area for which Orange County is responsible for providing infrastructure and services to support urban development. POLICIES FLU1.1.1 Urban uses shall be concentrated within the [USA], except as specified for the Horizon West Village and Innovation Way Overlay (Scenario 5), Growth Centers, and to a limited extent, Rural Settlements. * * * OBJ FLU1.2 URBAN SERVICE AREA (USA) CONCEPT; USA SIZE AND MONITORING. Orange County shall use the [USA] concept as an effective fiscal and land use technique for managing growth. The [USA] shall be used to identify the area where Orange County has the primary responsibility for providing infrastructure and services to support urban development. POLICIES FLU1.2.1 The [USA] boundary, and its acreage allocation, shall be based on the supply of usable land needed to accommodate the County’s population and employment forecasts by Year 2030 with respect to the County’s desired development pattern, the County’s ability to provide urban services and facilities, and the County’s urban strategies to achieve its desired development pattern. FLU1.2.2 Urban development during the 2007- 2030 planning period, as identified in FLU1.2.1, will occur only in the [USA] and the established boundary for the Horizon West SAP (identified on Map 2 in the Future Land Use Element of the Comprehensive Plan) and the Innovation Way Overlay (Scenario 5) . * * * GOAL FLU6 PROTECTION OF RURAL LAND RESOURCES AND OTHER ASSETS. The County will manage land uses within the [RSA], including agricultural lands, environmental land including the Wekiva Area, historic resources and Rural Settlements, so as to conserve these assets and their values. OBJ FLU6.1 RURAL SERVICE AREA. Orange County shall designate that portion of the County outside the [USA] as the [RSA]. The intended rural character and assets of the [RSA] shall be promoted through the following policies. POLICIES FLU6.1.1 The Future Land Use correlation for the [RSA] is: Future Land Use (R) Zoning Rural/Agricultural (1DU/10 AC) A-1, A-2, A-R, R-CE FLU6.1.2 Orange County shall enforce criteria to ensure the scale, and density and/or intensity of development within the [RSA] so that it promotes the intended rural character. The regulations may include, but shall not be limited to, height limitations and buffer requirements. FLU6.1.3 Residential uses in areas designated Rural shall be limited to a maximum density of 1du/10 acres. Density shall refer to the total number of units divided by developable land area, excluding natural water bodies and conservation areas (wetland areas). Agriculturally zoned areas that do not have active agricultural use may be rezoned to an appropriate residential category. Cluster zoning shall not be permitted in the [RSA] except where required for the protection of significant environmental features, such as Wekiva Study Area, Class I conservation area or rare upland habitat. Petitioners allege the Plan Amendments are inconsistent with the above-cited provisions because they allow urban development within the RSA, contrary to policy direction to concentrate urban uses within the USA; contrary to policies which prohibit urban development outside of the USA, Horizon West, and I W Overlay through 2030; and inconsistent with these strategies to achieve “the County’s desired development pattern” separating urban from rural uses through the USA/RSA tools. Respondent and Intervenors meet this allegation with an argument that the LP category does not constitute urban development. Indeed, much of the expert witness testimony on all sides focused on the issue of whether the development authorized by the Plan Amendments is urban in character. The experts agreed that the Comprehensive Plan does not define “urban development” and that the County has discretion to determine the characteristics of urban development within its jurisdiction. The experts further agreed that the “urban-ness” of development is not solely a factor of density, but also depends on factors, such as the uses themselves, as well as buffering, height limitations, and relationship between uses. The experts are correct that the Comprehensive Plan contains no glossary definition of “urban development,” which determines the specific threshold at which residential density becomes “urban.” The experts disagreed over whether a residential density of 4du/acre was rural or urban, and the parties’ arguments in their Proposed Recommended Orders rely on that testimony to varying degrees. None of the expert witness testimony on the issue of urban versus rural was persuasive. Testimony regarding whether 4du/acre was urban or rural was essentially irrelevant, in light of the fact that the Plan Amendments authorize densities of 6du/acre in T4. Whether 4du/acre is an urban or rural density is not dispositive of the issue. Moreover, because the Plan Amendments regulate density in terms of averages, they authorize densities greater than 4du/acre and 6du/acre in T3 and T4 zones. The experts on all sides ignored the plethora of evidence within the Comprehensive Plan itself that reflects the County’s determination of what constitutes urban development. The testimony of Petitioners’ experts, combined with the Comprehensive Plan itself, was the most reliable and persuasive evidence on this issue. For residential development within the USA, the Comprehensive Plan identifies four corresponding FLUM categories, ranging from LDR at up to 4du/acre, to HDR at up to 50du/acre. By contrast, for residential development within the RSA, the County has identified only one corresponding FLUM category, Rural/Agricultural at 1du/10 acres. See Policy 6.1.1. It is of primary importance to note that this is the only future land use category which corresponds with the RSA. In setting its goals for future development within the RSA, the County has adopted a policy limiting future residential development to a very low density. Even where the Comprehensive Plan acknowledges and grandfathers the preexisting “rural settlements” within the RSA at densities greater than 1du/10 acres, the Comprehensive Plan restricts the density of future buildout. The Comprehensive Plan recognizes rural settlements with LDR and Low-Medium Density Residential (LMDR) (max. 10du/acre) FLUM designations, but prohibits other properties within rural settlements from being amended to allow future development at those densities (except for certified affordable housing projects). See Policy 6.2.7. In fact, the Comprehensive Plan prohibits any FLUM amendments to residential densities in rural settlements exceeding 1du/acre. See Policy 6.2.9. Further, the boundaries of rural settlements may not be expanded, and no new rural settlements may be established. See Policy 6.2.1. In summary, the Comprehensive Plan acknowledges preexisting rural settlements in the RSA at densities as high as 10du/acre, but recognizes those as urban, not rural, densities. Even recognizing those urban densities preexisted the RSA designation, the Comprehensive Plan limits future changes to a much lower density of 1du/acre. Much of Respondent and Intervenors argument turned on the fact that the development surrounding the LPSA was at densities as high as 4du/acre, which was not inconsistent with the density proposed for the LPSA. This argument misses the point that the County grandfathered in those densities as urban within the RSA. The argument that the maximum densities proposed for the LPSA, up to 6du/acre in T4, is consistent with surrounding development is a red herring. It ignores the clear direction the Comprehensive Plan has set for future development, regardless of the exceptions that exist. It is contradictory for the County to treat the preexisting densities as exceptions, but justify the Plan Amendments, which propose future similar densities, based on the existence of those exceptions. In an apparent attempt to overcome the fact that the LPSA densities are similar to surrounding development and, thus, may be found to be urban densities, Respondent and Intervenors argue that density must be calculated based upon the net allowable acreage of the community, rather than the acreage of the individual T3 or T4 zone. Lake Pickett South contains 835 developable acres and the LP category authorizes 2,078 dwelling units across that community. Calculated using that method, the average net residential density for Lake Pickett South is 2.49du/acre. Hence, the proponents argue, the Plan Amendments authorize development at densities lower than the surrounding vested communities, thus, the LPSA development is at rural densities. Assuming, arguendo, Respondent’s and Intervenors’ contention is true, then the Plan Amendments cluster the average density of 2.49du/acre within the T2, T3, and T4 zones at densities as high as 6du/acre. Under that scenario, the Plan Amendments are internally inconsistent with FLUE Policy 6.1.3, which does not allow clustering of development within the RSA. As all the experts agreed, density alone does not determine whether the development authorized by the Plan Amendments is urban as opposed to rural. Other considerations include the uses authorized, as well as the development pattern and restrictions thereon. The Comprehensive Plan, clearly and specifically, articulates exceptions to the 1du/10acre density limit for future development in the RSA based upon particular considerations. For Horizon West, the consideration is the Village program of development directed at comprehensive, rather than piecemeal, development of a huge undeveloped area in the County’s southwestern area. For the Growth Centers, it is the recognition of the impact of development in the unincorporated County on adjoining local governments, and requiring joint planning for that development. Significantly, the Comprehensive Plan recognizes these exceptions as urban development, based upon both the densities and intensities of uses allowed, as well as development patterns and restrictions. The Comprehensive Plan recognizes Growth Centers as urban development implemented through PD zoning. See Policy 1.1.4.F. Villages within Horizon West have been approved with minimum overall net densities as high as 4du/acre (Village H and Town Center) and as high as 7du/acre (Village I). See Policy 4.1.4. These residential densities are recognized as urban densities. Furthermore, the development plan for Village development is specifically recognized in the Comprehensive Plan as an “urban development pattern.” See Policy 4.1.1 The characteristics identifying the Villages as an urban development pattern include the following: The requirement for a “series of integrated neighborhoods containing housing, shops, workplaces, schools, parks, and civic facilities essential to the daily life of Village residents.” The Village, and each neighborhood, shall be developed with a “center focus,” such as commercial, civic, cultural or recreational uses. Housing must be within a 1.2 mile radius of the Village Center, and where possible, housing units within a neighborhood should be within one-half mile of the neighborhood center. Neighborhoods shall encourage development of a variety of lot sizes and housing types. Each Village must have a well-defined edge, such as greenbelts or wildlife corridors permanently protected from development, as well as open space to serve the residents recreational needs in the form of squares, greens and parks. See Policy 4.1.1A., B., E., F., and G., and 4.1.5 In addition to the requirement for “ample open space,” in the form of squares, greens, and parks, an additional 7.5 percent of the developable land within each project must be permanently allocated to public open space. The LPSA encompasses a smaller land area than Horizon West, and will develop on a smaller scale, but in a very similar development pattern under the Plan Amendments. Similar to the “Village Principles” for Horizon West, the LP “Guiding Principles” require that each of the two communities: Be organized as neighborhoods designed around a “centralized focal point,” such as a park, community center, or civic building/use. Interconnect the communities within the LPSA by a multi-purpose trail linking each neighborhood focal point, such as the school or civic use. Have a minimum 35 percent open space, which may be comprised of both preservation areas, agricultural areas, buffers, neighborhood parks, and trail systems, as well as civic uses, community centers, and other built facilities. In addition, the LP Guiding Principles require each neighborhood to: Provide for a mix of housing styles and/or lot sizes. Be walkable, and no more than 125 acres in size. Locate housing within a quarter mile of the central focal point. Connect the central focal point to trails or “complete streets,” as well as schools and community parks. The Plan Amendments authorize a pattern of development in the LPSA recognized in the Comprehensive Plan as an urban development pattern.4/ Like the IW Overlay district, the RP category utilizes transect-based planning to provide a transition from rural uses outside the LPSA, to the more dense and intense uses at its core. The transect-based approach is specifically recognized by the Comprehensive Plan as comprising an “urban form” of development.5/ See Policy 5.1.2. Further, the development pattern for LP is similar to IW: T2 Low density development in a traditional rural setting; T3 Walkable neighborhoods, highly connected by streets, trails and pedestrian paths, and adequately served by parks and open space; Neighborhoods designed around a central focal point with dwellings located in close proximity thereto; School sites centrally located to serve neighborhoods; T4 Town Centers with a mix of residential, office, retail, etc. The Comprehensive Plan further identifies certain uses as urban, rather than rural. Policy 1.1.4 denotes office, commercial, industrial, institutional, and educational uses, as “predominantly urban” in use. The policy notes that these uses are predominantly found in the USA, but “may also be located within the rural settlements on a limited basis.” The policy goes on to acknowledge these uses are available in the USA as “Urban Mixed Use Option,” such as PD category. This policy also acknowledges allowance of these types of urban development within the RSA exception areas--Horizon West, International Drive Activity Center, and Growth Centers--as discussed previously. By contrast, Objective 6.1 and its implementing policies address only rural residential, agricultural, and agribusiness uses, and some institutional uses (e.g., wastewater treatment plants and landfill facilities) as allowable future land uses in the RSA. This section of the Comprehensive Plan also allows for consideration, by special exception, location of uses “that by their nature are appropriate to locate in the [RSA],” such as hazardous operations, gun ranges, landfills, and kennels. The Plan Amendments authorize development of predominantly urban uses within the RSA, but not within rural settlements or one of the previously designated exception areas. Nevertheless, Respondent and Intervenors maintain that development authorized by the Plan Amendments is not urban because the Plan Amendments “prohibit development which would have an overall urban density or intensity.” It is undisputed that the LPSA will allow residential development at a density of up to 5du/acre in T3 zones, and up to 6du/acre in T4 zones. Respondent and Intervenors refer to these as “small pockets of property” within the RSA which would have higher densities “more associated with urban development levels.” However, Respondent and Intervenors argue these small pockets are not prohibited by Policy 1.1.1 which requires that “[u]rban uses shall be concentrated in” rather than “limited to” the USA. Respondent and Intervenors ignore the language that the existing Comprehensive Plan also specifically limits future urban densities, which are not “concentrated in” the USA, to Horizon West, Growth Centers, IW Overlay, and “to a limited extent,” Rural Settlements. The policy language does not allow urban density anywhere else within the RSA. Instead, the policy directs urban densities outside of the USA to areas previously designated and planned for those densities. Based on the preponderance of the evidence, under the existing Comprehensive Plan, the density, uses, and pattern of development authorized by the Plan Amendments is urban, rather than rural. Jim Hall, Intervenors’ planning expert, acknowledged that he based the LPSA concept on these “exception areas” where “new rules” apply. Additionally, Dwight Saathoff, contractor purchaser of portions of Lake Pickett South, as much as admitted that the development approved for Lake Pickett South is urban, rather than rural, when he prepared a power point presentation for the adoption hearing. Based on the power point, Mr. Saathoff testified that “the Rural Service Area acreage would go from 58.6 percent of the total land, and with the Grow, it would be 58.4 percent. The Urban Service Area land was 41.4 and 41.6 with approval of the Grow.” [Tr. 595:3-6]. Mr. Saathoff’s testimony further supports a finding that the project converts rural land to urban use, without expanding the USA boundary to do so. The Plan Amendments are inconsistent with FLUE Goal 1, Objective 1.1, Policy 1.1.1, Objectives 1.2, Policies 1.2.1 and 1.2.2; Goal 6, Objective 6.1, Policies 6.1.1, 6.1.2, and 6.1.3.6/ Petitioners next challenge the Plan Amendments as inconsistent with FLUE Objective 1.3 and Policies 1.3.1 and 1.3.2. FLUE Objective 1.3 is titled “Application for Urban Service Area Expansion,” and prohibits new expansions of the USA unless supported by data and analysis that the expansion is consistent with other objectives, and requires expansions to be evaluated by the criteria established in Policies 1.3.1 and 1.3.2. Intervenors did not submit the Plan Amendments as an application to expand the USA boundaries. The Plan Amendments do not implicate this objective and these policies. The Plan Amendments are not inconsistent with FLUE Objective 1.3 and Policies 1.3.1 and 1.3.2. Petitioners next challenge the Plan Amendments as internally inconsistent with FLUE Objectives 6.2 and 6.3. FLUE Objective 6.2 reads as follows: RURAL SETTLEMENT. Rural Settlements provide for a rural residential lifestyle. In some instances, Rural Settlements allow a transition of rural uses adjacent to the [USA] while avoiding development in active agricultural areas. Rural Settlements were intended to recognize and preserve existing development patterns at the time the CP was adopted in 1991. The creation of Rural Settlements recognized the need to maintain agricultural and rural uses in the [RSA], while providing for rural communities. The Plan Amendments do not propose a rural settlement, a land use change within a rural settlement, or a boundary expansion of an existing rural settlement. Petitioners offered no persuasive evidence that the Plan Amendments implicate this policy. FLUE Objective 6.3 reads as follows: OBJ FLU6.3 Orange County shall protect and preserve certain existing Rural Settlements and their established neighborhoods, which by their particular location may be impacted by adjacent urban uses. This objective shall be made measurable by implementing the following policies: Petitioners did not challenge the Plan Amendments as inconsistent with any of the implementing policies, which enumerate development restrictions and procedures applicable to the following rural settlements: Lake Hart/Lake Whippoorwhil, Lake Avalon, and Wedgefield. The LPSA is not located in proximity to the listed rural settlements and Petitioners introduced no evidence that the Plan Amendments would have any impact on those rural settlements. The Plan Amendments are not inconsistent with FLUE Objectives 6.2 and 6.1. Petitioners also challenge the Plan Amendments as inconsistent with FLUE Goal 2, Objective 2.1, and Policy 2.2.17 which read, as follows: GOAL FLU2 URBAN STRATEGIES. Orange County will encourage urban strategies such as infill development, coordinated land use and transportation planning, and mixed-use development, which promote efficient use of infrastructure, compact development and an urban experience with a range of choices and living options. * * * OBJ FLU2.1 INFILL. Orange County shall promote and encourage infill development through incentives identified in the Land Development code for relatively small vacant and underutilized parcels within the County’s established core areas in the [USA]. * * * FLU2.2.17 Throughout the planning horizon, the County shall provide policy and program mechanisms that further the principles of sustainability, including limiting urban sprawl, protecting wildlife and environmentally sensitive natural areas, promoting efficient use of land and water, and creating an environment conducive to quality building and promoting sustainable economic development. The Plan Amendments interfere with and contradict the stated goal of promoting urban strategies such as infill. The Plan Amendments do, as Petitioner’s expert testified, exactly the opposite by directing urban development to areas outside the USA.7/ Objective 2.1, by its plain language, provides strategies applicable only to “relatively small vacant and underutilized parcels within” the [USA]. The objective is inapplicable to the LPSA. The cited policy requires the County to undertake policies and programs to limit urban sprawl, protect wildlife and environmentally sensitive areas, and promote efficient use of land and water. Petitioners presented no evidence that the County has not undertaken such broad policies and programs. The County introduced in evidence its Conservation Ordinance (Article X, Orange County Land Development Code), and its Econ River Protection Ordinance (Article XI), local programs appearing to implement Policy 2.2.17. Whether the Plan Amendments conflict with any of the implementing land development regulations is a matter beyond the scope of this proceeding. The Plan Amendments are inconsistent with FLUE Goal 2, but, at least arguably, consistent with Objective 2.1 and Policy 2.2.17. Petitioners next challenge the Plan Amendments as internally inconsistent with FLUE Policy 6.4.7, which reads as follows: Orange County shall provide for compatible public and/or private land uses adjacent to significant natural resources that are managed for public benefit. Methods of protection to be considered may include, but shall not be limited to, coordination with appropriate State agencies, Notice of Proximity, the use of density and intensity limitations on land use and development, and the use of buffers. Petitioners contend that the proposed LPSA is inconsistent with this policy due to its proximity to the ESCA. The ESCA is adjacent to the western boundary of the LPSA along South Tanner Road. Proposed policy 6.8.3 notes that “[l]ands located along the perimeter within the [LPSA] shall be compatible with adjacent land outside of the [LPSA], with the exception