The Issue The issue to be determined in this case is whether the amendment of the Town of Eatonville Comprehensive Plan adopted through Ordinance 2014-2 (“Plan Amendment”) is “in compliance” as that term is defined in section 163.3184(1)(b), Florida Statutes (2014).
Findings Of Fact The Parties Respondent Town of Eatonville is a municipality in Orange County with a comprehensive plan which it amends from time to time pursuant to chapter 163, Florida Statutes. Intervenor Lake Weston, LLC, is a Florida limited liability company whose sole member is Clayton Investments, Ltd. It owns approximately 49 acres of land along Lake Weston on West Kennedy Boulevard in Eatonville (“the Property”), which is the subject of the Plan Amendment. Petitioners Sharon Leichering, Lori Erlacher, George Perantoni, Valerie Perantoni, and Doreen Maroth own or reside in unincorporated Orange County near Lake Weston. The record does not establish whether Dale Dunn lives or owns property in the area. Petitioner Kingswood Manor Association, Inc., is a non- profit corporation whose members are residents of Kingswood Manor, a residential subdivision near the Property. Petitioner Friends of Lake Weston and Adjacent Canals, Inc., is a non-profit corporation whose objective is to protect these waters. Standing Petitioners Sharon Leichering and George Perantoni submitted comments to the Eatonville Town Council on their own behalves and on behalf of the Kingswood Manor Association and Friends of Lake Weston, respectively, regarding the Plan Amendment. Petitioner Valerie Perantoni is the wife of Petitioner George Perantoni. She did not submit comments regarding the Plan Amendment to the Town Council. Petitioner Dale Dunn did not appear at the final hearing. There is no evidence Mr. Dunn submitted oral or written comments to the Town Council regarding the Plan Amendment. Petitioner Doreen Maroth did not appear at the final hearing for medical reasons. Ms. Maroth submitted oral comments to the Town Council regarding the Plan Amendment. Respondent and Intervenor contend there is no evidence that Lori Erlacher appeared and gave comments to the Town Council, but the Town Clerk testified that Petitioner Leichering was granted an extension of time “to speak for others” and Petitioner Leichering testified that the “others” were Lori Erlacher and Carla McMullen. The Plan Amendment The Property is zoned “Industrial” in the Town’s Land Development Code, but is designated “Commercial” on the Future Land Use Map in the Comprehensive Plan. The Town adopted the Plan Amendment to make the zoning and future land use designations consistent with each other. The Plan Amendment attempts to resolve the inconsistency by designating the Property as the “Lake Weston Subarea” within the Commercial land use category. The designation would appear on the Future Land Use Map and a new policy is made applicable to the Subarea, allowing both industrial and commercial uses: 1.6.10. Lake Weston Subarea Policy. Notwithstanding the provisions of Policy 1.6.9, within the Lake Weston Subarea Policy boundaries as shown on the Future Land Use Map, light industrial uses may be allowed in addition to commercial uses. The specific permitted uses and development standards shall be established by the Lake Weston Overlay District, which shall be adopted as a zoning overlay district in the Land Development Code; however, the wetlands adjacent to Lake Weston within the Lake Weston Subarea Policy boundaries are hereby designated as a Class I Conservation Area pursuant to Section 13-5.3 of the Town of Eatonville Land Development Code and shall be subject to the applicable provisions of Section 13-5 of the Land Development Code. The intent of this subarea policy and related Lake Weston Overlay District is to allow a range of commercial and industrial uses on the subject property with appropriate development standards, protect environmental resources, mitigate negative impacts and promote compatibility with surrounding properties. Subject to requirements of this subarea policy and of the Lake Weston Overlay district, the current industrial zoning of the property is hereby deemed consistent with the Commercial Future Land Use designation of the area within the boundaries of this subarea policy. Data and Analysis Petitioners contend the Plan Amendment is not supported by relevant and appropriate data and analysis. Relatively little data and analysis were needed to address the inconsistency between the Land Development Code and the Comprehensive Plan or to address the protection of Lake Weston and adjacent land uses. The need to protect environmental resources, to mitigate negative impacts of development, and to promote compatibility with surrounding land uses was based on general principles of land planning, the report of a planning consultant, as well as public comment from Petitioners and others. A wetland map, survey, and delineation were submitted to the Town. The effect of the Class I Conservation Area designation is described in the Land Development Code. The availability of public infrastructure and services was not questioned by Petitioners. The preponderance of the evidence shows the Plan Amendment is based on relevant and appropriate data and analysis. Meaningful Standards Petitioners contend the Plan Amendment does not establish meaningful and predictable standards for the future use of the Property. It is common for comprehensive plans to assign a general land use category to a parcel, such as Residential, Commercial, or Industrial, and then to list the types of uses allowed in that category. The Plan amendment does not alter the Comprehensive Plan’s current listing of Commercial and Industrial uses. The Plan Amendment designates the wetlands adjacent to Lake Weston as a Class I Conservation Area subject to the provisions of the Eatonville Wetlands Ordinance in the Land Development Code. This designation means the littoral zone of the lake and associated wetlands would be placed under a conservation easement. This is meaningful guidance related to the future use of the Property. The Plan Amendment directs the Land Development Code to be amended to create a Lake Weston Overlay District with the expressed intent to “protect environmental resources, mitigate negative impacts and promote compatibility with surrounding properties.” This direction in the Plan Amendment is guidance for the content of more detailed land development and use regulations. Contemporaneous with the adoption of the Plan Amendment, the Eatonville Land Development Code was amended to establish the Lake Weston Overlay District, which has the same boundaries as the Property. The Land Development Code describes in greater detail the allowed uses and development standards applicable to the Property. The preponderance of the evidence shows the Plan Amendment establishes meaningful and predictable standards. Internal Consistency Petitioners contend the Plan Amendment is inconsistent with the relatively recent Wekiva Amendments to the Comprehensive Plan, but Petitioners failed to show how the Plan Amendment is inconsistent with any provision of the Wekiva Amendments. Petitioners contend the Plan Amendment is inconsistent with objectives and policies of the Comprehensive Plan that require development to be compatible with adjacent residential uses. Compatibility is largely a matter of the distribution of land uses within a parcel and measures used to create natural and artificial buffers. These are matters usually addressed when a landowner applies for site development approval. Protection is provided in the Plan Amendment for Lake Weston and its wetlands. Petitioners did not show there are other factors that make it impossible to make light industrial uses on the Property compatible with adjacent residential uses. The preponderance of the evidence shows the Plan Amendment is consistent with other provisions of the Comprehensive Plan. Urban Sprawl Petitioners contend the Plan Amendment promotes urban sprawl based on the potential for more impervious surfaces and less open space. However, this potential does not automatically mean the Plan Amendment promotes urban sprawl. Section 163.3177(6)(a)9. sets forth thirteen factors to be considered in determining whether a plan amendment discourages the proliferation of urban sprawl, such as failing to maximize the use of existing public facilities. The Plan Amendment does not “trigger” any of the listed factors. The preponderance of the evidence shows the Plan does not promote the proliferation of urban sprawl.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity enter a final order determining that the Plan Amendment adopted by Eatonville Ordinance No. 2014-02 is in compliance. DONE AND ENTERED this 3rd day of June, 2015, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of June, 2015. COPIES FURNISHED: George Anthony Perantoni Friends of Lake Weston and Adjacent Canals, Inc. 5800 Shasta Drive Orlando, Florida (eServed) 32810 Dale Dunn 5726 Shasta Drive Orlando, Florida 32810 Lori A. Erlacher 1620 Mosher Drive Orlando, Florida 32810 (eServed) Sharon R. Leichering Kingswood Manor Association, Inc. 5623 Stull Avenue Orlando, Florida 32810 (eServed) Doreen Lynne Maroth 5736 Satel Drive Orlando, Florida 32810 (eServed) Valerie Lolita Perantoni 5800 Shasta Drive Orlando, Florida 32810 (eServed) Debbie Franklin, City Clerk Town of Eatonville, Florida 307 East Kennedy Boulevard Eatonville, Florida 32751 Joseph Morrell, Esquire Town of Eatonville 1310 West Colonial Drive, Suite 28 Orlando, Florida 32804 (eServed) William Clay Henderson, Esquire Holland and Knight, LLP 200 South Orange Avenue, Suite 2600 Orlando, Florida 32801 (eServed) Robert N. Sechen, General Counsel Department of Economic Opportunity Mail Stop Code 110, Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed) Jesse Panuccio, Executive Director Department of Economic Opportunity Mail Stop Code 110, Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed) Katie Zimmer, Agency Clerk Department of Economic Opportunity Mail Stop Code 110, Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed)
Findings Of Fact Petitioner, William Burke, is the developer of the Countryside Retirement Resort, a proposed development of regional impact, (DRI), located in DeSoto County, Florida. Sunrise Farms, a Florida general partnership, is the owner in fee simple of the site, but is not a party in this matter. Respondent, DeSoto County Board of County Commissioners, is a local government with jurisdiction over the proposed project site. It is responsible for the administration of the DeSoto County Comprehensive Plan, land development regulations, and zoning code. On August, 15, 1990, after a duly-noticed public hearing, the Board of Commissioners of DeSoto County denied Burke's Application for Development Approval and Request for Rezoning. On April 23, 1991, the Board of Commissioners of DeSoto County, pursuant to Chapter 163, Florida Statutes (1989), and the rules promulgated thereunder, adopted its current comprehensive plan. Intervenor, Department of Community Affairs, is the state land planning agency with the power and duty to enforce and administer Chapter 380, Florida Statutes, and the rules and regulations promulgated thereunder. The Department is also authorized to appeal DRI development orders issued by local governments pursuant to Section 380.07, Florida Statutes, and has demonstrated a substantial interest in the outcome of this proceeding. Intervenors, M. Lewis Hall, Jr., M. Lewis Hall, III, Don T. Hall, Frank D. Hall and Steven V. Hall, are landowners near the subject site, and are substantially effected persons. The proposed site of the project is located on Highway 31, approximately ten miles from the City of Arcadia, at the SW 1/4 and W 1/2 of the SE 1/4 of Section 1, Township 39 South, Range 25 East, DeSoto County Florida The project has been named Countryside Retirement Resort (Countryside), and is a proposed PUD intended as an Adult Residential Community which is designed to contain, at build-out, a maximum of 1440 park model residential homesites and 60 transient RV spaces on approximately 239.71 acres. The 1440 permanent park model resort homes are to be offered as a "turn-key" package to insure architectural control and adherence to project design. Park model homes are prefab, factory-built units, which are not susceptible to being moved again. The units in each phase will have a single bedroom, and the estimated price for all phases is $55,000, including the lot and lot preparation. Gross density for the project is 6.0 and 6.25 units per acre, based upon 1440 (park model homes) and 1500 (including 60 RV spaces) units, respectively. The development is privately funded and includes all streets, utility systems, public safety services, community buildings, recreational facilities, and general community amenities. The project area is currently zoned A-5 or improved pasture agricultural, with one dwelling unit per five acres permitted. To the north, the property is zoned A-10, citrus grove agricultural. To the south, the property is zoned improved pasture-agricultural, A-5. The Petitioner proposes to dedicate the 40 feet along the South side of the property to DeSoto County for street purposes. Adjacent to the public dedication will be a 40 foot project buffer for fencing, landscaping, and stormwater containment. The main entrance is to be located at State Road 31, approximately 1,000 feet North of Pine Island Street. Turn lanes are to be provided to minimize any potential detriment to the flow of traffic on the state roadway. As requested by County staff, forty feet of additional right-of-way has been set aside for the future widening of Pine Island Street. In addition to the 40 foot right-of-way for Pine Island Street (approximately 3.66 acres), access and improvements at all intersecting streets will be made. The additional traffic, sewer and potable water impacts will be provided for by the developer. A secondary access from Pine Island Street runs east from SR 31 approximately two miles, and dead ends at the Hall Ranch. The adjoining 40 foot buffer strip features, in addition to security fencing, a perimeter drainage swale and earthen mounds with landscaping that will screen the community from the public roadway. The buffer strip is not intended for future road purposes. The 40 foot buffer will be placed around the perimeter of the site. The buffer will consist of earthen berms and landscaping to protect the community from the outside, and the outside from the community, to make it as self-supporting and self-contained as possible. A 6.5 acre tract in the southwestern corner of the site has been reserved to provide for the commercial institutional needs of the residential community. Anticipated commercial uses include a general store (providing food, hardware, and dry goods), personal service shops, professional office space, and a motel (58 units) with a restaurant. Institutional uses include an arts and crafts building, a volunteer fire station equipped with a "quick response" vehicle, and office space for use by the sheriff's office, a second floor residence apartment for the community manager, the project's water treatment plant, and a helipad for emergency medical services. A general utility area, including maintenance building, the wastewater treatment plant, and a dry storage area for boats and RV's will be located in the Southeast corner of the property, buffered from adjoining properties and from the internal community. The project will also feature an 18 hole executive golf course with a pro shop and aquatic driving range, a multi-use clubhouse, four lighted tennis courts, six neighborhood swimming pools, and a series of mini-parks. The Petitioner's intent is to design the resort to function as a relatively self-contained and readily identifiable neighborhood of the County. The project calls for an on-site sewage treatment plant with tertiary filtration attached to the plant. At build-out, the plans call for the plant to treat approximately 315,000 gallons of sewage per day. A total of 8.99 acres of both man-made and natural wetlands were identified on the site. The project complies with applicable regulations with respect to preservation of wetlands. Approximately 27.75 acres of wetlands are to be created, and approximately 22.95 acres of proposed lakes will exist at completion. The project conforms with applicable regulations with respect to water use. The project's drinking and irrigation water will be served from on-site wells. An on-site water treatment plant will also be built. Adequate provisions are made for hurricane shelters and evacuations measures. The project conforms with applicable regulations with respect to air emissions. The project conforms with applicable regulations with respect to vegetation and wildlife. The entire site is cleared of natural vegetation and managed as improved pasture. The project site as well as adjoining land is not unique agricultural land. The project will not significantly deplete the agricultural community adjacent to the project or in the general neighborhood. Estimates from 1982 indicate that 236,722 total acres of pasture exist in DeSoto County. Removal of the project site from cattle production represents a total of .097% of the total pasture acreage in the County. Approximately 96% (230 acres) of the existing site is improved pasture land for cattle grazing while 6.9 acres or less than 3% of the project's site covers wet prairie. No natural wildlife corridors exist between the subject parcel and any surrounding natural lands. There are no significant historical or archeological sites or corridors considered likely to be present within the project area. Approval of the project would add to the tax revenue base of DeSoto County. The DeSoto County landfill is designed to meet the needs of the County until the year 2000 based on its projected increase of population. The proposed project at buildout, prior to the year 2000, falls below the projected increases of population. The projected increase in population by the year 2000 ranges from 4300 to 5800 with the proposed project generating a theoretical maximum increase in population of 3,000 persons if all units were occupied on a year round basis. The landfill will have adequate capacity to meet the demand from the project. No unusual or industrial or hazardous wastes will originate on-site. A 1.75 acre site has been reserved for the sewage treatment plant in the Southeast corner of the subject property. Sludge is scheduled to be disposed of by a licensed hauler. A tertiary wastewater treatment plant is to be provided in all phases of development. The wastewater is to be filtered and highly disinfected to provide treatment effluent for irrigation purposes. The plant will be situated on approximately 3/4 of an acre including surrounding open space and buffer areas. The utility site is of sufficient size to provide treatment of waste water for the entire development. All on-site facilities (collection treatment) are to be operated and maintained by the homeowner's association in accordance with the Florida Department of Environmental Regulation operating permits. On-site treatment and disposal facilities are being proposed that will be capable of serving the entire development. The proposed drainage system for the project is consistent with applicable regulations. The water supply system proposed for the development complies with applicable regulations. Florida Power and Light Company has sufficient capacity to provide electrical service to the project. While the project will contribute property taxes to the educational system, the development will not have a negative impact on the DeSoto County District School System, since this project will be an adult community, and no school-age children are contemplated. 94.18 acres, or almost 40% of the development site, are to be devoted to recreation uses and open space. A helipad will be constructed to enhance MedVac emergency services to the project and the surrounding area. DeSoto Memorial Hospital is licensed for 82 beds, and provides emergency services. DeSoto Memorial Hospital is a community not-for-profit facility, serving the DeSoto County area and located in Arcadia, Florida. Health Care and medical services are available at the Hospital and the Arcadia area to meet the needs of the Countryside residents. The county operated ambulance (EMS and ALS certified) offers 15 to 20 minute response time from its headquarters station on State Road 70, a distance of 7 miles, via SR 31. Fire protection services for the project are to be provided by the public safety department of DeSoto County. The nearest fire station is located at State Road 70 and Airport Road about seven miles north of the property. Under normal traffic conditions, response time is estimated to be approximately 10 to 12 minutes. The county's fire protection services are to be enhanced by the construction of an auxiliary fire station on-site. The Petitioner proposes to develop a volunteer fire department from among the residents of the project with emphasis on fire, emergency medical, quick response fire truck and a building for sheltering in the event of a disaster or potential emergency (portable electric, water, restrooms, kitchen and proper square footage to accommodate the residents of the development) would serve as a benefit to the County on SR 31. On April 23, 1991, the Board of County Commissioners for DeSoto County adopted Ordinance 91-03, a new comprehensive plan for the County. Included are goals, objectives and policies in the Future Land Use Element of the Plan. The Future Land Use Element, Goal L. Objective L2 of the DeSoto County Comprehensive Plan, provides that: Development orders and/or permits for future development and redevelopment activities shall be issued only if public facilities necessary to meet level of service standards, adopted as part of the Capital Improvements Element of this Plan, are available concurrent with the impacts of development. The Future Land Use Element, Policy L2.5 of the DeSoto County Comprehensive Plan, provides that: No local development order or permit will be issued unless the County determines that the appropriate level of service standards can be met for: drainage; potable water; recreation and open space; solid waste disposal; traffic circulation; and waste water treatment. Traffic Circulation Element, Goal T of the DeSoto Comprehensive Plan, provides that the goal of the traffic element of the Plan will be to "provide for a safe, efficient and economical traffic circulation system." To implement Goal T, Objective T1 provides that, "DeSoto County shall provide a safe and efficient transportation system, and shall establish minimum criteria and standards to ensure the effective functioning of all public roadways within its jurisdiction." The proposed development site accesses State Road 31, a north/south, two-lane minor arterial roadway connecting the City of Arcadia with the City of Fort Myers. SR 31 is currently at a Level of Service (LOS) of B, or better. The DeSoto County Comprehensive Plan, Policy T1.1, has established a peak season/peak hour level of service standard of D or better for SR 31. The Five- Year Schedule of Capital Improvements in the DeSoto County Comprehensive Plan does not provide for the improvement of SR 31. The average daily traffic maximum volumes established by the Department of Transportation for a LOS D on a minor arterial, such as State Road 31, is 15,000 trips per day. Four separate traffic studies were performed regarding the potential impacts of the proposed development on State Road 31. The first two studies were performed by Mr. Gordon Meyers of Ink Engineering, Inc., the third by Mr. Richard Doyle of Tampa Bay Engineering, Inc., and the fourth by Ms. Nanette Hall of Florida Transportation Engineering, Inc. The study area included segments of SR 31 and the intersection of SR 31 and SR 70, as well as, SR 31 and SR 760-A. SR 70 runs east-west and expands from a two lane roadway to a four lane major arterial at the intersection of SR 70 and SR 31. CR 760-A is a two-lane rural major collector extending westerly from SR 31, just north of the G. Pierce Wood Memorial Hospital, to US 17, which provides access to the Punta Gorda area and Interstate 75. The Department of Transportation has three traffic counting stations on State Road 31 from which reliable traffic data has been collected since 1984. The location of these traffic counting stations are as follows: Station #26, is located just south of the intersection between State Road 31 and State Road 70; Station #4, is located approximately halfway between the site of the proposed development and State Road 70, north of the intersection between State Road 31 and County Road 760A; Station #31, is located south of the intersection between State Road 31 and County Road 760A, and north of the proposed site of the proposed development. All four studies made projections as to the anticipated increase in traffic volume at these stations should the proposed development be approved. The four traffic studies obtained the following projections for the anticipated traffic volumes and corresponding LOS's that would exist at the traffic counting stations upon build out of the proposed development summarized in the table below: LOCATION FIRST STUDY SECOND STUDY THIRD STUDY FOURTH STUDY (MEYER) (MEYER) (DOYLE) (HALL) Station #31 12,474/LOS D 7,610/LOS C 12,474/LOS D 13,466/LOS D Station #4 13,557/LOS D 9,250/LOS C 10,080/LOS D 15,384/LOS E Station #26 15,172/LOS E 9,380/LOS C 10,341/LOS D 17,111/LOS E Of the four traffic studies performed, the projections of the fourth (Hall) study were the most reliable. It was the only study to use historic data available on State Road 31 in the Calculation of a growth rate for background traffic volume, and did not suffer from the methodological flaws that existed in the other studies. The fourth (Hall) traffic study indicated that the proposed development at build out would cause large sections of State Road 31 to exceed its level of service established by the DeSoto County Comprehensive Plan, and reduce the level of service below D. The fourth (Hall) study also projected the traffic impacts of the proposed development if developed in two phases, the results (expressed in average daily traffic and peak hour/peak season impacts) of which are summarized in the table below: LOCATION PEAK HOUR/PEAK SEASON AVERAGE DAILY TRAFFIC PHASE I PHASE II PHASE I PHASE II Station #31 892/LOS C 1,394/LOS D 9,062/LOS C 13,466/LOS D Station #4 1,033/LOS D 1,544/LOS E 10,732/LOS D 15,384/LOS E Station #26 1,183/LOS D 10,341/LOS D 12,397/LOS D 17,111/LOS E Countryside has never requested phased approval for the project. The fourth (Hall) traffic study indicated that even if approval were given for "Phase I" alone, a major portion of the LOS D capacity of the roadway (approximately 80% to 85% of the capacity) would be used up, reducing the possibilities for further development of those sections of State Road 31 between the proposed development and State Road 70. The proposed development will not meet the appropriate level of service for traffic circulation. Land Use Element Policy L6.8 of the DeSoto County Comprehensive Plan provides that: Residential development in a Rural/Agricultural area shall not exceed a maximum density of one dwelling unit per ten gross acres. In a Rural/Agricultural area, the lowest order of commercial goods and services which serve the daily needs of nearby residents may be permitted only on arterial or collector roadways. Commercial areas in a Rural/ Agricultural area shall be appropriately buffered, shall not exceed 3 acres in size, shall not exceed impervious surface lot coverage of 70 per cent, and shall be no less than 2 miles from other commercial development in a Rural/Agricultural area or in other future land use categories. Industrial uses within a Rural/Agricultural area may be permitted only when such activity is related to the extraction or processing of minerals; or when related to agriculture; or is of a scale and nature that would not be acceptable in Town Center. Other industrial uses, such a power plants or manufactured or processing facilities may be permitted, and shall have access to a collector or arterial roadway, shall meet all local regulations, and shall be appropriately buffered from surrounding land uses, including agricultural uses. Within a Rural/Agricultural area, the approval of residential development shall acknowledge that the protection of agricultural lands is a primary function of a Rural/Agricultural area, and that land management activities associated with agricultural uses may be incompatible with residential development. However, such management activities are considered to be an essential element of the protection of successful operations on agricultural lands and the continuation of such activities shall take precedence. Future Land Use Element, Goal L. - Objective L3 of the DeSoto County Comprehensive Plan, provides that "DeSoto County shall promote compatible future land use patterns." The current DeSoto County Comprehensive Plant, Future Land and Use Element, Objective L6, provides: Objective L6: As a part of this plan, DeSoto County's Future Land Use Map series shall be applied only in conjunction with the policies of this element and other elements of the DeSoto County Comprehensive Plan, and shall generally illustrate and coordinate the appropriate distribution of residential, commercial, industrial, agricultural, preservation, public and utility facility land uses to effectively manage the projected population growth of the County. The Future Land Use Map (FLUM) and the Plan's policies are used to effectively manage the projected population growth of the County. The Countryside project is not depicted, in terms of an appropriate land use category, on the FLUM. The Future Land Use Map indicates that the project site is located in an R/A (Rural/Agricultural) land use designation with a maximum allowable density of one residential unit per ten acres. The density of the proposed project is in excess of six dwelling units per acre. The 1991 DeSoto Comprehensive Plan, data and analysis section, indicates that there are 2,765 approved, unconstructed recreational vehicle (RV) sites in nine undeveloped, but approved RV parks, covering 448 acres. The Plan indicates that these approved RV sites will meet the anticipate need through the year 2000. The 1991 Plan estimates that 427 seasonal residents (usually retirees), will be added to the seasonal population of the County between 1990- 2000. Based on two persons per dwelling unit and six dwelling units per acre, only 214 units of new RV residential development will be needed between 1990 and 2000. The existing approved, but unconstructed RV sites, exceed the projected need almost thirteen times. The proposed DRI would add an additional 1500 units, resulting in 4,051 more units than the projected need. Policy L3.3 of the DeSoto County Comprehensive Plan provides that: Land uses which are potentially incompatible either due to type of use or intensity of use, shall be buffered from one another through the provision of open space, landscaping, berms, alternative site design or other suitable means. Land development regulations shall establish criteria for appropriate buffering between adjacent land uses. Policy L3.4 of the DeSoto County Comprehensive Plan provides that, "where the application of such measures as identified in Policy L3.3 cannot mitigate the incompatibility between proposed and existing land uses, the proposed land use shall be disapproved." The