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 The issue is whether the Petition to Amend the Boundaries of the Crossings at Fleming Island Community Development District (Petition) meets the applicable criteria set forth in Chapter 190, Florida Statutes (2007)1, and Florida Administrative Code Rule Chapter 42-1. The purpose of the local public hearing was to gather information in anticipation of quasi-legislative rulemaking by the Florida Land and Water Adjudicatory Commission (Commission).
The Issue The central issue in this case is whether the Administration Commission's proposed amendment to the boundary of the Florida Keys Area of Critical State Concern, Rule 28-29.002, Florida Administrative Code, is an invalid exercise of delegated legislative authority. There are related issues concerning the standing of the Petitioners and concerning whether the subject rule, due to its special character as a rule which must be submitted for legislative review, is properly the subject of a rule challenge proceeding.
Findings Of Fact Facts admitted by all parties The Intervenor, Department of Community Affairs, is the designated state land planning agency with the duty and responsibility to enforce and administer Chapter 380, Florida Statutes, and the Monroe County comprehensive plan and development regulations. The proposed rule amendment cannot take effect until after it has been submitted to the Legislature at the next legislative session. Development has occurred in the Florida Keys Area of Critical State Concern seaward of the mean high water line, which development has not been reviewed by either of the Respondent and Intervenor agencies for compliance with the Monroe County comprehensive plan and land development regulations. The Administration Commission, consisting of the Governor and Cabinet, has the statutory authority to adopt rules that remove, contract, or expand the boundaries of Areas of Critical State Concern. Petitioner Cullen's property is adjacent to government owned submerged land. Petitioner Curry's property described in the Petition and Petitioner Becker's property are adjacent to privately owned submerged land. Petitioner Curry's property described in the Motion To Amend is adjacent to government owned submerged property. Facts established at hearing The present boundary of the Florida Keys Area of Critical State Concern in existing Rule 28-29.002, Florida Administrative Code, includes all of Monroe County with certain exceptions. The only exception relevant to this 1case is: "All lands seaward of mean high water that are owned by local, state, or federal governments." The existing boundary of the Florida Keys Area of Critical State Concern was approved by the Legislature in 1979. On November 25, 1986, the First District Court of Appeal issued its opinion in Bartecki v. Department of Community Affairs, 498 So.2d 972 (Fla. 1st DCA 1986). The Bartecki case involved a major development of 25 duplex lots and a dock which extended 155 feet seaward of mean high water over submerged lands owned by the state. The Department appealed the Monroe County development order to the Governor and Cabinet, alleging that the project did not comply with the Monroe County land development regulations, and the Governor and Cabinet issued a final order denying development approval. The First District held that, "...by the unequivocal language of the rule, the (Department and the Governor and Cabinet) lacked jurisdiction over the construction of the 155-foot seaward portion of the dock. " Since the date of the Bartecki decision, the Department and the Governor and Cabinet have not reviewed development located seaward of mean high water on government owned submerged land. The existing boundary, as interpreted by the First District Court of Appeal, limits the Respondent and Intervenor agencies to reviewing only the portions of projects that are constructed in upland areas. The Department and the Administration Commission are precluded from reviewing docks, piers, marinas, and dredge and fill projects which are developed below the mean high water line on government owned submerged land. The Florida Keys Area Principles for Guiding Development in Section 380.0552(7), Florida Statutes, include the following: (b) To protect shoreline and marine resources, including mangroves, coral reef formations, seagrass beds, wetlands, fish and wildlife, and their habitat. (e) To limit the adverse impacts of development on the quality of water throughout the Florida Keys. (i) To limit the adverse impacts of public investments on the environmental resources of the Florida Keys. The present boundary of the Florida Keys Area of Critical State Concern frustrates enforcement of the legislatively adopted Principles for Guiding Development. While upland development can be detrimental to marine and estuarine resources, development which is located below the mean high water line clearly poses the possibility of more damage to marine and estuarine resources. Monroe County has adopted a comprehensive plan and land development regulations that include significant protection for the marine and estuarine resources of the Florida Keys. This protection was necessary for the plan to be judged consistent with the Principles for Guiding Development. Monroe County does not always properly enforce its land development regulations, its comprehensive plan, or the Principles for Guiding Development. Section 380.05(12), Florida statutes, provides that the Department may request the Administration Commission to remove, contract, or expand any designated boundary of an Area of Critical State Concern. On August 15, 1990, the Secretary of the Department submitted a memorandum to the Governor and Cabinet requesting that the boundary of the Florida Keys area be expanded to include 250 feet of government owned submerged land. Specifically, the Department requested that the exception for government owned submerged lands quoted in finding of fact 8 be amended to provide: All lands more than 250 feet seaward of the mean high water line owned by local, state, or federal governments. The Department requested inclusion of only the first 250 feet of government owned submerged land, because the development that concerns the Department is most likely to occur in that portion. Docks, piers, marinas, and dredge and fill projects are not likely to be developed more than 250 feet seaward of the mean high water line. None of the other state and federal agencies that have jurisdiction over submerged land, such as DER, DNR, or the Army Corps of Engineers, are charged with enforcement of the Monroe County comprehensive plan and land development regulations. On September 21, 1990, the Administration Commission published a Notice of Proposed Rulemaking in Vol. 16, NO. 38, of the Florida Administrative Weekly. The Notice indicated that the Administration Commission proposed to amend the boundary of the Florida Keys Area in the manner requested by the Department.