of the [ESCA].” (emphasis added). Thus, the text amendment acknowledges that the development proposed within the LPSA may not be compatible with the adjacent ESCA. To protect the adjacent ESCA from the impacts of development proposed within the LPSA, the text amendment requires “transitional treatment of the edges” of the LPSA, including a minimum 100-foot vegetative buffer along South Tanner Road “to preserve existing rural view sheds or create a visual buffer from the proposed development within Lake Pickett Communities.” The buffers must consist of “Florida native plant species, as required by Chapter 15 Article XI” of the County Code. The proposed policy also requires these buffer areas to be utilized only as natural/wetland zones. The approved RP for Lake Pickett South depicts all property adjacent to South Tanner Road as either T1 wetlands or T1 natural, with the exception of the property at the corner of SR 50 and Tanner Road, which is designated T4 with no buffer along South Tanner Road. Just inside the buffer, the RP designates property within Lake Pickett South for either T2 (2du/acre), stormwater retention, or agricultural (working farm) uses. The RP places higher density and intensity uses further from the “edge,” thus further from the border with the ESCA. The Plan Amendments were reviewed by both the St. Johns River WMD and the South Florida WMD (SFWMD). The St. Johns River WMD reported on September 9, 2015, that its review “focused on flood protection and floodplain management, wetlands and other surface waters . . . as they relate to important state resources and facilities that will be adversely impacted by the amendment, if adopted.” The applicable staff had no comments on the proposed amendments, but noted that the property subject to the amendments is located within the WMD’s Econ River Hydrologic Basin and any environmental resource permit will have to meet additional surface water management basin criteria. The SFWMD reported, “There appear to be no regionally significant water resource issues; therefore, the District has no comments on the proposed amendment package.” The Department of Environmental Protection “conducted a detailed review [of the Plan Amendments] that focused on potential adverse impacts to important state resources and facilities, specifically . . . wetlands and other surface waters of the state; federal and state-owned lands and interest in lands . . . .” The Department found “no provision that, if adopted, would result in adverse impacts to important state resources subject to the Department’s jurisdiction.” The County coordinated with appropriate state agencies for siting the LPSA adjacent to the ESCA. The RP reflects the use of buffers and density and intensity limitations as methods to protect the adjoining ESCA from development within Lake Pickett South. The text amendment reflects the use of “edge” buffers and transitional density and intensity limitations, through the transect zone approach, to achieve compatibility with the adjacent ESCA. The Plan Amendments are not inconsistent with FLUE Policy 6.4.7. Similarly, Petitioners allege the Plan Amendments are inconsistent with FLUE Objective 8.2, which reads as follows: COMPATIBILITY. Compatibility will continue to be the fundamental consideration in all land use and zoning decisions. For purposes of this objective, the following policies shall guide regulatory decisions that involve differing land uses. Petitioners did not identify any implementing policy with which the Plan Amendments are alleged to be inconsistent. Compatibility is not defined by the Comprehensive Plan. Compatibility is defined by the Community Planning Act as “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.” § 163.3164(9), Fla. Stat. The parties did not dispute that this definition was applicable to analyzing consistency with Objective 8.2. Petitioners allege the development authorized by the Plan Amendments is incompatible with (1) adjacent rural settlements, and (2) its location in an important wildlife corridor. Petitioners first allege the LPSA is incompatible with the adjacent Corner Lake Estates and Lake Pickett rural settlements, due to the density, intensity, and mix of uses allowed by the Plan Amendments. The Lake Pickett rural settlement located adjacent to the LPSA on the northeast is vested at 1du/acre. The Corner Lakes rural settlement has an existing density of 4du/acre. As discussed previously, these densities are grandfathered from the RSA density limitation of 1du/10acres. The Comprehensive Plan clearly establishes densities of no greater than 2du/acre for future development in rural settlements. Regardless of whether the existing density of these two rural settlements is 4du/acre or greater, the Comprehensive Plan limits future development within the settlements to lower densities more consistent with the RSA. Because no RP has been approved for the northern section of the LPSA, it is impossible to discern what specific density of development may be allowed adjacent to the Lake Pickett rural settlement. Proposed Policy 6.8.3 will apply to development of the north LPSA, which provides that “lands located along the perimeter within the [LPSA] shall be compatible with adjacent lands outside of the [LPSA] . . . .” Aside from the statement that “substantial buffers consisting of Florida native plant species, as required by Chapter 15 Article XI of the Orange County Code, shall be used to replace or enhance perimeter transition treatment,” the Plan Amendments contain no specific requirement for buffer size between the LPSA and the Lake Pickett rural settlement.8/ Mr. Hall, accepted as an expert in land use planning and growth management, testified at length regarding the “edge” treatment, buffering, and lot sizes, designed to make the layout of Lake Pickett South compatible with the adjoining Corner Lakes rural settlement. The edges of Lake Pickett South abutting Corner Lake are all designated as wetlands, buffer areas, or stormwater facilities, with the exception of a strip of T3 residential at 4du/acre with minimum 50-foot lots. However, this strip adjoins existing undeveloped natural buffer area within Corner Lake, not existing residential lots. Overall, Lake Pickett South allows urban development to locate next to the existing Corner Lake rural settlement. The overall density, intensity, and mix of uses allowed in Lake Pickett South is inconsistent with the single-use residential rural community setting of Corner Lake. However, given the transect-based planning approach and the buffering and “edge” treatments required by proposed Policy 6.8.3, it is at least arguable that the development is compatible with the adjacent rural settlements. Petitioners next allege the LPSA is inconsistent with FLUE Objective 8.2 because it is located within an important wildlife corridor and introduces physical obstacles which impede movement of wildlife through the corridor. None of the Petitioners addressed this particular objective in their Proposed Recommended Order.9/ Petitioners did not prove that the LPSA is inconsistent with FLUE Objective 8.2, which specifies compatibility as the fundamental consideration in all land use decisions. Petitioners next challenge the Plan Amendments as inconsistent with Conservation Objectives C1.7 and C1.9. Objective C1.7 reads as follows: OBJC1.7 Orange County shall manage and protect plant and wildlife species designated as threatened, endangered or species of special concern through programmatic and planning approaches for ecosystem analysis and through adoption of land development regulations. The final environmental surveys conducted by Intervenor Banksville’s consultant, Bio-Tech Consulting, Inc., revealed the presence of six wildlife10/ species designated by the Florida Fish and Wildlife Conservation Commission (FWC) as either threatened, endangered, or of special concern. The County’s conservation regulations are limited to identification and protection of wetlands and the watershed of the Econ River Basin. The County has no regulatory authority over wildlife conservation or preservation. Petitioners introduced credible expert witness testimony regarding the presence of wildlife in the LPSA, and opinions regarding the adverse effects which development in the area, as proposed, is likely to cause. Petitioners clearly would have the County regulations go further to address, or perhaps prohibit, development impacting the wildlife habitats. The question at hand, however, is not whether the County’s adopted “programmatic and planning approaches for ecosystem analysis,” and the County’s land development regulations, adequately address the stated objective, to “manage and protect plant and wildlife species designated as threatened, endangered.” The inquiry in this case is limited to whether the Plan Amendments, as proposed, are inconsistent with the stated objective. Petitioners did not prove that the Plan Amendments are inconsistent with Objective C1.7. Objective C1.9 reads as follows: OBJ C1.9 Orange County shall require the protection of natural resources by minimizing adverse impacts from adjacent developments. This objective shall be made measurable by implementing the following policies. Petitioners are clearly concerned with the impact of the Plan Amendments on the plant and wildlife habitats in the adjoining ESCA. Petitioners’ expert ecologist testified extensively regarding the impact of new communities on the ESCA --increased passive recreational use, such as horseback riding, hiking, and picnicking, as well as the impact of domesticated pets on wildlife in the ESCA. Petitioners’ experts were insistent that the text amendment does nothing to minimize these adverse effects because proposed FLUE Policy 6.8.3 requires no buffer for the ESCA.11/ On the contrary, Policy 6.8.3 requires a minimum 100-foot native vegetated buffer along South Tanner Road, the border between the LPSA and the ESCA. Petitioners did not identify any measurable policy implementing Objective C1.9 with which the Plan Amendments are alleged to be inconsistent. Policy C1.9.2 mirrors the requirements of FLUE Policy 6.4.7, requiring “enhanced protective mechanisms, such as, but not limited to . . . buffers, vegetative buffers, setbacks, density restrictions, easements . . . that will permit continued habitat management practices in areas adjacent to major managed natural resources.” As discussed previously, the Plan Amendments incorporate buffers and density and intensity limitations, through the use of transect-based planning, to address the impact of the proposed development on the adjacent ESCA. Petitioners did not establish that the Plan Amendments are inconsistent with Objective C1.9. Petitioners allege the Plan Amendments are inconsistent with Conservation Goal 2, Objective 2.3, and Policy 2.3.1, which read as follows: GOAL C2 Orange County’s goal is to protect, enhance and maintain the unique and irreplaceable values, functions, diversity and benefit of the natural resources within the Econlockhatchee River Basin, Wekiva Protection Area and the Lake Apopka Drainage Basin. * * * OBJ C2.3 Orange County shall protect and preserve the surface water quality and quantity, wildlife populations and habitat, aesthetics, open space, historical and archaeological resources, floodplains, wetland areas, native upland areas and recreation lands of the Econlockhatchee River Basin by implementing the following policies. * * * C.2.3.1 The Land Development Code shall provide for the protection of the Econ River Basin through mechanisms such as upland buffers, specific restrictions within a 2,200 foot total width protection zone, requiring habitat and historical/archaeological resource assessments and protection, allowing for mitigation, open space or density credits, requiring landscaping to include use of native plant species, utilization of wetland areas as part of drainage facility systems, requiring State or Federal listed species protection, clustering of development, restricting floodplain encroachment, and limiting forested habitat fragmentation. Petitioners introduced no evidence to support a finding that the County’s land development code fails to provide the listed protections for the Econ River Basin. Respondent and Intervenors introduced in evidence Article XI of the County code, titled “Econlockhatchee River Basin Protection.” The article includes basin-wide regulations which include management plans for protection of endangered, protected, and species of special concern, use of native plant species in landscaping, regulations to limit adverse impact of development on hydrologic functions of conservation areas, upland buffers of 50 feet for conservation areas, and limits on discharge rates for stormwater management systems. John Miklos, Intervenor’s expert in environmental and ecological assessments and environmental and ecological planning, testified, credibly, that the County’s land development code is even more stringent than the St. Johns River WMD requirements because it imposes development restrictions within a 2,200 foot corridor on either side of the Econ River, in addition to the 1,100 foot “critical area regulations” imposed by the St. Johns River WMD. The article also contains specific regulations for a “critical area” defined as the main river channel extending 1,100 feet landward of the Econ River and its major tributaries. Nothing in the Plan Amendments exempts the development authorized thereby from the requirements of Article XI. Petitioners did not prove the Plan Amendments are inconsistent with Conservation Goal C2, Objective 2.3, and Policy C2.3.1. Petitioners next allege the Plan Amendments are inconsistent with Transportation Element Goal T1 and Policy T1.1.1.3, which read, as follows: GOAL T1 A safe, accessible, convenient, efficient and financially feasible multimodal transportation system which minimizes environmental impacts. * * * T1.1.1.3 Whenever reasonably possible, future roadway projects shall be designed to promote livability and land use- transportation integration, in part by avoiding the severing or fragmenting of existing neighborhoods. The County will coordinate with FDOT, the Central Florida Expressway Authority, and other appropriate entities to help ensure that limited access and other roadway projects which are constructed by them avoid or minimize negative impacts to existing neighborhoods, wildlife corridors, and sensitive natural areas and to coordinate these projects with conservation and land use decisions. Petitioners introduced no credible evidence that the transportation improvements necessary to serve the proposed development would sever or fragment existing neighborhoods or that the County would not coordinate the improvements to SR 50 with appropriate state agencies. Chuluota Road will require widening in conjunction with the proposed development. That road serves both Corner Lake and Lake Pickett rural settlements, but there is no evidence that the road project would sever or fragment those neighborhoods. Petitioners also alleged the Plan Amendments were inconsistent with Neighborhood Element Objective N1.1, which reads, “Orange County shall ensure that future land use changes are compatible with or do not adversely impact existing or proposed neighborhoods.” For the reasons cited in the discussion related to consistency with FLUE Objective 8.2, the Plan Amendments are consistent with adjoining neighborhoods based on the edge treatment requirements and transect-based approach to density. Finally, the Petitioners challenge the Plan Amendments as internally inconsistent with the Potable Water Element Goal 1, Objective 1.1 and Policies 1.4.2 and 1.4.3, which read, as follows: GOAL PW1 It is Orange County’s goal to provide an efficient and adequate level of water service and facilities in a cost effective manner to accommodate existing and future development. OBJ PW1.1 Orange County shall continue to provide for the correction of its existing water system deficiencies. This objective shall be made measurable by implementing the following policies. * * * PW1.4.2 Potable water service shall not be extended to areas outside the [USA] except in the following circumstances: The facilities to be extended will serve a Growth Center or other exception areas as provided in the Comprehensive Plan (CP); The Board of County Commissioners has made an affirmative finding that a public health hazard exists for existing development. Such facilities shall not serve as the basis for additional new development; The facilities are to be extended to provide adequate fire flows to existing developments which are located within one- half (1/2) mile of an existing waster transmission main; For approved sector plans as provided for in the CP; and The circumstances described under Policy PW1.5.2 and Policy PW1.5.3.12/ The Petitioners presented no evidence regarding deficiencies in the county’s water system or how the instant amendment would relate to the county addressing said deficiencies. No evidence was introduced on which to base a finding that providing water service to the LPSA would be inefficient, inadequate, or not cost-effective. The Plan Amendments do not require extension of water utilities to serve the proposed development. The County utilities department evaluated the Plan Amendments and reported that water mains on SR 50, Lake Pickett Road, and North Tanner Road are available to serve the development, as well as wastewater mains in the vicinity. The developer will be paying to connect the development to the existing water mains, as well as install the water and wastewater infrastructure within the development boundaries. The Plan Amendments are not inconsistent with PW Goal 1, Objective 1.1, and Policies 1.4.2 and 1.4.3. Urban Sprawl Petitioner Brooke additionally challenges the Plan Amendments as contrary to section 163.3177(6)(a)9., which provides that “any amendment to the future land use element shall discourage the proliferation of urban sprawl.” The Act defines urban sprawl as “a development pattern characterized by low density, automobile-dependent development with either a single use or multiple uses that are not functionally related, requiring the extension of public facilities and services in an inefficient manner, and failing to provide a clear separation between urban and rural uses.” The statute sets forth 13 primary indicators that a plan amendment does not discourage the proliferation of urban sprawl, and eight factors which, if met, determine a plan amendment discourages urban sprawl. Petitioner’s expert testified that the Plan Amendments are characterized by the at least nine of the indicators of sprawl. Intervenors’ expert disagreed. The first primary indicator implicated by Petitioner Brooke is that the development “[p]romotes, allows, or designates significant amounts of urban development to occur in rural areas at substantial distances from existing urban areas while not using undeveloped lands that are available and suitable for development.” § 163.3177(6)(a)9.a.(II)., Fla. Stat. The Plan Amendments do direct urban development to locate within a rural area. The evidence did not establish how far the LPSA is located from the boundary of the USA.13/ Based upon Map 11 of the FLUM series, Corner Lake rural settlement is located 1.5 miles east of the USA boundary. The LPSA is located west of Corner Lake, thus closer than 1.5 miles from the USA boundary. Intervenors demonstrated the location of major employment centers within two miles of the LPSA, including the University of Central Florida and the Central Florida Research Park, both of which are located within the USA. The LPSA is not located at a substantial distance from existing urban areas. Assuming, arguendo, the location of the LPSA was considered to be at “a substantial distance” from existing urban areas, Petitioner Brooke introduced no evidence of undeveloped lands within or closer to the USA which are available and suitable for the proposed development. Petitioner Brooke did not prove that the Plan Amendments meet primary indicator (II). Petitioner next contends that the Plan Amendments fail to “adequately protect and conserve natural resources, such as wetlands, floodplains, native vegetation, environmentally sensitive areas, natural groundwater recharge areas, lakes, rivers . . . .” § 163.3177(6)(a)9.a.(IV), Fla. Stat. As previously addressed, the Plan Amendments do not exempt the development from the County’s existing land development code requirements for identification and protection of conservation areas and special protection for the Econ River Basin, which are the County’s primary protection and conservation mechanisms. It is clear that Petitioners wish the County regulations went further, but that issue is beyond the scope of this proceeding. Petitioner did not prove that the Plan Amendments trigger primary indicator (IV). Petitioner next contends that the Plan Amendments “[f]ail[] to adequately protect adjacent agricultural areas and activities, including active agricultural and silvicultural activities, passive agricultural activities, and dormant, unique, and prime farmland and soils.” § 163.3177(6)(a)9.a.(V). Adjacent uses to the south and east of the LPSA are rural residential settlements. The ESCA is adjacent to the west. No evidence was introduced establishing the uses to the north in Seminole County. No evidence was introduced to establish the use of adjacent rural settlement for any agricultural or silvicultural activities, either active or passive. The only evidence demonstrated that Corner Lake consists of residences and wetland conservation areas. Petitioner did not prove that the Plan Amendments trigger primary sprawl indicator (V). Primary indicator (XI) is that the development “[f]ails to maximize use of existing public facilities and services.” Potable water and wastewater facilities exist, and uncommitted capacity is available to serve the development as proposed. The County utilities department reviewed the Plan Amendments and reported sufficient plant capacity to serve the development at adequate levels of service. Parks and Recreation also reviewed the Plan Amendments and reported sufficient acreage capacity to serve the proposed development. The County fire rescue department reported that those portions of the property which are within 2.5 miles of Station 82 are within an “optimal emergency services delivery” area. Other portions are not within an optimal delivery area, but are within a seven-minute response time. Anecdotal testimony from the Corner Lakes HOA President regarding a delayed response time to a residential security alarm is not competent evidence on which to base a finding that the existing emergency response service is inadequate. The development will require significant investments in public roadway facilities in order to meet level of service requirements. Several segments of the major county roadways to be impacted by the development authorized by the Plan Amendments, Lake Pickett Road and Chuluota Road, are already overcapacity. Segments of SR 50 currently operate at an acceptable level of service, based on a six-laning project currently underway, but are projected to operate at an unacceptable level of service by the 2035 planning horizon. Transportation analysis shows significant and adverse impacts from the proposed development on all three roadways (at varying rates depending on the time of the day modeled). In order to approve the Plan Amendments, the developer has entered into a Transportation Network Agreement, and corresponding Term Sheet, by which it has committed to pay an estimated $16,000,000 to the State for widening impacted segments of SR 50, and an estimated $14,844,000 to the County for widening Chuluota Road from SR 50 to Lake Pickett Road. The Plan Amendments do not fail to maximize use of existing transportation infrastructure. The existing infrastructure is, apparently, over-maximized. The Plan Amendments do not trigger primary sprawl indicator (XI). Next, Petitioner Brooke argues the Plan Amendments “[f]ail[] to maximize use of future public facilities and services.” § 163.3177(6)(a)9.a.