proposed development is not functionally related to the surrounding agricultural activities and numerous incompatibilities between the land uses shall arise as adjacent landowners conduct agricultural activities such as application of pesticides and fertilizers and other activities which produce smells, sprays, dust, noises and other externalities incompatible with residential use. The incompatibility of this project with existing land uses cannot be eliminated under the proposed buffers of berms, landscaping, and fencing proposed in the ADA. To implement Goal L. Objective L4 of the DeSoto County Comprehensive Plan, Policy L4.1 provides that: The DeSoto County Comprehensive Plan and implementing land development regulations, to be adopted by August 1, 1991, shall include provisions that permit or require a variety of land development techniques that discourage sprawl while protecting natural resources including: Establishment of mixed use future land use categories in the DeSoto County Comprehensive Plan to provide residential, commercial and employment opportunities in close proximity; Clustering of development to protect natural resources, open space and agricultural uses, provide for access management to arterial or collector roadways, provide for appropriate buffering, and make efficient use of public facilities and services; Establishment of guidelines or incentives to encourage infill development in the Town Center, Mixed Use Corridor and Suburban Residential areas, which may include . . . There is a clear intent in the DeSoto County Comprehensive Plan to discourage urban sprawl. "Urban sprawl" is defined in the plan as "scattered, untimely, poorly planned urban development that occurs in urban fringe and rural areas and frequently invades lands important for environmental, agricultural and natural resource protection. Urban sprawl typically manifests itself in one or more of the following ways: 1) leapfrog development; 2) ribbon or strip development; and 3) large expanses of low-density, single-dimensional development." The proposed development is an example of the leapfrog development type of urban sprawl. It provides for residential development far beyond the projected needs of the surrounding area. It is located far from the nearest urban centers and is surrounded by rural land uses. The proposed development would create an urban level of density and intensity of use within a rural area. It is not a well balanced mixed use development. It is not compatible with, nor functionally related to, the surrounding uses, and is designed to be cutoff and separated from those uses. The proposed development cannot be considered a "rural village." It does not support surrounding agricultural activities, but is, in fact, incompatible with surrounding land uses. Because of its location and lack of multiple uses, this development will encourage lengthy commuting, contrary to the policies of the state comprehensive plan to continue to reduce per capita energy consumption, Section 187.201(12), Florida Statutes. The proposed project is not an efficient development because of its location away from existing facilities and services, shopping and employment, contrary to the policies of the state comprehensive plan to encourage efficient development and direct development toward areas which will have the capacity to service new population and commerce, Section 187.201(21), Florida Statutes. The State Comprehensive Plan, Section 18, "Public Facilities," provides that Florida shall protect the substantial investments in existing public facilities. This project conflicts with this policy, as investments in existing public facilities are best protected by directing growth to nearby locations to efficiently use those facilities, Section 187.201(18), Florida Statutes. The proposed project also conflicts with the state comprehensive plan policy related to governmental efficiency, which encourages the replacement of small scale economically inefficient local public facilities with more economical regional facilities. The project proposes to establish small facilities, rather than efficiently utilize larger facilities, Section 187.201(21), Florida Statutes. Section 380.08(3), Florida Statutes provides: (3) If any governmental agency denies a development permit under this chapter, it shall specify its reasons in writing and indicate in writing any changes in the development proposal that would make it eligible to receive the permit. The Board of Commissioners, in issuing its denial of the Countryside Retirement Resort specified its reasons for denial and identified changes which would make it eligible for approval as follows: The proposed development known as "Countryside Retirement Resort" is not consistent with the DeSoto County Comprehensive Plan, nor the DeSoto County Land Use Regulations. The proposed development does not make adequate provision for public facilities needed to accommodate the impact of the proposed development. There are no known changes that would make the proposed development eligible to receive approval due to the inappropriateness of the requested zoning. The DeSoto County Zoning Ordinance, Section 14.5(a), provides that among factors to be considered in a rezoning is "whether the proposed change would be contrary, and would have an adverse effect on the Comprehensive Plan." The DeSoto County Zoning Ordinance, Section 14.5(b), provides that among the factors to be considered in a rezoning is "the existing land use pattern." The existing land use pattern in the area is agricultural. The proposed development would create a medium density residential enclave within the existing land use pattern of agricultural use. The DeSoto County Zoning Ordinance, Section 14.5(c), provides that among the factors to be considered in a rezoning is "the possible creation of an isolated district unrelated to adjacent and nearby districts." The proposed development would be an isolated district of high intensity residential land use surrounded by agricultural and low intensity residential land uses. The DeSoto County Zoning Ordinance, Section 14.5(d), provides that among the factors to be considered in a rezoning is "the population such as schools, utilities, street, etc." The existing allowable density in this area of DeSoto County is 1 unit per 10 acres. The proposed development would increase this to 6 units per acre. Response time for police, fire, and rescue services would be poor if provided by existing facilities and personnel. Persons needing essential services that could only be provided in the City of Arcadia would have at least a twenty minute round trip. The County would experience a greater burden in providing services to the proposed development than it would if the development were located closer to the City of Arcadia. The DeSoto County Zoning Ordinance, Section 14.5(f), provides that among the factors to be considered in a rezoning is "whether changed or changing conditions make the passage of the proposed amendment necessary." There are no changed or changing conditions in the area which would make it necessary to amend the zoning or the Comprehensive Plant. The DeSoto County Zoning Ordinance, Section 14.5(g), provides that among the factors to be considered in a rezoning is "whether the proposed change will adversely influence living conditions of the neighborhood." The proposed development would create a high density residential development, urban type land use in an area of DeSoto County which heretofore enjoyed a rural character. The DeSoto County Zoning Ordinance, Section 14.5(h), provides that among the factors to be considered in a rezoning is "whether the proposed change will create or excessively increase traffic congestion or otherwise affect public safety." The proposed development would create traffic congestion, and would adversely affect public safety. The DeSoto County Zoning Ordinance, Section 14.5(l), provides that among the factors to be considered in a rezoning is "whether the proposed change will be a deterrent to the improvement or development of adjacent property in accordance with existing regulations." The proposed development would have an adverse impact on adjacent properties as property owners attempt to develop their properties. This development would drastically reduce the reserve capacity of State Road 31, and adjacent property owners would find it increasingly difficult and expensive to meet the Levels of Service required by the Comprehensive Plan. The DeSoto County Zoning Ordinance, Section 14.5(m), provides that among the factors to be considered in a rezoning is "whether the proposed change will constitute a grant of a special privilege to an individual owner as contrasting with the public welfare." The proposed development would not constitute the grant of a special privilege if approved, since the developer is seeking approval of a PUD. The DeSoto County Zoning Ordinance, Section 14.5(n), provides that among the factors to be considered in a rezoning is "whether there are substantial reasons why the property cannot be used in accordance with existing zoning." There is no reason why the property on which the proposed development is to be located could not be used for what it zones, agricultural usage. The DeSoto County Zoning Ordinance, Section 14.5(o), provides that among the factors to be considered in a rezoning is "whether the change suggested is out of scale with the needs of the neighborhood or the County." The proposed development is out of the scale with the needs of the County and the immediate neighborhood. The neighborhood is designated at a maximum density of 1 unit per 10 acres. This development would be at a density of 6 units per acre. The DeSoto County Zoning Ordinance, Section 14.5(p), provides that among the factors to be considered in a rezoning is "whether it is impossible to find other adequate sites in the County for the proposed uses in districts already permitting such use." There was no showing that other sites in DeSoto County could not be developed at this time. The DeSoto County Zoning Ordinance, Section 9.3, Planned Unit Development Districts (PUD), provides in part that it is the intent of the PUD Ordinance "to provide an optional alternative zoning procedure so that planned developments may be instituted at appropriate locations in the County in accord with the planning and development objectives of the County." The proposed development is not in an appropriate location, nor is it in accord with the planning and development objectives of the County.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is therefore, RECOMMENDED that a Final Order be entered by the Florida Land and Water Adjudicatory Commission denying of the application for development approval of Petitioner, and upholding the decision of the DeSoto County Board of County Commissioners to deny the request for rezoning for the Countryside Retirement Resort. DONE AND ENTERED this 27th day of January, 1992, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 27th day of January, 1992. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's proposed findings of fact. Accepted in substance: paragraphs - 1(in part),2,3,6(in part),7(in part),16,17,18,19,20(in part),21,22(in part),23,24,26,27(in part),28,29(in part),30, 31,32,33,36(in part),37,38,39,40,41,42,43,44,46(in part),49 (in part),50,51,52,53,54,55,56,57,58,59,60,61 (in part),62,63,64,65,66,67,68,69 (in part),71,72 (in part),73,74,75(in part),76,81,92,95(in part),96(in part),98,99,100,101,105,106(in part),108,109(in part),112(in part) Rejected as against the greater weight of evidence: paragraphs - 4,5,6(in part),(in part),8,15,47,48,72(in part),77,78,79,80,82,83,84,88,89,102,104,106(in part),107,109(in part),110,111,112(in part),113,114 Rejected as irrelevant, immaterial, or subsumed: paragraphs - 9,10,11,12,13,14,20(inpart),22(in part),25,27(in part),29(in part),34,35,36(in part),45,46(in part),49(in part),61(in part),69(in part),70,73,75(in part),85,86,87,90,91,97,103 Rejected as argument or conclusions of law: paragraphs - 93,94,95(in part),96(in part) Respondent's proposed findings of fact. Accepted in substance: paragraphs - 1,2,3,4,5,6,7,8,9,10,11,12,13,14,15,16,17,18 (in part),19(in part),26,27,28,29,30,32(in part),36,37,38,39,40, 41,42,43,44,45,46,47,48,49,50,51,52,53,54,58,59,60,61,62,63,64,65,66,67,68,69,70 ,71,72,74,75,76(in part),77(in part),78,79,80,81, 82,84,85,86,87 Rejected as against the greater weight of evidence: paragraph - 83 Rejected as irrelevant, immaterial, or subsumed: paragraphs - 18(in part),19(in part),20,21,22,23,24,25,37 (in part),55(in part),56(in part),57(in part),73 Rejected as argument or conclusions of law: paragraphs - 14,31,32(in part),33,34,35,55(in part),56(in part),57(in part),76(in part),77(in part) Intervenor Department of Community Affairs' proposed findings of fact Accepted in substance: paragraphs - 1,2,3,4,5,6,7(in part),8,9,10,11,12,13,15,16,17,18,19,20,21(in part),22(in part),23(in part),24,25,26,27,28,29 Rejected as against the greater weight of evidence: paragraphs - 7(in part) Rejected as argument or conclusion of law: paragraphs - 14,21(in part),22(in part),23(in part) Intervenors Halls' proposed findings of fact. Intervenors Halls did not submit separate proposed findings, but adopted the proposals submitted by the Respondent. COPIES FURNISHED: Charlie Stampelos, Esquire William Wiley, Esquire MCFARLAIN, STERNSTEIN, WILEY & CASSEDY, P.A. 600 First Florida Bank Building Tallahassee, Florida 32301 Gary Vorbeck, Esquire Fred Bechtold, Esquire VORBEC, & VORBECK 207 East Magnolia Avenue Arcadia, Florida 33821 Kathryn Funchess Asst. General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399 Lewis Hall, Jr., Esquire HALL & HEDRICK Republic National Bank Building 150 Southeast Second Avenue Suite 1400 Miami, Florida 33131 William E. Sadowski Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399 G. Steven Pfeiffer, Esquire General Counsel, Dept. of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399 Douglas M. Cook, Director Planning & Budgeting Exec. Office of the Governor The Capitol, PL-05 Tallahassee, Florida 32399-0001
The Issue The Appellants raise several issues on appeal, including: whether Ordinance 003-2015 did not comply with the constitutional single subject rule and did the County’s application of the Ordinance violate the Florida Constitution; whether the County exceeded its police power in enacting Ordinance 003-2015 and failed to follow the essential requirements of the law when it applied the ordinance to the Appellants’ property; (3) whether the Planning Commission’s decision violated its obligations to support, protect, and defend the Unites States and Florida Constitutions; and (4) whether the Appellants were deprived of their fundamental due process rights during the Commission hearing.
The Issue Whether the Large Scale Comprehensive Plan Map and Text Amendment No. 04-2 (Plan Amendment) to the City of Cocoa's (City) Comprehensive Plan (Plan), adopted by Ordinance No. 39- 2004, is "in compliance" as that term is defined in Section 163.3184(1)(b), Florida Statutes.1
Findings Of Fact The Parties and Standing The Hunters own and reside on property located on Friday Road in the unincorporated area of the County. Their property abuts on two sides of the northeastern portion of the subject property. FSNE 47 at "H." The Kellgrens own and reside on property located on the northwest corner of the intersection of Friday and James Road in the unincorporated area of the County, abutting the southeast corner of the south Plan Amendment parcel. FSNE 47 at "KR." The Kellgrens also own and operate two businesses on Cox Road located on property they own which is located within the boundaries of the City. FSNE 47 at "KB." The County is a political subdivision of the State of Florida. The City is a municipality located within the County. The DCA is the state land planning agency charged with responsibility for reviewing comprehensive plans and plan amendments under Chapter 163, Part II, Florida Statutes. FSN and Hagen-Nicholson are Florida limited liability companies and are the owners of the subject property voluntarily annexed by the City pursuant to Ordinance No. 31-2004 and is subject to the Plan Amendment adopted by Ordinance No. 39-2004. All Petitioners submitted oral or written comments, recommendations, or objections to the City during the period of time beginning with the transmittal hearing for the Plan Amendment on August 24, 2004, and ending with the adoption of the Plan Amendment on December 14, 2004. At the final hearing, the parties stipulated that the Petitioners are "affected persons" within the meaning of Section 163.3184(1)(a), Florida Statutes, with standing to participate as parties in this administrative proceeding.3 See Endnote 17. The Challenges Petitioners allege that the Plan Amendment is not "in compliance" on several grounds: lack of need, urban sprawl, inadequate data and analysis relative to traffic and land use need, violation of the intergovernmental coordination element of the City's Plan, incompatibility, internal inconsistencies, inconsistencies with the Regional and State Plans, and failure to provide for adequate public participation during the transmittal hearing. The Plan Amendment Ordinance No. 39-2004 makes two changes to the Plan. First, the text of the Future Land Use Element (FLUE) of the Plan was amended to establish a new future land use category called "very low density residential areas." 4 Second, the FLUM was amended to change the designated future land use from "Residential 1 and Neighborhood Commercial (County)" to "Very- Low Density Residential (City)." FSNE 52 at Section 5. The Plan Amendment covers approximately 605.16 acres, although the City annexed approximately 766.27 acres, which included "both real property and rights-of-way." Id. at page 1 of 4; PE 8.f. at page 3 of 18. See also DCAE 2. The Subject Property The subject property consists of a rectangular parcel adjacent to and north of State Road (SR) 528, bounded by Interstate 95 (I-95) on the west; a triangular parcel adjacent to and southeast of the north rectangular parcel and similarly bounded on the south by SR 528; and a second rectangular parcel, due south of the north parcel and adjacent to and south of SR 528 and bounded by I-95 on the west and James Road on the south and a portion of Friday Road on the east. PE 17. There is no direct access from the subject property to I-95 and SR 528. The future land uses north of the subject property include Residential 1:2.5 (County); Residential 1 (County) to the south; Residential 1:2.5 (County) to the east of the north parcel; Residential 1 (County) to the east of south parcel; and Planned Industrial Park (County) and Industrial (City) further to the east; and Residential 1:2.5 (County) to the west of I-95. PE 80. The existing land uses to the north and south are single-family residential and vacant land; to the east, vacant land, heavy and light industrial uses; and to the west, I-95, single-family residential, and vacant land. Prior to being annexed by the City in August 2004, the subject property was located in the unincorporated portion of the County. The two rectangular portions (approximately 560.95 acres) were designated as "Residential 1" on the County FLUM, allowing one unit per acre. The approximate eastern half of the triangular portion (44.21 of acres) was designated as "Neighborhood Commercial." PE 80. There is an existing borrow pit (approximately 19-20 acres) located on the eastern one-third of the triangular portion. PE 17. Approximately 145.35 acres of wetlands, now designated Conservation, permeate the subject property. PE 8.F., page 4 of 18 and Exhibits 3 and 4; FSNE 52. There are approximately 459.81 acres (605.16 total acres - 145.35 acres of wetlands) of developable upland on the subject property. See DCAE 2. The Plan Amendment proposes a maximum development potential of approximately 1,839 dwelling units (459.81 acres X 4 dwelling units).5 There is a conflict in the evidence regarding the potential maximum development of the subject property under the County Plan. The City suggested approximately 2,358 dwelling units. See PE 8.f. at pages 4-6 of 18. The City's analysis yielded a maximum of 701 dwelling units for the portion of the subject property designated as Residential 1 and 1,657 dwelling units (including application of the density bonus) for that portion of the subject property designated "Neighborhood Commercial." The City assumed there could be 37.5 units per acre (which included a density bonus) developed on the 44.21 acre tract designated "Neighborhood Commercial." Id. Petitioners suggested a maximum of approximately 817 dwelling units could have been built on the subject property if the subject property were developed with the "density bonus" under the County's Plan. See Petitioners' Joint Proposed Recommended Order at 21, paragraph 25 and n.5. There is also a conflict in the evidence regarding the potential development of commercial uses (under the County's Plan) on the portion of the triangular parcel designated as "Neighborhood Commercial." Id. Based upon conflicting evidence, it is resolved that the maximum potential number of dwelling units which could have been developed on the subject property under the County's Plan is overstated. However, this finding does not alter the ultimate findings made herein regarding whether the Plan Amendment is "in compliance." Need The "need" question is founded in Section 163.3177(6)(a), Florida Statutes, which requires that "[t]he future land use plan shall be based upon surveys, studies, and data regarding the area, including the amount of land required to accommodate anticipated growth [and] the projected population of the area . . ." This requirement is repeated in the statute's implementing rule which provides that "[t]he comprehensive plan shall be based on resident and seasonal population estimates and projections." Fla. Admin. Code R. 9J- 5.005(2)(e). Florida Administrative Code Rule 9J-5.006(2)(c) requires "[a]n analysis of the amount of land needed to accommodate the projected population, including: [t]he categories of land use and their densities or intensities of use; [t]he estimated gross acreage needed by category; and [a] description of the methodology used." Also, "need" is one of the factors to be considered in any urban sprawl analysis. See Fla. Admin. Code R. 9J-5.006(5)(g)1. On December 14, 2004, the City adopted the Plan Amendment and responded to the objections raised in the DCA's Objections, Recommendations, and Comments (ORC) Report.6 During the plan amendment review process, the proposed residential land use density for the subject property was reduced from up to seven dwelling units per acre as originally proposed to "four units per acre with a Planned Unit Development (PUD) bonus of up to five units per acre," and, ultimately as adopted by the City Council, to "[a] maximum density of 4 units per acre." FSNE 52, Exhibit A; T II 631-632. The City has two needs -- a need for vacant developable land, and a need for middle-income housing. The City differs from many other municipalities in the County because the City's population declined almost 7.4 percent from the period of 1990 to 2000.7 Every city in the County, with the exception of the City of Cocoa and one other city, has experienced population growth. The City's Director of Community Development testified that the City had become hyper-inelastic -- it had stopped growing, and started shrinking. In response to this problem, the City adopted goals in 2002 which included annexation, housing, and residential development. Because of the goals that had been adopted and implemented, from 2002 to the time of the administrative hearing, the City's population rose approximately 7.25 percent. With the Plan Amendment, the City could capture increasing populations in the surrounding areas. In the summer of 2003, the City held a housing task force with private developers. The private developers explained that they were not developing in the City because even though there was vacant land, there were environmental constraints on the land. The vacant land consisted of large amounts of wetlands, with some of the wetlands located in flood plains. In the comprehensive plan adoption package sent to the DCA, the City included a map indicating the vacant land and a map indicating the extensive wetlands located on the vacant land. (The vacant land analysis identified the amount of land potentially available for development, without stating the specific number of available acres. Based upon the testimony at final hearing, excluding the subject property, there are approximately 223-230 acres of developable land within the City limits.) Furthermore, the City provided the DCA with population figures based on BEBR. Rule 9J-5 does not provide a specific requirement as to how a local government must demonstrate how much vacant land is located within its boundaries. Rather, Rule 9J-5 permits a local government to demonstrate how much vacant land is located within it boundaries in several ways, i.e., textually, raw data, or graphically. The DCA used the maps submitted by the City as well as the information submitted that the City's population was declining to make a determination that the City had demonstrated a need for the property. A needs analysis typically consists of an examination of the projected population over the planning time period, the land uses that exist within the local government, the amounts of the land uses, and then a determination of whether the local government has enough land to meet the projected population. However, a quantitative analysis is not the only way to perform a needs analysis. A city's plan for its future and the way it wants to grow is also considered. The City's use of population figures based on BEBR estimates and a map which demonstrated the vacant land was professionally acceptable. In other words, by using BEBR estimates and a map, the City did not use a "methodology" without approval by the DCA. If a plan amendment area had been surrounded by vacant land, then the issue of need is more prevalent. Hagen-Nicholson's planning expert performed a needs analysis. The calculation of the need is done with supply and demand. Supply is land, and demand is population growth. At the time the City began the plan amendment process, the City had approximately 223-230 acres of low-density residential land available. For demand, he determined that over the past three years, there were 113 building permits issued for new homes. The mathematical computation provides for the vacant land to be fully utilized within 5.9 years at an allocation of 1:1. Using the 1:1 ratio is not necessarily a practical ratio because there may be property that is not on the market for sale. When applying a vacant-land multiplier that is used in Orange County -- 2.4, the City would only have a three-year supply of vacant land. When dealing with a comprehensive plan, there should be a 10- to 20-year supply of land. The City's housing element provides that the City is required to provide housing for all current residents as well as anticipated future residents. As of 2002, 94 percent of its housing stock was valued at $100,000 or less, and 47 percent was valued at $50,000 or less. Accordingly, the City does not have adequate available middle-income housing and the Plan Amendment may meet this need. Urban Sprawl The Petitioners contend that the Plan Amendment constitutes urban sprawl. This contention is primarily based upon the assertion that the Plan Amendment is located in a rural area, and the assertion that the Plan Amendment triggers several of the 13 indicators of urban sprawl in Florida Administrative Code Rule 9J-5.006. Florida Administrative Code Rule 9J-5.003(111) defines "rural areas" as "low density areas characterized by social, economic and institutional activities which may be largely based on agricultural uses or the extraction of natural resources in unprocessed form, or areas containing large proportions of undeveloped, unimproved, or low density property." As noted herein, the subject property is vacant and, prior to the adoption of the Plan Amendment, was designated as "Residential 1" (and a portion as "Neighborhood Commercial") under the County's Plan. It is surrounded by developed residential lands and infrastructure such as water, sewer, and roads. The surrounding areas are not undeveloped or unimproved. The area is a low density, but it is an urban low density, not a rural low density. FSN's expert planner, Gerald Langston, performed a study of the surrounding land uses in the vicinity of the Plan Amendment site (study area), including the unincorporated area of the County. Although the lands immediately to the north and south of the parcels are designated one unit per 2.5 acres and one unit per one acre, respectively, under the County's Plan, approximately 49 percent of the parcels in the study area are between one and 1.25 acres in size and approximately 30 percent are a little less than an acre. Three percent are over five acres. In other words, approximately 80 percent of the parcels are less than 1.25 acres in size. T III 819-820. Mr. Langston also studied census data and determined that the demographics of the area are not rural. It is a very rapidly growing area, with an urban development pattern that is basically built-out. (Within the study area, after deducting the 605 acres of the subject property, approximately 21 percent of the acreage is vacant or undeveloped. Stated otherwise, approximately 80 percent is developed. T III 827.) One of the County's experts, Edward Williams, did a general analysis of the lot sizes in the area. He testified that the area is rural with lot sizes of one unit per 2.5 acres. He reviewed photographs of the area and pointed out the lack of sidewalks, curbs and gutters, and lack of quarter-acre lots. However, he did not obtain any census data specific to the Plan Amendment property or to the surrounding area, and could not describe the percent distribution of lot sizes in the surrounding area. He believed that the area is agricultural and rural, but did not analyze the social and economic characteristics of the area surrounding the subject property.8 According to the County's Plan, the subject property is located in an area where the County is planning to provide future water and sewer. Additionally, a map in the County's Plan suggests that the area is actually not suitable for well and septic tanks. The subject property is within the City's water and sewer area and the City has adequate water and sewer capacity to service the subject property. The area surrounding the subject property is not rural under Florida Administrative Code Rule 9J-5.003(111), but rather consists of urban low-density residential development. Rule 9J-5.006(5)(g)1. Indicator 1 is not implicated. The subject property is surrounded by developed residential land and is not a substantial area of the City. The subject property will have a single use, but the introduction of another land use or mixed- use development would be incompatible with the surrounding area and not appropriate. Rule 9J-5.006(5)(g)2. Indicator 2 is not implicated, as the area is urban, and the Plan Amendment is not leaping over undeveloped lands. Rule 9J-5.006(5)(g)3. Indicator 3 is not present. The subject property is an area of vacant land surrounded by developed lands. The subject property is infill development. The Plan Amendment does not promote, allow or designate urban development in radial, strip, isolated or ribbon patterns emanating from existing urban developments. Rule 