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 The issue is whether the Petition to Establish the Bexley Community Development District I (Petition) meets the applicable criteria set forth in Chapter 190, Florida Statutes (2006),1 and Florida Administrative Code Rule Chapter 42-1. The purpose of the hearing was to gather information in anticipation of quasi- legislative rulemaking by the Florida Land and Water Adjudicatory Commission (Commission).
Findings Of Fact At times relevant Respondent has held license number LS0001999 issued by the Florida Board of Land Surveyors and Mappers. His license is as a land surveyor and mapper. Respondent held an active license from December 31, 1973 through March 9, 1995. On the latter date Respondent's license became delinquent "Due to Non- Renewal." The license remained in a delinquent status at the time of hearing. In this case the Florida Board of Professional Surveyors and Mappers under authority set forth in Chapter 472, Florida Statutes, seeks to impose administrative discipline against Respondent. On April 24, 1991 Respondent provided John W. Smith a signed and sealed boundary survey drawing for Lot 8, Pelican Walk in Gulf County, Florida. In November 19, 1991 Respondent provided John W. Smith with a revised signed and sealed boundary survey drawing for Lot 8, Pelican Walk in Gulf County, Florida. Robert Waers is licensed as a land surveyor in Florida. As such he is an expert in land surveying. He reviewed the subject boundary survey drawings prepared by Respondent. The purpose for that review was to identify whether Respondent had complied with minimum technical standards for land surveying when preparing the survey drawings. As Mr. Waers established, a boundary survey is a procedure by which the surveyor identifies the property lines of a parcel of property as described by a legal description. The process also involves the identification of rights associated with that parcel as it exists on the ground with relation to the legal description. In Mr. Wares' expert opinion as a land surveyor Respondent failed to meet minimal standards or the standard of care within the surveying community when preparing the survey drawings at issue. Basically Mr. Wares established that the survey drawings were not complete, defensible, adequate and accurate. As Mr. Wares established, the survey drawings in depicting the outer boundaries on the parcel would lead one to believe that they coincide with the legal description for the parcel. This circumstance would purport to establish that the dimensions on the ground are precisely the same as those described in the legal description. However, the legal description does not form a closed geometric figure. When the geometry of the legal description is computed it does not return to the point of beginning. It misses that point by nine tenths of a foot. Consequently, it would be impossible to show the same measurements on the ground on the survey drawing as would be found in the legal description and accurately portray the situation on the ground. There would be differences between the survey drawing on the ground as physically measured and what is written in the legal description. Respondent has failed to note those differences through a comparison between measurements on the ground and those measurements in the legal description and the recordation of the difference. To properly perform the comparison Respondent would need to reflect the distances measured on the ground and the record distance found with both sets of measurements noted on the survey drawings, which he did not do. In both surveys in question the field data does not support the survey drawings. They are incomplete. They are so disorganized as to make many of the matters contained in the field notes indiscernible. For that reason Mr. Waers, as an expert, was unable to recreate the information in the field data as a means to determine the correct position of the boundaries in the survey drawing. Nor can the field data be relied upon as a means to compute a closed traverse of the parcel, referring to geometry relative to a closed traverse by use of the field notes. In the April, 1991 survey Respondent incorrectly located a residence. The survey drawings did not adequately nor accurately depict the nature or geometry of the fixed improvement. While the dimensions of the fixed improvement are sufficiently detailed, the position of the improvement related to the boundary line for the property is not acceptable in the April, 1991 survey. The April, 1991 survey drawings indicate dimensions of 