(VII), Fla. Stat. Because the Comprehensive Plan provides a strategy of designating the USA as the area for which the County is responsible for providing infrastructure and services to support urban development, Petitioner Brooke argues that location of urban development outside the USA fails to maximize use of future public facilities and services. While Petitioner Brooke’s arguments sounds theoretically correct, it is not supported by the evidence. The evidence shows that the potable water and wastewater service lines previously constructed under the Econ River are sized for capacity to serve the demands generated by the Plan Amendments, and that the plant capacity exists as well. Petitioner introduced no evidence that service capacity to meet the future demand generated by the Plan Amendments would reduce, or otherwise interfere with, the County’s ability to provide those services to development inside the USA. Moreover, the Plan Amendments dictate that the developer, rather than the County, will incur the costs of constructing connections to the existing potable water and wastewater lines. As to the transportation facilities, the impacted segments of Lake Pickett and Chuluota Road are currently deficient and included in the County’s long-range transportation plan for widening as “partnerhip projects,” meaning the County requires a partner to fund these future projects. Through the transportation funding agreements, the Plan Amendments will provide the funding partner the County needs to eliminate the current backlog on these roadways, as well as mitigate the projected impacts of the future development. The Plan Amendments do not fail to maximize use of future public facilities and services, which is primary urban sprawl indicator (VII). Petitioner Brooke next cites primary indicator (VIII), that the Plan Amendments “[a]llow 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.” § 163.3177(6)(a)9.a.(VIII), Fla. Stat. Petitioner introduced no evidence of increased costs associated with providing services to the development authorized by the Plan Amendments, with the exception of transportation. As previously discussed, the Plan Amendment actually reduces the County’s cost to provide transportation services to existing and committed developments through the planning horizon, and funds much of the cost to improve the impacted roadways to serve the new development. Petitioner did not prove the Plan Amendments trigger primary urban sprawl indicator (VIII). Next, Petitioner implicates section 163.3177(6)(a)9.a.(IX), that the Plan Amendments fail to provide a clear separation between rural and urban uses. On this primary indicator, Petitioner is correct. The Plan Amendment directs urban uses to a location surrounded by development recognized in the Comprehensive Plan as rural agricultural, rural residential, and conservation, or specified exceptions thereto. The Plan Amendments do trigger primary urban sprawl indicator (IX). Petitioner Brooke next argues the Plan Amendments constitute urban sprawl because they “discourage[] or inhibit[] infill development or redevelopment of existing neighborhoods and communities.” § 163.3177(6)(a)9.a.(X). Fla. Stat. As previously found, the Plan Amendments direct urban development to the RSA, which is contrary to an urban infill strategy. The Plan Amendments discourage infill by authorizing urban development outside of the designated urban area. The Plan Amendments do trigger primary urban sprawl indicator (X). Lastly, Petitioner Brooke alleges the Plan Amendments “result[] in poor accessibility among linked or related land uses.” § 163.3177(6)(a)9.a.(XII), Fla. Stat. Petitioner’s expert, Ms. Diettrich, opined that the proposed development is not sited adjacent to or continuing from any related use, thus fails to connect related uses. Based on that evidence alone, the undersigned was unable to find that the Plan Amendment triggers primary indicator (XII). Altogether, Petitioner proved the Plan Amendments trigger two primary indicators of urban sprawl. Once primary sprawl indicators are identified, the urban sprawl analysis shifts to whether the Plan Amendments meet four of eight criteria which determine that an amendment discourages urban sprawl. Respondent and Intervenors introduced testimony from their expert planner, Mr. Hall, that the Plan Amendments satisfy six of the criterion: (1) promote the efficient and cost- effective provision or extension of public infrastructure or services; (2) promote walkable and connected communities and provide for compact development and a mix of uses at densities and intensities that will support a range of housing choices and a multimodal transportation system; (3) promote the conservation of water and energy; (4) preserve agricultural areas and activities; (5) preserve open space and natural lands and provide for public open space and recreation needs; and (6) create a balance of land uses based upon demands of the residential population for the nonresidential needs of the area. Mr. Hall testified that the LPSA promotes efficient and cost-effective provision or extension of public infrastructure because the developer is paying, rather than the County. That arrangement is more cost-effective than taxpayer investment. Proposed policies 6.8.6, 6.8.12, and 6.8.13 require the neighborhoods within the LPSA to be designed as walkable and with interconnected greenspaces, trails, and paths. However, the LPSA does not promote a range of housing choices. Proposed policy 6.8.2 limits T3 to single-family detached housing, with some single-family attached housing limited to the perimeter and close to T4. Zone T4 allows single-family attached and “vertically-integrated uses,” which is undefined. Multifamily uses are prohibited. The proposed development does not promote a multimodal transportation system. The Department of Transportation reports there are “no transit service links adjacent to the project site,” and although “significant transit improvements are planned for the UCF/East Orange County area over the next six to 10 years,” funding for the projects had not been identified. The Plan Amendments do promote conservation of water and energy through the requirement in proposed FLUE Policy 6.8.4 that each community adhere to a “Green Infrastructure Plan” including a Master Stormwater Plan utilizing Low Impact Development (LID) practices, and a Master Conservation, Open Space and Community Space Plan identifying connections of the internal greenspaces to countywide trail systems. The Plan Amendments do require a substantial amount of open space and natural lands, and provide for public open space and recreation needs. Pursuant to proposed Policy 6.8.6, each community within the LPSA must provide 35 percent open space, no more than five percent of which may be community spaces.14/ Further, each neighborhood will be organized around a community focal point, such as a community park, garden, center, etc. Finally, the LPSA is designed with a mix of land uses to meet many of the demands of the residents in the area for nonresidential needs. Zone T4 areas will include commercial, office, service and civic uses to serve the communities, “as well as the surrounding area.” The LP Guiding Principles and Policies meet four of the criterion which determine that a plan amendment discourages urban sprawl. Petitioners did not prove that the Plan Amendments fail to discourage the proliferation of urban sprawl. Data and Analysis The next basis on which Petitioners challenge the Plan Amendments is supporting data and analysis. Section 163.3177(1)(f) requires all plan amendments to be “based on relevant and appropriate data and an analysis by the local government that may include, but not be limited to, surveys, studies, community goals and vision, and other data available on that particular subject at the time of adoption of the . . . plan amendment.” The statute continues, “To be based on data means to react to it in an appropriate way and to the extent necessary indicated by the data available on that particular subject at the time of adoption of the . . . plan amendment.” Id. The Individual Petitioners, with the exception of Petitioner Brooke, maintain that the Plan Amendments do not react appropriately to data and analysis regarding the impact of the Plan Amendments on natural resources and environmentally sensitive areas within the LPSA and the adjacent ESCA.15/ For purposes of this section, these Petitioners will be referred to as the “Farrell Petitioners.” Petitioner Brooke additionally maintains the Plan Amendments do not react appropriately to the community goals and vision codified by the USA/RSA concept. 1. Natural Resources On the issue of natural resources and environmentally sensitive areas, the Farrell Petitioners presented the testimony of Ariel Horner, who was accepted as an expert in Florida ecology and ecosystem conservation. Ms. Horner performed research in the ESCA during her undergraduate and graduate studies, and currently teaches courses in ecology and conservation utilizing the ESCA as a teaching tool. The Farrell Petitioners introduced photographs taken by Ms. Horner utilizing game cameras installed in the ESCA in March and April 2015, and February and March 2016. The photographs depict a number of “listed species,” including the Florida black bear, Sherman’s fox squirrel, gopher frogs, and ovenbirds. The pictures document the presence of endangered, threatened, or species of special concern, within the ESCA. Ms. Horner testified extensively regarding the habitat requirements for these species and expressed her expert opinion that these same species are very likely present on the LPSA property as well. Ms. Horner’s opinion regarding the habitat needs of the various listed species was informed, in part, by management plans prepared by the FWC. Petitioners did not introduce any FWC management plans into evidence and Ms. Horner did not use any excerpts or maps from said plans as demonstratives. The Farrell Petitioners also offered the testimony of Dr. John Fauth, accepted as an expert in conservation biology, vertebrate and invertebrate zoology, and statistical analysis. Dr. Fauth testified that the LPSA is located within a bio diversity hotspot, the North American Coastal Plain, which data that does not support development of the property for the density and intensity authorized by the Plan Amendments. The North American Coastal Plain extends from southeast Texas east to Florida and north along the east coast as far as coastal Connecticut and Massachusetts. Within the southeast, the plain includes the entirety of Louisiana and Mississippi, large portions of Alabama, Georgia, and North and South Carolina, Arkansas, and western Tennessee. The presence of the LPSA within this vast region was not persuasive evidence to support any specific development restriction on the particular parcel. Both Dr. Fauth’s and Ms. Horner’s expert opinions regarding the high ecological value of the LPSA, is due to its location within a regional wildlife corridor. Dr. Fauth testified extensively regarding the importance of maintaining corridors for listed species, such as the Florida panther and black bear, to travel from southern to northern Florida and further on to other areas within the North American Coastal Plain. The ability of species to migrate without barriers from human development is important to mating, feeding, reproduction, and many other essentials for long-term viability of various listed species. The Farrell Petitioners introduced, through the testimony of Dr. Fauth, a map from the St. Johns River WMD Management Plan for the ESCA. The map depicts the location of the ESCA within a “larger, multi-corridor system.” The map encompasses east Orange and Seminole, south Volusia, and western Brevard counties. The map depicts “District-Owned Conservation Easements,” “FNAI [Florida Natural Areas Inventory] Public Lands,” “Management Areas,” including managed preserves, state forests, and conservation areas; as well as, properties designated “Priority 1” through “Priority 5.” The map does not indicate what the priority properties are listed for and no witness testified to the meaning of the priority areas. Based on the totality of the evidence, the undersigned infers the properties are designated by priority for public acquisition. The LPSA lies within a corridor extending between the Hal Scott Regional Preserve in southeastern Orange County to the Little Big Econ State Forest north in Seminole County. Further east lie the Bronson State Forest and the Seminole Ranch Conservation Area, extensive “Management Areas” in the region. The scale of the map is large, and no witness testified as to the exact location of the LPSA on that particular map. Based upon the evidence of record, it appears the LPSA lies wholly within an area designated “Priority 1.” The LPSA is one of thousands, if not tens or hundreds of thousands, of Priority 1 properties within the corridor between the Hal Scott Regional Preserve and the Little Big Econ State Forest. No evidence of record supports a finding that development of the ESCA will prevent wildlife from traversing the larger corridor, or prevent the WMD from acquiring other properties or conservation easements that could, eventually, link the preservations areas. The St. Johns River WMD staff reviewed the proposed Plan Amendments “focused on flood protection and floodplain management, wetlands and other surface waters . . . as they relate to important state resources and facilities that will be adversely impacted by the amendment, if adopted,” and had no comments, other than to note that the property’s location in the Econ River Basin will require additional criteria to be met for issuance of environmental resource permits in the area. The Department of Environmental Protection reviewed the proposed Plan Amendments for “potential adverse impacts to important state resources and facilities” including “federal and state-owned lands and interest in lands, including state parks, greenways and trails, [and] conservation easements.” The Department found “no provision that, if adopted, would result in adverse impacts to important state resources subject to the Department’s jurisdiction.” The County has limited jurisdiction with regard to protection of wildlife; the protection of endangered, threatened, and species of special concern is within the authority of the state and federal government. Although the County was required to transmit the proposed Plan Amendments to the FWC for review, pursuant to section 163.3184(3)(b), no evidence was introduced regarding any comment from the FWC on the proposed Plan Amendments. The state agency with authority for regulating wildlife had no comment regarding the impact of the Plan Amendments on any state or regional resource, including the proposed corridor. Despite the County’s limited authority to regulate wildlife, the County environmental staff included the following in its staff report on the Plan Amendments in a section titled “Habitat Protection”: It appears that portions of the [property] have been identified as part of the Florida DEP, Priority Ecological Greenway Network 2013. This project of the Florida Ecological Greenway Network (FEGN) identifies areas of opportunity for protecting a statewide network or ecological hubs and linkages designed to maintain large landscape-scale ecological functions including focal species habitat and ecosystem services throughout the state. The FEGN aggregates various data identifying areas of ecological significance from the Florida Natural Areas Inventory, [FWC], existing and proposed conservation lands, and other relevant data. These data were combined to identify large, landscape-scale areas of ecological significance (ecological hubs), and a network of landscape linkages and corridors connecting the hubs into a statewide ecological greenways system (ecological greenways and wildlife corridors). Developing portions of this ecologically significant area without proper ecological design consideration would diminish the functionality of the area as a greenway and move the land use from a state of higher sustainability to a state of lower sustainability in terms of resources needed to sustain the lower state. The applicant shall provide reasonable assurances that the habitat and ecological function of this ecosystem will not be diminished as a result of the proposed development. Road and pedestrian crossings of wetland and environmentally sensitive corridors shall be minimized over wetlands and floodplains and be designed to allow for unimpeded passage of wildlife. (emphasis added). The text amendment addressed the issue of habitat and ecological function through the use of the transect planning. Objective 6.8, and Policies 6.8.1 and 6.8.2, dictate a development pattern that transitions from open space and conservation areas on the edges of the LPSA through gradually increasing densities of residential, to a center of highest density, intensity, and mix of uses. This approach minimizes disturbance of the “corridor” by concentrating the most intense uses to the center while maintaining relatively undisturbed edges. Petitioners maintain that the proposed development, as reflected in the PD-RP, does not provide reasonable assurances that the habitat and ecological function of the property will not be diminished, primarily because road and pedestrian crossings of wetland and environmentally sensitive areas, as planned, fragment habitat which does not allow for unimpeded passage of wildlife. Petitioners argument on this point is a challenge that the zoning (PD-RP) is inconsistent with the Plan Amendments as reflected in the text amendment. The exclusive method to challenge the consistency of the zoning (or any other land development order) with the Comprehensive Plan, is section 163.3215, which provides for an action in an appropriate circuit court. Petitioners argument is not cognizable in the instant proceeding. Furthermore, the Plan Amendments do not exempt the proposed development from the land development code, Article X, which governs the identification, classification, and corresponding protection of wetlands, during the development permitting process. Many of Petitioners’ concerns will be addressed in the permitting process for the proposed development. Likewise, the process triggering evaluation of the specific property for presence of listed species is the local permitting process. The developer’s preliminary environmental assessment confirmed the presence of several listed species on the subject property, including Sherman’s fox squirrel, Florida Sandhill Crane, Little Blue Heron, White Ibis, gopher tortoise, and bald eagle. The report identifies whether each species is state- or federal-listed, and details the corresponding development restrictions to be imposed during permitting. The LPSA lies within the Econ River Basin, and is subject to Article XI of the County’s land development code. Section 15-442 specifically requires all development applications to include a survey of listed species utilizing FWC Wildlife Methodology Guidelines. The code provides, “[a] management plan shall be required of the development for the protection of an endangered, threatened or species of special concern and shall become part of the conditions for approval of the project.” The data gathered from such surveys is generally good for about a 90-day period because of the relative transient nature of certain species. Listed-species surveys are performed during the permitting phase in order to base permitting decisions on “fresh” data. The Farrell Petitioners did not prove that the Plan Amendments do not react appropriately to the data concerning the location of the property within a larger wildlife ecosystem to the extent necessary during the planning process. The Farrell Petitioners next argue that the Plan Amendments do not react appropriately to the data regarding natural resources within the ESCA because the development proposed by the Plan Amendments will negatively impact the ESCA. Testimony on this issue pertained to increased use of the ESCA by adjoining residents in the proposed development, particularly with respect to planned additional horse trails, hiking and other passive recreation, as well as the introduction of pets, especially cats, which hunt and kill many wildlife species, especially birds. The testimony on this issue was part hearsay, part speculation and unpersuasive. Neither the state nor the local agency charged with managing the ESCA mentioned a concern with increased public usage when reviewing the Plan Amendments for impact on these resources. The Plan Amendments do not prohibit the managing entities from limiting, or otherwise regulating, the use of the ESCA to maintain its ecological integrity or from conducting public information and awareness campaigns. The Farrell Petitioners did not prove that the Plan Amendments fail to react appropriately to data regarding the natural resources present on the adjacent ECSA. Additionally, Petitioner Brooke argues the Plan Amendments do not react appropriately to data and analysis in the form of the community goals and vision established by the Comprehensive Plan USA/RSA concept. Brooke states that FLUE Goal 1 and its implementing objectives and policies establish the community’s “desired future development pattern” directing all urban densities and intensities to the USA. Thus, Brooke argues that the Plan Amendments, which direct urban densities and intensities of use to the RSA, do not react appropriately to the community goal and vision established by the Comprehensive Plan. Section 163.3177(1)(f) lists “community goals and vision” as a type of data, along with surveys, studies, and other data available at the time the plan amendment was adopted, on which the plan amendment must be based. The statute anticipates “community goals and vision” as something separate from, or other than, the comprehensive plan itself. Many communities have a free-standing vision statement which may, in part, inform future planning decisions. See Seminole Tribe of Fla. v. Hendry Co., Case No. 14-1441GM (DOAH Feb. 12, 2015). As such, the separate statement is a community vision or goal which may support a subsequent plan amendment. In this case, Petitioner Brooke has just repackaged an internal inconsistency argument as a data and analysis argument. Under the rubric of the Community Planning Act, the comprehensive plan must be based upon data and analysis that form the basis for crafting the goals, objectives, and policies of the plan. In order for that construct to make sense as the plan is amended going forward, plan amendments must be supported by data and analysis documented outside of the comprehensive plan itself. The comprehensive plan cannot constitute the supporting data and analysis for an amendment to itself.16/ While the undersigned applauds Petitioner Brooke’s creativity, the argument is not well-taken. The internal inconsistency argument was, however, both well-plead and well- proven. 