9J-5.006(5)(g)4. Indicator 4 is not present. The subject property is not a rural area with agricultural uses, and the wetlands on site are designated as Conservation and thus are protected. The Plan Amendment is not premature or poorly planned, as the surrounding area is already developed and the property is infill. The subject property is surrounded by infrastructure including water and sewer, and roads. The City has the capacity to provide water and sewer to the site. Rule 9J-5.006(5)(g)6. Indicator 6 is not present, as water, sanitary sewer, and reclaimed water lines have already been extended to the area. The Plan Amendment will add customers to facilities that have the capacity to handle them. By increasing the number of users in the system, the operational efficiency is increased. Therefore, the Plan Amendment maximizes the use of existing public facilities and services. Rule 9J-5.006(5)(g)7. The Plan Amendment does not fail to maximize the use of future public facilities and services. The facilities that exist in the area were built for future growth, and not connecting to them would be a failure to maximize the public investment that has already been made. Rule 9J-5.006(5)(g)8. Extending existing facilities and services to the property covered by the Plan Amendment will increase costs, but not disproportionately so. Water and sewer are close to the subject area, and the roads have capacity. Extending water and sewer at one unit per acre would be more costly and less efficient than for four units per acre. With respect to law enforcement, fire and emergency response services, this indicator is present to some extent. Rule 9J-5.006(5)(g)9. Indicator 9 does not apply, as there are no rural or agricultural uses in the area. Rule 9J-5.006(5)(g)10. The City has adopted a community redevelopment plan in the downtown neighborhood. The City can promote middle income housing with the Plan Amendment while at the same time pursue redevelopment in the downtown area. The two are not mutually exclusive. Rule 9J-5.006(5)(g)11. The Plan Amendment provides for a single residential use and does not encourage an attractive and functional mix of uses. However, putting commercial or industrial uses on the subject property does not make good planning sense as the area is not appropriate for a mix of uses. In summary, the Plan Amendment does not meet the definition of "urban sprawl." See Fla. Admin. Code R. 9J- 5.003(134). The Plan Amendment is not in a rural area; it is surrounded by residential development. Public facilities are very close, and the Plan Amendment is within the City's service area. The Plan Amendment does not "leapfrog" since there are no large tracts of undeveloped land between the City and the Plan Amendment property. It is not scattered development; it is infill. While it is true that it is a low density use and a single use, the area is not appropriate for mixed-use, retail, commercial or an extremely high residential density. Florida Administrative Code Rule 9J-5 requires a consideration of the context in which the plan amendment is being proposed. Land use types within the jurisdiction and in proximate areas outside the jurisdiction will be evaluated. Local conditions, including the existing pattern of development and extra-jurisdictional and regional growth characteristics, should be considered as well. The consideration of the parcels surrounding the Plan Amendment was important. The City considered the fact that other cities and the County as a whole are experiencing population growth. In considering how the City has grown in the past and its development pattern, how the area around the City has grown and its development pattern and population projections, the Plan Amendment is not urban sprawl. Transportation Facilities The City submitted data and analysis relative to traffic impacts in a study prepared by Traffic Planning and Design, Inc. (TPD). PE 83. The TPD traffic study was accomplished in accordance with the County's concurrency management procedures and based on adopted Levels of Service (LOS). After the City's re-submittal to the DCA, the Florida Department of Transportation (FDOT) had no comments or concerns about transportation impacts. DCAE 2, FDOT analysis. Although the Plan Amendment would allow for more traffic to be generated, increased traffic does not necessarily render a plan amendment not in compliance. A broad brush approach is taken at the comprehensive planning stage. A compliance determination does not consider details such as the design of the roads, or whether roads have guardrails. The issue is whether there is enough capacity to maintain the adopted LOS. Adequate Capacity There is adequate capacity on the surrounding roads to accommodate the trips generated by the Plan Amendment. The TPD traffic study forecasted traffic demands and the impact on available capacity along roadways affected by the subject property and concluded that "all road segments will operate within their adopted LOS with excess traffic capacity available for future development" and "there will be adequate capacity to accommodate the trip generation" contemplated by the Plan Amendment. PE 83. The projected traffic generated by the subject property between now and the year 2010 will not cause any of the roadways to exceed capacity. Based on the TPD traffic study, the County agreed that the anticipated trips generated would not exceed the adopted LOS and that there is available capacity on the road segments affected by the project. Although Petitioners raised multiple traffic issues in their respective amended petitions, Petitioners mainly presented testimony that anticipated development of the subject property will cause increased traffic on County roads which will lead to increased safety concerns. Safety Concerns on James Road The County presented evidence regarding existing and potential safety concerns on several road segments including James Road, which may result from anticipated development of the subject property. The County's main safety concern (with development of the south parcel) is the segment of James Road between Friday Road and Cox Road because of a steep canal that runs along mainly the north side of James Road for approximately one mile. The County's safety concerns relating to James Road only apply to the southern property; thus any increase in traffic on the northern property, including the triangular portion, does not impact safety on James Road. The safety problems relating to James Road exist currently and existed in 2004. Mr. Denninghoff testified that the anticipated increased traffic as a result of the Plan Amendment will expose additional traffic to the existing hazardous conditions on James Road beyond what was planned. The safety concerns with James Road could be resolved by installation of a guardrail, improved and additional street lights, and rumble strips on the road before the stop signs. The County has not added guardrails to James Road. These safety improvements are needed now. Maintenance Costs for County Roads Besides safety, another issue raised by the County during the hearing regarding transportation issues was the anticipated increase in wear and tear on the County roads resulting in increased costs to the County. Residents of the subject property will pay impact fees, which may be utilized for improvements to capacity, operational improvements at intersections, including the safety improvements mentioned above, for new facilities, or expansion of existing facilities, but not maintenance. The impact fee is paid directly to the County. By ordinance, the Brevard County Board of County Commissioners approves the expenditures of the impact fees collected. The County will receive approximately $2.6 million in impact fees from the development of the subject property. The impact fees collected by the County could be utilized to fund safety measures because they are related to capacity improvements. No development was approved by the Plan Amendment. Pursuant to the City's Code and Plan, traffic impacts of a development are reviewed in more detail after the plan amendment process, specifically, during the development process. Petitioners' concerns are premature. Development orders are the result of the subdivision and site plan approval process. Prior to the approval of the final PUD, or the issuance of building permits, the City will examine whether the necessary public facilities are operating within the adopted levels of service. When the developer applies for permits to develop the subject property, the City will review issues concerning traffic. The developer will submit an updated traffic study, which will be reviewed by the City and the County. The County is responsible for issuing driveway permits. Transportation Element Objective 2.3 of the City's Plan provides that "[d]evelopment shall bear the full burden of the cost of roadway improvements necessitated by impacts to the roadway network caused by traffic generated by said development through the adopted site approval process." The City's Plan also provides that new development will not be permitted unless mitigative measures are undertaken to address level of service impacts caused by development. Intergovernmental Coordination The City's Plan contains an Intergovernmental Coordination Element (ICE). The Plan Amendment does not make any changes to that element. Petitioners presented documentary evidence through Mr. Williams' report alleging that the City violated the ICE in its Plan. However, the evidence shows that the Plan Amendment is not inconsistent with any intergovernmental coordination requirements in the City's Plan. Intergovernmental coordination does not mean that one local government must acquiesce to a request from an adjacent local government. Intergovernmental coordination requires information sharing, and there are numerous objectives and policies in the City's Plan addressing the City's responsibility to coordinate with the County regarding development impacts at the appropriate time. Most of the policies and requirements for intergovernmental coordination in the City's Plan are driven by the subdivision site plan approval process. The City coordinated with the County, as the City provided a copy of its annexation report to the County in July of 2004. The City manager invited the County manager to discuss the report with City staff, but the County did not respond. The City also used the County's concurrency management procedures in analyzing traffic, and reduced the density from seven to four units per acre based in part upon the County's comments during the review process. Compatibility With Surrounding Areas Florida Administrative Code Rule 9J-5.003(23) provides: "[c]ompatibility means a condition in which land uses or conditions can coexist in relative proximity to each other in a stable fashion over time such that no use or condition is unduly negatively impacted directly or indirectly by another use or condition." The residential development contemplated by the Plan Amendment is compatible with the surrounding land uses. The subject property is surrounded by urban residential development and existing public infrastructure. The City studied the area surrounding the Plan Amendment, and determined that it was developed in an urban and suburban manner. To be compatible with the surrounding areas, the City developed the VLDR category allowing four units to the acre on the subject property. The County's future land use for the property to the north of the Plan Amendment is designated residential to be developed at one dwelling per 2.5 acres. However, Hagen- Nicholson's expert testified that it has been developed more intensely, with some lots developed at less than an acre. The County's future land use to the south of the Plan Amendment is one unit an acre. The area to the south, however, is less intensely developed -- it is developed at 1.5 units to the acre. The County allowed areas of three units to the acre and five units to the acre to be developed in the middle of the area to the south of the Plan Amendment. Hagen-Nicholson's planning expert testified that the County's planning of the area to the south of the Plan Amendment is the cause of urban sprawl. The Plan Amendment allows a hole in the donut to be filled in so that in the future, there is not pressure to develop homes in a leapfrog fashion two to three miles away. In this case, residential next to residential is compatible. The Plan Amendment is compatible with adjacent development. Internal Consistency Petitioners allege that the Plan Amendment is not internally consistent with several provisions of the adopted City Plan. Specifically, the report of Petitioners' planning expert alleges that the Plan Amendment is not consistent with the City's Policies and/or Objectives 1.1.1.2, 1.1.1.8, 1.1.2.3, 1.1.2.5, 1.1.3, 2.1.1, 2.3, 2.3.1.4, 2.4.1, 2.4.5, 2.6.2, 2.6.4, 4.2.4.4, 4.2.5.2, 4.2.6.3, 4.3.4.1, 9.4.4, 9.8, 9.8.1, and 9.8.2. The City's Director of Community Development testified that the Plan Amendment is internally consistent with the City's Plan and that Petitioners' expert was applying the site plan approval process to the Plan Amendment. The majority of the policies or objectives cited in the report of Petitioners' expert pertain to later stages of the development process, not the plan amendment process. For instance, Petitioners allege that the Plan Amendment is not consistent with Policy 4.2.6.3 because there is no mention in the development agreement concerning who is responsible for the costs of providing the extension of lines, alteration of lift station and the cost of plant capacity for providing wastewater service. The Plan Amendment is not inconsistent with Policy 4.2.6.3 because the developer's agreement for the subject property provides that the developer is required to comply with all city, local, county, state, and federal requirements. Additionally, allegations concerning Policies 1.1.2.5, 1.1.2.6, 2.4.1, and 2.4.5 are premature because they pertain to setback requirements and issues which pertain to later stages of the development process. Policies 4.2.4.4 and 4.2.5.2 pertain to septic tanks and locating waste water package plants. These Policies do not pertain to the Plan Amendment. FSN's planning expert testified that the Plan Amendment is consistent with the City's Plan and that the Plan Amendment will benefit the City as a whole. The DCA's senior planner also testified that several of the Policies which Petitioners alleged that were inconsistent with the Plan Amendment were premature because they pertain to the development stage, not to the plan amendment stage. The Plan Amendment is consistent with Policies and Objectives 1.1.1.2, 2.1.1, 2.6.2, 2.6.4, 2.9.1, 2.9.3, 4.1, 4.1.1.5, 4.1.3.1, 4.1.5, 9.4.4, 8.1.2, 8.2.1, 9.8.1, 9.8.2, and 9.8. Petitioners did not prove that the Plan Amendment is inconsistent with the provisions they cited. Regional and State Plans Section 163.3177(10)(a), Florida Statutes, provides in pertinent part: for the purpose of determining whether local comprehensive plans are consistent with the state comprehensive plan and the appropriate regional policy plan, a local plan shall be consistent with such plans if the local plan is "compatible with" and "furthers" such plans. The term "compatible with" means that the local plan is not in conflict with the state comprehensive plan or appropriate regional policy plan. The term "furthers" means to take action in the direction of realizing goals or policies of the state or regional plan. For the purposes of determining consistency of the local plan with the state comprehensive plan or the appropriate regional policy plan, the state or regional plan shall be construed as a whole and no specific goal and policy shall be construed or applied in isolation from the other goals and policies in the plans. Strategic Regional Policy Plan A determination of whether the Plan Amendment is consistent with the East Central Florida Regional Planning Council's Strategic Regional Policy Plan (SRPP) is based on an assessment of the SRPP as a whole. § 163.3177(10)(a), Fla. Stat. Petitioners did not present evidence that the Plan Amendment is inconsistent with the SRPP as a whole. Petitioners' expert opined that the Plan Amendment is inconsistent with certain provisions of the SRPP. The report only discussed several policies in an isolated fashion and did not consider the SRPP as a whole. Nevertheless, the Plan Amendment is consistent with the SRPP as a whole, and is consistent with the specific provisions with which Petitioners' report alleged inconsistencies. Specifically, the Plan Amendment is not inconsistent with the SRPP Policy 6.1 because the area is already urban. Additionally, the Plan Amendment is in an area that has existing commercial uses nearby. The Plan Amendment is consistent with SRPP Policies 6.4 and 6.5 because both of these policies pertain to rural areas. The subject property and the surrounding areas are not rural. The Plan Amendment is consistent with SRPP Policy 6.16 because it is based upon area-wide projections and forecasts. The Plan Amendment is consistent with SRPP Policy 6.17 because it does not adopt a policy providing that there shall be no informal mediation processes, or that informal mediation shall not be used. The Plan Amendment is consistent with SRPP Policy 6.19 regarding the encouragement of public participation. Overall, the City encouraged public participation. The City has the capacity and ability to develop its downtown area and to promote infill at the same time. Accordingly, the Plan Amendment is consistent with SRPP Policy 6.21. The Plan Amendment concerns the issue of deciding a future land use. SRPP Policy 5.17 1.a., which pertains to addressing transportation impacts of a development project in one jurisdiction on an adjacent jurisdiction, will be addressed at the appropriate stage of the development process. SRPP Policy 5.23 pertains to equitable cost participation guiding development approval decisions. It does not pertain to the Plan Amendment because there is no transportation capacity improvements required by the Plan Amendment. The Plan Amendment is consistent with SRPP Policy 7.3 because the area encompassing the Plan Amendment is already included in the City's approved future service area. Petitioners' report set forth an allegation that SRPP Policies 7.5, 7.9., 7.10, and 7.19 "would all be in conflict with the city of Cocoa proposed amendment." The Plan Amendment is consistent with these SRPP Policies. FSN's planning expert testified that the SRPP uses directive verbs that are intended to be suggestions and recommendations to a local government, not requirements. He provided testimony that since the subject area is urban, and not rural, the SRPP does not impact this Plan Amendment because it provides for protection of regional natural resources, and promotes intergovernmental coordination. Hagen Nicholson's expert also testified that the Plan Amendment is consistent with the SRPP. The East Central Florida Regional Planning Council did not raise any concerns to the Plan Amendment violating the SRPP. Finally, the Plan Amendment actually furthers SRPP Policies 4.23, 4.2.4, 6.1.4, 7.1, 7.4, and 7.5. State Comprehensive Plan A determination of whether the Plan Amendment is consistent with the State Comprehensive Plan (State Plan) is based on an assessment of the State Plan as a whole. Petitioners alleged in paragraphs 39, 46, 59, and 65 of the Amended Petition that the Plan Amendment is inconsistent with Sections 187.201(18)(b) and 187.201(21) of the State Plan. However, they did not present persuasive evidence that the Plan Amendment is inconsistent with the State Plan as a whole. The Plan Amendment is consistent with the State Plan as a whole, and, in particular, Sections 187.201(18)(b) and 187.201(21), Florida Statutes. Furthermore, the Plan Amendment furthers the State Plan goal to "increase the affordability and availability of housing for low-income and moderate-income persons. . . ." See § 187.201(4), Fla. Stat. It furthers the State Plan goal set forth in Section 187.201(9), Florida Statutes, because the Plan Amendment protects the wetlands by designating them as Conservation areas. Finally, it furthers the State Plan goal set forth in Section 187.201(15), Florida Statutes, because the Plan Amendment preserves environmentally sensitive areas. Public Participation9 Petitioners alleged that public participation was not provided with respect to the August 24, 2004, transmittal hearing, primarily because the City allegedly refused to allow citizens access to the hearing and the opportunity to speak during the hearing. At the administrative hearing in this matter, following denial of the DCA's motion in limine, the issue was narrowed to the question of whether the August 24, 2004, hearing was the type contemplated by Chapter 163, Part II, Florida Statutes, with the ultimate issue being whether or not that will impact whether the Plan Amendment is "in compliance." The issues identified in footnote 1 of Petitioners' Hunters and Kellgrens' Amended Petition are not at issue. Council meetings have an order of discussion. During "delegations," only City residents, employees, and water customers may speak. The City Council is authorized to set aside up to 30 minutes of each regular Council meeting limited to hearing from only residents and taxpayers of the City. After the delegations portion, the consent agenda is considered, and then the public hearings portion follows. Under the public hearings portion, any person may speak. Speaker cards are filled out, passed on to the Mayor, and the Mayor calls the names from the cards. On August 17, 2004, the City published a Notice of Future Land Use and Zoning Change in the Florida Today Newspaper. The notice stated that a public hearing would be held by the City Council in their chambers at 7:00 p.m. on August 24, 2004, on subjects including the proposed plan amendment and re-zoning of the subject property. The notice also stated that the hearing was a public hearing, that all interested persons may attend and that members of the public are encouraged to comment on the proposed ordinance at the meeting. The parties stipulated that the August 24, 2004, hearing was properly advertised and noticed.10 According to the transcript of the City Council meeting on August 24, 2004, the meeting, including the transmittal hearing portion, began at 7:15 p.m. Several hundred people showed up and were outside of the building at 6:00 p.m. The City's planner testified that he did not have any expectation that there would be that many people there. The turn-out was so large that not everyone could fit in the Council chambers. The capacity of the room is either 91 or 93 based upon fire department regulations. The first issues discussed related to the annexation of the property subject to the proposed plan amendment. There was also discussion regarding the re-zoning and the proposed plan amendment. PE 14 at 3-48. Thereafter, Mayor Parrish stated that "it would be appropriate to have a public hearing regarding these three ordinances." Id. at 48. The Mayor asked everyone to fill out speaker cards.11 The City Attorney stated that there were speaker cards about three to four inches thick; "about two hundred plus cards of people who want to speak." Id. at 49, 51. Mayor Parrish stated: I know. There is no way we can hear them in one night. Also, we have to go by the concerns and the citizens that we hear and I doubt there are this many ideas that is going to be expressed tonight. If we don't duplicate something that we have already heard, we might be able to bring them down a little bit. If we can elect representative to speak on behalf of other names that can be given possibly as a way to cut down on that. We also have heard from planning and zoning and have spoken with the members of planning and zoning. We have minutes from the meetings. We have copies of presentation that were given at that meeting and letters and phone calls and e-mails, and so, we have got a good sense of the concerns that were expressed that night and since that night. We do want to hear from everyone we possibly can. The criteria for a public hearing are basically three minutes for a speaker and representatives of recognized groups shall be limited to ten minutes. So if you have somebody that can speak on behalf of a group of people they can have ten minutes and possibly get everything expressed that maybe a larger group would take longer than the ten minutes. A total debate on a single issue is limited to 30 minutes. Since we have three issues -- Id. at 49-51. See also PE 14 at 53-54. The public hearing portion of the transmittal hearing did not get underway until approximately 8:30 p.m. Id. at 51. The City Council typically allows 30 minutes for the public hearings portion, but decided to extend the time to 90 minutes, id. at 53, and later went beyond that limit to accommodate more speakers.12 After several persons began expressing their opposition to the items, including the proposed plan amendment, id. at 58-82, the Mayor stated that the comments were "starting to get a little bit repetitive" on several issues and requested the attendees to try "to narrow it down to some other issues that maybe haven't been brought up so far." Id. at 82. Other speakers followed, id. at 82-128, when the Mayor stated that they were "going to run over with just the cards" that she had and inquired whether they wanted to extend the time. It was decided to "hear the three or ten depending upon how long." Id. at 129. Again, others spoke when a police officer said "[w]e have a few more[,] [a]re you done?" The Mayor responded: "We are past time. I'm trying to finish the ones that I have up here that are saying that they are in line." Id. at 140. Councilman Anderson wished to cut off public comment and Councilwoman Collins provided a second "because of how late it is -- 11 o'clock Mayor." Id. at 141. Without ruling on the request, Stacy Ranger, a representative of the County, spoke and focused on the annexation issue, including neighborhood compatibility. Id. at 141-146. Thereafter, Mr. Titkanich was granted permission to respond to comments. Id. at 147-157. The public portion of the hearing was then closed. Id. at 158. After some discussion, a motion to extend the meeting not more than one hour was approved. This motion was made sometime after Councilwoman Collins announced how late it was - 11 p.m. Id. at 176-177.13 Ultimately, the Council voted four to one in favor of Ordinance No. 39-2004. Id. at 181-182. Mr. Kellgren testified that he arrived at the hearing location around 6:00 p.m. There was a large crowd of several hundred people outside. He filled out a speaker's card, but could not get into the building. He waited outside and tried to observe what was going on. He left the hearing around 9:30 p.m. because he did not see the point in staying any longer; he could not get in and could not hear anything. His speaker's card was not marked "NR" or "No Response." PE 36. Although Mr. Kellgren was not able to get into the building to speak, he had retained lawyer Kimberly Rezanka to represent him and his wife at the August 24, 2004, hearing. During the hearing, Ms. Rezanka spoke to the City Council on behalf of the Kellgrens and several other individuals.14 (Mr. Kellgren attended the P&ZB hearing and opposed the proposed plan amendment and rezoning.) After the transmittal hearing, Mr. Kellgren sent two letters to the DCA's Plan Review Administrator expressing concerns regarding the proposed plan amendment. One letter was signed by Mr. Kellgren and others. No complaint was made regarding the conduct of the transmittal hearing. PE 81-82; T II 358. Ms. Hunter arrived at the City Council's August 24, 2004, meeting around 5:30 p.m. (She attended the P&ZB hearing and spoke.) She testified that she was not allowed to go inside the building because she was not a City resident. She wrote comments opposing the proposed plan amendment on her speaker's card -- "7 houses per acre would be ridiculous Against [two underscored lines] rezoning of property at Friday [&] James in Cocoa - 1 house per acre only!!". She wrote this information on the card so her intentions would be known. The upper-right hand corner of her card is marked "NR," although she did not write these letters on the card. She left the public hearing around 9:30 p.m., because she had to work the next day and take care of her children. She knew that the hearing was still going on and acknowledged that her name could have been called after she left. She did not go to the December 14, 2004, adoption hearing. Brian Seaman lives in Canaveral Groves, which is in the unincorporated area of the County and east of the north parcel. FSNE at "BS." He arrived at 6:00 p.m. He testified that he was not allowed in because he was not a City resident. He filled out a speaker's card, but believes that his name was not called. His card was not marked "No Response" or "NR." He testified he remained at the public hearing until approximately 11:45 p.m., when he was told of the Council's vote. See Endnote (He attended the P&ZB hearing and later attended the December adoption hearing held at the Civic Center. He did not speak at those hearings because the issues that were of concern to him had already been raised by others.) The public hearing portion of the transmittal hearing lasted over three hours. There is evidence that names on the speaker cards (CE 10), such as Mr. Seaman, were not called. There is also evidence that there was no response for many of the names as reflected on the cards.15 Nevertheless, citizens spoke during the public hearing portion of the transmittal hearing. Notwithstanding the large turn out, the Mayor and Council took measures to accommodate the larger-than-expected crowd and public comment was received. The City Council learned from the experience and conducted the adoption hearing at the Civic Center. No issues are raised regarding the adequacy of the adoption hearing. There is no persuasive evidence that any person was deprived of the opportunity to submit written objections, comments, or recommendations to the Council prior to, during, or after the Council's consideration of the proposed plan amendment (during the transmittal hearing). The DCA's expert planner, Erin Dorn, testified that Florida Administrative Code Rule 9J-5.004 requires local governments to adopt procedures for public participation. Once the DCA receives an amendment package from a local government, it goes to the plan processing team (PPT). The PPT checks the package for "completeness" to make sure that it includes all information required by law. The PPT does not review the plan amendment. Once the package is complete, it is sent to the planning review team for a substantive review. Review of a plan amendment includes public facilities, natural resources, and transportation. Review of a plan amendment does not include a review of whether every person who wanted to attend the hearing was permitted to do so, or a review of the number of people who attended. Such aspects of public participation are not considered by the PPT, and necessarily the DCA when reviewing a plan amendment for a compliance determination. The DCA received letters from citizens, voicing concerns regarding the Plan Amendment.16
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining that the Plan Amendment adopted by the City through Ordinance No. 39-2004 is "in compliance." DONE AND ENTERED this 3rd day of July, 2006, in Tallahassee, Leon County, Florida. S CHARLES A. STAMPELOS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of July, 2006.
