The Issue The issue is whether the Land Development Code (LDC) adopted by Ordinance No. 2007-12 on August 22, 2007, as amended on February 27, 2008, is inconsistent with the effective comprehensive plan for the City of Doral (City), which is the Miami-Dade Comprehensive Development Master Plan (County Plan).
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: The Parties Section 64 is a Florida corporation. The Grand is a Florida limited partnership. Both entities are owned by the same individual. On September 25, 2001, Section 7 acquired ownership of an approximate ten-acre tract of property in the County (now the City) located along the southern boundary of Northwest 82nd Street, between 109th and 112th Avenues. See Petitioners' Exhibit 416. On December 16, 2005, title in one- half of the property was conveyed to The Grand in order to divide the property into two different ownerships. Id. It was Petitioners' intent at that time to build two hotels on separate five-acre tracts, one owned by Section 7 and the other by The Grand. The City is located in the northwestern part of Dade County and was incorporated as a municipality in June 2003. At the time of incorporation, the County's Plan and Land Use Code were the legally effective comprehensive plan and land development regulations (LDRs), respectively. On April 26, 2006, the City adopted its first comprehensive plan. After the Department determined that the Plan was not in compliance, remedial amendments were adopted on January 10, 2007, pursuant to a Stipulated Settlement Agreement. Although the Department found the Plan, as remediated, to be in compliance, it was challenged by a third party, and the litigation is still pending. See DOAH Case No. 06-2417. Therefore, the County Plan is still the legally effective Plan. See § 163.3167(4), Fla. Stat. The Department is the state land planning agency charged with the responsibility of reviewing LDRs whenever the appeal process described in Section 163.3213, Florida Statutes, is invoked by a substantially affected person. History of the Controversy When Petitioners' property was purchased in 2001, the County zoning on the property was Light Industrial (IU-1), having been rezoned by the County to that designation on October 9, 1984. See Petitioners' Exhibit 5. One of the uses permitted under an IU-1 zoning classification is a hotel with up to 75 units per acre. See Petitioners' Exhibit 6. The land use designation on the County's LUP map for the property is Low- Density Residential (LDR), with One Density Bonus, which allows 2.5 to 6 residential units per acre with the ability for a "bump-up" in density to 5 to 13 units per acre if the development includes specific urban design characteristics according to the County urban design guide book. Language found on pages I-62 and I-63 of the Future Land Use Element (FLUE) in effect at the time of the incorporation of the City (now found on pages I-73 and I-74 of the current version of the FLUE) provides in relevant part as follows: Uses and Zoning Not Specifically Depicted on the LUP Map. Within each map category numerous land uses, zoning classifications and housing types may occur. Many existing uses and zoning classifications are not specifically depicted on the Plan map. . . . All existing lawful uses and zoning are deemed to be consistent with the [Plan] unless such a use or zoning (a) is found through a subsequent planning study, as provided in Land Use Policy 4E, to be inconsistent with the criteria set forth below; and (b) the implementation of such a finding will not result in a temporary or permanent taking or in the abrogation of vested rights as determined by the Code of Metropolitan Dade County, Florida. As noted above, if there is a concern that zoning might be inconsistent with land use, using the criteria described in the provision, the County may initiate a planning study to analyze consistency and down-zone the property to a less intense use if an inconsistency is found. Although the County initiated a number of planning studies after it adopted its Plan in 1993, and ultimately down-zoned many properties, none was ever initiated by the County for Petitioners' property. Essentially, when existing uses and zoning are not depicted on the County LUP map, the language in the FLUE operates to deem lawfully existing zoning consistent with the land use designation on the property. In this case, the parties agree that the zoning of Petitioners' property is not depicted on the County LUP map. Therefore, absent a planning study indicating an inconsistency, the zoning is deemed to be consistent with the land use category. On August 22, 2007, the City adopted Ordinance No. 2007-12, which enacted a new LDC, effective September 1, 2007, to replace the then-controlling County Land Use Code. Although the LDC was adopted for the purpose of implementing the new City Plan, until the new Plan becomes effective, the LDC implements the County Plan. Amendments to the LDC were adopted by Ordinance No. 2008-1 on February 27, 2008. The LDC does not change the