2. Infrastructure and Services In both their Petition and PRO, the Farrell Petitioners raise the issue of whether the Plan Amendments react appropriately to data and analysis regarding the provision of infrastructure and services. However, their PRO fails to address this issue, focusing instead solely on the natural resources issue. It is unclear whether the Farrell Petitioners abandoned this claim, so it is addressed here in an abundance of caution. The Farrell Petitioners did not prove the Plan Amendments fail to react appropriately to data and analysis regarding the availability of infrastructure and services. The Plan Amendments require developer-funded connection to, and construction of onsite, wastewater and potable water services. The Plan Amendment is also contingent upon written infrastructure agreements to provide for public schools, emergency services, and parks and recreation services. Transportation impacts and funding of needed improvements are addressed through the transportation network agreements required by proposed FLUE Policies 6.9.3 and 6.9.4. No persuasive evidence supported a finding that these terms are not an appropriate reaction to data and analysis regarding the availability of infrastructure and services. Meaningful and Predictable Standards Finally, Petitioners challenge the Plan Amendments as contrary to section 163.3177(1), which requires comprehensive plans to establish “meaningful and predictable standards for the use and development of land and provide meaningful guidelines for the content of more detailed land development regulations.” The Farrell Petitioners’ allegation in the pre- hearing stipulation is generalized: “[T]he Plan Amendments . . . eliminate existing meaningful and predictable guidelines for development.” In their PRO, the Farrell Petitioners allege the Plan Amendments “eliminate[] . . . existing meaningful maximum allowable density limitations and replace[] density with average densities that are much higher urban densities” exceeding the RSA cap of 1du/10acres but outside the USA, thereby failing to provide meaning and predictable standards. The Farrell Petitioners did not elaborate this argument. Contrary to Petitioners’ assertion, the use of non- specific densities with mixed-use transect-based urban development in the County is neither new nor novel. The most prominent example being Innovation Way, which establishes a range of densities within each transect zone, allowing the final density to be established by the IW-PD-RP. See FLUE Policy 5.1.7. In fact, the process for approving a plan amendment to IW is identical to the LPSA text amendment: The proposed location of transect zones are depicted on a CRP during the IW map amendment process. No development within the IW boundary may be approved without an approved IW-PD-RP, which determines the adopted boundaries and location of the transect zones. See FLUE Objective 5.2 and implementing policies. What is new and novel about the LPSA approach is the County’s position that the development pattern and densities are rural, rather than urban. The Farrell Petitioners did not introduce evidence regarding whether the LPSA amendment process itself provides meaningful and predictable standards for the use and development of land.17/ The allegation that the use of average densities renders the Plan Amendment devoid of meaningful and predictable standards was not proven. Petitioner Brooke maintains that the Plan Amendments do not provide meaningful and predictable standards because they are internally inconsistent with the goals, objectives, and policies directing urban densities and intensities of use outside the USA. Petitioner Brooke’s arguments are, again, creative, but yet another attempt to get the proverbial second, or in this case, third bite at the apple. Repackaging an internal inconsistency issue as a “meaningful and predictable standards” issue does not ipso facto make it an meaningful and predictable standards issue. The Petitioners did not prove that the Plan Amendments fail to provide meaningful and predictable standards for the use and development of land and provide meaningful guidelines for the content of more detailed land development regulations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order determining that Orange County Comprehensive Plan Amendments 2015-2-P-FLUE-1 and 2015-2-A-5-1, adopted by Ordinance 2016-17 on July 12, 2016, are not “in compliance,” as that term is defined in section 163.3184(1)(b), Florida Statutes. DONE AND ENTERED this 11th day of August, 2017, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 2017.
The Issue Whether the City of Miramar Comprehensive Plan Amendment, adopted by Ordinance No. 1901 on October 17, 2018, is “in compliance,” as that term is defined in section 163.3184(1)(b), Florida Statutes (2018).1/
Findings Of Fact The Parties and Standing Petitioners own and reside on property located at 17428 Southwest 36th Street in Miramar, Florida. Petitioners submitted oral and written comments, recommendations, or objections to the City during the period of time between, and including appearances at, the transmittal hearing and the adoption of the Plan Amendment. Petitioners’ house is approximately 430 feet north of the property subject to the Plan Amendment (the “Subject Property”). Petitioners’ property is separated from the Subject Property by a residential canal, approximately 100 feet of wetland or marsh area, and a City street right-of-way. The residential canal is owned and controlled by Petitioners’ homeowner’s association. From the backyard of their home, Petitioners enjoy observing and photographing birds and wildlife that utilize the canal, including birds that can be seen from Petitioners’ property in the trees on the Subject Property and flying between the properties. The City is a Florida municipal corporation with the duty and authority to adopt and amend a comprehensive plan, pursuant to section 163.3167. Univision is a Delaware limited liability company authorized to transact business in Florida. Its principal business address is 500 Frank West Burr Boulevard, Teaneck, New Jersey 07666. Univision is the owner of the Subject Property. Lennar is a Florida limited liability company, whose principal business address is 700 Northwest 107th Avenue, Suite 400, Miami, Florida 33172. Lennar is under contract to purchase the Subject Property. Existing Conditions The Subject Property is approximately 120 gross acres of mostly undeveloped property. The Subject Property contains 102.2 acres of wetlands and 15.5 acres of uplands. At least 80 percent of the wetlands are covered by Melaleuca trees, which is an invasive species. Melaleuca is listed by federal and state agencies as a noxious weed, making it illegal to possess, sell, cultivate, or transport in Florida. The uplands on the Subject Property are limited to areas previously developed with radio transmission towers, a control room, and filled roadways connecting the on-site improvements. The improvements, with the exception of the fill roads, were removed in approximately 2017. The radio towers were secured by guy wires anchored by concrete blocks. The areas of the Subject Property underneath the guy wires were maintained to prevent vegetation from growing up into the guy wires. The areas where the concrete supports have been removed are wet, and the areas that were beneath the former guy wires contain fewer Melaleuca and some native vegetation, like sawgrass and ferns. However, the upland areas are also currently growing exotic grasses and Australian Pine, which are also invasive species. The Subject Property is currently designated on the City’s Future Land Use Map (“FLUM”) as “Rural.” Pursuant to the City’s Comprehensive Plan, the Rural land use category allows the following types of development: (1) residential development at a density of one dwelling unit per 2.5 gross acres (1du/2.5 acres); (2) agricultural and related uses, including crops, groves, horse and cattle ranches, private game preserves, fish breeding areas, and tree and plant nurseries; (3) parks; (4) police and fire stations, libraries, and civic centers; (5) special residential facilities, such as group homes; and (6) public utilities, including wastewater pumping stations, electrical utility substations, and telecommunications transmission facilities. The Plan Amendment The Plan Amendment changes the FLUM designation of the Subject Property from Rural to “Irregular (3.21) Residential,” which allows residential development at a density of 3.21du/acre.4/ Lennar proposes to develop 385 units on the property-- the maximum allowable under the Plan Amendment. Under Lennar’s development proposal, all of the on- site wetlands will be impacted. The Plan Amendment Process Broward County municipalities have a unique plan amendment review process. Each amendment to a municipal comprehensive plan must be consistent with, and incorporated into, the Broward County Land Use Plan (“BCLUP”). This Plan Amendment, as with all other municipal amendments, was reviewed and approved through both the County’s and City’s approval process. The Board of County Commissioners held an adoption public hearing on March 20, 2018, and approved Ordinance No. 2018-12, amending the BCLUP to change the County FLUM designation of the Subject Property from Agriculture to Irregular (3.21) Residential. On October 17, 2018, the City Commission held a duly advertised second public hearing, wherein the City voted to adopt the Plan Amendment. Lennar Permitting Lennar pursued permitting of its proposed development of the Subject Property during the Plan Amendment review process. On or about September 11, 2018, the Broward County Environmental Protection and Growth Management Department (“EPGMD”) issued an environmental resource license (“ERL”) for the proposed development. The ERL is based on Lennar’s site plan for the site, not the Plan Amendment. The ERL recognizes that the impacts on the Subject Property wetlands are unavoidable and determines that off-site mitigation is required to address any impacts on those wetlands. On or about September 11, 2018, the South Florida Water Management District issued an environmental resource permit (“ERP”) for the proposed development. The ERP is based on Lennar’s site plan and other required documents, not the Plan Amendment. The ERP provides that off-site mitigation is required to address any impacts on the Subject Property wetlands. On or about December 14, 2018, the Army Corps of Engineers (“ACOE”) issued a permit for the development proposed, based upon Lennar’s site plan and other required documents. The ACOE permit provides that off-site mitigation is required to address any impacts on the Subject Property wetlands. Petitioners’ Challenge Section 163.3177(2) directs that “the several elements of the comprehensive plan shall be consistent,” in furtherance of the major objective of the planning process to coordinate the elements of the local comprehensive plan. Petitioners allege the Plan Amendment is not “in compliance” because it creates internal inconsistencies with the existing Comprehensive Plan. Petitioners’ challenge rests on four provisions of the Comprehensive Plan: Future Land Use Element (“FLUE”) Goal (unnumbered), FLUE Policies 3.5 and 6.10, and Conservation Element Policy 7.3 (“CE Policy 7.3”). FLUE Goal (unnumbered) The City’s Comprehensive Plan contains one overarching goal for the FLUE, which reads as follows: Maintain a long-range future land use pattern which promotes orderly and well- managed growth and development of the community, producing quality neighborhoods, enhancing the city’s aesthetic appeal, conserving the natural environment and open space, supporting a vibrant economic tax base, and minimizing risks to the public’s health, safety, and welfare. (emphasis added). The goal is the singular goal for the overall FLUE, which includes 12 different objectives and many more policies for each objective. The purpose of the goal is to set the initial framework; it is a very broad statement setting the direction for the City’s long-term goals, but does not provide any measurable standards or specifics regarding implementation. Petitioners’ challenge focuses on the underlined phrase, and argues that the Plan Amendment is internally inconsistent with the goal’s direction to “conserv[e] the natural environment and open space.” The Subject Property is not currently designated as either “Recreation and Open Space” or “Conservation.” The Subject Property is private property that, by virtue of its land use designation, has always been intended for development as one of the uses allowable within the Rural land use category. Further, Eric Silva, the Director of the City’s Community and Economic Development Department, testified that the goal’s direction of “conserving the natural environment and open space” relates only to those areas that have been designated by the City, or another agency, for protection. The Recreation and Open Space Element (“ROS Element”) sets forth the specific objectives and policies to accomplish the City’s goal to “[p]rovide adequate and accessible parks and facilities to meet the recreation needs of all current and future Miramar residents.” In the ROS Element, the City has established a level of service standard of four acres of park and open space for each 1,000 City residents. Petitioners introduced no evidence that the Plan Amendment would diminish the amount of land designated for open space in the City, or otherwise impede the City’s progress toward the adopted standard. To the contrary, Mr. Silva testified that the City has over 300 extra acres of park space and that this Plan Amendment will not impact the City’s adopted level of service for parks and open space. Likewise, Petitioners introduced no evidence to support a finding that the Plan Amendment would reduce the amount of land designated for “Conservation” in the City. Rather, Petitioners argue that the Subject Property should be converted to a nature preserve, or otherwise placed in conservation use. The issue in this case is not whether the City should designate the Subject Property for a different use, but whether the designation the City proposes is consistent with the comprehensive plan. Petitioners did not prove the Plan Amendment is inconsistent with the FLUE Goal. FLUE Policy 3.5 Petitioners next contend the Plan Amendment is inconsistent with FLUE Policy 3.5, which directs the City to “[c]onsider the cumulative and long-term effects of decisions regarding amendments to the Land Use Plan Map and revisions to the Future Land Use Element.” Petitioners’ concerns here are similar to those with the FLUE Goal--the Plan Amendment will reduce green space and open space, which could be preserved under the existing Rural designation. Petitioners’ expert witness conceded that it is impossible to determine that the City did not consider the cumulative and long-term effects of the Plan Amendment. Moreover, the City introduced abundant evidence that it considered, during the lengthy Plan Amendment process, all impacts of the Plan Amendment on the City’s resources and infrastructure. Petitioners did not prove the Plan Amendment is inconsistent with FLUE Policy 3.5. FLUE Policy 6.10 Next, Petitioners argue the Plan Amendment is inconsistent with FLUE Policy 6.10, which states, “The City shall consider the impacts of land use plan amendments on wetland and native upland resources, and minimize those impacts to the maximum extent practicable.” Here, Petitioners focus on the density allowed under the Plan Amendment. Petitioners argue that the Plan Amendment is inconsistent with this policy because it allows development of 385 units, which will maximize, rather than minimize, impacts to the on-site wetlands. Petitioners argue that the residential density allowed under the existing Rural designation would yield development of only 48 units, which would provide for conservation of at least some of the wetlands on site, thereby minimizing the wetland impact. Petitioners’ argument ignores the fact that the Rural designation allows other types of non-residential development that may be as intense as residential, such as a civic center or fire station, or uses that require fewer improvements, but have a destructive effect on wetlands, such as horse or cattle ranches. The issue of whether the Plan Amendment minimizes impacts to wetlands is not determined by the mathematical function 48 units < 385 units. Instead, the determination hinges on the meaning of “minimizing impacts” in the City’s Comprehensive Plan. Under the City’s Comprehensive Plan, impact of development on wetlands must be considered in partnership with the County, and is dependent upon the value assigned to those wetlands, pursuant to the wetlands benefit index (“WBI”), as set forth in the Conservation Element. Based on the following relevant analysis, the Petitioners did not prove the Plan Amendment is inconsistent with FLUE Policy 6.10. CE Policy 7.3 Finally, Petitioners challenge the Plan Amendment as internally inconsistent with CE Policy 7.3, which reads as follows: The City shall distribute land uses in a manner that avoids or minimizes to the greatest degree practicable, the effect and impact on wetlands in coordination with Broward County. Those land uses identified below as being incompatible with the protection and conservation of wetlands and wetland functions shall be directed away from wetlands, or when compatible land uses are allowed to occur, shall be mitigated or enhanced, or both, to compensate for loss of wetland functions in accordance with Broward County Code of Ordinances, Chapter 27, Article XI, Aquatic and Wetland Resource Protection. Compatibility of Land UsesRelative to the Wetland Benefit Index (WBI) Wetland Benefit Index Land Use Compatibility 1. Wetlands with a WBI value greater than or equal to 0.80 1. There is a rebuttable presumption that all land uses except for conservation uses are incompatible. 2. Wetlands with a WBI value less than 0.80 2. All land uses are compatible, provided that the wetland impact compensation requirements of Chapter 27, Article XI, are satisfied. Source: Broward County Code of Ordinances, Chapter 27, Article XI, Aquatic and Wetland Resource Protection CE Policy 7.3 is more specific than FLUE Policy 6.10 regarding the City’s direction to minimize impacts of development on wetlands. Petitioners’ planning expert opined that the Plan Amendment is inconsistent with this policy because it does not “avoid or minimize” the impact of wetlands at all, much less “to the greatest degree practicable,” as directed by the policy. Petitioners’ expert based his entire argument solely on the first sentence of the policy. Petitioners’ planning expert explained, incredulously, that, in his opinion, the rest of the policy “doesn’t matter.”5/ The opinion of Petitioners’ expert was not persuasive. The Policy must be read in its entirety; and, when read as such, the Plan Amendment is consistent with the policy. The first sentence of the policy is precatory and direction-setting. It states the City’s intent to distribute land uses in a way that minimizes wetland impacts. The following sentences describe in more detail how that direction will be accomplished, and specifically reference the incorporated chart. The policy provides that land uses identified in the chart as incompatible with wetland protection “shall be directed away from wetlands.” By contrast, the policy provides that for land uses identified as compatible, wetland impacts “shall be mitigated . . . in accordance with the Broward County Code of Ordinances, Chapter 27.” It is undisputed that the wetlands on the Subject Property have a WBI value of less than .80. Pursuant to the chart, then, all uses of the Subject Property are compatible with the wetlands on-site, as long as the wetland impact compensation requirements of the Broward County Code are followed. The policy clearly provides that no development, regardless of density or intensity, must be directed away from the wetlands on the Subject Property. If the WBI value of the on-site wetlands was .80 or higher, pursuant to this policy, Petitioners’ position that the Subject Property should be placed in Conservation use would be presumed correct, although rebuttable. To that end, Petitioners introduced expert opinion testimony as to the quality of the wetland areas on-site which were previously maintained by the property owner--namely the areas under the guy wires. In the opinion of Petitioners’ wetlands expert, the on-site wetlands could be restored to higher quality if the Melaleuca trees were removed and the stumps sprayed to prevent regrowth. Petitioners’ argument is irrelevant to a determination of whether the Plan Amendment is consistent with this policy. Having established that the WBI value of the on-site wetlands is below .80, the issue of whether the on-site wetlands could be restored is irrelevant. Chapter 27 of the Broward County Code governs application for, and issuance of, an ERL for wetland alteration. On September 11, 2018, Broward County issued an ERL to Lennar for its proposed development of the Subject Property. Petitioner introduced no evidence to support a finding that the provisions of Chapter 27 were not satisfied by the County in issuing the ERL. Petitioners did not prove the Plan Amendment is inconsistent with CE Policy 7.3.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity enter a final order determining that the Plan Amendment adopted by City of Miramar Ordinance 1901, on October 7, 2018, is “in compliance,” as that term is defined by section 163.3184(1)(b), Florida Statutes. DONE AND ENTERED this 26th day of June, 2019, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of June, 2019.