The Issue The issue is whether the Evaluation and Appraisal Report (EAR) amendments for the Bay County (County) Comprehensive Plan (Plan) are in compliance.
Findings Of Fact The Parties Diane C. Brown resides and owns property within the County, and she submitted written and oral comments to the County during the adoption process of Ordinance No. 09-36. The County is a local government that administers its Plan and adopted the Ordinance which approved the changes being contested here. The Department is the state land planning agency charged with the responsibility for reviewing plan amendments of local governments, such as the County. The EAR Process The County's first Plan was adopted in 1990 and then amended through the EAR process in 1999. As required by law, on September 5, 2006, the County adopted another EAR and in 2007 a Supplement to the EAR. See County Ex. 1C and 1D. The EAR and Supplement were found to be sufficient by the Department on December 21, 2007. See County Ex. 1E. After the EAR-based amendments were adopted by the County and transmitted to the Department for its review, the Department issued its Objections, Recommendations and Comments (ORC) report. After making revisions to the amendments in response to the ORC, on October 20, 2009, the County enacted Ordinance No. 09-36, which adopted the final version of the EAR-based amendments known as "Charting Our Course to 2020." See County Ex. 1B. On December 15, 2009, the Department issued its notice of intent determining that the EAR-based amendments were in compliance. See County Ex. 1F. Notice of this determination was published in the Panama City News Herald the following day. See County Ex. 1G. The EAR is a large document comprised of five sections: Overview Special Topics; Issues; Element Reviews; Recommended Changes; and a series of Maps. Section 163.3191(10), Florida Statutes, requires that the County amend its comprehensive plan "based" on the recommendations in the report; subsection (2) also requires that the County update the comprehensive plan based on the components of that subsection. The EAR-based amendments are extensive in nature, and include amendments to all 13 chapters in the Plan. However, many provisions in the 1999 version of the Plan were left unchanged, while many revisions were simply a renumbering of a provision, a transfer of a provision to another element, a change in the format, or an otherwise minor and non-substantive change. Although the EAR discusses a number of issues and concerns in the first three sections of the report, the EAR- based amendments must only be based on the recommended changes. See § 163.3191(10), Fla. Stat. Therefore, it was unnecessary for the County to react through the amendment process to the discussions in the Issues and Element Reviews portions of the EAR. For example, the EAR discusses air quality and mercury but made no specific recommendations to amend the Plan to address either subject. Also, nothing in chapter 163 or Department rules requires that the County implement changes to the Plan that parrot each specific recommendation to the letter. So long as the revisions are "based" on an area of concern in the recommendations, the statutory requirement has been satisfied. Section Four of the EAR contains the "Recommended EAR- Based Actions and Corrective Measures Section 163.3191(2)(i)." See County Ex. 1C, § 4, pp. 1-9. Paragraph (2)(i) of the statute requires that the EAR include "[t]he identification of any actions or corrective measures, including whether plan amendments are anticipated to address the major issues identified and analyzed in the report." Section Four indicates that it was intended to respond to the requirements of this paragraph. Id. at p. 1. Finally, the only issue in this proceeding is whether the EAR-based amendments are in compliance. Therefore, criticisms regarding the level of detail in the EAR and Supplement, and whether the County adequately addressed a particular issue in those documents, are not relevant. A determination that the EAR was sufficient in all respects was made by the Department on December 21, 2007. In her Amended Petition, Petitioner raises numerous allegations regarding the EAR-based amendments. They can be generally summarized as allegations that various text amendments, including entire elements or sub-elements, are inconsistent with statutory and rule provisions or are internally inconsistent with other Plan provisions, and that the County failed to properly react to changes recommended in the EAR. Because this is a challenge to an in-compliance determination by the Department, Petitioner must show that even though there is evidence to support the propriety of these amendments, no reasonable person would agree that the amendments are in compliance. See Conclusion of Law 90, infra. Objections Administrative Procedures - Chapter 1 Petitioner contends that new policy 1.4.1(4) is inconsistent with sections 163.3181 and 187.201(25)(a) and (b)6., which generally require or encourage effective citizen participation, and rule 9J-5.004, which requires a local government to adopt procedures for public participation. She also contends the County should not have deleted policy 1.4.2, which required the County to provide notices (by mail and sign postings) beyond those required by chapter 163. The new policy simply provides that notice of public hearings be provided for in accordance with chapter 163. There is no statutory or rule requirement that more stringent notice requirements be incorporated into a plan. The new notice requirements are consistent with the above statutes and rule. It is fairly debatable that the changes to the Administrative Procedures part of the Plan are in compliance. Future Land Use Element (FLUE) - Chapter 3 Petitioner has challenged (a) one policy that creates a new planning area; (b) the County's failure to adopt new energy standards in the FLUE; and (c) the adoption of new development standards for two land use categories in Table 3A of the FLUE. Table 3A describes each land use category in the Plan, including its purpose, service area, designation criteria, allowable uses, density, intensity, and development restrictions. See County Ex. 1A, Ch. 3, pp. 3-5 through 3-17. These contentions are discussed separately below. Southport Neighborhood Planning Area New FLUE policy 3.4.8 creates the Southport Neighborhood Planning Area (Southport), a self-sustaining community with a functional mix of uses. See County Ex. 1A, Ch. 3, pp. 3-20 and 21. The effect of the amendment is simply to identify Southport as a potential planning area that includes a mixture of uses. This follows the EAR recommendations to create "new areas where residents are allowed to work, shop, live, and recreate within one relatively compact area while preserving the rural and low density land uses in the area[,]" and to create "higher density rural development." County Ex. 1C, § 4, p. 2. Southport is located north of the greater Panama City area in an unincorporated part of the County near or adjacent to the proposed new intersection of County Road 388 and State Road 77. Southport is also identified in new policy 3.2.5(8) as a Special Treatment Zone (STZ) that is designated as an overlay on the Future Land Use Map Series. Id. at p. 3-5. (There are seven STZs in the Plan that act as overlay districts on the FLUM. Overlays do not convey development rights.) Petitioner contends that policy 3.4.8 is inconsistent with sections 163.3177(6)(a) and (d), (8), and (9)(b) and (e), and rules 9J-5.005(2), (5), and (7), 9J-5.006(5), and 9J-5.013. More precisely, Petitioner generally contends that the amendment will encourage urban sprawl; that there is no need for the additional development; that there are no central water and wastewater facilities available to serve that area; that there is no mechanism for monitoring, evaluating, and appraising implementation of the policy; that it will impact nearby natural resources; that it allows increased density standards in the area; and that it is not supported by adequate data and analysis. Most of the data and analysis that support the establishment of the new planning area are in the EAR. They are found in the Introduction and Overview portion of Section One and the FLUE portion of Section 3 of the Element Reviews. The County Director of Planning also indicated that the County relied upon other data as well. Although the new policy allows an increase in maximum residential density from five to 15 dwelling units per acre, paragraph (b) of the policy specifically requires that "all new development [be] served by central water and sewer." Petitioner's expert opined that the new community will create urban sprawl. However, Southport is located within the suburban service area of the County, which already allows densities of up to five dwelling units per acre; it is currently developed with low-density residential uses; and it is becoming more urban in nature. Given these considerations, it is fairly debatable that Southport will not encourage urban sprawl. The new STZ specifically excludes the Deer Point Reservoir Protection Zone. Therefore, concerns that the new policy will potentially threaten the water quantity and quality in that reservoir are not credited. In addition, there are other provisions within the Plan that are designed to protect the reservoir. Petitioner criticized the County's failure to perform a suitability analysis before adopting the amendment. However, a suitability study is performed when a land use change is proposed. Policy 3.4.8 is not an amendment to the FLUM. In fact, the Plan notes that "[n]othing in this policy shall be interpreted as changing the land use category of any parcel of the [FLUM]." County Ex. 1A, Ch. 3, p. 3-21. In determining the need for this amendment, the County took into consideration the fact that except for the Beaches STZ, the EAR-based amendments delete residential uses as an allowed use in commercially-designated lands. The number of potential residential units removed from the commercial land use category far exceeds the potential number of residential units that could be developed at Southport. Thus, the new amendment will not result in an increase in residential units. Petitioner also contends that the County should have based its needs analysis using Bureau of Economic and Business Research (BEBR) estimates. The County's population projections are found in the Introduction portion of the EAR and while they make reference to BEBR estimates, they are not based exclusively on those data. See County Ex. 1C, § 1, pp. 2 and 3. However, there was no evidence that the estimates used by the County are not professionally acceptable. Where there are two acceptable methodologies used by the parties, the Department is not required to evaluate whether one is better than the other. See § 163.3177(10)(e), Fla. Stat. ("the Department shall not evaluate whether one accepted methodology is better than another"). The County's estimates are professionally acceptable for determining need. The other objections to the amendment have been considered and found to be without merit. Therefore, it is at least fairly debatable that the amendment is in compliance. Neighborhood Commercial - Table 3A The purpose of this commercial category is to "provide areas for the convenience of residential neighborhoods so as to generate a functional mix of land uses and reduce traffic congestion." County Ex. 1A, Ch. 3, p. 3-15. Allowable uses include, among others, supermarket centers, restaurants, public facilities, and other similar uses. The County amended the intensity standard for this category by allowing development that is "[n]o more than 50-feet in height." Id. Petitioner asserts that the new 50-foot height limitation for commercial buildings results in the amendment being inconsistent with rule 9J-5.006 because it is not based on adequate data and analysis. Petitioner further argues that the standard is internally inconsistent with FLUE objective 3.9 and policy 3.9.1 and Housing Element objective 8.5, which relate to compatibility. Finally, Petitioner alleges that it will cause unsustainable density in the category and create new demands for public services. The EAR contains a section that analyzes data regarding residential development in commercial land use categories. See County Ex. 1C, § 2. There is, then, data and analysis that support the amendment. The 50-foot height limitation actually limits the intensity that would normally be allowed under current Land Development Regulations (LDRs) if this limitation were not in the Plan. Therefore, it will not increase the intensity of development within this district. Because the Plan specifically provides that the category is for "areas [with] low-intensity commercial uses that will be compatible with adjacent or surrounding residential uses," and such uses must be located "outside subdivisions . . . unless intended to be included in the subdivisions," compatibility issues with adjacent residential areas should not arise. Petitioner failed to establish beyond fair debate that the amendment is not in compliance. Seasonal/Resort - Table 3A This land use category is designed for transient occupancy (temporary seasonal visitors and tourists) under chapter 509, rather than permanent residents. It is limited to areas with concentrations of accommodations and businesses that are used in the tourist trade. See County Ex. 1A, Ch. 3, p. 3- The category includes a new intensity standard for buildings of "[n]o more than 230-feet in height." Id. Petitioner contends that this intensity standard is inconsistent with section 163.3177(6)(d), (8), and (9) and rules 9J-5.005(2) and (5), 9J-5.006, and 9J-5.013. These provisions require that an amendment protect natural resources, that it be based on the best available data and analysis, and that it be internally consistent with other Plan provisions. Petitioner also points out that the land use category is located in or adjacent to the Coastal High Hazard Area, that the amendment allows an increase in density, and this results in an inconsistency with statutes and rules pertaining to hurricane evacuation zones. Prior to the adoption of the EAR-based amendments, there was no intensity standard in the Plan for this land use category and all development was governed by LDRs. Pursuant to a recommendation by the Department in its ORC, the new standard was incorporated into the Plan. Before making a decision on the specific height limitation, the County considered existing condominium construction on the beach, current LDR standards for the district, and whether the new standard would create an internal inconsistency with other Plan provisions. Therefore, it is fair to find that adequate data were considered and analyzed. The new height limitation is the same as the maximum height restriction found in the Seasonal Resort zoning district, which now applies to new construction in the district. Because condominiums and hotels that do not exceed 230 feet in height are now allowed within the district, and may actually exceed that height if approved by the County, the amendment is not expected to increase density or otherwise affect hurricane evacuation planning. Historically, transient visitors/tourists are the first to leave the area if a hurricane threatens the coast. Petitioner also contends that the amendment will create compatibility problems between existing one- or two-story residential dwellings in the district and high-rise condominiums, and that the County failed to adequately consider that issue. However, before a condominium or other similar structure may be built, the County requires that the developer provide a statement of compatibility. It is fairly debatable that the new intensity standard is in compliance. Energy Issues Petitioner alleges that the new amendments do not adequately address energy issues, as required by section 163.3177(6)(a). That statute requires, among many other things, that the FLUE be based upon "energy-efficient land use patterns accounting for existing and future electric power generation and transmission systems; [and] greenhouse gas reduction strategies." However, amendments to objective 3.11 and policy 3.11.5, which relate to energy-efficient land use patterns, adequately respond to these concerns. See County Ex. 1A, Ch. 3, pp. 3-27 and 3-28. In addition, new Transportation Element policy 4.10.3 will result in energy savings and reduce greenhouse gases by reducing idle times of vehicular traffic. See County Ex. 1A, Ch. 4, p. 4-12. It is fairly debatable that the energy portions of the Plan are in compliance, and they promote energy efficient land use patterns and reduce greenhouse gas emissions, as required by the statute. Transportation Element - Chapter 4 The EAR contains 14 recommended changes for this element. See County Ex. 1C, § 4, pp. 2-4. Item 2 recommends generally that bike paths be installed in or next to certain areas and roadways. Id. at p. 2. Petitioner contends that this recommendation was not implemented because it is not included in the Recreation and Open Space Element. However, one section of the Transportation Element is devoted to Bicycle and Pedestrian Ways and includes objectives 4.14 and 4.15 and policies 4.14.1 and 4.15.1, which respond to the recommendation. See County Ex. 1A, Ch. 4, pp. 4-14 and 4-15. In addition, the General Strategy portion of the element requires the County to install alternative transportation systems where a demonstrated need exists. Id. at p. 4-1. Petitioner contends that by limiting bike paths only to where there is a demonstrated need, the County has not fully responded to the recommendation. This argument is illogical and has been rejected. It is fairly debatable that the above amendments are in compliance. Groundwater Aquifer Recharge - Chapter 5F As required by section 163.3177(6)(c), the County has adopted a natural groundwater aquifer recharge element. See County Ex. 1A, Ch. 5F. The goal of this sub-element, as amended, is to "[s]afeguard the functions of the natural groundwater recharge areas within the County to protect the water quality and quantity in the Floridan Aquifer." County Ex. 1A, Ch. 5, p. 5F-1. The EAR contains three recommended changes for this part of the Plan: that the County update its data and analysis to identify areas of high and/or critical recharge for the Floridan aquifer; that it include in the data and analysis an examination of existing LDRs which affect land uses and development activities in high recharge areas and note any gaps that could be filled through the LDRs; and that it include within the data and analysis a study of potential impacts of increased development in high recharge areas, including reasonable development standards for those areas. See County Ex. 1C, §4, pp. 4-5. Petitioner contends that "the objectives and policies pertaining to protecting water recharge areas" are inconsistent with sections 163.3177(6)(d) and 187.201(7) and rules 9J-5.5.011 and 9J-5.013, which require that the Plan protect groundwater; that they violate section 163.3177(8) and rule 9J-5.005(7), which require measurable objectives for monitoring, evaluating, and appraising implementation; and that the County violated section 163.3191(10) by failing to respond to the recommended changes in the EAR. In response to the EAR, in July 2009, the County prepared a watershed report entitled "Deer Point Lake Hydrologic Analysis - Deer Point Lake Watershed," which was based on a watershed management model used by County expert witness Peene. See County Ex. 4. The model used for that report is the same model used by the Department of Environmental Protection (DEP) and the United States Army Corps of Engineers. The study was also based on data and analysis prepared by the Northwest Florida Water Management District. The purpose of the analysis was to look at potential future land use changes in the Deer Point watershed and assess their ultimate impact upon the Deer Point Reservoir, which is the primary public water supply for the County. The model examined the entire Deer Point watershed, which is a much larger area than the Deer Point Lake Protection Zone, and it assumed various flows from rain, springs, and other sources coming into the Deer Point Reservoir. The study was in direct response to a recommendation in the EAR that the County undertake a study to determine if additional standards were needed to better protect the County's drinking water supply and the St. Andrews estuary. See County Ex. 1C, § 4, p. 5. Another recommendation was that the study be incorporated by reference into the data and analysis of the Plan and be used as a basis for any amendments to the Plan that might be necessary. Id. at p. 6. Pursuant to that recommendation, the report was incorporated by reference into Objective 5F.1. See County Ex. 1A, Ch. 5, p. 5F-1. The evidence supports a finding that the report is based on a professionally accepted methodology and is responsive to the EAR. The model evaluated certain future land use scenarios and predicted the level of pollutants that would run off of different land uses into the Deer Point Reservoir. Based on this analysis, Dr. Peene recommended that the County adopt certain measures to protect the groundwater in the basin from fertilizers, stormwater, and pesticides. He also recommended that best management practices be used, that septic tanks be replaced, and that any new growth be on a centralized wastewater treatment plant. Petitioner's expert criticized the report as not sufficiently delineating the karst features or the karst plain within the basin. However, the report addresses that issue. See County Ex. 4, p. 2-36. Also, Map 13 in the EAR identifies the Karst Regions in the County. See County Ex. 1C, § 5, Map 13. One of the recommendations in the EAR was to amend all goals, policies, and objectives in the Plan "to better protect the Deer Point watershed in areas not included within the Deer Point Reservoir Special Treatment Zone, and [to] consider expanding the zone to include additional areas important to preserving the quantity and quality of water entering the reservoir." County Ex. 1C, § 4, p. 6. Besides amending the sub-element's goal, see Finding of Fact 31, supra, the County amended objective 5F.1 to read as follows: By 2010 protect groundwater resources by identifying and mapping all Areas of High Aquifer Recharge Potential to the Floridan Aquifer in Bay County by using the data and analysis contained in the Deer Point Lake Hydrologic Analysis - Deer Point Watershed, prepared by Applied Technology and Management, Inc., dated July 2009. In addition, policy 5F-1.1 requires that the County use "the map of High Aquifer Recharge Areas to establish an Ecosystem Management overlay in the Conservation Element where specific land use regulations pertaining to aquifer water quality and quantity shall apply." Also, policy 5F-1.2 requires the identification of the Dougherty Karst Region. Finally, the EAR and Map 13A were incorporated by reference into the Plan by policy 1.1.4.4. These amendments sufficiently respond to the recommendations in the EAR. While Petitioner's expert criticized the sufficiency of the EAR, and he did not believe the report adequately addressed the issue of karsts, the expert did not establish that the study was professionally unacceptable or otherwise flawed. His criticism of the County's deletion of language in the vision statement of the sub-element that would restrict development density and intensity in areas known to have high groundwater aquifer potential is misplaced. An amendment to a vision statement is not a compliance issue, and nothing in the EAR, chapter 163, or chapter 9J-5 requires the County to limit "density and intensity" in high aquifer recharge areas. On this issue, the EAR recommended that the County's drinking water supply be protected by using "scientifically defensible development standards." County Ex. 1C, § 4, p. 5. The amendments accomplish this result. Petitioner also contends that while new policy 5F.3 and related policies are "good," the County should have collected additional data and analysis on the existence of swallets, which are places where streams flow underground. Again, nothing in chapter 163 or chapter 9J-5 requires the County to consider swallets. Also, a contention that policy 5F3.2 allows solid waste disposal facilities in high recharge areas is without merit. The policy requires that the County continue to follow chapter 62-7 regulations (implemented by DEP) to protect water quality of the aquifers. In addition, a moratorium on construction and demolition landfills has been adopted, and current LDRs prohibit landfills within the Deer Point Reservoir Protection Zone. Petitioner also criticized the sufficiency of policy 5F.4, which requires the implementation of LDRs that limit land uses around high aquifer recharge areas. The evidence establishes that the new policy is sufficient to achieve this purpose. It is at least fairly debatable that the new amendments protect the natural resources, are based on the best available