13.8 feet and 15.7 feet at the northerly and southerly ends of the residence, whereas the November, 1991 survey drawings describes those dimensions as 10.65 and 9.8 feet respectively. As Mr. Waers described a monument is a marker on the ground at boundary corners for the property or along boundary lines. Its purpose is to assist in better establishing the location of a boundary line. The monuments are physical objects. In the event that the monument location and the boundary lines do not coincide, the expectation is that the surveyor will describe that conflict in the survey drawings by comparison. In this case, conflicts existed between boundary lines and monuments and they were not shown on the April and November, 1991 survey drawings. In both the April, 1991 and November, 1991 survey drawings Respondent included legends or notes describing abbreviations and their complete meaning such as R/W for right of way and CH for cord. However, in those drawings, Respondent used the initials RLS, CONC and FR, terms not commonly known by the public, without describing the full meaning of those initials in a legend or note. All matters which have been discussed were observed by Mr. Waers and in his opinion, which is accepted, constitute the failure to comply with minimal technical standards for surveying when examining the survey drawings from April, 1991 and November, 1991 prepared by Respondent. Furthermore, Mr. Wares's opinion that Respondent failed to use due care in performing the surveys is accepted. As established by Mr. Waers, Respondent should have gone to the field and collected sufficient data, made sufficient measurements as to accurately position the residence on the property and to show property lines in all instances that might affect property rights as a means to allow the land owner to make additions to the house without encroaching upon his neighbors property. To perform the survey properly Respondent should have made notes and comparisons between the legal description in the record and the physical boundaries found on the parcel.
Recommendation Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED: That the Final Order be entered finding the Respondent in violation of Counts I and V with the exception of part (e) to those counts and part (f) to Count V; in violation of Count II but not Count VI; in violation of Counts III and VII; in violation of Counts IV and VIII; and, absolving him of any violation alleged in Count IX. As a penalty, a $1,000 fine should be imposed, with a ninety day suspension should Respondent attempt to reactivate his license. DONE and ENTERED this 15th day of May, 1996, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of May, 1996. APPENDIX CASE NO. 95-5375 The following discussion is given concerning Petitioner's proposed findings of fact: Paragraphs 1 and 2 are subordinate to facts found. Paragraphs 3 and 4 are not sufficient in themselves to support findings of fact. See Section 120.58, Florida Statutes. Paragraph 5 is subordinate to facts found. Paragraph 6 is not sufficient in itself to support findings of fact. See Section 120.58, Florida Statutes. Paragraph 7 is rejected in its suggestion that proof was sufficient to demonstrate that the civil action pertained to the survey performed by Respondent for Mr. Smith. Paragraphs 8 through 18 are subordinate to facts found as is the first phrase in Paragraph 19. The remaining phrases in Paragraph 19 and Paragraph 20 are not sufficient in themselves to support findings of fact. See Section 120.58, Florida Statutes. Paragraph 21 is subordinate to facts found. Paragraphs 22 through 27 are not sufficient in themselves to support findings of fact. See Section 120.58 Florida Statutes. Paragraphs 28 through 44 are subordinate to facts found. Paragraphs 45 through 47 are not sufficient in themselves to support a finding of fact concerning reporting fixed interior improvements. See Section 120.58 Florida Statutes. Paragraphs 48 through 50 are subordinate to facts found. Paragraphs 51 and 52 are rejected in the suggestion that proof was made sufficient to demonstrate that the court case which judgement was obtained was proven to be a case related to the survey performed by Respondent for Mr. Smith. Paragraph 53 is subordinate to facts found. COPIES FURNISHED: Miriam Wilkinson, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Donald F. Mowrey, Jr. 312 Iola Street Port St. Joe, Florida 32456 Donald F. Mowrey, Jr. Post Office Box 838 Port St. Joe, Florida 32456-0838 Angel Gonzalez, Executive Director Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