The Issue The issue in these cases is whether the Collier County (County) Comprehensive Plan amendments adopted through Collier County Ordinance Number 02-32 ("the Rural Fringe Amendments" or "the Amendments") on June 19, 2002, are "in compliance," as defined in Section 163.3184(1)(b), Florida Statutes.
Findings Of Fact Background The Amendments at issue in these cases arose from a specific historical background which is relevant to help put them in context. In 1997, the County adopted Evaluation and Appraisal Report-based plan amendments ("EAR-based amendments"). DCA found the EAR-based amendments not to be "in compliance." Following an administrative hearing in which FWF and Audubon intervened, the Administration Commission entered a final order agreeing with DCA's determination. Joint Exhibit J.3. The Administration Commission’s final order, entered on June 22, 1999, directed the County to take the following steps in order to bring its comprehensive plan amendments into compliance: (1) rescind those EAR-based amendments found not in compliance; (2) adopt certain specific "remedial" amendments; (3) initiate an assessment of the area of the County designated on the Future Land Use Map ("FLUM") as Agricultural/Rural; (4) adopt interim amendments to remain in force during the course of the assessment; and (5) no later than June 22, 2002, adopt those plan amendments needed to implement the findings and results of the assessment. Summary of Rural Fringe Amendments In response to the Administration Commission's final order on the EAR-based amendments, the County elected to divide its Agricultural/Rural-designated area into two subdistricts-- Rural Fringe and Eastern Lands--for purposes of the assessment and implementing plan amendments. The Rural Fringe subdistrict was designated as "the Rural Fringe Mixed Used District" (or "the Rural Fringe"). The Rural Fringe is described in the amendments as follows: The Rural Fringe Mixed Use District is identified on the Future Land Use Map. This District consists of approximately 93,600 acres, or 7% of Collier County's total land area. Significant portions of this District are adjacent to the Urban area or to the semi-rural, rapidly developing, large-lot North Golden Gate Estates platted lands. * * * The Rural Fringe Mixed Used District provides a transition between the Urban and Estates Designated lands and between the Urban and Agricultural/Rural and Conservation designated lands farther to the east. The Rural Fringe Mixed Use District employs a balanced approach, including both regulations and incentives, to protect natural resources and private property rights, providing for large areas of open space, and allowing, in designated areas, appropriate types, density and intensity of development. The Rural Fringe Mixed Use District allows for a mixture of urban and rural levels of service, including limited extension of central water and sewer, schools, recreational facilities, commercial uses and essential services deemed necessary to serve the residents of the District. In order to preserve existing natural resources, including habitat for listed species, to retain a rural, pastoral, or park-like appearance from the major public rights-of-way within this area, and to protect private property rights, the following innovative planning and development techniques are required and/or encouraged within the District. J.4 at 50. Under the Amendments, the Rural Fringe was divided into areas designated as Sending, Receiving, or Neutral on the FLUM.18 J.5. Some Sending Areas are also designated Natural Resource Protection Areas (NRPAs). Receiving Lands "are those lands within the Rural Fringe Mixed Use District that have been identified as most appropriate for development . . . ." J.4. at 51. These lands have been chosen because they "have a lesser degree of environmental or listed species habitat value than areas designated as Sending and generally have been disturbed through development, or previous or existing agricultural operations." Id. Approximately 25,000 acres are designated Receiving Lands. Receiving Lands "are also located to allow for the provision of central water and sewer and have excellent access to the County's arterial road network." J.11. at 2. The base density within Receiving Lands is one dwelling unit per five acres. However, through the purchase of development rights from Sending Lands through the Transfer of Development Rights (TDR) program established by the Amendments (discussed in Findings 72-91, infra), Receiving Lands may increase density up to one dwelling unit per acre. Additional density may be obtained if a development preserves more than the minimum required amount of native vegetation. Limited commercial, industrial, and earth-mining uses are also allowed in Receiving Lands. Receiving Lands may also be developed as "Rural Villages." The Amendments provide for the possibility of one rural village within each of the four distinct Receiving Areas in the Rural Fringe. The purpose of rural villages is described as follows: Rural Villages may be approved within the boundaries of the Rural Fringe Mixed Use District in order to: maximize the preservation of natural areas and wildlife habitat within the Rural Fringe Mixed Use District; to reduce the need for residents of the District and surrounding lands to travel to the County's Urban area for work, recreation, shopping, and education; and, to enhance the provision of limited urban and rural levels of service through economies of scale. J.4 at 62. The rural villages permitted in the Rural Fringe must consist of compact neighborhoods with nearby neighborhood or village centers. The neighborhood or village centers are to include retail and office uses; public parks, squares, or greens; civic and government uses; and service facilities. J.4 at 63. Specific provision also is made for open space in and surrounding the rural village. J.4 at 63-64. In addition to the one-village-per-district limitation, the amendments impose the following additional locational criteria on a rural village: (1) it must be at least three miles from any other rural village; (2) it must have direct access to an arterial or collector road, or the developer must bear the cost of a new collector road directly accessing the village; and (3) it must be near already- existing or planned public infrastructure, such as water and sewer facilities. J.4 at 63. In addition, a rural village may only be approved if shown to be fiscally neutral to taxpayers outside the village. J.4 at 65. Neutral Lands "have been identified for limited semi-rural residential development" at a maximum density of one dwelling unit per five acres. J.4. at 55. Limited commercial, industrial, and earth-mining uses are also allowed in Neutral Lands. Approximately 7,000 acres have been designated as Neutral Lands. Sending Lands are those lands "that have the highest degree of environmental value" and "are the principal target for preservation and conservation." J.4. at 58. The residential use of this land is restricted to one dwelling unit per parcel which existed before June 22, 1999, or one unit per 40 acres, whichever yields the greatest density. Nonresidential uses of Sending Land, other than agriculture, are quite limited. There also are specific criteria for the protection of site-specific native vegetation, wildlife habitat, and wetlands. J.4 at 58-62; J.6 at 24, 27, and 29-30. Some of the land designated Sending is also subject to regulation as NRPA. The purpose of a NRPA designation "is to protect endangered or potentially endangered species and to identify large connected intact and relatively unfragmented habitat, which may be important for these listed species." J.4 at 79. Designation as a NRPA also limits the intensity and density of development in an area (J.4 at 58-61) and imposes specific restrictions for the preservation of native vegetation, wildlife habitat, and wetlands (J.6 at 24, 27, and 29). The principal additional effect of NRPA designation is to increase the requirement for the retention of native vegetation. In addition to the changes to the Future Land Use Element (FLUE), the Amendments also affected the Coastal and Conservation Element (CCE), Potable Water Sub-Element, and Sanitary Sewer Sub-Element. Standing of Petitioners and Intervenors The evidence was that the Husseys and Brown own property in Collier County and submitted comments regarding the Rural Fringe Amendments between the transmittal hearing and the adoption hearing. The parties stipulated to the standing of FWF, Audubon, Vision & Faith, and Section 20 Investments. There also was evidence that FWF and Audubon submitted comments regarding the Rural Fringe Amendments at both the transmittal hearing and the adoption hearing and that, at least as of June 14, 2000, they owned property or operated a business in Collier County and had members who reside in Collier County. Century is a for-profit corporation that has its principal place of business in Collier County. Century owns 12.5 acres of land in Collier County. According to the testimony of Donald Lester, President of both Century and Waterford Management, Inc., Century is a wholly-owned subsidiary of Century Holdings, a limited partnership. Waterford is Century Holdings' general partner. Waterford, Century, and approximately 300 other entities are limited partners of Century Holdings. All of these entities and the land they own are managed by Waterford. According to Lester, the various Waterford-managed entities are involved in real estate development and have spent $42 million (over $30 million in "land basis" and $7-8 million on professional fees and expenses) acquiring land for development in Collier County, including approximately $36 million for approximately 3,500 acres in North Belle Meade (NBM) in the Rural Fringe and approximately $6 million for another approximately 2,000 acres farther east in Collier County. There was no evidence that these lands have obtained any master development approval or are otherwise vested for development. Coalition is a not-for-profit corporation having its principal place of business in Collier County. Lester is its Executive Director. There was no evidence that Coalition itself owns property or conducts any type of business activity in Collier County, other than commenting on the Rural Fringe Amendments and participating in these administrative proceedings. Coalition is comprised of approximately 2,000 members. Of these members, approximately 300 are the various entities making up the Century Holdings partnership and managed by Waterford. A total of approximately 320-350 Coalition members own property approximately 3,500 acres in NBM; there was no evidence that the other approximately 1,650 members own property or conduct business in Collier County. An unspecified number of members own approximately 2,000 acres to the east of NBM in Collier County. According to Lester, some members voluntarily donate money to the Coalition; others have "been supporting the proceedings" in some unspecified manner. Lester testified at final hearing that he commented on the Rural Fringe Amendments on behalf of both Century and Coalition during the adoption hearing. He indicated that he filled out and submitted a "speaker card" in order to give his comments and that the card indicated that he was speaking on behalf of both Coalition and Century; but the card was not placed in evidence. The only other evidence on the subject consisted of the transcript of that hearing, which records Lester's introductory statement as follows: "I represent a director of 15,000 coalition. I represent landowners that own property within the TDR area." The transcript also reflects that Robert Diffenderfer commented and stated: "I represent the 15,000 coalition and literally thousands of individuals. . . . On behalf of coalition and the individuals, I have the list here. There are 4,000 plus of them." While the list was not placed in evidence, it can be inferred from Lester's testimony that it would have included Century and the other Coalition members owning land in Collier County. Petitioners' Challenges Petitioners' challenges to the Rural Fringe Amendments were narrowed during the course of this proceeding and now are essentially: (1) whether the County's delineation of Sending and Receiving Lands, especially within the NBM portion of the Rural Fringe, is based upon and reacts appropriately to the best available data19; and (2) whether the TDR Program is based upon and reacts appropriately to the best available data, in particular as to the feasibility of its operation.20 Delineation of Sending and Receiving Lands A. Data and Analysis The process of delineating Sending and Receiving Lands in the Rural Fringe was involved and complex. The County accumulated and considered a wide range of data in the process. Among the data sources used were: (1) the South Florida Water Management District's (SFWMD's) 1994/1995 Land Use/Land Cover map; (2) Natural Resources Conservation Service ("NRCS") soils survey data; (3) soils tables prepared by Florida soils scientist, Howard Yamataki; (4) the National Wetlands Inventory; (5) true-color aerial photographs provided by the County property appraiser's office; (6) the updated FWCC's "Closing the Gaps" Report; (7) FWCC's updated wildlife and wildlife habitat data, including its Florida panther and Florida black bear telemetry data and red-cockaded woodpecker colony data, as well as its updated strategic habitat data and Strategic Habitat Conservation Area (SHCA) maps; and (8) the 1999 U.S. Fish and Wildlife Service (USFWS) Multi- Species/Ecosystem Recovery Implementation Team (MERIT) data for South Florida, in particular pertaining to the Florida panther. The County also actively solicited updated data from property owners and other members of the public. These opportunities for public input included numerous publicly- noticed meetings and hearings before the Rural Fringe Advisory Committee (52 to 53 meetings), the Environmental Advisory Committee, the Planning Commission, and the Board of County Commissioners. At all of these meetings, the public was invited to submit information to the County. On two occasions, notification was mailed to each property owner in the Rural Fringe, alerting them of the County's consideration of the amendments and inviting their input. The County posted signs on the two main roads entering the Rural Fringe, notifying the public of the on-going evaluation of the Rural Fringe and providing a contact name and telephone number for those wanting further information. The County also solicited information from the public via the County web page. Members of the public did submit information, some of which resulted in adjustments to the designations ultimately adopted. For example, the County received data from both Audubon and the Collier County School Board regarding red-cockaded woodpecker (RCW) habitat in the northeast corner of NBM. Similarly, Brown submitted information regarding some of his land holdings in NBM that was used in the ultimate delineation of boundaries between Receiving and Sending. The Husseys also submitted data that was considered. While all information submitted by the public was considered, not all resulted in a change in designation. For example, the County received information regarding jurisdictional wetland determinations on four separate properties and reviewed that information in order to determine whether there was a consistent correlation between jurisdictional determinations and the wetlands land cover information obtained from SFWMD. No consistent correlation was found. In two instances, the jurisdictional wetlands were larger than the area shown as wetlands land cover; in the other two, they were smaller. Despite ample opportunity, the only information submitted to the County by the Husseys was a limerock mining exploration contract on some of their property; Coalition and Century did not make any information available to the County between the transmittal and adoption hearings.21 In its analysis of the data, the County recognized that they were collected during different time periods, ranging from the 1980s through 2001. The soils data from NRCS, for example, was developed in the early 1990's from Landsat satellite imagery from 1985-1989, while the panther telemetry data reflected field data through the end of 2001. SFWMD's data was generated based upon false color infrared aerial photography and reflected changes in land cover through 1995.22 At the time of adoption of the Amendments on June 19, 2002, SFWMD's land use/land cover data was the most recent publicly-available depiction of land uses and land cover in the Rural Fringe.23 Petitioners take the position that the NRCS Soils Survey data was the most accurate data available because it was "ground-truthed." But the NRCS data did not depict land use cover; and it was not proven that the NRCS data accurately and reliably depicted vegetative cover.24 Petitioners also criticized the County for not "ground-truthing" the SFWMD data despite having knowledge of inaccuracies in its depiction of jurisdictional wetlands. But even if it were the County's intention to delineate Sending Lands based on the presence of jurisdictional wetlands, "ground-truthing" would have required the collection of additional data, as Petitioners' own expert conceded. See Conclusion 105, infra. The Husseys also argued in their PRO that the NRCS soils survey data should have been used instead of the SFWMD land use and cover data to delineate wetlands because it was "ground-truthed." But even if it were the County's intention to delineate Sending Lands based on the presence of jurisdictional wetlands, the NRCS data does not purport to identify jurisdictional wetlands and should not be used as a proxy for the presence of jurisdictional wetlands due to drainage activities, particularly in NBM. The Husseys had a Lower Tamiami (Aquifer) Recharge/ Discharge map and a map of the County's Wellfield Protection Zones admitted in evidence and argued in their PRO that the County failed to consider these data in delineating Sending Lands and Receiving Lands. To the contrary, the only evidence was that these maps were considered by the County's environmental specialists. Moreover, there was no evidence that these data were in any way inconsistent with the delineation of Sending and Receiving Lands in the Rural Fringe. Having accepted the SFWMD land cover data as the most accurate indicator of land cover and land uses, the County "updated" Gaps Report maps of biodiversity hotspot areas (which were based upon 1980 satellite imaging) by removing areas shown on the more current SFWMD maps to have been cleared for agriculture by 1995 or 1996. Petitioners contended that "updating" the data in this manner made resulting data and analysis inaccurate and misleading by "masking" natural resource information. But those maps were intended to depict features on parts of the Rural Fringe not mapped as agricultural land use cover on SFWMD's land use cover maps. As such, these "updates" reflected the County’s reasonable determination that, while lands cleared for agricultural use can retain natural resource value, they generally have lower environmental and habitat value than uncleared wetland and forest. No evidence suggested that this judgment was unreasonable. The County's analysis resulted in sensible planning decisions that generally afforded undeveloped wetland or forested areas a higher level of protection than land that has been disturbed through agricultural clearing. Petitioners initially seemed to contend that the County failed to take into account changes in hydrology and wetland vegetative cover in NBM as a result of drainage canals and similar alterations. As the hearing progressed, however, it became clear that from the evidence that the County was aware of the changes in hydrology and vegetative cover in NBM and took those changes into account in its planning decisions. The best data and analysis available as of June 19, 2002, showed that NBM is utilized by both the Florida black bear and the Florida panther. The data and analysis indicate that both of these species make more use of areas to the east (the Florida Panther National Wildlife Refuge and largely undeveloped portions of Northern Golden Gates Estates) and south (the (South) Belle Meade NRPA and largely undeveloped portions of Southern Golden Gates Estates). However, both panther and black bear access NBM from those areas by crossing Everglades Boulevard to the east and Interstate 75 to the south. A significant population of black bear uses NBM. FWCC lists the Florida black bear as a threatened species. Areas mapped by FWCC as strategic habitat statewide would support approximately five populations of approximately 200 individual black bears. (By comparison, FWCC ideally would like to maintain enough strategic habitat to support ten populations of 200 individuals, in part to reduce adverse impacts from natural disasters and genetic problems from inbreeding.) FWCC lists the Florida panther as an endangered species. It is one of the most endangered large mammals in the United States. Only approximately 80 to perhaps 100 panthers are thought to exist in the wild, all in south Florida. The Florida panther faces extinction unless "aggressive action" is taken for its protection. Panthers require large areas of habitat to survive in the wild. Depending on habitat quality, individual males require a home range of 100-150, 200-250, or even as much as 400 square miles; females have a smaller home range of approximately 50-70 square miles. Notwithstanding its general goal of maintaining ten populations of 200 individuals, FWCC's realistic goal for the Florida panther is to maintain current panther habitat and population. The (South) Belle Meade NRPA is considered Priority 1 Panther Habitat by FWCC. Other Priority 1 and Priority 2 Panther Habitat exists farther to the southeast and east. While NBM is not as good for panther habitat, radio telemetry data show that panthers also use NBM. Telemetry data show that panther use of NBM has increased in the last ten years. This could be due in part to the introduction of a female Texas cougar as part of FWCC's breeding program. NBM is currently within the home range of at least one male Florida panther and the introduced female Texas cougar. (Other use is possible, as only about a third of the animals in the population are collared for telemetry.) The female denned and gave birth to three kittens in NBM in 1998. It is possible that panthers frequented NBM in the late 1990's in part because a ranch lessee on Brown property in Section 21 was operating a deer-feeding station there. Panther telemetry data seem to have decreased after Brown required his lessee to cease those operations. However, while panther may have returned to those feeding stations because of the deer being attracted, they first had to have been in the area to become aware of the deer being attracted. This indicates some panther use of NBM prior to establishment of the feeding station. FWCC and United States Fish and Wildlife Service data also indicated to the County that red-cockaded woodpecker (RCW) colonies existed in the old-growth forest areas that remain in the western part of NBM, nesting in cavities in these trees. There also were data that FWCC considered these lands to be RCW strategic habitat. To nest, RCWs need old-growth cavity trees in an area not overgrown with new growth. While there were data that drainage of land in NBM in the RCW strategic habitat area has resulted in invasion of melaleuca (a nuisance exotic species), RCW can continue to use the habitat and forage in and around the melaleuca unless the melaleuca blocks off the cavity tree. There were no data that