data and analysis, include measurable objectives for overseeing the amendments, and respond to the recommended changes in the EAR. Conservation Element - Chapter 6 The purpose of this element is to conserve the natural resources of the County. Petitioner contends that "many of the amendments [to this chapter] are not consistent with applicable rules and statutes, and that a number of recommendations in the EAR pertaining to the Conservation Element were not implemented as required by Section 163.3191(10)." These contentions are discussed below. Air pollution While the EAR discusses air pollution, there were no specific recommendations to amend the plan to address air quality. See County Ex. 1C, Element Reviews, Ch. 6, pp. 1 and Petitioner contends, however, that current Plan objective 6.3, which was not amended, is not protecting air quality and should have been revised to correct major air quality problems in the County, including "the deposition of atmospheric mercury caused by fossil fuel burning power plants and incinerators." Objective 6.3 requires the County to maintain or improve air quality levels, while related policies 6.3.1 and 6.3.2 require that the County's facilities will be constructed and operated in accordance with state and federal standards. The policies also require that the County work through state and federal agencies to eliminate unlawful sources of air pollution. Notably, the County does not regulate emissions or air pollution, as that responsibility lies within the jurisdiction of other state and federal agencies. It is fairly debatable that the County reacted to the EAR in an appropriate manner. Policies and Objectives in Chapter 6 Petitioner contends that policy 6.1.1 is inconsistent with section 163.3177(8) and rule 9J-5.005(2) because: it is not supported by adequate data and analysis; it does not implement the EAR recommendations, as required by section 163.3191(10); it is inconsistent with section 163.3177(9)(b) and (f) because it results in "inconsistent application of policies intended to guide local land use decision[s]"; it is inconsistent with sections 163.3177(6)(d) and 187.201(9) and (10) and rule 9J- 5.013 because it fails to adequately protect natural resources, including isolated wetlands; and it is internally inconsistent with other Plan provisions. Policy 6.1.1 provides that as a subdivision of the State, the County "will, to the maximum extent practicable, rely upon state laws and regulations to meet the conservation goals and objectives of this Plan." Item 9 in the recommended changes recommends that the County should resolve the ambiguities and inconsistencies between various policies and objectives which rely on the jurisdiction of state laws and regulation on the one hand, and objective 6.11 and implementing policies, which appear to extend wetland jurisdiction to all wetlands, including isolated wetlands not regulated by the Northwest Florida Water Management District. See County Ex. 1C, § 4, p. 6. The real issue involves isolated wetlands, which at the time of the EAR were not regulated by the Northwest Florida Water Management District. The EAR did not recommend a specific solution, but only to resolve any apparent "ambiguity." Through amendments to policy 6.11.3, which implements objective 6.11, the County reacted to the recommendation. These amendments clarify the Plan and provide that wetlands in the County will be subject to the Plan if they are also regulated by state and federal agencies. Any ambiguity as to the Plan's application to isolated wetlands was resolved by the adoption of new rules by the Northwest Florida Water Management District, which extend that entity's jurisdiction to isolated wetlands. See Fla. Admin. Code Ch. 62-346. This was confirmed by County witness Garlick, who explained that the Plan now defers to the wetland regulations of state and federal agencies. Therefore, any inconsistencies or ambiguities have been resolved. Petitioner contends that objective 6.2 and implementing policy 6.2.1 are inconsistent with statutes and a rule which require protection of natural resources because they focus on "significant" natural resources, and not all natural resources. With the exception of one minor change to the policy, the objective and policy were not amended, and the EAR did not recommend that either be revised. Also, testimony established that existing regulations are applied uniformly throughout the County, and not to selected habitat. Finally, the existing objective and related policies already protect rare and endangered species in the County. Objective 6.3 requires that the County "maintain or improve air quality levels." For the reasons cited in Finding of Fact 45, the objective is in compliance. Objective 6.5 requires the County to maintain or improve estuarine water quality consistent with state water quality standards, while policy 6.5.1 delineates the measures that the County will take to achieve that objective. See County Ex. 1A, Ch. 6, pp. 6-4 and 6-5. Except for one minor change to paragraph (3) of the policy (which is not in issue), neither provision was revised. Also, the EAR did not recommend any changes to either provision. Notwithstanding Petitioner's contention to the contrary, the County was not required to revise the objective or policy. Policy 6.5.2 requires that the County "protect seagrass beds in those areas under County jurisdiction" by implementing certain enforcement measures. County Ex. 1A, Ch. 6, p. 6-5. The policy was only amended in minor respects during the EAR process. Petitioner contends that the County failed to amend the policy, as required by the EAR, and this failure results in no protection to natural resources. However, the EAR only discusses the policy in the Issues section. See County Ex. 1C, § 2, p. 7. While the EAR emphasizes the importance of seagrass beds to marine and estuarine productivity, it has no recommended changes to the objective or policy. Even so, the County amended policy 6.5.2(5) by requiring the initiation of a seagrass monitoring program using Geographic Information System (GIS) mapping by 2012. See County Ex. 1A, Ch. 6, p. 6-6. It is at least fairly debatable that the objective and policy are in compliance. Objective 6.6 requires the County to "protect, conserve and appropriately use Outstanding Florida Waters, Class I waters and Class II waters." County Ex. 1A, Ch. 6, p. 6-6. Its purpose is to ensure the quality and safety of the County's primary drinking water supply. Id. The objective was not amended and remains unchanged since 1999. Except for a recommendation that the County give a land use designation to water bodies, there were no recommended changes for this objective or related policies in the EAR. Because land use designations are for land, and not water, the County logically did not assign a land use to any water bodies. Petitioner contends that the objective and related policies are not based on the best available data and analysis and are not measurable, and that they fail to protect Lake Powell, an Outstanding Florida Water, whose quality has been declining over the years. Because no changes were recommended, it was unnecessary to amend the objective and policies. Therefore, Petitioner's objections are misplaced. Notably, the Plan already contains provisions specifically directed to protecting Lake Powell. See, e.g., policy 6.6.1(1), which requires the County to specifically enforce LDRs for Lake Powell, and objective 6.21, which requires the County to "[m]aintain or improve water quality and bio-diversity in the Lake Powell Outstanding Florida Water (OFW)." County Ex. 1A, Ch. 6, pp. 6-6 and 6-24. Petitioner's expert also criticized the objective and related policies on the ground the County did not adequately identify karst areas in the region. However, nothing in the EAR, chapter 163, or chapter 9J-5 requires the County to collect new data on the existence of karst areas. Petitioner also points out that objective 6.6 and policy 6.6.1 are designed to protect Deer Point Lake but were not amended, as required by the EAR, and they fail to adequately protect that water body. For the reasons expressed in Finding of Fact 55, this contention has been rejected. Objective 6.7, which was not amended, provides that the County "[c]onserve and manage natural resources on a systemwide basis rather than piecemeal." County Ex. 1A, Ch. 6, p. 6-8. Related policies, which were not amended except in one minor respect, require that the County implement programs in "Ecosystem Management Areas." These areas are illustrated on Map 6.1 of chapter 6. Petitioner contends that even though they were not amended, the objective and policies are not supported by adequate data and analysis, they fail to contain measurable standards, and they are not responsive to a recommendation in the EAR. Because no changes were made to these provisions, and the EAR does not recommend any specific changes, the contentions are rejected. The 17 water bodies comprising the Sand Hill Lakes are identified in policy 6.9.1. Policy 6.9.3, which also implements objective 6.9, continues the practice of prohibiting development with a density of greater than one unit per ten acres on land immediately adjacent to any of the Sand Hills Lakes outside designated Rural Communities. See County Ex. 1A, Ch. 6, p. 6- (The three Rural Communities in the County have been designated as a STZ and are described in FLUE policy 3.4.4.) The policy has been amended by adding new language providing that "[p]roposed developments not immediately adjacent to, but within 1320 feet of a Sand Hill Lake, and outside of a designated Rural Community, will provide, prior to approval, an analysis indicating that the development will not be too dense or intense to sustain the lake." Id. Other related policies are unchanged. The amendment was in response to a recommendation in the EAR that all goals, objectives, and policies be amended to more clearly define the area around the Sand Hill Lakes within which densities and intensities of land must be limited to ensure protection of the lakes. See County Ex. 1C, § 4, p. 6. Petitioner contends that the amended policy is inconsistent with various statutes and rules because it contains no specific standards for site suitability assessment and does not restrict density bordering on the lake; it does not implement the EAR; it is not based on EAR data and analysis; and it does not contain procedures for monitoring and evaluating the implementation of all policies. Policy 6.9.3 applies to agricultural areas outside of rural communities where the maximum density is now one dwelling unit per ten acres, and to properties that are designated as agriculture timber, which allows one dwelling unit per 20 acres. Contrary to Petitioner's assertion, it does not change the established densities on those land use categories. Before a property owner can convert a land use affected by the policy, the applicant will be required to provide an analysis that the new development will not be too intense or dense to sustain the lake. It is at least fairly debatable that the amendment responds to the EAR recommendation, that it will not increase density, that it is based on sufficient data and analysis in the EAR, and that adequate standards are contained in the policies to ensure proper implementation. Objective 6.11 requires the County to "[p]rotect and conserve wetlands and the natural functions of wetlands." County Ex. 1A, Ch. 6, p. 6-14. A challenge to an amendment to policy 6.11.3(3), which relates to setbacks or buffers for wetlands, has already been addressed in Case No. 10-0859GM. Policy 6.11.3 provides that in order "[t]o protect and ensure an overall no net loss of wetlands," the County will employ the measures described in paragraphs (1) through (6) of the policy. Petitioner contends that by using the standards employed by state and federal agencies for wetlands in paragraph (2), the County has abdicated its responsibility to protect natural resources. However, as previously discussed, the recent assumption of jurisdiction over isolated wetlands by the Northwest Florida Water Management District allows the County to extend these measures to all wetlands in the County. Petitioner also contends that the term "no net loss" in policy 6.11.3 is not measurable. Through its GIS system, though, the County can monitor any loss of wetlands. This was confirmed by County witness Garlick. In addition, the County will know at the development order phase whether any federal or state agency requires mitigation to offset impacts to wetlands. It is at least fairly debatable that the amendments to policy 6.11.3 will protect all wetlands, including isolated wetlands. Objective 6.12 requires that by the year 2012, the County will "develop a GIS layer that provides baseline information on the County's existing wetlands. This database will be predicated on the USFWS [United States Fish and Wildlife Service] National Wetlands Inventory (Cowardin et al 1979) hierarchy of coastal and inland (wetlands) represented in North Florida. This inventory shall be developed through a comprehensive planning process which includes consideration of the types, values, functions, sizes, conditions and locations of wetlands." County Ex. 1A, Ch. 6, p. 6-15. Related policies 6.12.1, 6.12.2, and 6.12.3 require that the County (a) use the GIS database to identify, classify, and monitor wetlands; (b) adopt LDRs which further the objective and policies; and (c) track in the GIS database the dredge and fill permits issued by DEP. Id. Petitioner criticizes the County's decision to wait until 2012 to develop a GIS layer; contends that policy 6.12.2 improperly defers to LDRs; asserts that the policy lacks meaningful standards; and contends it is not responsive to the EAR. The evidence presented on these issues supports a finding that it is at least fairly debatable that the amendments are in compliance. The EAR-based amendments deleted objective 6.13, together with the underlying policies, which related to floodplains, and created new provisions on that subject in the Stormwater Management Sub-Element in Chapter 5E. This change was made because the County concluded that floodplain issues should more appropriately be located in the stormwater chapter. The natural resource values of floodplains are still protected by objective 5E-9 and related policies, which require that state water quality standards are maintained or improved through the County's stormwater management programs. See County Ex. 1A, Ch. 5E, p. 5E-7. Also, "flood zones" are retained as a listed "significant natural resource" in Conservation Element policy 6.2.1. See County Ex. 1A, Ch. 6, p. 6-3. It is at least fairly debatable that the transfer of the floodplain provisions to a new element does not diminish protection of that resource. Finally, Objective 6.21 (formerly numbered as 6.23) requires the County to "[m]aintain or improve water quality and bio-diversity in the Lake Powell Outstanding Florida Water (OFW)." Except for renumbering this objective, this provision was not amended, and there is no specific recommendation in the EAR that it be revised. Therefore, the contentions that the existing policy are not in compliance are not credited. Coastal Management Element - Chapter 7 The recommended changes for this element of the Plan are found on pages 7 and 8 of Section 4 of the EAR. In her Proposed Recommended Order, Petitioner contends that the entire element is inconsistent with section 163.3191(10) because the County did not follow the recommendations in items 1, 2, and 4. Those items generally recommended that the County update the data and analysis supporting the element to reflect current conditions for, among other things, impaired waters. This was done by the County. Accordingly, the County adequately responded to the recommendations. Petitioner also contends that policy 7.1.1 improperly deferred protection of coastal resources to the LDRs. The policy reads as follows: 7.1.1: Comply with development provisions established in the [LDRs] for The Coastal Planning Area (Chapter 10, Section 1003.2 of the Bay County [LDRs] adopted September 21, 2004) which is hereby defined as all land and water seaward of the landward section line of those sections of land and water areas seaward of the hurricane evacuation zone. County witness Crelling established, however, that there are numerous other policies in the element that govern the protection of natural resources. Petitioner contends that no changes were made to provide additional guidance in policy 7.2.1 (formerly numbered as 7.3.1) to improve estuarine water quality even though multiple water bodies are listed as impaired. Except for a few clarifying changes, no revisions were made to the policy. Policy 7.2.1 does not reduce the protection for impaired waters. The minor rewording of the policy makes clear that the protective measures enumerated in the policy "will be taken" by the County to maintain or improve estuarine water quality. It is fairly debatable that the element and new objectives and policies are in compliance. Petitioner contends that amended objective 7.2 (formerly numbered as 7.3) will lead to less protection of water quality. The objective requires the County to "[m]aintain or improve estuarine water quality by regulating such sources of pollution and constructing capital improvements to reduce or eliminate known pollutants." County Ex. 1A, Ch. 7, p. 7-2. Its purpose is to regulate all known potential sources of estuarine pollution. The evidence fails to establish that the amended objective will reduce the protection of water quality. Policy 7.3.1 was amended to delete the requirement that areas with significant dunes be identified and mapped and to provide instead that the County may impose special conditions on development in dune areas as a part of the development approval process. See County Ex. 1A, Ch. 7, p. 7-4. This change was made because the EAR recommended that a requirement to map and identify dune systems be deleted due to the "extremely dynamic nature of beach and dune systems." County Ex. 1C, § 4, p. 7. A similar provision in the Conservation Element was transferred to the Coastal Management Element to respond to the recommended change. The County adequately responded to the recommendation. Petitioner contends that amended policy 7.3.2 (formerly numbered as 7.4.1) does not include sufficient standards to protect significant dunes. The amended policy requires that where damage to dunes is unavoidable, the significant dunes must be restored and revegetated to at least predevelopment conditions. It is at least fairly debatable that the standards in the policy are sufficient to protect dunes. In summary, the evidence does not establish beyond fair debate that the revisions to chapter 7 are not in compliance. Housing Element - Chapter 8 Petitioner contends the entire element is inconsistent with section 163.3191(10) because the County failed to react to recommendations in the EAR; and that new objective 8.16 and related policies 8.16.1, 8.16.2, and 8.16.3 are inconsistent with section 163.3177(9)(e) and rules 9J-5.005(6) and (7) because they fail to identify how the provisions will be implemented and thus lack specific measurable objectives and procedures for monitoring, evaluating, and appraising implementation. Petitioner focused on item 4 in the Recommended Changes for the Housing Element. That recommendation reads as follows: 4. The revised data and analysis should also include a detailed analysis and recommendations regarding what constitutes affordable housing, the various state and federal programs available to assist in providing it; where it should be located to maximize utilization of existing schools, medical facilities, other supporting infrastructure, and employment centers taking into consideration the costs of real property; and what the likely demand will be through the planning horizon. The objectives and policies should then be revised consistent with the recommendation of the analysis, including the creation of additional incentives, identification on the Future Land Use Map of areas suited for affordable housing, and, possibly amending the County Land Development Regulations to require the provision of affordable housing if no other alternatives exist. County Ex. 1C, § 4, p. 8. Item 1 of the Recommended Changes states that "[t]he County should implement those policies within the Housing Element which proactively address affordable housing, and in particular Policy 8.15.1 outlining density bonuses, reduced fees, and streamlined permitting, to provide incentives for the development of affordable housing." Id. Policy 8.15.1 was amended to conform to this recommendation. The new objective and policies address incentives for the development of affordable housing. While item 4 is not specifically addressed, the new objective and policies address the County's housing concern as a whole, as described in the Recommended Changes. Also, the new objective and policies contain sufficient specificity to provide guidance to a user of the Plan. It is fairly debatable that the element as a whole, and the new objective and policies, are in compliance. Intergovernmental Coordination Element - Chapter 10 Although discussed in the Element Reviews portion of the EAR, there are no recommended changes for this element. See County Ex. 1C, § 3, pp. 1-5. Petitioner contends that because the County deleted objective 10.5, the entire element conflicts with the EAR recommendations, and it is inconsistent with two goals in the state comprehensive plan, sections 163.3177(6)(h)1. and (9)(b) and (h), and rules 9J-5.015 and 9J-5.013(2)(b)8. The deleted provision required the County to "establish countywide resource protection standards for the conservation of locally significant environmental resources." Besides deleting this objective, the County also deleted objective 10.1, which provided that the County "will take the lead role toward the creation of an 'intergovernmental forum' as a means to promote coordination between various jurisdictions and agencies." County Ex. 1A, Ch. 10, p. 10-1. To support her argument, Petitioner relies upon a concern in the Issues part of the EAR that states that "countywide resource protection standards have not been established" and that "consistency of regulation between jurisdictions" must be observed. See County Ex. 1C, § 2, p. 45. Mr. Jacobson, the County Planning and Zoning Director, pointed out that the County currently has numerous interlocal agreements with various municipalities and does not require authorization from the Plan to adopt these agreements. Objective 10.5 was deleted because the County cannot implement its regulations in the various municipalities, and protection of natural resources is addressed in other portions of the Plan. He also noted that the "intergovernmental forum" discussed in deleted objective 10-1 is not required by any statute or rule. It is at least fairly debatable that the element is in compliance and does not violate any statute or rule. (i) Capital Improvements Element - Chapter 11 Petitioner contends that the County failed to implement three recommended changes in the EAR and therefore the entire element is in violation of section 163.3191(10). Those recommendations include an updating of information on the County's current revenue streams, debts, commitments and contingencies, and other financial matters; a revision of policy 11.6.1 to be consistent with Recreation and Open Space Element policy 9.71 with regard to recreational levels of service (LOS); and the development of a five-year schedule of capital improvements. See County Ex. 1, § 4, p.9. Policy 11.6.1 has been substantially revised through the EAR process. Table 11.1 in the policy establishes new LOSs, including one for local parks, regional parks, and beach access points. The County has also adopted an updated five-year Capital Improvement Plan. See County Ex. 36. That exhibit includes a LOS Analysis for recreational services. The same exhibit contains a breakdown of financial matters related to capital improvements. It is fairly debatable that the element is in compliance. Petitioner also contends that objective 11.1 and policy 11.1.1 are not in compliance. Both provisions remain unchanged from the 1999 Plan, and the EAR did not recommend that either provision be amended. The contention is therefore rejected. Other Issues All other issues not specifically addressed herein have been considered and found to be without merit, contrary to the more persuasive evidence, or not subject to a challenge in this proceeding.
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 EAR-based amendments adopted by Ordinance No. 09-36 are in compliance. DONE AND ENTERED this 30th day of June, 2011, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 2011.
The Issue The issue in this case is whether it should be determined that the Highlands County Comprehensive Plan, as amended, was in compliance with Chapter 163, Fla. Stat. (1993), as of the adoption of the County Ordinance 94-1 on March 2, 1994.
Findings Of Fact Adoption History Highlands County adopted its first Comprehensive Plan with a land use map in 1991. The Department of Community Affairs (the DCA or Department) took the position that the initial comprehensive plan was not in compliance. On September 15, 1993, the County adopted an amended comprehensive plan. (County Exhibit 6) The DCA took the position that the amended comprehensive plan, in particular its natural resources element, did not adequately protect areas of important plant and animal habitat from agricultural land uses. (County Exhibit 8). Highlands County adopted remedial amendments on March 2, 1994. (County Exhibit 9) On March 16, 1994, DCA published a Cumulative Notice of Intent to find the Highlands County Comprehensive Plan and Remedial Comprehensive Plan Amendments in compliance. (County Exhibit 13) The Petition for Administrative Hearing by Heartland Environmental Council, Inc. (HEC) was filed on or about April 6, 1994. The HEC Petition was signed by Kris Delaney, as its president. The parties' Prehearing Stipulation filed on October 17, 1994, eliminated several of the issues initially raised in the HEC Petition. The Lake Wales Ridge Highlands County is special because of the presence of a feature known as the Lake Wales Ridge, which is only between five and 14 miles wide but stretches for about 100 miles in a north-south orientation through the County. Most of the Ridge is contained within Highlands County, but smaller portions extend into neighboring counties. The Lake Wales Ridge had its beginnings when the sea covered much of what is now the Florida peninsula. A paleo beach and dune system was formed at the edge between the sea and the Ridge. When the waters receded, it left behind a ridge of relatively high ground characterized by generally coarse sands. These sands, which began as beach sand, have been weathered for millions of years, rendering them very sterile and low in nutrients. Water passes very quickly through these sands, making the soil and environment resemble those occurring in much drier places. Although created through the same processes, the Ridge contains many different unique and specialized habitats. Because of these habitats, the Ridge is a national "hot spot" for endemism. This means that many different species of organisms occur in this relatively small area; many of these species occur exclusively or primarily on the Ridge. At least two dozen plant species are found exclusively or primarily on the Ridge, and it is believed that many species have yet to be discovered. In more recent times, the high and dry Ridge also has attracted a disproportionate share of the residential, commercial and agricultural development in the County. Development pressures have conflicted with the habitat needs for the survival of many of the plant and animal species that occurred on the Ridge. Urban and citrus development tend to obliterate habitat; they also compete for available water supply. In addition, as the Ridge has developed, the natural fires that served an important role in maintaining the special habitats of the Ridge were suppressed. More recently, although man has come to understand the importance of fire to these habitats and the species that thrive in them, the increasing presence of man's development has made fire management more problematic and, in some cases, impossible. With more and more development, the habitats of the Ridge with their many endemic plant and animal species have come under increasing pressure. The most widespread kind of natural habitat on the Ridge is called scrub. Scrub consists mainly of scrub oak and shrubs adapted to dry, low nutrient conditions. Scrub contains a disproportionate share of the threatened and endangered plant and animal species on the Ridge. These include the Florida scrub jay, the gopher tortoise, the sand skink, the scrub lizard and the Florida mouse. Natural scrub habitat is rapidly disappearing from the Ridge. By 1981, about 64 percent of the scrub on the southern Ridge had been severely altered. Along the central Ridge, losses were even greater--about 74 percent. By 1991, losses were estimated to be approximately 70 to 90 percent. Sandhill is the rarest natural community in the County. It is the historic high pineland community dominated by long leaf pines. (A vegetative community known as southern sandhill is not dominated by long leaf pines and is not true sandhill; it actually is a type of scrub.) Only about one percent of the original true sandhill still existed as of March, 1994. Although altered by fragmentation and fire suppression, the remaining sandhill still supports several important endemic plant and animal species, such as the gopher tortoise, Sherman's fox squirrel, and a plant called the clasping warea. A type of natural habitat unique to Highlands County portion of the Ridge is cutthroat seep. Cutthroat seeps occur where groundwater near and at surface elevation flows rapidly through areas usually adjacent to true wetlands, keeping the area wet but not ponded. These areas are dominated by cutthoat grasses, which require periodic burning to maintain their dominance. Drainage related to development lowers the water table and otherwise interrupts the needed lateral flow of water, allowing the invasion of woody species. In addition, development makes fire management more problematic and, in some cases, impossible. The most effective protection of cutthroat seep requires preservation of relatively large parcels, approximately ten acres or more. Smaller parcels are harder to fire manage. In addition, smaller parcels could be subjected to inadvertent hydrologic interruption from nearby development. There are about 18 plant species that occur only on the Ridge. Forty plant species occur only in Florida scrub and occur on the Ridge. Twenty-two plants on the Ridge are federally listed as either endangered or threatened. The Florida scrub jay is a federally listed endangered species that occurs only in peninsular Florida. The scrub jay also serves as an indicator species--management for scrub jay habitat will meet the habitat requirements of most other species that occur in scrub habitat. Scrub jays require the presence of scrub oak, as well as bare ground and low growing scrub. Periodic fire is necessary to maintain this mix. Scrub jays are very territorial. The tend to stay on one specific site. Scrub jays are monogamous, pairing to breed for life. Juveniles help feed and protect younger birds before dispersing to find a territory of their own. Dispersal distance typically is less than a mile. Each family group occupies a relatively large area--approximately 25 acres. Large sites are necessary to maintain a viable scrub jay population. Population viability models indicate that 150-200 individuals are needed for a population to persist for 200 years. Using this standard, fewer than ten potentially secure populations of scrub jay exist. It is believed that as much as 750 acres of scrub oak may be required to give a such a population a 90 percent chance of survival for 100 years. Development destroys scrub jay habitat. In addition, nearby development not only makes fire management difficult, if not impossible, it increases scrub jay mortality from feral cats and dogs and from motor vehicles. In the Base Documents supporting the Highlands County Plan, as amended, the County recognized the unique and sensitive natural resource represented by the Lake Wales Ridge. The Base Documents acknowledged that, before the comprehensive plan was adopted, the County did not have a "formal mechanism to examine the effects of proposed development and agricultural uses on natural vegetation and wildlife." The Base Documents also acknowledged that the Ridge required "more stringent controls and greater incentives for resource protection." Conservation, Use, and Protection of Natural Resources Natural Vegetation and Wildlife Subelement [sic] Highlands County has adopted, as the Natural Vegetation and Wildlife Subelement [sic] of its Natural Resources Element, Objective 3 providing that the County shall protect and acquire native vegetative communities which are endemic to Central Florida and shall restrict activities known to adversely affect the endangered and threatened species and their habitat. Under that Objective, Highlands County has adopted a number of Policies. Highlands County's approach to conservation, use, and protection of natural resources under Objective 3 and its policies is to identify, evaluate, and protect natural resources on a site-by-site basis. (County Exhibit 6, Pages NRE-10 through NRE-25, inclusive, and County Exhibit 9) The review procedures prepared by Petitioner's representative, Kris Delaney, for the Central Florida Regional Planning Council (CFRPC) also used a site-by-site approach. (Petitioner Exhibit 56) Kris Delaney is the immediate past president of HEC and was described by Petitioner's counsel as its main representative. Highlands County's approach to evaluation of natural resources also is comparable to the review processes adopted by federal statute and state law for the protection of threatened and endangered species. Site specific evaluation was necessary due to the variety of protected species needs, site conditions, and legal constraints. Under Policy 3.1, A., Highlands County has adopted a number of source documents to identify endangered or threatened species, including species of special concern. Under Policy 3.1, B., Highlands County has adopted a number of documents as guidelines for establishing mitigation, on-site protection, and remedial actions for the protection of habitats and listed species in the County's land development regulations. Under Policy 3.2, Highlands County adopted a Conservation Overlay Map series to be used as a general indicator for the presence of xeric uplands, wetlands, cutthroat seeps, historical and archeological resources, cones of influence for potable wells, and aquifer recharge areas. (See Findings 52-59, infra, for a detailed description and explanation of these maps.) Whenever a particular site is in an area where one of those resource categories is mapped on the Conservation Overlay Map series or are otherwise known to occur, Policy 3.3 of the Natural Resources Element requires the applicant to submit to the Highlands County Planning Department a preliminary field investigation report prepared by a County-approved professional, firm, government agency, or institution. If that field investigation determines that any of those resources actually exist on the site, an Environmental Impact Report is required of the applicant. Those Environmental Impact Reports (EIR's) must also be prepared by a County approved-professional, firm, agency, or institution. Policy 3.3, E., specifies the content of the EIR: (1) maps and a description of natural vegetative communities occurring on the proposed development site in terms of their habitat functions and significance; (2) maps and a description of the aforementioned natural resource categories which may be impacted by the proposed development; (3) an assessment of the potential impacts which would be sustained by a natural resource as a result of the proposed development; (4) an evaluation of water quality inputs and outputs; recommendations for appropriate mitigation and on-site protection measures; recommended land maintenance and management procedures to assure the continued viability or function of the natural resource after development; and a list of agencies which may have permit requirements pertaining to the proposed development. Under Policy 3.3, F., the application package and the EIR are transmitted for review and comment to the agencies listed in the Environmental Impact Report as having permit requirements and to the Highlands County Natural Resources Advisory Committee. Responsive comments and recommendations which are received are forwarded to the County employee or board having decision-making authority concerning the applicable permit and included in the County records pertaining to the project. Under Policy 3.3, G., after receiving the application packet, the EIR, and the comments and recommendations from other permitting agencies and the Highlands County Natural Resources Advisory Committee, the County evaluates and determines the permit conditions required to: (1) protect and preserve the water quality or natural functions of flood plains and drainage ways, potable water wells, and wetlands; (2) protect and preserve the function of native vegetative communities which are endemic to Central Florida or the habitats of endangered species, threatened species, or species of special concern; (3) preserve and protect historical and archeological resources; (4) establish measures to protect life and property from flood hazard; and (5) establish land maintenance and management procedures for the natural resource to assure its continued viability or function after development. Policy 3.3, G., further requires that the County's final development order must be conditioned upon adequate avoidance, preservation, mitigation, or remedial actions for the protection of the aforementioned resources and must be consistent with the wetlands, flood plain, aquifer recharge, water quality, and cultural resource protection measures set forth within the policies of the Comprehensive Plan. It also requires the County to require that the necessary state and local permits be obtained as a condition of approval for the project's final development order. In determining the appropriate conditions for the County's final development order, Policy 3.3, B., states that avoidance and preservation of the resource shall be the first choice for protecting the resource. Acquisition, conservation easements or dedications, and site design methods (including clustering development to the portion of the site where the resource does not exist or, if that is not possible, to the least environmentally sensitive portion of the site), are among the methods allowed to accomplish that purpose. Appropriate buffers between the development and the resource are also required. Policy 3.3, C., also provides that a mitigation fee may be imposed by the Board of County Commissioners for small, isolated tracts containing less significant habitat and that the mitigation fees collected would be used to fund off-site mitigation in order that preservation of equal or greater habitat type, function, and quantity can be achieved. This is consistent with the "Review Procedure for Special Habits: Xeric Uplands" prepared by Kris Delaney for the CFRPC which provides that "[L]ocal government may wish to establish procedural relationship with such agencies and, based on locally determined criteria, a minimum parcel size requiring review." Similarly, Policy 3.4 provides an environmental mitigation fee alternative for construction of single-family residences on preexisting lots of records to the extent consistent with state and federal regulations. These mitigation fee provisions are consistent with existing state and federal programs for protection of threatened and endangered species and species of special concern (Petitioner Exhibit 53, Pages 58 through 60; Petitioner Exhibit 56, Page 25, Level III, G.1 (cont.); and Petitioner Exhibit 78, Page 16) Policy 3.15 identifies several mitigation options which are consistent with those found in the "Review Procedure for Special Habitats: Xeric Uplands" prepared by Kris Delaney for the CFRPC. Policy 3.5, A., requires the County to institute an ongoing program to define, identify, and conserve its native vegetative communities and the habitats of endangered or threatened species and species of special concern and states that the conservation program must include the following implementation measures: (1) acquisition of lands using public funds and grants; (2) lease of land; (3) tax abatement; (4) land swaps and transfers of title; (5) establishment of conservation or open space easements; (6) density bonuses for cluster development; (7) density bonuses for development that preserves habitat and avoids impact on endangered or threatened species, including species of special concern; (8) density transfers for conservation set-asides to buildable portions of sites; and (9) mitigation fees and mitigation fee credits. Under Policy 3.5, B., the County has established as the top priority of its conservation program working with public and private agencies to acquire and preserve in their natural state: (1) scrub or sand hill habitats (xeric uplands); (2) endemic populations of endangered or threatened species, including species of special concern; (3) wetlands, cutthroat grass seeps, and estuaries; (4) important aquifer recharge areas; and (5) unique scenic or natural resources. In Policy 3.6, the County specifically references the "Review Procedure for Special Habitats: Xeric Uplands" prepared by Kris Delaney for the CFRPC as the model for its development review process for coordination with local, state, and federal regulatory agencies. Policy 3.6(g) specifically provides for coordination with local, state, and federal agencies concerning native vegetative communities or habitat areas spanning more than one local jurisdiction. Policy 3.7 establishes funding sources for the County's conservation trust fund and requires that the fund be used exclusively for the acquisition of the priorities listed in Policy 3.5, B., or the enhancement of other publicly- owned conservation-valued lands, as determined by the Board of County Commissioners. To discourage clearing of land prior to environmental review, the County adopted Policy 3.13, which requires property owners to obtain a County land clearing permit prior to land clearing. Issuance of the land clearing permit is conditioned upon completion of the environmental review process adopted in Policy 3.3. If property is cleared without a County land clearing permit, no development orders may be issued for that site for a period of three years after such clearing. Under Policy 3.13, C., of the Plan, as amended, no land clearing permit is required for "any agricultural activity not requiring a Highlands County land development order conducted by a lawfully operating and bona fide agricultural operation" on property "designated by the Future Land Use Map as either General or Urban Agriculture . . .." Under the policy, such operations are "encouraged to implement a Soil and Water Conservation District approved conservation plan, including the use of Best Management Practices, as applicable to the specific area being cleared, and [to secure all other permits required by State and federal agencies exercising jurisdiction over the natural resources referred to in Policy 3.2 and found on said property]." [Emphasis added.] In addition, Policy 3.9 of the Natural Resources Element provides for encouraging agricultural uses which are compatible with wildlife protection and water quality outputs, implementation of erosion control and Best Management Practices. Highlands County also has adopted many other policies in the Natural Vegetation and Wildlife Subelement [sic] of the Natural Resources Element for the protection of natural resources, including: Policy 3.8, providing for the removal and control of exotic plant species; Policy 3.10, requiring the County to incorporate the protection and conservation measures adopted under the Natural Vegetation and Wildlife Subelement [sic] into all County surface water management plans, public works projects and infrastructure improvement plans; Policy 3.11, encouraging the expansion of wildlife/greenbelt corridors; Policy 3.12, encouraging the creation of parks for the protection, preservation, and conservation of natural resources; Policy 3.14, requiring setbacks from environmentally sensitive land; Policy 3.16, providing for transfers of density and density bonuses to encourage preservation of environmentally sensitive lands and listed species through the use of planned unit developments; Policies 3.17 through 3.19, providing for the appointment, functions and responsibilities of the Highlands County Natural Resource Advisory Committee; Policy 3.20, providing for the adoption of a five-year acreage target for acquisition of natural resource lands; and Policy 3.21, providing for a buffer around Highlands Hammock State Park, publicly-owned conservation lands, and conservation lands being considered for acquisition with public funds. Wetlands Subelement [sic] Highlands County has adopted, as the Wetlands Subelement [sic] of its Natural Resources Element, Objective 4 providing for the protection of wetlands systems and their ecological functions to ensure their long term, economic, environmental, and recreational value and to encourage restoration of wetlands systems to a functional condition. Under Objective 4 of the Natural Resources Element, Highlands County has adopted a number of policies to protect wetlands systems. Policy 4.1 provides for the protection of ecological functions of wetlands systems by the County through actions such as supporting the restoration of wetlands systems, protecting the natural functions and hydrology of wetlands systems by buffering against incompatible land uses and mitigating development impacts, providing for clustering and open space buffering, intergovernmental cooperation, and the acquisition of wetlands systems, including cutthroat grass seeps. In Policy 4.2, Highlands County adopted definitions for wetlands and cutthroat seeps which are required to be mapped according to Policies 3.2 and 4.3. In Policies 4.4 through 4.7, the County provided for the adoption of land development regulations which: encourage the restoration of wetlands systems; provide that development orders in cutthroat seeps be conditioned upon the issuance of wetlands permits by the Army Corps of Engineers, the Florida Department of Environmental Protection, and the South and Southwest Florida Water Management Districts, as their jurisdictions apply, as a condition of approval of the project's final development order or land clearing permit; prevent the net loss or alteration of wetlands on a County-wide basis; and require conservation easements and delineation on final plats for wetland and cutthroat grass seep areas used for mitigation purposes. State and Federal Protections State and federal permitting processes protect threatened and endangered species and species of special concern found in Highlands County. See Conclusions 125-130 and 140-147, infra. The review processes required to obtain the state and federal permits pertaining to threatened and endangered species require site-specific review, comparable to obtaining environmental clearance from the County under Policy 3.3 of the Natural Resources Element. In view of the diversity of threatened and endangered species and species of special concern and their habitat needs, variations in quantity and quality of resources existing on site, and statutory and constitutional property rights protection, the County has chosen not to establish fixed set asides for every resource under every circumstance on a County-wide basis. By including in its permitting process notification to federal and state agencies having permitting responsibilities, Highlands County will be providing valuable assistance to state and federal environmental protection by bringing those agencies in at an early stage of the review process. Moreover, the County's requirements that the necessary federal, state, and local permits be obtained as a condition of approval for a project's final development order will assist those federal and state agencies in enforcing environmental permits in Highlands County. Measuring Success of Protection Measures Extensive work by federal and state agencies has been devoted to identifying and studying threatened and endangered species, both plant and animal. Threatened and endangered species and the habitats necessary for their survival exist throughout the State of Florida. Listed species found in Highlands County are also found in other areas of the State of Florida. The amount and land-cover types of conservation areas have been extensively studied for the entire State of Florida. The percentage of conservation lands in Highlands County (9.4 percent) exceeds the statewide median for the portion of conservation lands within individual counties (8.6 percent). The land cover types for the entire State of Florida have been identified and quantified by location and number of acres and the amounts of those habitats in conservation lands have also been determined. Likewise, for every county, the land cover types have been located, identified, mapped, and acreage determined for "natural" upland cover types, "natural" wetland cover types, and "disturbed" cover types. The "natural" upland cover type category includes coastal strand, dry prairie, pine lands, sand pine scrub, sand hill, xeric oak scrub, mixed hardwood-pine forest, hardwood hammocks and forest, and tropical hard wood hammocks. "Natural" wetland cover types include coastal salt marshes, fresh water marsh and wet prairie, cypress swamp, mixed hardwood swamp, bay swamp, shrub swamp, mangrove swamp, and bottomland hardwood forest. "Disturbed" cover types include grass land and agriculture, shrub and bush land, exotic plant communities and barren and urban land. Open water areas were also identified, located, mapped, and the acreage areas determined. The amounts of land in each of those land cover categories has been tabulated by county and for the State as a whole. The amount of land in each of those categories located in conservation lands has also been tabulated for each county and for the State as a whole. The tabulation for land cover types for Highlands County and the amount of conservation lands for each cover type are as follows: "Natural" upland cover types - coastal strand (0/0), dry prairie (427/112), pine lands (167/41), sand pine scrub (14/3), sand hill (0/0), xeric scrub oak (112/12), mixed hardwood-pine forest (4/0), hardwood hammocks and forests (46/5), tropical hardwood hammocks (0/0); "Natural" wetland cover types - coastal salt marshes (0/0), freshwater marsh and wet prairie (129/34), cypress swamp (21/8), mixed hardwood swamp (41/5), bay swamp (17/0), shrub swamp (21/5), mangrove swamp (0/0), bottomland hardwood forest (0/0); Open water (202/1); and "Disturbed" cover types - grass land and agriculture (1086/15), shrub and brush land (271/18), exotic plant communities (0/0), barren and urban land (307/11) Within the parenthesis above, the first number represents the total area in square kilometers and the second number represents the conservation lands in that category, also in square kilometers. There are approximately 247 acres per square kilometer. For Highlands County, these identified land cover types cover 2,866 square kilometers of which, 270.8 square kilometers are conservation lands. In addition to mapping those important habitat areas in each county in the State of Florida, the threatened and endangered species and species of special concern found in those habitat areas have also been identified. Those habitat areas and the threatened and endangered species and species of special concern which they support have been specifically identified and mapped for Highlands County. Since the land cover types in Highlands County have been identified, located, mapped, and quantified and the threatened and endangered species and species of special concern, both plant and animal, supported by those land cover types have been identified, Highlands County has the ability to objectively measure the success of its adopted Goals, Policies, and Objectives in protecting natural resources. Data and Analysis and Maps Eugene Engman, AICP, a planner/economist, was the principal author of the conservation element and Base Documents of supporting data and analysis for the County's 1991 Plan. The Base Documents indicate extensive analysis of the County's natural resources, including: surface waters; floodplains; mineral deposits; areas with erosion problems; and fisheries, wildlife habitat and vegetative communities. The Conservation Overlay Maps The Base Documents also contain a "methodology for conservation designation," that applies to areas identified as areas of outstanding natural resources and to areas containing special habitat (high quality scrub habitat, cutthroat