RCW no longer use NBM due to melaleuca infestation. Much of the now-urbanized areas of Collier County once provided RCW habitat, but development has impaired the value of that land for RCW nesting and foraging. As with panther habitat, traditional RCW habitat has diminished under the current regulatory scheme, and additional protection is needed. The non-NRPA Sending Land in the western part of NBM is the last remaining viable RCW habitat that is not already in conservation status. In gathering and using data in the development of the Rural Fringe Amendments, the County was supported by various state agencies that informally reviewed and commented on the amendments. These agencies supported Collier's approach to the designation of Sending and Receiving Lands. It is found that the County used the best available data and reacted to it appropriately for planning purposes by applying professionally acceptable analysis in review and application of that data. Sending and Receiving Delineations in General Petitioners were most critical of the County's alleged exclusive use of the SFWMD vegetative and land use cover maps to delineate Sending Lands based on the presence of jurisdictional wetlands. But the evidence was clear that the County had no intention of designating Sending Lands solely on the basis of the presence of wetlands. See J.15 at 4 (identifying percentages of wetlands in each category, and showing that the County recognized there were wetlands in Receiving Lands and non-wetlands in Sending Lands). Petitioners' characterization of the County's effort was a gross oversimplification. It also was clear from the evidence that the County did not restrict its data and analysis to the SFWMD maps. Petitioners contended that the County ignored the actual boundary of natural features, such as wetlands, in delineating the boundaries of Sending and Receiving Lands. Instead, for planning purposes, the County attempted to delineate reasonably large, contiguous areas as Sending and Receiving Lands, rather than creating a "Swiss cheese pattern" of intermixed Sending and Receiving Lands, designating isolated pockets of Sending within a large Receiving Area, and vice versa. This made sense from a planning perspective, for a number of reasons, including: (1) it permitted concentration of infrastructure, reducing infrastructure costs; (2) it allowed greater opportunity for the protection of environmentally sensitive lands; (3) large, contiguous areas of habitat are necessary to support a viable population for some of the endangered species present in Collier County-- Florida panther, in particular; and (4) it prevented urban sprawl (in part because sufficient acreage must be available in order for higher density development feasible.) In some instances, the County chose to delineate the boundary between Sending and Receiving Lands with a straight, easily-defined line, rather than using the edge of some feature such as vegetative cover. This also made sense from a planning perspective. A straight boundary, such as a section line, is easier to administer and more easily communicated to the public than a natural feature like vegetation, which would require a survey and is often characterized by a gradual change, rather than the sharp demarcation necessary for a boundary. The County recognized that, as a result of the combined effect of its planning approach, Sending Lands would include some areas neither particularly environmentally sensitive nor--apart from the land surrounding it--valuable habitat. Conversely, some relatively environmentally- sensitive lands would fall within a Receiving Land designation; however, it also recognized that these lands would remain subject to site-specific criteria imposed both by the County's Comprehensive Plan (e.g., amended CCE Policy 6.1.2 criteria for preservation of native vegetation and amended CCE Policy 6.2.3 criteria for protection of wetlands25) and by state and federal regulatory programs. It was not shown that these planning decisions lacked merit; at the very least, their merit is fairly debatable. NBM Delineations Distilled to its essence, the testimony of the natural resource experts called by Petitioners argued that the natural resource data and analysis available at the time of adoption did not justify distinguishing Sending, Receiving, and Neutral Lands in NBM. In other words, their position was that measures for protection of practically the entire NBM would be an appropriate response to the data and analysis on wetland and forest cover and habitat value for Florida panther, Florida black bear habitat, and RCW. But it also is at least fairly debatable that the County's inclusion of Receiving and Neutral Lands in NBM was an appropriate response to the totality of the data and analysis. The Rural Fringe Amendments themselves include the County's rationale for the North Belle Meade (NBM) Receiving designations. The Receiving Areas are generally located in the northern portion of NBM [North Belle Meade] Overlay and are generally contiguous to Golden Gate Estates. Two sections are directly to the south of the APAC Earth Mining Operation. The Receiving Area exhibits areas of less environmental sensitivity than other portions of the NBM Overlay, because of their proximity to Golden Gate Estates and prior clearing and disturbance to the land. Within the Receiving Area of the NBM Overlay, are located Sections 21, 28 and the west 1/4 of Sections 22 and 27, which have been largely assembled under one property ownership. These lands are located south of the existing APAC earth mining operation and have been largely impacted by agricultural operations. The location of Sections 21 and 28 is just to the south and west of Wilson Boulevard located in the southern portion of north Golden Gate Estates. Because an earth mining operation and asphalt plant uses have existed for many years in the area, and the surrounding lands in Sections 21, 28 and the western halves of Sections 22 and 27 are reported to contain Florida Department of Transportation grade rock for road construction, these uses are encouraged to remain and expand. J.4 at 76-77. Section 20 (just west of Section 21) also was designated as Receiving. The southwestern corner of NBM, consisting of Sections 26 (Range 2626), 29, 30, 31, and 32, and the eastern half of Section 36 (Range 26) was designated as non-NRPA Sending, along with the southern halves of Sections 13 and 14 in the northeast corner. The southeastern corner (consisting of the eastern 3/4 of Sections 22 and 27, along with Sections 23, 24, 25, 26, 34, 35, and 36) was designated as NRPA Sending. The northwest corner (Section 24, Range 26) was designated Neutral, as was the northern halves of Sections 13 and 14 in the northeast corner. The 15,552 acres in NBM are surrounded on the south by the South Belle Meade (SBM) NRPA across Interstate 75; on the east by largely undeveloped portions of Northern Golden Gate Estates (NGGE); on the north by a more developed portion of NGGE; and on the west by Urban Fringe future land use, which is sandwiched between NBM and more densely developed urban land use to the west. NGGE is the fastest-growing area of the County. It is part of a proposed sprawling, essentially single-use residential development. To date most actual development in NGGE has occurred in the western part of it, closer to more urban uses, and along Golden Gate Boulevard, which is the main east-west road in NGGE. Because the western part of NBM does not extend as far north as the eastern part, it is farther away from Golden Gate Boulevard and its development than the eastern part of NBM. In NBM, the SFWMD data showed practically all wetland cover with some upland forest interspersed in the six sections making up the southeast corner of NBM, as well as the next section to the southwest (Section 34). The section of land immediately to the north of Section 34 (Section 27) showed up as wetland cover over approximately the eastern half and agricultural use over approximately the western half of the section. The section north of 27 (Section 22) showed up as mostly wetland cover with some agricultural use in the northwest corner and some forested upland in the northeast corner. To the north of Section 22 was a section (number 15) with a mix of urban use, agriculture, wetland, and forested upland cover. Proceeding to the east, Section 14 showed up as mostly forested upland, and Section 13 in the northeast corner with mostly wetland cover with some agriculture. The opposite (far western) side of NBM was shown to have approximately eight sections of land with predominately forest land use cover, interspersed with some wetland and agricultural use. Down the center of NBM are four sections shown by the SFWMD data to have, from north to south: (1) predominately, earth mines and mine pit lakes (Section 16); (2) predominately agriculture (Section 21); (3) a mix of agricultural, forested upland, and wetland cover (Section 28); and (4) approximately half forested (the southwest half) and half wetland cover (the northeast half) (Section 33). Of importance for planning purpose, Wilson Boulevard intersects Golden Gate Boulevard and extends south to the edge of NBM at a point approximately 500 feet west of the northeast corner of Section 16. There are plans to extend Wilson Boulevard south into NBM 500 feet west of the eastern boundaries of Sections 16, 21, 28, and 33. Co-location of infrastructure within the right-of-way of the Wilson Boulevard extension would make sense from a planning standpoint. Allowing development to proceed elsewhere in NBM would exacerbate urban sprawl. It also would be possible to locate rural village North Belle Meade near the proposed Wilson Boulevard extension so that public infrastructure could be provided to both the rural village and the existing residents of NGGE. While Section 20 includes both cleared and uncleared areas, it abuts NGGE on the north and west and other Receiving Land on the east. For that reason, the County considered it to be appropriate for future development. Section 28 also includes a "mixed bag" of habitat features and agriculture. However, the remaining forested areas are less valuable as habitat because they are surrounded by agriculture. In addition, prior to the date of adoption, an application had been filed to allow mining in Sections 20 and 28, as well as in Sections 21 and 27. The permit authorizing this mining was issued in December 2002. Once land is disturbed by mining, it loses its value as panther habitat. Taking all of these factors into consideration, the County judged Section 28 to be more appropriately designated as Receiving. The designation of the western quarters of Sections 22 and 27 as Receiving resulted both from the mixture of disturbed and undisturbed property in those areas and from their location in relation to the planned extension of Wilson Boulevard. This proximity to a planned, future transportation corridor was an important factor in identifying areas appropriate for development. Initially, all of the western part of NBM was to be designated as non-NRPA Sending Lands because of the RCW data. But the County School Board and Audubon furnished additional data pertaining to the extreme northwest section (Section 24, Range 26), which resulted in the ultimate designation of the land as Neutral. Even apart from any environmental or habitat distinctions, there are other valid land use planning reasons for the County's Receiving designations. The proximity of the NBM Receiving Lands to the most populous portion of NGGE makes them appropriate for future, mixed-use development. (In contrast, the part of NGGE near the NBM NRPA is not as densely developed and is not growing as fast as the part immediately north of the NBM Receiving Area.) Since NGGE is a large, single-use residential development, residents are currently required to travel great distances for commercial and other services. By encouraging more compact, mixed-use development in the part of NBM immediately adjacent to the most populous part of NGGE, the County hopes to address this dearth of ancillary, commercial, and institutional uses for the present residents of NGGE, as well as the future residents of NBM. In addition, the NBM Receiving Area is located so as to facilitate an extension of sewer and water service along Golden Gate Boulevard and, from there, into NBM. Recognizing that, with updated data, some of these delineations may need adjustment, the County made specific provision in the amendments for owners of Sending and Neutral Lands to submit additional data in support of a change in designation. J.4 at 61. In summary, it is found that the County's delineations of Sending and Receiving Lands in the Rural Fringe, and in NBM in particular, were based on data and analysis--i.e., they reacted appropriately to the extensive data available to the County on the date of adoption--and accomplish the County's objectives, including protection of environmentally sensitive land and habitat, control of urban sprawl, and successful implementation of the TDR program, which required maintenance of an adequate ratio between Sending and Receiving Lands. See Findings 72-91, infra. At the very least, the delineations are fairly debatable; and the contentions of Coalition, Century, and the Husseys to the contrary are rejected. TDR Program The County recognized that the additional restrictions on much of the property within areas designated as Sending may have an effect on property values. As a consequence, the County included a transfer of development rights ("TDR") program in the Rural Fringe Amendments. The Amendments describe the purpose of the TDR program as follows: The primary purpose of the TDR process within the Rural Fringe Mixed Use District is to establish an equitable method of protecting and conserving the most valuable environmental lands, including large connected wetlands systems and significant areas of habitat for listed species, while allowing property owners of such lands to recoup lost value and development potential through an economically viable process of transferring such rights to other more suitable lands. Within the Rural Fringe Mixed Use District and within designated areas of the Agricultural/Rural Mixed Use District, residential density may be transferred from lands designated as Sending Lands to lands designated as Receiving on the Future Land Use Map, subject to [certain expressly delineated criteria] . . . . J.4 at 50-51. The County's TDR program is an innovative land planning technique that is intended to enhance the protection of environmentally sensitive areas, provide for cost-efficient delivery of public facilities and services, and prevent urban sprawl. J.4 at 50. It is designed to give property owners an incentive to protect their property from development while receiving a return in value through the sale of development rights. In so doing, it also serves as a land management technique to direct development from areas where it is not desired, while preserving the value of that area. TDR programs balance the protection of areas incompatible with development with the preservation of private property rights. They are also recognized as a development tool for overcoming urban sprawl. Through the TDR Program, the owners of Receiving- designated property may increase the allowable residential density on their property by purchasing or otherwise obtaining development credits transferred from property designated as Sending. Forty acres of property in Sending--while assigned an allowable density of only one residential unit--is worth eight development credits (one credit for each five acres). J.4 at 58. The specifics of the TDR program, including the process for the "sale" of development rights and the tracking of these transactions, are to be established by the County in its Land Development Regulations (LDRs) within one year. The specific dollar value of a TDR credit will ultimately be decided by the marketplace. Based on a study of land sales in Collier County, the County's expert, Dr. James Nicholas, concluded that a single credit would probably be worth approximately $18,500. Dr. Henry Fishkind, the expert called by Coalition and Century, agreed that this figure is supported by sales data in the area. For example, a property owner with 40 acres in a Sending area could build one residence on that property, or he could sell eight TDR credits to someone who plans to develop a more compact development in a Receiving Area. J.4 at 58-59. If the Sending Land owner elects the latter, he retains ownership of his property and may still utilize it for certain specifically identified purposes, including agriculture, passive parks, passive recreational uses, certain essential services, and oil extraction. J.4 at 60-61. A property owner with 40 acres in a Receiving area could build eight residences on that property without purchasing any development credits, or he could purchase 32 TDR credits and build 40 residences. Once he has obtained enough TDR credits to achieve this one-to-one density, he could further increase his residential density slightly by preserving more than the minimum required native vegetation on site. J.4 at 51. Dr. Nicholas warned that an excess supply of TDR credits, relative to the amount of Receiving Land available to receive those credits, would undermine the success of the TDR program. The ratio of Receiving Land to Sending Land is critical. Dr. Nicholas prefers a ratio of at least two acres of Receiving Land to each acre of Sending. This ratio is not achieved within the Rural Fringe. Rather, the ratio is approximately 1:1 (25,729 acres of Receiving to 23,720 acres of Sending). See J.15 at 4 (which lists the acreages within each category). Taking into consideration Sending Lands that are already developed, Dr. Nicholas testified that approximately 4,100 TDR credits would be generated from the Sending Lands. Approximately 6,100 credits could be absorbed in the Receiving areas, where densities of up to one unit per acre--an increase of four additional units--can be achieved through a purchase of TDR credits. J.4 at 51. In order to bolster the demand for TDR credits, the Rural Fringe Amendments include a number of other additional markets for credits. First, the amendments provide for a limited transfer of TDR credits outside of the Rural Fringe for two purposes: (1) in-fill in the Urban Area on parcels of 20 acres or less; and (2) transfer from areas within one mile of the Urban boundary into lands designated Urban Residential Fringe. J.4 at 34-35. These two options will create a market for approximately 1,000 additional TDR credits (250 as urban in-fill and 750 in the urban fringe.) In addition, the Amendments provide a market for TDR credits for the development of rural villages. See Findings 11-13, supra, for description of rural villages. Rural villages must be at least 300 acres in size, up to a maximum of 1,500 acres, with the exception that a rural village located south of the (South) Belle Meade NRPA, which is south of Interstate 75, may be as large as 2,500 acres. The minimum and maximum gross densities for a rural village outside NBM are two units per acre and three units per acre, respectively. J.4 at 63. Thus, a rural village outside NBM must include at least 600 residential units, but could have as many as 4,500 or 7,500, depending upon its location. For each TDR credit purchased for the development of a rural village, the purchaser receives one bonus, up to the minimum required density, and the minimum density can only be achieved through the combination of base density, TDR credits, and TDR bonuses. J.4 at 64. Additional density--up to the maximum of three units per acre--can be achieved through the purchase of more TDR credits, through the preservation of more native vegetation on site than the minimum required, and/or through the inclusion of affordable housing. J.4 at 64. Consequently, for a rural village of 1,500 acres outside NBM, the developer would need to build at least 3,000 dwellings (2 units per acre). Assuming that the rural village is surrounded by a 800-acre greenbelt,27 it would start with a base density of 460 units28 and would need to purchase 1,270 TDR credits in order to achieve his minimum density of two units per acre. The provisions applicable to the one rural village permitted in NBM differ slightly. There, the minimum gross density is 1.5 units per acre, of which at least 0.5 units per acre must be obtained through the purchase of TDRs. J.4 at Assuming the same 1,500-acre development with an 800-acre greenbelt as described above, the developer would need to acquire 1,790 units more than would be available through the combined base densities of the village itself and the greenbelt in order to achieve minimum density.29 Of these additional units, 750 would have to be obtained through the purchase of TDR credits. Recognizing that there will probably be no more than two or three rural villages developed, Dr. Nicholas estimated that rural villages will absorb between 4,000 and 7,500 TDR credits, with the greater probability that the absorption rate will be closer to the lower number. Thus, in combination with the other markets for TDR credits created by the amendments, Dr. Nicholas estimated that there will be a demand for approximately 11,100 credits, resulting in a more acceptable ratio of just under three units of demand to one unit of supply. In their PRO, the Husseys attempted to raise the specter that the Amendments create too large a market for TDR credits so as to trigger Dr. Nicholas' concerns that, in that situation, potential transfers would be frustrated because TDR prices would rise to levels making their use infeasible for potential users, including developers of rural villages. But the Husseys based their concerns on maximum potential absorption of TDR credits, raising the supposed ratio of TDR buyers to sellers to 7-to-1 (or even 8-to-1 by disregarding the Urban Fringe one-mile limitation described in Finding 82, supra). The greater weight of the evidence was that the realistic market for TDR credits will be much smaller than the maximum potential absorption rates. Taking the realistic market into account, the probable actual absorption ratio is not much more than 2-to-1, which is ideal according to Dr. Nicholas. It also should be noted that the Husseys' arguments run counter to the testimony of their own expert on the subject. Dr. Fishkind agreed with Dr. Nicholas that there will be a functioning market for TDR credits generated from the Sending Areas, that the County’s TDR program is economically feasible, and that the County has the capacity to administer it. In addition, the Amendments include specific provisions requiring the County to establish a process for evaluating the TDR program. J.4 at 62. The purpose of such monitoring will be to assess whether revisions, such as the addition of either more Sending or Receiving Land or a change in the value of TDR credits, are necessary to ensure the success of the program. In concept, the success of the TDR program in achieving the objectives of directing development away from some areas and toward others, while preserving value in the former, is at least fairly debatable. The program's actual success in achieving these objectives initially hinges upon whether the County has appropriately designated Receiving and Sending Lands. If necessary, changes can be made to improve the program and increase its chances of success.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order finding the Collier County's Rural Fringe Amendments to be "in compliance." DONE AND ENTERED this 29th day of April, 2003, in Tallahassee, Leon County, Florida. ___________________________________ J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 2003.