grass seeps with predominantly native vegetation, and forested wetlands on and near the Ridge). With respect to the latter, it was not Engman's intention to map all vegetative communities on and near the Ridge; oak hammock and palm hammock, for example, was not mapped. It also was not Engman's intention to map the entire County. Engman did not believe that mapping of high quality scrub habitats, seeps and wetland forest was required, but he mapped them at no charge to the County to enable the County to better protect endangered species and other resources on and near the Ridge where most the special habitat and most development coincided. Following the methodology, Engman and his colleagues prepared the Resource Base Maps--County Exhibit 40. They consisted of 27 USDA Soil Conservation Service (SCS) quadrangle maps, two with acetate overlays. The quad maps themselves show some resources indicated by a separate legend available from the SCS. In addition, Engman and his colleagues indicated the location of scrub habitats, seeps and wetland forest through use of an additional legend they wrote on the quad maps. Some legends applied to more than one quad map. In addition to the SCS quad maps themselves, Engman and his colleagues used the Soil Survey field notes of Lew Carter of the SCS, 1985 infrared aerial photographs, and local knowledge of the Dr. James Layne of the Archbold Research Station, Lew Carter of the USDA Soil Conservation Service, Mike Sawyer of the Florida Division of Forestry, and County sources. The Base Documents also contains a Generalized Soils Map which references as its source "USDA/SCS, Soil Survey of Highlands County, Florida, July, 1989." The Base Documents also contained two maps at the scale of one inch equals three miles--one mapping outstanding natural resources, and the other mapping special habitat. These two maps were then combined into a third map at the scale of one inch equals five miles. This third map was designated the Conservation Overlay Map in the Base Documents. Each quarter section (160 acres) of the County that contained any of the identified resources depicted on the Resource Base Maps was depicted as "Conservation" on the Conservation Overlay Map. The Conservation Overlay Map advised that: "This map is for comprehensive planning purposes only. Specific locations are identifiable on the Resource Base Maps located in the Office of the County Planning Director." No duplicates or copies of the Resource Base Maps--County Exhibit 40-- were made before the final hearing in this case. They were available to the public during the development of the 1991 Plan, and they were forwarded to the County Planning Department when Engman's work was finished. There, they remained available for use by the County Planning Department in implementing the Plan, and remained available for public inspection, except for a period of approximately one year when they were misplaced and could not be located. FLU-54, the Conservation Overlay Map in the Future Land Use Map series, is the same map that is contained in the Base Documents as the Conservation Overlay Map. The Future Land Use Map Series In addition to FLU-54, the Future Land Use Map Series in the adopted plan, as amended through 1993, contained a Future Land Use Map Set of three large maps--a one inch equals two miles base map, and two one inch equals one/half mile maps--together with several letter-size maps at one inch equals five miles (one is at one inch equals four miles), which are FLU-55 through FLU- 62. The adopted plan, as amended through 1994, contained the same text as the plan as amended through 1993, along with an updated Future Land Use Map Set of six large color sheets. The base map is at a scale of one inch equals two miles and is a colorized version of the base map contained in the 1993 version of the plan; the other five maps are color insets from the base map at a scale of one inch equals one quarter mile. The rest of the Future Land Use Map Series is the same as in the Plan as amended through 1993. In addition to the FLU-54 Conservation Overlay Map, the future land use map series included: a Generalized Soils Map which identifies its source as "USDA/SCS, Soil Survey of Highlands County, Florida, July, 1989"; Highland's County Peat Deposits, whose source is "Adley Associates, Inc. September, 1988"; Wetlands 600, whose legend identifies "wetlands" and "ridge," and whose source is "Adley Associates, Inc. September, 1988"; Floodplains, whose legend identifies "floodplains" and "ridge," and whose source is "Adley Associates, Inc. September, 1988"; Water and Canal Map 500, whose legend identifies "generalized interim well protection zones (cones of influence) for potable water supply wells" and whose source is "Adley Associates, Inc., Highlands County Building and Zoning Department and DER," and which is dated December, 1990; Future Traffic Circulation Map State Roads, which depicts various types of roads and whose source is "Highlands County Engineering Department and FDOT"; Future Traffic Circulation Map County Roads, which depicts various types of roads and whose source is "Highlands Co. Engineering Department and FDOT"; Future Traffic Circulation Map County Roads, which depicts various types of roads and whose source is "Highlands Co. Engineering Dept. (9/88) and FDOT (11/90)"; and Modified Community Parks which depicts existing and proposed parks and "existing urban land use" and whose source is "Adley Associates, Inc. April, 1990". FLU-55, the Generalized Soils Map, was prepared using the 1989 USDA SCS Soil Survey. Major field work for the USDA/SCS Soil Survey was completed in 1986. It is the same map as the Generalized Soils Map contained in the Base Documents. FLU-57 maps wetland features which are not depicted on either the Resource Base Maps (County Exhibit 40) or the Conservation Overlay Map. The 1989 USDA SCS Soil Survey was used to identify wetlands on FLU-57. HEC's Contentions HEC contended that the maps in the Plan, as amended, were deficient. It became apparent during the course of the final hearing that HEC considered the FLU-54 Conservation Overlay Map in the Plan, as amended, to be the only map pertinent to the designation of conservation lands. HEC contended that FLU-54 is too small, not clear and legible enough, and inadequate for its purposes. It appeared that HEC learned of the existence of the Resource Base Maps (County Exhibit 40) during the final hearing. HEC contended that the Resource Base Maps were deficient because they were not based on the appropriate and best available data. As a result, HEC contended, the Base Resource Maps and FLU-54 Conservation Overlay Map "missed" some significant resources. Kris Delaney quickly reviewed the Resource Base Maps during the course of the final hearing and testified that on the Frostproof, Lake Arbuckle, Sebring, and Fort Kissimmee quad sheets some "significant areas of native vegetation were not shown on the mylar overlays." Delaney's observations regarding the five allegedly-inaccurate mylar quad map overlays were made with reference to the USDA Soil Conservation Service Soil Survey and what he believed was a wetland symbol on the underlying quad map. But it is not clear that Delaney understood the legend to the Resource Base Maps. Furthermore, he was not offered as an expert in photogrammetry, geography, or surveying, and the specifics of his personal knowledge of the areas in dispute were not made clear. Another HEC witness, Dr. Menges, testified to his opinion that the Base Resource Maps and FLU-54 Conservation Overlay Map did not map all native vegetative communities throughout the County. He testified that, to map native vegetative communities on a species-specific basis, Steve Christman's 1988 report for the Florida Game and Fresh Water Fish Commission would provide the best available data. (He also mentioned data from the Florida Natural Areas Inventory, but it was not clear that those data were not used or how available those data were.) However, it was not clear from the evidence that the Christman report was not used as a data source. In addition, Menges conceded that "the primary source for the distribution of (native vegetative) communities" (in Highlands County) would be the "Soil Conservation Service Survey map," and it is clear that the County's consultants used this data source, together with other soil survey information and aerial photography, as was appropriate. It should not be surprising that the Base Resource Maps and FLU-54 Conservation Overlay Map did not map all native vegetative communities throughout the County. As previously, stated, the effort was limited to high quality scrub habitat, cutthroat grass seeps with predominantly native vegetation, and forested wetlands on and near the Ridge. There was no intention to map all native vegetative communities throughout the County. Regardless of the alleged deficiencies with the Resource Base Maps and the FLU-54 Conservation Overlay Map, HEC did not take into account all of the maps in the Future Land Use Map series in contending that the mapping was deficient. HEC did not recognize that Policy 3.2 provides for the use of the "adopted Conservation Overlap Map series contained in the Future Land Use Element" as the "general indicator" for the resources described in the policy. The Future Land Use Map series includes not only FLU-54 and the Resource Base Maps (County Exhibit 40) but also: FLU-55 (the Generalized Soils Map), FLU-57 (the Wetlands 600 map), FLU-58 (the Floodplains map), and FLU-59 (the Water and Canals Map 500). HEC also did not recognize that the environmental clearance procedures under Policies 3.3 and 3.13 are triggered not only if the presence of the resources described in Policy 3.2 is mapped on the Conservation Overlay Map (which includes not only FLU-54, but also the Resource Base Maps), but also if they are known to occur by reference to any of the maps in the Future Land Use Map series, or are otherwise known to occur. The references acknowledged by the County in Policy 3.1 can serve as the source of knowledge of where the resources described in Policy 3.2 occur. It is not beyond debate that these sources of information, taken together, are adequate for purposes of indicating the existence of the resources described in Policy 3.2 and triggering environmental clearance review under Policy 3.3. HEC did not establish beyond debate that the County did not use appropriate or the best available data, that the County did not apply the data in a professional manner, or that the Plan, as amended, did not react to the data in an appropriate way. Future Land Use Element Residential Land Use Density In Agricultural Land Use Categories HEC presented no credible testimony or evidence to substantiate its allegation that the land use densities for agriculture and urban agriculture encourage "urban sprawl" or are not supported by adequate data. No expert testimony in land use planning was offered, although HEC had identified such potential experts on its witness list. The Base Documents stated that agricultural density was at 1 unit/acre prior to the adoption of the Plan and recommended that the density be decreased to 1 unit/10 acres. The draft of the Base Documents recommended a density of 1 unit/ 5 acres. The Plan established the General Agriculture land use category as the predominant land use for rural areas. It has the lowest development potential of all adopted land use categories. The General Agriculture land use category has a density range of one unit per ten acres. The Urban Agriculture land use category was established as a transitional zone between urbanized and rural lands. The Urban Agriculture land use category has a density range of one unit per five acres. (County Exhibit 6, Pages FLU-6 and FLU-7 There was no evidence to prove that lesser densities are required to discourage urban sprawl, to protect natural resources, to protect agricultural lands, or for any other reason. Population Accommodation Data and Analysis HEC did not present any population accommodation analysis. There was no competent evidence presented in this case as to the population accommodated in the year 2000 under either the Plan as amended and adopted on March 2, 1994, or the Plan as amended and adopted on September 15, 1993. HEC pointed to a projection in the Housing Element in the County's Plan indicating a need for 10,075 new housing units to accommodate 16,977 new residents by the year 2000. HEC also pointed to data and analysis indicating that there are approximately 108,000 residential lots in existing subdivisions of 100 lots or more in the County that potentially could be developed to accommodate new housing units. But HEC did not establish that it is realistic to project maximum development in those subdivisions at one unit per lot; nor did HEC establish the extent of vested rights to development in those subdivisions. Protection of Water Quality and Quantity The Base Documents contain extensive data and analysis of County geology and soils, including water supply considerations, and recharge. Aquifer recharge in Highlands County occurs primarily on the Lake Wales Ridge. Contamination of groundwater has been documented from hazardous waste associated with landfills, agricultural use of the pesticides EDB (ethylene dibromide) and Bromicil, and leaking underground storage tanks. Of these, only the agricultural pesticide use is documented to have impacted potable water supplies. EDB, the primary source of contamination noted, has not been used since 1983. While the presence of Bromacil is also noted, the number of wells is not mentioned. Moreover, the evidence does not mention a single health- related case. Where EDB contamination has been found, the State of Florida has paid the cost of connecting to public water supplies or installing carbon filters. There is no evidence that stormwater management activities has caused groundwater contamination. Highlands County has adopted a number of objectives and policies in both the Infrastructure Element and the Natural Resources Element of the Plan, as amended, intended to protect potable water wells, conserve potable water resources, and reduce the risk of groundwater contamination. Objective 6 under the Potable Water Subelement [sic] of the Infrastructure Element is to ensure public health by protecting the water quality of potable wells. Among the policies adopted to implement that objective is Policy 6.4, adopting stringent restrictions on activities within a 600 feet radius around public potable water wells. Highlands County also adopted Objective 7 and Policies 7.1 through 7.3 under the Potable Water Subelement [sic] to establish minimum design and construction requirements for all potable water wells to protect and assure delivery of potable water. Highlands County has also adopted a number of other objectives and policies under the Natural Resources Element intended to protect groundwater quality, including: prohibiting the location of hazardous waste treatment facilities in the County; requiring cooperation with the DEP "DRASTIC" program; prohibiting discharges of untreated stormwater and waste material into underground formations; adopting stormwater quality and quantity standards; mapping wellhead protection zones; and encouraging implementation of best management practices for agricultural operations in the County. HEC did not prove beyond fair debate that, taken together, the Goals, Objectives, and Policies of the Plan, as amended, do not ensure the protection and conservation of potable water supplies.
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 Highlands County Plan adopted through County Ordinance 91- 1, as amended by County Ordinances 93-16 and 94-1, is "in compliance." DONE and ENTERED this 15th day of October, 1996, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 15th day of October, 1996.
Findings Of Fact Based upon all of the pleadings and evidence, including the stipulation by counsel, the following findings of fact are determined: Respondent, Marion County (County), is a local governmental unit subject to the land use planning requirements of Chapter 163, Florida Statutes. That chapter is administered by respondent, Department of Community Affairs (DCA). The DCA is charged with the responsibility of reviewing comprehensive growth management plans and amendments thereto. In this case, the County has adopted an amendment to its comprehensive plan, which is the subject of the dispute. Petitioners, Henry and Betty Prominski, are residents of Marion County and own a 16.5 acre tract of land on the southeast bank of Lake Weir in the southeastern portion of the County. The property is more commonly known as Orangewood Shores Subdivision. Until April 1994, the land was classified in the urban expansion category, which allows up to four residential units per acre. The County adopted its comprehensive plan in January 1992. After the plan was determined by the DCA to be not in compliance, the County eventually adopted certain remedial amendments on April 7, 1994, one of which changed the land use designation on petitioners' property from urban expansion to urban reserve. Under the new classification, only one residential unit per ten acres is allowed. A cumulative notice of intent to find the plan and remedial amendments in compliance was issued by the DCA on May 30, 1994. During the foregoing process, petitioners timely submitted oral or written objections to the County concerning the plan amendment, and thus they are affected persons within the meaning of the law. On September 14, 1994, the County, through its Staff Vesting Committee, issued Vesting Order No. 94-14, which granted petitioners' application for vesting determination on Orangewood Shores Subdivision. Among other things, the order determined that "the applicant has vested rights to complete the development (known as Orangewood Shores Subdivision) without aggregation of lots providing the applicant continues development activity in good faith." In this regard, petitioners have represented that they intend to "continue development activity in good faith," and they do not intend to vacate their plat. They also recognize that their land is vested from the plan amendment. Despite the lack of any viable issues regarding the development of their property, for the sake of "principle" only, they still wish to contest the de facto reclassification of their property. The foregoing language in the Vesting Order means that petitioners have vested rights to complete the development of their land notwithstanding the change of land use designation from urban expansion to urban reserve. The parties also agree that the effect of the Vesting Order is to vest the property from the comprehensive plan and the restrictions of the urban reserve area. Therefore, within the narrow context of the petition, the thrust of which is that the plan amendment prevents the subdivision's development, the issues raised therein are no longer viable, and petitioners do not have a cognizable interest in the outcome of this proceeding. The controversy is accordingly deemed to be moot.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered dismissing the petition in this case on the ground the issues raised therein are moot. DONE AND ENTERED this 21st day of June, 1996, in Tallahassee, Florida. DONALD R. ALEXANDER, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of June, 1996. COPIES FURNISHED: Henry J. Prominski, Esquire Post Office Box 540 Weirsdale, Florida 32195-0540 Sherry A. Spiers, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 315 Tallahassee, Florida 32399-2100 Thomas D. MacNamara, Esquire 601 Southeast 25th Avenue Ocala, Florida 34471-2690 James F. Murley, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 100 Tallahassee, Florida 32399-2100 Stephanie M. Gehres, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325-A Tallahassee, Florida 32399-2100
The Issue Whether Escambia County Ordinance No. 2017-65 (Ordinance) adopted on November 30, 2017, amending the Heavy Commercial/Light Industrial (HC/LI) zoning district in the Escambia County Land Development Code (LDC) is consistent with the 2030 Escambia County Comprehensive Plan (Comp Plan). Whether Remedial Ordinance No. 2018-30 (Remedial Ordinance) adopted on August 2, 2018, alleviates any inconsistency in the Ordinance such that the HC/LI zoning district regulation is consistent with the Comp Plan.
Findings Of Fact The Petitioner lives and owns property in Cantonment, Escambia County, Florida, in proximity to parcels of land impacted by the Ordinance and Remedial Ordinance. As such, the Petitioner would be subject to an increase in noise and traffic resulting from the Ordinance and Remedial Ordinance, as well as an adverse change in the character of her rural neighborhood. The County is a non-charter county and political subdivision of the State of Florida. The County is the affected local government and is subject to the requirements of chapter 163. DEO is the state land planning agency and has the duty to review and investigate petitions submitted under section 163.3213, challenging land development regulations adopted by local governments. The Ordinance was enacted to amend Part III of the County's LDC to address consistency of parcels zoned HC/LI with the MU-S FLU Category. The preamble to the Ordinance indicates a previous consolidation of zoning districts implemented on April 16, 2015, "did not eliminate all occurrences of zoning districts that appear to allow uses, density, or other intensities of use not authorized by the prevailing purposes and associated provisions of applicable future land use categories." The County's Board of County Commissioners (Board) found that "there are occurrences of HC/LI zoning within the MU-S future land use category," and "it is in the best interests of the health, safety, and welfare of the public to address any inconsistency created by HC/LI zoning within the MU-S future land use category." After the DEO's determination of partial inconsistency, the County adopted the Remedial Ordinance, which makes no reference to the April 15, 2015, consolidation of zoning districts in the preamble. In addition, the Remedial Ordinance amends the Ordinance to delete certain confusing references to parcels and their previous zoning as of April 15, 2015. Thus, the Remedial Ordinance is much clearer than the Ordinance in addressing the prior inconsistency created by HC/LI zoning within the MU-S FLU category. Mixed-Use Suburban Future Land Use Category The MU-S FLU is described in FLU Policy 1.3.1 of the Comp Plan as "[i]ntended for a mix of residential and non- residential uses while promoting compatible infill development and the separation of urban and suburban land uses." The MU-S FLU lists the range of allowable uses as "[r]esidential, retail sales & services, professional office, recreational facilities, public and civic, limited agriculture." The MU-S FLU prescribes standards, such as a residential maximum density of 25 dwelling units per acre (du/acre) and a non-residential maximum intensity floor area ration (FAR) of one. The MU-S FLU also describes the mix of land uses that the County intends to achieve for new development in relation to location, i.e., the distance from arterial roadways or transit corridors. Within one-quarter mile of arterial roadways or transit corridors: residential percentages of 8 to 25 percent; public, recreational and institutional percentages of 5 to 20 percent; non-residential uses such as retail service at 30 to 50 percent; and office at 25 to 50 percent. Beyond one-quarter mile of arterial roadways or transit corridors: residential percentages of 70 to 85 percent; public, recreational and institutional percentages of 10 to 25 percent; and non- residential percentages of 5 to 10 percent. The mix of land uses described by the Comp Plan MU-S FLU category can be implemented by multiple zoning districts in the LDC. Certain zoning districts within MU-S further the residential intentions of the FLU category and other zoning districts further the non-residential intentions of the MU-S FLU category. However, all zoning districts within MU-S contain some element of residential use. The Ordinance and Remedial Ordinance The Remedial Ordinance amended the purpose subsection (a) of section 3-2.11 of the County LDC by adding language that directly limited the "variety and intensity of non- residential uses within the HC/LI [zoning] district" by "the applicable FLU." This means that although various non- residential uses are permitted in the HC/LI zoning district, the FLU category in the Comp Plan determines the "variety and intensity" of those non-residential uses. The Ordinance had amended subsection (h) of section 3-1.3 of the County LDC to clarify that "[o]ne or more districts may implement the range of allowed uses of each FLU, but only at densities and intensities of use consistent with the established purposes and standards of the category." This clarification is consistent with FLU Policy 1.1.4 in the Comp Plan, which states that "[w]ithin a given future land use category, there will be one or more implementing zoning districts." The Remedial Ordinance amended the permitted uses in subsection (b) of section 3-2.11 of the County LDC by deleting the confusing reference to parcel sizes and their previous zoning as of April 15, 2015. In paragraph (6) of subsection 3-2.11(b), the Remedial Ordinance made clear that the listed "industrial and related uses" are not permitted "within MU-S." In general, the other permitted uses mirror the range of allowable uses in the MU-S FLU category. The Remedial Ordinance amended the conditional uses in subsection (c) of section 3-2.11 to make clear that the listed industrial and related conditional uses are not permitted within MU-S. The Ordinance added MU-S to the site and building requirements in subsection (d) of section 3-2.11 to require a maximum FAR of 1.0. The Remedial Ordinance also imposed a maximum structure height for "any parcel previously zoned GBD [Gateway Business District] and within the MU-S" of 50 feet, which is lower than the maximum of 150 feet for HC/LI zoning not within MU-S. The Remedial Ordinance amended the location criteria in subsection (e) of section 3-2.11 to limit "[a]ll new non- residential uses proposed within the HC/LI district" to parcels previously zoned GBD and within the MU-S FLU category that are located along and directly in front of "U.S. Highway 29 or State Road 95A." In addition, another location criterion limits new non-residential uses along arterial streets to within one-quarter mile of their intersection with an arterial street. The provisions of the Ordinance and Remedial Ordinance are consistent with the County Comp Plan. Petitioner's Objections The Petitioner contended that the HC/LI zoning regulation allows intensities and scales of commercial uses that are inconsistent with the character of a predominantly residential FLU like MU-S. The Petitioner based her contention on the Comp Plan definition of "suburban area" and argued that the Ordinance and Remedial Ordinance permitted uses, densities, and intensities that were not "suburban in nature." "Suburban area" is defined in the Comp Plan as "[a] predominantly low-density residential area located immediately outside of an urban area or a city and associated with it physically and socioeconomically." By contrast, "mixed-use" is defined in the Comp Plan as "any use that includes both residential and non-residential uses." See ch. 3, § 3.04, Escambia Cnty. Comp Plan. Contrary to the Petitioner's contention, the MU-S FLU category's primary focus is on a mix of uses in a suburban area. See Findings of Fact Nos. 6-8, above. Indeed, the FLU element of the Comp Plan expresses a purpose and intent to encourage mixed- use development. Also, the Petitioner's focus on the differences between the MU-S and Mixed-Use Urban (MU-U) FLU categories in the Comp Plan was misplaced. The premise that the HC/LI zoning district implements the MU-U FLU category better than it implements the MU-S FLU category was not the issue to be determined in this proceeding. Rather, it was whether the Ordinance, as amended by the Remedial Ordinance, amending the HC/LI zoning district in the LDC is consistent with the Comp Plan. All other contentions not specifically discussed have been considered and rejected.
The Issue The issue in this case is whether Sumter County comprehensive plan amendment 94D1 adopted on September 20, 1994, by Ordinance No. 94-6 is in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact have been determined: Background The parties Respondent, Sumter County (County), is a local government subject to the comprehensive land use planning requirements of Chapter 163, Florida Statutes. That chapter is administered and enforced by respondent, Department of Community Affairs (DCA). The DCA is charged with the responsibility of reviewing comprehensive land use plans and amendments made thereto. Petitioners, T. D. Farnsworth and James E. Boyd, own property and reside within the northern part of unincorporated Sumter County. Petitioner, Sumter Citizens Against Irresponsible Development (SCAID), is an organization founded by a small group of citizens for the purposes of preserving the "rural lifestyle" of the County, preventing urban sprawl, and ensuring "that development will not be a burden to the taxpayers" of the County. Farnsworth is president of the group while Boyd serves as its treasurer. By stipulation of the parties, petitioners are affected persons within the meaning of the law and have standing to bring this action. Intervenor, Villages of Lake Sumter, Inc. (Villages), is a Florida corporation and the owner and developer of the Tri-County Villages development of regional impact, which is the subject property of this proceeding. Villages submitted oral and written comments during the plan amendment review and adoption proceeding and thus has standing as an affected person to participate in this proceeding. Tri-County Villages To place this dispute in proper perspective, it is necessary to trace the history of the development which has occurred in and around the subject property. As noted earlier, intervenor is the owner and developer of the Tri- County Villages development located in unincorporated Sumter County. Development which predated the existing Tri-County Villages development commenced in approximately 1968 with Orange Blossom Garden North (OBGN). OBGN was an approximately 1,000-acre project owned and operated by Orange Blossom Hills, Inc. as a mobile home retirement community located mostly in the Town of Lady Lake, Florida. That community lies in the northwestern corner of Lake County, which adjoins the northeastern corner of Sumter County. Because the development of OBGN commenced prior to July of 1973, it is vested for purposes of development of regional impact (DRI) review pursuant to Section 380.06(20), Florida Statutes. In 1987, Orange Blossom Hills, Inc. submitted an Application for Development Approval (ADA) with the Town of Lady Lake which requested authorization to develop Orange Blossom Gardens South (OBGS). The OBGS development was an approximately 595-acre extension of the vested OBGN retirement community and was determined by the DCA and Town of Lady Lake to be a DRI. On January 18, 1988, the Town of Lady Lake approved the proposed OBGS development. In 1989, Orange Blossom Hills, Inc. submitted to the Town of Lady Lake and the County an ADA requesting a substantial deviation from the OBGS DRI. The substantial deviation request sought authorization to develop Orange Blossom Gardens West (OBGW). OBGW was planned as an approximately 1,700-acre extension to the OBGS DRI. The Town of Lady Lake approved the substantial deviation request through the issuance of an Amended Development Order on May 7, 1990. The County approved the development within its jurisdiction on May 29, 1990. In September 1993, intervenor, as successor to Orange Blossom Hills, Inc., submitted an ADA to the County which requested a substantial deviation from the OBGS and OBGW DRI's. By submitting this latest development, intervenor sought to add approximately 1,960 acres to the existing OBGS and OBGW DRI's and modify the development already approved by adding a total of 6,250 residential units and 910,000 square feet of commercial square footage. The overall development was renamed Tri-County Villages. The development order approving the substantial deviation for Tri-County Villages was adopted by the County on September 20, 1994. The Challenged Amendment On September 20, 1994, or prior to approval of the Tri-County Villages development substantial deviation, but in conjunction with it, the County adopted plan amendment 94D1 by Ordinance No. 94-6. On November 10, 1994, the DCA determined the amendment to be in compliance. That amendment amended the plan's Future Land Use Map (FLUM) to revise the land use designations on approximately 1,960 acres of land. Specifically, the plan amendment designated as Planned Unit Development (PUD) all areas of the approved OBGW DRI and the additional 1,960 acres referred to in Exhibit 1 of 94D1 as parcels 5 and 8. Prior to the amendment, parcels 5 and 8 had been designated predominantly as agricultural, with small pockets of rural residential. The plan amendment also revised the FLUM by extending the urban expansion area to include all of parcels 5 and 8. Prior to the amendment, only a small section of parcel 8 was included in the urban expansion area. The plan amendment further included several textual revisions to the Future Land Use Element (FLUE), including a revision to FLUE Policy 1.5.7 concerning the ratio of commercial square footage to residential units and the addition of FLUE Objective 1.14 and Policies 1.14.1 - 1.14.6, which essentially incorporated the concept of sector planning into the plan. Finally, the plan amendment revised Policy 2.1.5 of the Sanitary Sewer Element which, subject to submission of appropriate data and analysis, and Department of Environmental Protection approval, reduced the established level of service for sanitary sewer throughout the Tri-County Villages development. The Tri-County Villages DRI and ADA and plan amendment are related in that Section 380.06(6), Florida Statutes, requires that the local government's review of the DRI and corresponding comprehensive plan amendment be initiated and concluded at the same time. In the instant case, the Tri-County Villages ADA served as much of the background data and analysis for the plan amendment. The Tri-County Villages DRI also served as the sector plan for the area covered by the amendment. In addition to the voluminous data and analysis included in the Tri- County Villages ADA, the plan amendment also included detailed data and analysis. The data and analysis accompanying the amendment included a compatibility and land use suitability analysis, a soils analysis, an evaluation of urban sprawl related issues, an analysis of environmental considerations, a population and housing analysis, a concurrency analysis, and an analysis to ensure that the amendment was consistent with the adopted comprehensive plan. The data and analysis collectively demonstrated that the urban development proposed by the amendment was appropriate for the designated area. C. Is the Plan Amendment in Compliance? In their proposed recommended order, petitioners summarize their objections to the plan amendment as follows: (a) the amendment fails to protect agricultural lands, (b) the amendment encourages urban sprawl, (c) the future land use map is internally inconsistent, (d) there is no demonstrated need for 1,960 acres of PUD land use, (e) PUD is not a valid land use category, (f) the amendment does not ensure adequate fire and emergency medical services, (g) the County failed to coordinate with the local school board, (h) there is no reasonable protection from flooding, (i) the amendment does not provide adequate parks and recreational facilities, (j) affordable housing needs are not met, and there is no requirement that the developer install water and sewer facilities at its own expense. These contentions will be discussed separately below. Protection of agricultural lands Under the amendment, 1,960 acres of agricultural land will be converted to urban type uses. Petitioners contend that the amendment fails to protect agricultural land as required by FLUE objective 7.1.2 and Rule 9J- 5.006(5)(g)5., Florida Administrative Code. The cited objective "establishes agriculture as the primary use outside of the urban expansion area" and "insures retention of agricultural activities." If the plan amendment fails to "adequately protect adjacent agricultural areas," the cited rule considers this failure to be a prime indicator that the amendment does not discourage the proliferation of urban sprawl. The rule and objective do not prohibit the conversion of agricultural lands to urban uses. Indeed, FLUE objective 1.2 and the corresponding policies allow for the conversion of suitable agricultural lands as the need for additional urban land is demonstrated. The policies also require that the conversion be done in a well planned, orderly and logical fashion based on need and suitability. The agricultural lands being converted as a result of the plan amendment are appropriate for conversion. The plans, FLUE data and analysis demonstrate that one of the best areas for urban development in the County is the northeast portion of the County which covers the agricultural lands in the plan amendment. This determination was based on an extensive analysis of various factors including soil suitability, environmental constraints, and other planning criteria such as proximity to existing urbanized areas. The evidence establishes that the conversion of agricultural land contemplated by the plan amendment was justifiable because of the extent of urban development already existing in the area and the urban infrastructure currently in place. In addition, future populations will be directed away from the remaining agricultural lands throughout the County and to the development proposed by the plan amendment. The open space required by the PUD and Tri- County Villages amended development order sector plan will also serve to buffer and ensure compatibility of land covered by the plan amendment and the adjacent agricultural and rural lands. In view of the above, it is found that petitioners have not shown to the exclusion of fair debate that the plan amendment fails to protect agricultural land. Urban sprawl In the same vein, petitioners contend that the amendment fails to discourage urban sprawl because of the conversion of 1,960 acres of agricultural land to urban uses. In support of this contention, they cite a number of provisions within Chapter 9J-5, Florida Administrative Code, all dealing with urban sprawl, and which have allegedly been violated. They also point to the fact that large portions of the existing development have not been sold or built out, only 2 percent of the 1,960 acres will be devoted to commercial land use, the multiplier for the plan amendment is in excess of 1.25, which is an indicator of urban sprawl, and no future public facilities and services are planned for the lands covered by the amendment prior to its adoption. The plan amendment includes an evaluation of urban sprawl. That evaluation references FLUE policy 1.2.5.(a), which was adopted by the County specifically as a mechanism for discouraging urban sprawl. A review of that policy indicates that, for a PUD to be allowed in an agricultural area, it must score approximately 50 points based on factors including, but not limited to, proximity to the urban expansion area, proximity to urban services, including water, sewer, and roads, and proximity to other services such as fire protection and emergency medical services. If a proposed amendment or PUD failed to score 50 points, it was deemed to encourage urban sprawl and would not be approved by the County. The plan amendment scored 130 points, well in excess of the 50 point threshold. In addition to satisfying FLUE policy 1.2.5.(a), the plan amendment is consistent with FLUM maps VII-18A and VII-18C, which are the future land use constrained area overlay and urban sprawl evaluation overlay, respectively. As the FLUE data and analysis indicate, these maps were prepared for the purpose of directing urban development into areas most suitable for such development. Map VII-18A demonstrates that the land included in the plan amendment has only slight limitations for urban development. Similarly, Map VII-18C indicates that the land has only slight limitations in regard to urban sprawl. In fact, portions of land covered by the plan amendment are already within an established urban expansion area which is the OBGW DRI. Finally, the PUD mixed land use category and sector plan concept adopted by the plan amendment are planning methods specifically recognized and encouraged by prior DCA policy as reflected in the DCA's Technical Memo Special Edition 4-4 and the urban sprawl provisions incorporated into Rule 9J- 5.006(5)(l), Florida Administrative Code, effective May 18, 1994, as methods of discouraging urban sprawl. Indeed, the rule provides in part that mixed use development and sector planning . . . will be recognized as methods of discouraging urban sprawl and will be determined consistent with the provisions of the state comprehensive plan, regional policy plans, Chapter 163, Part II, and this chapter regarding discouraging the proliferation of urban sprawl. Given the above, it is found that petitioners have not shown to the exclusion of fair debate that the plan amendment encourages urban sprawl. The consistency of the future land Petitioners next argue in general terms that the FLUM does not "reflect policies which call for maintaining agricultural lands, discouraging urban sprawl, promoting land use compatibility, protection from flooding, providing for adequate public recreation facilities, and other objectives," and thus it is internally inconsistent. The FLUM series in the plan as well as the FLUM series as amended by the plan amendment is a pictorial representation of the goals, objectives, and policies of the comprehensive plan. In the absence of any credible evidence to the contrary, it is found that petitioners have failed to show to the exclusion of fair debate that the FLUM is internally inconsistent as alleged in their petition. Demonstrated need Petitioners next allege that the plan amendment "is premature in time and fails to provide demonstrated need" as required by various provisions within Chapter 9J-5, Florida Administrative Code. They further allege that the FLUM "is not based upon adequate surveys, studies, or data regarding the amount of land needed to accommodate anticipated growth." Initially, it is noted that the data and analysis in the plan are not subject to the compliance review process. Chapter 163, Florida Statutes, authorizes the DCA in a compliance review to determine only if the plan or plan amendment is based on appropriate data and analysis and whether the data was collected in a professionally acceptable manner. Planning methodologies used in analysis of the data, such as the calculation of a multiplier, must also be prepared in a professionally acceptable manner. In addition, the DCA may not choose one methodology over another. At hearing, petitioners raised issues concerning the methodology used in calculating the County's residential land use allocation multiplier and contended that other factors such as mortality rates and resale figures should have been used in calculating the multiplier. The preparation of the multiplier in issue came as a result of the DCA's Objections, Recommendations and Comments report. That report recommended that the County provide an analysis which demonstrated that the land use change requested in the plan amendment was based on the amount of additional land needed to accommodate the projected population during the planning time frame (the year 2014) established by the Tri-County Villages Amended Development Order sector plan. Based on historic data, the County calculated a multiplier which depicted the allocation of residential land countywide. The multiplier was 1.87, which means that the County allocated residential land uses approximately 87 percent above its demonstrated need for the planning period. The evidence shows that, in order to allow some degree of development flexibility, a local government will routinely allocate more land than is actually needed. Indeed, a multiplier of 1.87 is low when compared to the other multipliers found in compliance in adjacent local governments as well as in other local governments statewide. In actuality, a 1.87 multiplier is not really the most accurate depiction of the allocation of residential land county-wide because the population for OBGW and the other PUD in the County was not included in the calculation. In an effort to provide a more accurate multiplier, the County added to the equation the projected population for OBGW and the PUD. The resulting revised multiplier equalled 1.46. Petitioners developed a multiplier of their own of 1.88. However, they failed to show that the County's multiplier was not developed in a professionally acceptable manner. Moreover, petitioners' methodology was unacceptable because it did not project its population over the correct planning horizon. Petitioners failed to consider the 2014 planning horizon established by the Tri-County Villages Amended Development Order sector plan which controls the development of land covered by the plan amendment. Instead, petitioners multiplier incorrectly used the 2001 planning horizon established by the plan. In addressing the need for additional residential allocation, the amount of residential land allocated must be a reflection of the population expected through the end of the Tri-County Villages sector plan 2014 planning horizon. The type of development contemplated by the plan amendment and the additional population has not previously occurred in the County. Since development of OBGW commenced in 1992, the building permits issued in the County have increased by 94 percent. Much of this increase can be attributed to OBGW. The number of yearly certificates of occupancy for OBGW has stayed relatively constant and is expected to remain constant throughout the planning horizon. Intervenor's marketing scheme for OBGW seeks to attract retirees predominately from the northeastern part of the United States. The residents are not generally County residents prior to moving to Tri-County Villages. This same marketing scheme will be used for the future development of the Tri-County Villages. Thus, the future Tri-County Villages residents are not expected to be from the County. Tri-County Villages is a new type of development for the County. This new population was not taken into account in the original comprehensive plan which also had a low multiplier. Therefore, the need for residential allocation for this new population was not addressed. Because this new population is a reality which was not comtemplated by the plan, and the plan does not have an excess of allocated residential land, the need for the increased residential densities has been demonstrated. Petitioners have not shown to the exclusion of fair debate that the plan amendment was premature or not based on a demonstrated need. PUD as a land use category Because a planned unit development (PUD) is not "recognized" as a land use category in Rule 9J-5.006(1), Florida Administrative Code, petitioners contend that the use of that category in the plan amendment renders it not in compliance. For purposes of its compliance review, the DCA used the version of chapter 9J-5 which was in effect at the time of the submittal of the plan amendment. Then existing Rule 9J-5.006(1)(a), Florida Administrative Code, which was effective on March 23, 1994, established the generalized land uses which must be shown on the Existing Land Use Map (ELUM). Rule 9J-5.006(4)(a), Florida Administrative Code, requires that these same generalized land uses must be depicted on the FLUM as well. While it is true that PUD is not one of the generalized land uses listed in chapter 9J-5, the two rules cited above both allow a local government to depict other land use categories on the ELUM and FLUM. Because the plan references PUD as a mixed land use category, the County has properly depicted that category on both the ELUM and FLUM. Petitioners have failed to show that PUD as a mixed land use category is not recognized under the rules in existence when the plan amendment was reviewed. Compatibility with adjacent agricultural lands Petitioners have also alleged that the County has "not demonstrated compatibility with adjacent agricultural and rural residential land uses." They point to the fact that the area adjacent to and near the development is a "friendly rural community," and they allege that the development will harm this wholesome atmosphere. The plan allows for the well planned conversion of agricultural lands in the County. One of the requirements of the plan's PUD provisions is that PUD development be buffered from adjacent lands and contain open space. The purpose of this provision is to ensure compatibility. A review of the PUD application and DRI Master Development Plan, both incorporated into the plan amendment, shows that the Tri-County Villages development will provide approximately 1,100 acres of open space. Much of this open space will act as a buffer between the development and the adjacent agricultural and rural land uses. The project will also cluster its development which serves to separate the more urban development from the adjacent agricultural and rural uses. Another mechanism which ensures compatibility is the phased method of development proposed for the project. Under the phasing approach, only contiguous portions of the property will be developed at any given time during the planning period. In addition, existing agricultural uses on the property will continue until such time as the proposed development reaches that property. Given these considerations, it is found that petitioners have not shown to the exclusion of fair debate that the plan amendment is incompatible with adjacent land uses. Levels of service In their amended petition, petitioners assert that the plan amendment is in violation of FLUE objective 7.1.6 and FLUE policy 7.1.6.1, objective 1.1 and policy 1.1.1 of the Capital Improvements Element, Rules 9J-5.005(3), 9J- 5.011(2)2., 9J-5.015(3)(b)1., and 9J-5.016(3)(a) and (b)4., Florida Administrative Code, and Section 187.201(16)(b)6., Florida Statutes, all pertaining specifically or generally to levels of service for recreational facilities, schools, fire protection, emergency medical services and flooding. Policy 1.1.1 of the Capital Improvements Element adopts a recreational facility level of service for such facilities as softball fields, baseball fields, basketball courts, boat ramps and the like. The amount of facilities required is based on population. Under the plan, the County must take the necessary steps to insure that the availability of these facilities is addressed during the concurrency review process and not at the compliance review stage. In other words, when a proposed development reaches the stage of requesting a building permit, the County may require as a condition of the issuance of that building permit that a developer provide a certain facility. In this regard, it is noted that Chapter 163, Florida Statutes, requires that any development comply with concurrency requirements while the Tri-County DRI Amended Development Order requires that the developer provide for adequate public facilities. Both the plan amendment and the development authorized therein generally address the recreational level of service. However, if no additional facilities are constructed in the future, the plan amendment does not provide adequate baseball fields, softball fields, boat ramps or handball courts consistent with policy 1.1.1. In addressing these potential deficiencies, intervenor represented to the County that as a retirement community, the development would not generate a demand for these types of facilities. That is to say, the retiree population inhabiting the development would be less likely to participate in activities such as baseball or softball. The population would, however, generate a need for other recreational facilities such as golf courses, swimming pools, shuffleboard courts and bocci ball facilities, all of which the development has a surplus. In response to this concern, the County concluded that it was not appropriate to require the construction of certain facilities when the project would not generate a need for them. The County indicated that, during the plan evaluation and appraisal stage required in 1998, an amendment to the plan would be transmitted which would revise the plan to take into account such situations. If such an amendment is not adopted, intervenor will need to provide additional facilities necessary to meet concurrency requirements. There is no established level of service in the plan for fire protection or emergency medical services. Intervenor has, however, addressed these services in the Amended Development Order for the development. As reflected in that order, intervenor donated a five-acre parcel and constructed a fire station adjacent to the development. The station may also be used to house emergency medical services, if needed, although an existing emergency medical service provider is located in close proximity. Intervenor also donated to the County $80,000 for the purchase of fire fighting equipment, and each household pays the County a $30 annual fee for fire protection. Therefore, fire protection and emergency medical services have been addressed. The plan establishes no level of service standard for schools. Because the development is a retirement community, children under age 19 are prohibited. As a consequence, it was determined that impacts to school facilities would be minimal. Intervenor contacted and advised the school board of its retirement community development plans and projected student impacts. In response, the school board concluded that minimal impact was expected as a result of the development. To the extent that the development in the future allows school age children to reside therein, the Amended Development Order specifically calls for a substantial deviation determination pursuant to Section 380.06(19), Florida Statutes, to evaluate the potential impacts to school facilities. As a result of further review, intervenor may be required to provide additional school facilities. The plan establishes a level of service for stormwater drainage in terms of quantity and quality. Based on flooding which has occurred in the existing OBGW development, petitioners suggest that flooding will occur in the development proposed in conjunction with the plan amendment. While such flooding has occurred in the OBGW development, there is no evidence that the flooding was caused by a reduction or violation of the stormwater drainage level of service. Indeed, the evidence shows that the flooding was caused by an unusually heavy period of rainfall in combination with debris clogging the inlets of the stormwater system. The actual stormwater system for OBGW, which was reviewed and approved in the OBGW DRI review process, was designed for and required to meet the plan's drainage level of service. As a concurrency matter, any system designed for the future development contemplated in the plan amendment will also be required to meet the stormwater drainage level of service. Accordingly, it is found that petitioners have not shown to the exclusion of fair debate that the plan amendment violates the plan's level of services standard for stormwater drainage. Affordable housing Petitioners further allege that the plan amendment "fails to provide for affordable housing as required by Objective 3.5 of the Housing Element of the (plan)" in violation of various rules and the state comprehensive plan. The rule alleged to have been violated requires a local government to analyze the affordable housing stock within the local government. The local government must then adopt comprehensive plan goals, objectives, and policies which establish programs to ensure an adequate supply of affordable housing for the present and future residents. Housing Element objective 3.5 and the implementing policies which follow provide one of the mechanisms, coordination with the private sector, which the County uses to address the provision of affordable housing countywide. The provisions of objective 3.5 and the implementing policies place no specific requirements on the private sector. These plan provisions only require that, in addressing the provision of affordable housing, the County work with the private sector. Contrary to petitioners' assertion, neither the plan provisions nor chapter 9J-5 require the plan amendment to address the affordable housing deficiencies countywide. As a DRI requirement, however, the plan amendment does address the provision of affordable housing. A detailed housing analysis was provided in the Tri-County Villages ADA. The analysis included a review of the affordable housing stock pursuant to the East Central Florida Regional Planning Council's housing demand, supply and need methodology. The analysis further concluded that after phase 3, additional affordable housing may be necessary. To address this deficiency, the ADA for the development requires intervenor to reanalyze the available affordable housing consistent with objective 3.5 of the Housing Element. Thus, it is found that petitioners have not shown to the exclusion of fair debate that the plan amendment fails to provide affordable housing. i. Infrastructure funding Finally, petitioners allege that the plan amendment is inconsistent with FLUE policy 1.5.4. That policy provides as follows: All PUDS shall provide for central potable water and sanitary sewer facilities at the developer's expense and provide for fire hydrants and fire flow within the development in accordance with the National Fire Protection Association Standards. Intervenor has created community development districts as a mechanism to fund the development infrastructure. Intervenor is able to raise funds by the sale of bonds through these districts. The residents of the development will ultimately repay the bonds. Even so, petitioners allege that this funding mechanism is inconsistent with the cited policy because the infrastructure is not funded "at the developer's expense." The purpose and intent of the policy was to insure that the County not be obligated to fund infrastructure related to the PUD development. The developer, and ultimately the residents, of the project will fund the infrastructure through the community development districts. The County will not be obligated. This funding mechanism is consistent with policy 1.5.4. in that the County is not responsible for the funding of the PUD-related infrastructure. Accordingly, petitioners have not shown to the exclusion of fair debate that the plan amendment is inconsistent with the cited policy.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining that Sumter County's comprehensive plan amendment 94D1 is in compliance. DONE AND ENTERED this 11th day of July, 1995, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11 day of July, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-6974GM Petitioners: 1. Partially accepted in finding of fact 1. 2. Partially accepted in finding of fact 2. 3. Partially accepted in finding of fact 3. 4-5. Rejected as being unnecessary. 6. Partially accepted in finding of fact 40. 7. Partially accepted in finding of fact 34. 8-9. Rejected as being unnecessary. 10. Partially accepted in findings of fact 7-9. 11-14. Rejected as being unnecessary. Partially accepted in finding of fact 8. Partially accepted in finding of fact 7. Rejected as being unnecessary. Partially accepted in finding of fact 8. 19-21. Partially accepted in finding of fact 2. 22-23. Covered in procedural statement. 24-29. Partially accepted in findings of fact 16-20. 30-41. Partially accepted in findings of fact 21-25. 42. Rejected as being unnecessary. 43-77. Partially accepted in findings of fact 28-36. 78-85. Partially accepted in findings of fact 37-39. 86-95. Partially accepted in findings of fact 40-42. 96-148. Partially accepted in findings of fact 43-49. 149-162. Partially accepted in findings of fact 50-53. 163-166. Partially accepted in findings of fact 54-56. Respondents/Intervenor: With certain changes, the substance of proposed findings 1-53 has been generally incorporated into this recommended order. Note: Where a proposed finding has been partially accepted, the remainder has been rejected as being unnecessary for a resolution of the issues, irrelevant, not supported by the more credible, persuasive evidence, subordinate, or a conclusion of law. COPIES FURNISHED: Linda Loomis Shelley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Dan R. Stengle, Esquire General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Mr. T. D. Farnsworth 12364 County Road 223 Oxford, Florida 34484 Felix M. Adams, Esquire 236 North Main Street Bushnell, Florida 33513-5928 David L. Jordan, Esquire Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Nancy G. Linnan, Esquire Post Office Drawer 190 Tallahassee, Florida 32302-0190 R. Dewey Burnsed, Esquire Post Office Box 491357 Leesburg, Florida 34749-1357