Findings Of Fact On or about December 10, 1987, the Department filed Proposed Rules 9J- 14.006 and 9J-15.006 with the Department of State, and published notice of its intent to adopt these proposed rules in the December 18, 1987 edition of the Florida Administrative Weekly. In pertinent part, these proposals disapprove certain Map Amendments requested by Petitioners, and approved by the Monroe County Board of County Commissioners in October, 1987. Petitioners timely filed petitions for draw-out proceedings pursuant to Section 120.54(17), Florida Statutes, and in March, 1988, the Department transmitted these petitions to the Division of Administrative Hearings for a hearing under the provisions of Section 120.57, Florida Statutes. The Department has determined that normal rule-making proceedings under Section 120.54 are not adequate to protect Petitioners' substantial interests, and has suspended rule-making regarding these Petitioners and the Map Amendments at issue in this case. Petitioners' standing is not at issue in this proceeding. The Florida Keys' Comprehensive Plan was adopted by the Monroe County Board of County Commissioners in February, 1986, and Volume III of the Plan, consisting of land development regulations, was approved by the Department and the Administration Commission in July, 1986. The Department uses, and relies upon, the provisions of this Plan in interpreting and applying the Principles For Guiding Development set forth at Section 380.0552(7), Florida Statutes, and in determining if proposed changes in land development regulations or Plan amendments are in compliance with said Principles. As part of its Comprehensive Plan, Monroe County adopted land use district maps in February, 1986, which depict the approved land use and zoning of individual parcels. Petitioners herein urge that the zoning of their parcels in February, 1986, as portrayed on the district maps, is in error or is not justified due to their particular circumstances. Therefore, they have sought Map Amendments which were approved by the Monroe County Board of County Commissioners in October, 1987, but which the Department proposes to disapprove as not in conformance with the Principles for Guiding Development. All proposed changes to land use district maps must take into account the uses and restrictions applied to the districts by the development regulations, as well as the goals and policies set forth in the Plan. The Keys' Comprehensive Plan states that amendments or changes may be considered by the Board of County Commissioners based on: changed projections, such as public service needs, from those on which the text or boundary was based; changed assumptions, such as regarding demographic trends; data errors, including errors in mapping, vegetative types and natural features; new issues; recognition of a need for additional detail or comprehensiveness; and data updates. However, no change may be approved if it results in an adverse community change. Typographical or drafting errors may be corrected by the Board at any time, without notice or hearing. In pertinent part, the land development regulations set forth in Volume III of the Keys' Comprehensive Plan provide: Existing Uses All uses existing on the effective date of these regulations which would be permitted as a conditional use under the terms of these regulations shall be deemed to have a conditional use permit and shall not be considered nonconforming. * * * Sec. 5-201. Uses permitted as of right are those uses which are compatible with other land uses in a land use district provided they are developed in conformity with these regulations. * * * Sec. 5-301. Conditional uses are those uses which are generally compatible with the other land uses permitted in a land use district, but which require individual review of their location, design and configuration and the imposition of conditions in order to ensure the appropriateness of the use at a particular location. * * * Sec. 7-101. The purpose of this Chapter is to regulate and limit the continued existence of uses and structures established prior to the enactment of these regulations that do not conform to the provisions of these regulations. Many non-conformities may continue, but the provisions of this Chapter are designed to curtail substantial investment in non-conformities and to bring about their eventual elimination in order to preserve the integrity of these regulations. * * * Sec. 7-103. Nonconforming Uses. Authority to continue. Nonconforming uses of land or structures may continue in accordance with the provisions of this Section. Ordinary repair and maintenance. Normal maintenance and repair to permit continuation of registered nonconforming uses may be performed. Extensions. Nonconforming uses shall not be extended. This prohibition shall be construed so as to prevent: Enlargement of nonconforming uses by additions to the structure in which such nonconforming uses are located; or Occupancy of additional lands. Relocation. A structure in which a nonconforming use is located may not be moved unless the use thereafter shall conform to the limitations of the land use district into which it is moved. Change in use. A nonconforming use shall not be changed to any other use unless the new use conforms to the provisions of the land use district in which it is located. Termination. Abandonment or discontinuance. Where a nonconforming use of land or structure is discontinued or abandoned for six (6) consecutive months or one (1) year in the case of stored lobster traps, then such use may not be re-established or resumed, and any subsequent use must conform to the provisions of these regulations. Damage or destruction. ... if a structure in which a nonconforming use is located is damaged or destroyed so as to require substantial improvement, then the structure may be repaired or restored only for uses which conform to the provisions of the land use district in which it is located. Fair market value shall be determined by reference to the official tax assessment rolls for that year or by an appraisal by a qualified independent appraiser. The extent of damage or destruction shall be determined by the Building Official, in consultation with the Director of Planning, by comparing the estimated cost of repairs or restoration with the fair market value. Sec. 7-104. Nonconforming Structures. Authority to continue. A nonconforming structure devoted to a use permitted in the land use district in which it is located may be continued in accordance with the provisions of this Section. Ordinary repair and maintenance. Normal maintenance and repair of registered nonconforming structures may be performed. Relocation. A nonconforming structure, other than an historic structure previously listed on the National Register of Historic Places or the Florida Inventory of Historic Places, or designated as historic by the Board of County Commissioners, shall not be moved unless it thereafter shall conform to the regulations of the land use district in which it is located. Termination. Abandonment. Where a nonconforming structure is abandoned for twelve (12) consecutive months, then such structure shall be removed or converted to a conforming structure. Damage or destruction. Any part of a nonconforming structure which is damaged or destroyed to the extent of less than fifty percent of the fair market value of said structure may be restored as of right if a building permit for reconstruction shall be issued within six (6) months of the date of the damage. ... any nonconforming structure which is damaged or destroyed so as to require substantial improvement may be repaired or restored only if the structure conforms to the provisions of the land use district in which it is located. Fair market value shall be determined by reference to the official tax assessment rolls for that year or by an appraisal by a qualified independent appraiser. The extent of damage or destruction shall be determined by the Building Official, in consultation with the Director of Planning, by comparing the estimated cost of repairs or restoration with the fair market value. THE BROTHERS' PROPERTIES Map Amendment 48 was requested by R. Krajfasz, Bruce Barkley and Betty Brothers Rein (Case No. 88-1071 RP) concerning certain property they own on the west shore of Little Torch Key which is currently zoned NA (native area) , and which they are seeking to have rezoned SC (suburban commercial). This is an undeveloped parcel with 700 feet adjacent to, and to the south of, U.S. 1, which is surrounded by other, larger, undeveloped properties zoned NA and SR (suburban residential). The property is a salt marsh wetland which cannot be developed without substantial filling. Existing conditions include scrub mangroves, buttonwood and mangrove stands. The Keys' Comprehensive Plan recognizes the unique and irreplaceable character of the area's natural environment and seeks to protect the quality of nearshore waters, wetlands, and transitional areas through the designation, NA. It expresses the policy of prohibiting the destruction, disturbance or modification of any wetland, except where it is shown that the functional integrity of such wetland will not be significantly adversely affected by such disturbance. There has been no such showing regarding Map Amendment 48. It is also an expressed policy in the Plan to establish and promote a scenic corridor along U.S. 1, and prohibit development along U.S. 1 that disturbs the natural horizon. (See Sections 2-103, 104, 105 and 109, Vol. II, Keys' Comprehensive Plan.) Approval of this Map Amendment is inconsistent with these policies since SC zoning allows much more intensive use of the property, placing a greater demand on water resources and other infrastructure in the Keys. Bud and Patricia Brothers have requested the rezoning of certain undeveloped properties they own on Big Pine Key, known as Long Beach Estates, consisting of approximately 14 acres planned for a motel site, and 30 lots of greater than one acre each. These requests are for Map Changes 61 and 63 (Case Nos. 88-1074 and 88-1075 RP). These properties are currently zoned NA, and the rezoning sought is SR. Existing conditions consist of red mangrove, hammock species, sea grape, pond apple, bay cedar and similar species. Map Amendments 61 and 63 have not been shown to be consistent with the Future Land Use Element in that they would reasonably result in development which would have significant adverse affects on wetland areas, beaches, berms and the quality of nearshore waters. (See Sections 2-104, 105 and 107.) The requested rezonings of the Brothers' Properties (Map Amendments 48, 61 and 63) would be inconsistent with the Principles for Guiding Development. Specifically, they would adversely affect the shoreline and marine resources, including mangroves and wetlands, native tropical vegetation, dunes, water quality and the natural scenic resources of the Florida Keys. Petitioners failed to present competent substantial evidence in support off these requested Map Amendments. There is no demonstrated need for additional commercial development in the Little Torch Key area. BIG PINE KEY Petitioners Schirico Corporation and BHF Corporation have filed Map Amendments 66 and 67, respectively, (Case Nos. 88-1076 and 88-1077 RP) which seek to rezone their properties on Big Pine Key to SC from NA and SC (Schirico), and from SR (BHF). Although there was conflicting evidence concerning the exact extent of wetlands on the Schirico property, both the Petitioner and the Department presented evidence demonstrating that a significant portion of the property in Map Amendment 66 is wetland with wetland species, including black, white and red mangroves, and buttonwood. The property is in a transition zone between uplands and wetlands, and is crisscrossed with mosquito ditches. The requested Amendment is for the entire undeveloped parcel of almost ten acres, designating it all SC. The BHF parcel is approximately 5 acres in size, undeveloped, and is located off of U.S. 1 with SC property between it and U.S. 1. The property is also adjacent to SR and IS (improved subdivision) properties. The traffic flow along an arterial road from this parcel to U.S. 1 is very heavy due to existing commercial development and the county road prison camp located in close proximity. This parcel acts as a buffer between commercial uses, and would be an ideal site for affordable housing. There is an excess of undeveloped SC property on Big Pine Key, and, therefore, both of these proposals are inconsistent with sound economic development. Map Amendment 66, requested by Schirico, is inconsistent with the Principles of Guiding Development which seek to protect mangroves, wetlands, fish and wildlife, and their habitat, as well as native tropical vegetation, and to limit adverse impacts of development on water quality in the Keys. Map Amendment 67, requested by BHF, is inconsistent with the Principles for Guiding Development which emphasize the need to strengthen local government's land use management capabilities, provide affordable housing, and to protect the public welfare. THE MEDIAN STRIP The following Petitioners own property which comprise the median strip between U.S. 1 and County Road 5 on Plantation Key: Robert Vaughn (Map Amendment 170; Case No. 88- 1094 RP); Diane Droney (Map Amendment 172; Case No. 88-1095 RP); Jean Anderson (Map Amendment 173; Case No. 88-1096 RP); Monte Green (Map Amendment 174; Case No. 88-1097 RP); Harry Palen (Map Amendment 175; Case No. 88-1098 RP); Robert Vaughn (Map Amendment 176; Case No. 88-1099 RP); and Karl Beckmeyer and William Horton (Map Amendment 177; Case No. 88-1100 RP). In addition, Petitioners Outdoor Advertising of the Keys (Case No. 88-1067 RP), Dorothy M. Baer (Case No. 88-1092 RP) and C. W. Hart (Case No. 88-1093 RGA) support Map Amendments 170, 172-177. The median strip between U.S. 1 and County Road 5 is 120 feet deep and individual lots in the median are generally 60 feet wide. Petitioners each own from one to six lots in the median strip which are currently used and developed for substantially commercial purposes, such as cabinet making and sales, greeting card and novelty shop, retail plant nursery and office, a mini-mall with 17 stores, gas station and a professional office building. Current zoning of this property is SR, and Petitioners seek SC zoning with these Map Amendments. Although there is some undeveloped property in the median strip, there is no residential development in this strip. A 120 foot wide strip between highways is not appropriate for residential development. This median strip is primarily a commercial area, and Petitioners in this case have existing commercial uses, or own property adjacent to such commercial uses. Therefore, these applications should be dealt with together, as one package, rather than individually, according to Maria Abadal, the Department's planning manager who directs the critical area program in the Keys. Abadal testified that commercial areas should be zoned for commercial uses, and SC is a commercial zoning classification. Donald Craig also testified that some of these Map Amendments should be approved because SR is intended to encourage residential development, and residential uses are not appropriate in a median strip. He noted that other median strips in the Upper Keys have SC zoning. Finally, Bernard Zyscovich confirmed that the character of this strip is clearly commercial, and it is not appropriate for residential development. Of particular relevance to these Map Amendments are the following provisions of the Keys' land development regulations: Sec. 9-106. Purpose of the Sub Urban Commercial District (SC) The purpose of this district is to establish areas for commercial uses designed and intended primarily to serve the needs of the immediate planning area in which they are located. This district should be established at locations convenient and accessible to residential areas without use of U.S. 1. Sec. 9-107. Purpose of the Sub Urban Residential District (SR) The purpose of this district is to establish areas of low to medium density residential uses characterized principally by single-family detached dwellings. This district is predominated by development; however, natural and developed open space create an environment defined by plants, spaces and over-water views. All of Petitioners' properties allow access from County Road 5, and, therefore, can be used without disrupting the flow of traffic along U.S. 1. Most of Petitioners' existing commercial buildings are less than 2500 square feet. Buildings of this size are allowed as a matter of right in SC zoning, but are a conditional use in SR zoning. Therefore, if destroyed by fire or natural disaster, Petitioners could not replace existing structures as a matter of right under their current SR zoning, but could do so under SC zoning sought by these Map Amendments. Maria Abadal expressed the Department's opposition to these Map Amendments, which she stated ware inconsistent with the policies expressed in the Keys' Comprehensive Plan to restrict upland clearing along U.S. 1, prohibit development that is disruptive of the natural horizon along U.S. 1, and promote a scenic corridor along U.S. 1. However, these parcels are already cleared, and have been used for commercial purposes for many years. There is, therefore, no basis for a finding of inconsistency based upon these policies. She also testified that these Amendments are inconsistent with the Principles for Guiding Development which seek to protect the historical heritage, character, and natural scenic resources of the Keys. There is no basis to find that an existing commercial area will be inconsistent with these Principles since there is no evidence in the record of any unique historical heritage, character or scenic resources associated with these commercial uses. By recognizing the existing character of these parcels, and allowing their continued commercial use as a matter of right in the event of destruction by fire or a natural disaster, approval of these Map Amendments would appear to reduce the need for new commercial uses elsewhere on Plantation Key, while assuring continued citizen access to long-standing commercial activities. THE SEWAGE PLANT NEIGHBOR Robert and Judy Wittey have filed Map Amendment 194 which seeks to rezone their 100 foot by 152.47 foot lot on Plantation Key from IS (Improved Subdivision) to SC (Case No. 88-1113 RP). Petitioners currently use this property to operate a commercial air conditioning business, with fiberglassing, welding and associated storage. There is a 5200 square foot commercial building on the property. Surrounding uses include a condominium, with its sewage treatment plan located immediately adjacent to the Wittey property, a high school athletic field, with a sewage treatment facility within 150 feet of this property, the high school's automotive repair garage and vocational training facilities, and a commercial contracting business. A generator for the condominium is also located next to this property. There are no single-family residential uses on the street where this property is located. The Wittey property is not part of a platted subdivision. Under its current IS zoning, the building located on this property is a nonconforming use, and may not be expanded or reconstructed if destroyed by fire or a natural disaster. SC is the lowest intensity land use designation that could be applied to this property which would result in the current structure being a conforming use. In pertinent part, the Keys' land development regulations provide that the purpose of the IS designation is to accommodate the legally vested residential development rights of the owners of subdivision lots that were lawfully established and improved prior to the adoption of the regulations. There was no showing of inconsistency with the Principles for Guiding Development if Map Amendment 194 were to be approved. Specifically, it was not shown that approval of this Map Amendment would have an adverse impact on public facilities or the natural resources. The Petitioners demonstrated that SC is, in fact, the appropriate zoning for this property, and that IS is totally inappropriate since this property is not part of a platted subdivision. There is no basis to zone this property IS based upon the existing uses surrounding this property. THE PILOT/FISH HOUSES Map Amendments 242, 243 and 245 involve the applications filed by Petitioners Coral Lake Realty, Inc. (Case No. 88-1114 RP), Jack and Dorothy Hill (Case No. 88-1115 RP) and Shirley Gunn (Case No. 88-1117 RP) for the rezoning of properties they own surrounding a basin, known as Lake Largo, on North Key Largo. The Coral Lake Realty property is the site of an existing restaurant, known as The Pilot House, and marina. The Gunn property is the former site of a commercial fish house, which was abandoned in 1985 due to a decline of commercial fish harvests and a loss of wholesalers. Gunn's property is also the location of a burned out building, a dive shop, and a few commercially leased docks. The Hill property is used to operate a commercial fish house, fish processing, and the patching and building of traps. These properties are one- half mile off of U.S. 1. Petitioners' properties are currently zoned CFSD-5 (Commercial Fishing-Key Largo), and they are seeking to have them rezoned MU (mixed use). In pertinent part, the Keys' land use regulations provide: Sec. 9-118. Purpose of the Commercial Fishing Special Districts (CFS). The purpose of these districts is to establish areas where various aspects of commercial fishing have been -traditionally carried out while prohibiting the establishment of additional commercial fishing uses which are inconsistent with the natural environment, immediate vicinity or community character of the area. Sec. 9-119. Purpose of the Mixed Use District (MU) The purpose of this district is to establish or conserve areas of mixed uses including commercial fishing, resorts, residential, institutional and commercial uses and preserve these as areas representative of the character, economy and cultural history of the Florida Keys. The only uses permitted as of right in a CFSD-5 district are commercial-fishing, detached dwellings and accessory uses. The MU designation allows, but does not encourage or promote, commercial fishing. It is designed for intense mixed uses, some of which would be inappropriate for this basin. There are areas in the Keys where fish houses are located in MU zoning. Petitioners have not demonstrated there is any shortage of MU areas in the Keys. According to Lane Kendig, an expert in comprehensive planning, promoting commercial fishing is one of the main aims of the Keys' Comprehensive Plan, and the CFSD zoning category is a primary method of implementing this aim. Because commercial fishing activities can only be located in areas such as this which have deep water access, CFSD zoning of properties with these site specific characteristics should be encouraged, and approval of these Map Amendments would be inconsistent with this objective of the Plan. The community character of the Lake Largo basin is heavily dominated by commercial fishing and associated activities, although some mixed uses are also present. (See Section 2-109.) It is surrounded by SR and IS districts, and existing residential uses. The Pilot House restaurant (Map Amendment 242; Case No. 88-1114 RP) is a nonconforming use in the CFSD-5 zone which could not be expanded, or replaced as of right if destroyed by fire or natural disaster. Bernard J. Costello, principal stockholder in The Pilot House, testified that MU zoning is being sought to allow the placement of more docks in the basin, and to make additional improvements to the restaurant which could not be allowed in CFSD-5. It is his intention to continue to use this property as a restaurant and marina if the Map Amendment is approved. The Hill fish house (Map Amendment 243; Case No. 88-1115 RP) processes, freezes and cooks fish which is primarily shipped in from other countries and states. Only 10 percent of the product handled through this fish house is caught locally in the Keys, while in 1972, all of the product was local. Due to the decline of local commercial fishing, about five years ago imported fish became the majority of product handled in this fish house. Some fishermen now sell directly to trucks, and bypass the fish houses. Recreational users now comprise a significant portion of boat slip renters on the basin. While there has been a decline in local commercial fishing, such uses are still present and the uses permitted as of right in CFSD-5 are more appropriate for this basin than those uses for which the MU designation was developed. These Map Amendments would be inconsistent with the community character of this basin, and would not comply with those Principles for Guiding Development which seek to strengthen the capabilities of local government for managing land use and development, limit adverse impacts of development on water quality, and protect the unique historic character and heritage of the Keys. "NOSEEUMS" Jerome and Mary Behrmann have filed Map Amendment 263 (Case No. 88- 1118 RP) seeking to have their property located on Key Largo rezoned from SR to SC. This property has been operated as a tropical plant nursery for about five years. Donald W. Ross has filed Map Amendment 268 (Case No. 88-1119 RP) seeking to also have property located on Key Largo rezoned from SR to SC. This property is used to operate an aluminum siding business. There is no access to these properties, except from U.S. 1. Petitioners' present uses are nonconforming in a district zoned SR, and, therefore, may not be modified, repaired or replaced if destroyed by fire or natural disaster. Both of these petitions deal with properties located on the same side of U.S. 1 in an area of intense natural vegetation and hardwood hammocks. With the exception of Petitioners' properties, the area immediately adjacent on the same side of U.S. 1 is undeveloped. However, on the opposite side of U.S. 1 is intense commercial development, including strip stores, used car sales, a flea market and convenience store. A power station is located to the north of these properties on the same side of U.S. 1. Due to the heavy infestation of microscopic insects, known locally as "Noseeums," resulting from natural vegetation on these and adjoining properties, residential development would be very difficult. These mosquito-like gnats become active in the early evening and at night, and are so small that they cannot be prevented from entering residences by screening. Local residents will not go outdoors after dark in areas infested with "Noseeums." Petitioners' commercial activities do not require them to be on these properties at night. In the area adjoining Petitioners' properties, U.S. 1 is a four lane divided highway which forms a natural land use, and zoning barrier from the commercial activities on the opposite side of the highway. Petitioners' parcels represent relatively small portions of an area zoned SR which extends approximately one mile along U.S. 1, and is from 650 to 700 feet deep. The only issue in this case is whether Petitioners' properties should be rezoned SC, which would leave the rest of this area zoned SR. Such a rezoning of these parcels to SC would be a classic case of spot zoning since it would confer special benefits to these owners without regard to adjoining owners, and would destroy and disrupt the overall integrity of this SR district. There are sufficient undeveloped SC properties in this immediate area, and there is, therefore, no demonstrated need for additional SC zoning. Petitioners' expert, Bernard Zyscovich, acknowledged that those properties presently zoned SR which adjoin Petitioners' properties could be used for residential development. This is an area in Key Largo where the County is attempting to direct residential development. Although it is not on the water and does not have a water view, there are other residential areas in the Keys which lack these amenities. The rezoning to SC sought by Map Amendments 263 and 268 would be inconsistent with the following objectives and policies of the Keys' Comprehensive Plan (Sections 2-106 and 109): To protect the functional integrity of upland hammocks that contribute to the tropical and native character of the Florida Keys, particularly along U.S. 1 and County Road 905. * * * To restrict the clearing of upland vegetation that contributes to the tropical and native character of the Florida Keys along the U.S. 1 and County Road 905 corridors. * * * To limit the development of new land uses to intensities and characters that are consistent with existing community character where a community character change would have undesirable social, cultural, economic or environmental impacts. * * * To establish and promote a scenic corridor along U.S. 1 and County Road 905. These Map Amendments would also be inconsistent with those Principles for Guiding Development that mandate protection of upland resources and native tropical vegetation such as hardwood hammocks, limiting adverse impacts of development on water quality, and enhancement of natural scenic resources. CAPTION'S COVE Robert Maksymec is the principal stockholder of development partnerships known as Tormac and Planmac which are Petitioners in Cases 88-1121 and 88-1122 RP, respectively, and which are seeking Map Amendments 135 and 136 for certain undeveloped, scarified properties owned by Petitioners surrounding a basin known as Captain's Cove on Lower Matecumbe Key. These properties are zoned CFA (commercial fishing area) and Map Amendments 135 and 136 seek SC zoning. Although this property is located between Captain's Cove and U.S. 1, it is accessible by arterial roads without using U.S. 1. Petitioners propose to develop these properties into a hotel with 52 boat slips, and marine shops. Deed restrictions on the property bar commercial fishing. The Department of Environmental Regulation has issued Permit Number 441008425 to construct a 52 boat slip and docking facility conditioned on non- commercial uses, and prohibiting fuel or storage facilities, as well as boat cleaning, hull maintenance and fish cleaning at the permitted facility. Under CFA zoning, Petitioners' proposed use is nonconforming. CFA allows more commercial and intense uses than CFSD-5. In pertinent part, the Keys' land use regulations provide: Sec. 9-106. Purpose of the Sub Urban Commercial District (SC) The purpose of this district is to establish areas for commercial uses designed and intended primarily to serve the needs of the immediate planning area in which they are located. This district should be established at locations convenient and accessible to residential areas without use of U.S. 1. * * * Sec. 9-116. Purpose of the Commercial Fishing Area District (CFA) The purpose of this district is to establish areas suitable for uses which are essential to the commercial fishing industry including sales and service of fishing equipment and supplies, seafood processing, fishing equipment manufacture and treatment, boat storage and residential uses. These properties are surrounded by commercial and marine commercial uses, and across the basin is a residential area. There is no demonstrated need for undeveloped SC properties in this area. Since these properties are located on a water basin with residential areas in close proximity, SC zoning is inappropriate and inconsistent with the Principles For Guiding Development, which seek to limit the adverse impacts of development on water quality, and ensure sound economic development. It also appears, however, that the current CFA zoning may also be inappropriate for this property due to existing deed restrictions, DER permit conditions, and the decline in commercial fishing activities in the Keys in recent years. Nevertheless, the only issue in dispute in this case is whether the SC designation sought in Map Amendments 135 and 136 is consistent with the Principles For Guiding Development, and it is not. THE OLD POST OFFICE Petitioner Catherine Nash has filed Map Amendment 215 (Case No. 88- 1128 RP) by which she seeks to have property she owns in Tavernier, known as The Old Post Office, rezoned from its current SR to SC. The subject property is currently used to operate an art gallery and related business, but was formerly used from 1926 to about 1960 as a grocery store and post office. The only access to this property is from U.S. 1. The property is surrounded by SR zoning. Across U.S. 1 there are SC zoned properties. There was conflicting testimony whether Petitioner's existing building could be rebuilt in SR zoning if destroyed by fire or natural disaster. It has, therefore, not been established that SC zoning is necessary to protect the present existing use of this property. Due to the lack of access to the property other than from U.S. 1, it fails to meet an essential requirement for SC zoning. Approval of Map Amendment 215 would also represent a clear case of spot zoning since this would be an isolated SC parcel amid an SR district. Petitioner's Map Amendment has not been shown to be consistent with the Principles For Guiding Development, and in particular those which seek to strengthen local government's capabilities for managing land use and development, and which seek to ensure sound economic development which is compatible with the unique historic character of the Keys. TROPIC SOUTH Petitioner Tropic South was represented at hearing, but no evidence in support of Map Amendment 91 (Case No. 88-1083 RP) was offered. ECONOMIC IMPACT STATEMENT There is no evidence that the Department has developed an economic impact statement (EIS) for those portions of the proposed rules disapproving the above referenced Map Amendments previously approved by Monroe County. The Department did prepare an EIS for those Map Amendments transmitted by Monroe County which the Department approved, but those Amendments, and that EIS, are not the subject of this proceeding.
Recommendation Based upon the foregoing, it is RECOMMENDED that the Department approve Map Amendments 170 and 172 through 177 (The Median Strip), as well as 194 (Sewage Plant Neighbor), and otherwise disapprove all other Map Amendments which are the subject of this proceeding, as proposed in Rules 9J-14.006 and 9J-15.006, Florida Administrative Code. Further, it is RECOMMENDED that the Department prepare an Economic Impact Statement which addresses the impact of its proposed action on Petitioners. DONE and ENTERED this 28th day of March, 1989, in Tallahassee, Leon County, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of March, 1989.
Findings Of Fact The Resource Recovery Facility The purpose of the Applicants' proposed resource recovery facility (RRF), a solid waste-fired electrical power plant, is to dispose of municipal solid waste and recover energy. This "waste to energy" facility will initially dispose of up to 2,200 tons of refuse each day, and generate up to 55.5 megawatts of electrical power. The ultimate disposal capacity of the proposed facility is 3,300 tons of refuse each day, and a generating capacity of 83.25 megawatts. The proposed RRF complex will include an administrative building, scalehouse/weigh station, receiving and handling building, furnace boilers, turbine generators, ash disposal area, and electrical substation. The site development plans for the project contemplate that solid waste will be delivered by truck to the enclosed refuse receiving and handling building. All waste will be stored and processed inside the main facility. The Site The site for the proposed RRF is an undeveloped 25-acre parcel of land situated on the south side of Northwest 45th Street (Hilton Road), midway between the Florida Turnpike and Powerline Road; an unincorporated area of Broward County. The uses surrounding the site are predominantly industrial. On the south side of Hilton Road, between the Florida Turnpike, which lies to the west, and Powerline Road, which lies to the east, are welding shops, engine repair shops, and automobile salvage yards. Located north of Hilton Road is an industrial zoned area which includes an asphalt batching plant. Immediately south and east of the project site is a newly permitted landfill area which will function as an expansion of the existing landfill located immediately south and west of the site's boundaries. Consistency of the site with local land use plans and zoning ordinances Broward County has adopted a Comprehensive Plan, pursuant to Chapter 163 Florida Statutes, which establishes guidelines and policies to promote orderly and balanced economic, social, physical, environmental and fiscal development of the area. Pertinent to this proceeding are the Broward bounty Land Use Plan-map and the Unincorporated Area Land Use Plan (the land use plan element of the comprehensive plan), and Broward County's zoning ordinances. The proposed site is designated industrial under the Broward County Land Use Plan-map and the Unincorporated Area Land Use Plan. The proposed RRF is a utility for solid waste disposal and, as such, an allowable use under the industrial designation of both plans, and satisfies the goals, policies, and objectives of the Broward County Comprehensive Plan. On April 22, 1986, the Board of County Commissioners of Broward County approved the rezoning of the site to Planned Unit Development (PUD) Special Complex District, and approved the RRF conceptual site plan. The proposed RRF is a Planned Special Complex under Broward County's PUD zoning ordinances and, as such, a permitted non-residential use. 1/ The Department of Community Affairs, Department of Environmental Regulation, and South Florida Water Management District concur that the proposed RRF is consistent and in compliance with existing land use plans and zoning ordinances. The Public Service Commission did not participate in this land use portion of the power plant siting process. Notice of the land use hearing was published in the Fort Lauderdale News/Sun-Sentinel on April 21, 1986, and in the Florida Administrative Weekly on April 18, 1986.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Governor and Cabinet, sitting as the Siting Board, enter a Final Order granting certification for the location, construction and operation of the proposed facility, subject to the conditions of the certification attached to this Recommended Order as Appendix II. DONE AND ORDERED this 9th day of January 1987, in Tallahassee, Florida. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 9th day of January 1987.