zoning on Petitioners' property. However, it contains a provision in Chapter 1, Section 5, known as the Zoning Compatibility Table (Table), which sets forth the new land use categories in the City Plan (which are generally similar but not identical to the County land use categories) and the zoning districts for each category. Pertinent to this dispute is an asterisk note to the Table which reads in relevant part as follows: Under no circumstances shall the density, intensity, or uses permitted be inconsistent with that allowed on the city's future land use plan. . . . Zoning districts that are inconsistent with the land use map and categories shall rezone prior to development. See Petitioners' Exhibit 27 at p. I-3. Under the Table, only residential zoning districts (with up to ten dwelling units per acre and no density bonus) are allowed in the City's proposed LDR land use category. Therefore, if or when the City Plan becomes effective, before Petitioners can develop their property, they must rezone it to a district that is consistent with the land use designation shown on the Table. There is no specific requirement in the LDC that the City conduct a planning study when it has a concern that the zoning is inconsistent with the relevant land use category in the new City Plan. Petitioners construed the asterisk note as being inconsistent with the text language on pages I-62 and I-63 of the County Plan. See Finding of Fact 5, supra. Accordingly, on August 21, 2008, Petitioners submitted a Petition to the City pursuant to Section 163.3213(3), Florida Statutes, alleging generally that they were substantially affected persons; that the LDC was inconsistent with the County Plan; that the LDC changes the regulations regarding character, density, and intensity of use permitted by the County Plan; and that the LDC was not compatible with the County Plan, as required by Florida Administrative Code Rule 9J-5.023.2 See Petitioners' Exhibit 103. The City issued its Response to the Petition on November 20, 2008. See Petitioners' Exhibit 104. The Response generally indicated that Petitioners did not have standing to challenge the LDC; that the Petition lacked the requisite factual specificity and reasons for the challenge; that the LDC did not change the character, density, or intensity of the permitted uses under the County Plan; and the allegation concerning compatibility lacked factual support or allegations to support that claim. On December 22, 2008, Petitioners filed a Petition with the Department pursuant to Section 163.3213(3), Florida Statutes, alleging that the LDC implements a City Plan not yet effective; that the LDC changes the uses, densities, and intensities permitted by the existing County Plan; and that the LDC changes the uses, densities, and intensities permitted by the not yet effective City Plan. See Petitioners' Exhibit 105. After conducting an informal hearing on April 7, 2009, as authorized by Section 163.3213(4), Florida Statutes, on July 23, 2009, the Department issued a Determination of Consistency of a Land Development Regulation (Determination). See Petitioners' Exhibit 102. See also Section 7 Tract 64 Property, Inc., et al. v. The City of Doral, Fla., Case No. DCA09-LDR-270, 2009 Fla. ENV LEXIS 119 (DCA July 23, 2009). In the Determination, the Department concluded that Petitioners were substantially affected persons and had standing to file their challenge; that the provision on pages I-62 and I-63 of the County FLUE did not apply to Petitioners' property because the uses and zoning of the property are specifically designated on the LUP map; that the law does not prohibit the Department from reviewing the LDC for consistency with the not yet effective City Plan; and that because the LDC will require Petitioners to rezone their property to be consistent with the City Plan, the challenge is actually a challenge to a rezoning action and not subject to review under this administrative process. See § 163.3213(2)(b), Fla. Stat. On August 13, 2009, Petitioners filed their Petition for Formal Proceedings with DOAH raising three broad grounds: that the LDC unlawfully implements a comprehensive plan not yet effective; that it changes the uses, densities, and intensities permitted by the County Plan and is therefore inconsistent with the County Plan; and that it changes the uses, densities, and intensities permitted by the not yet effective City Plan and is inconsistent with that Plan. See Petitioners' Exhibit 39. These issues are repeated in the parties' Stipulation. As to other issues raised by Petitioners, and evidence submitted on those matters over the objection of opposing counsel, they were tried without consent of the parties, and they are deemed to be beyond the scope of this appeal. The Objections Petitioners first contend that the LDC unlawfully implements a comprehensive plan not yet in effect, in that it was specifically intended to be compatible with, further the goals or policies of, and implement the policies and objectives of, the City Plan. See Fla. Admin. Code R. 9J-5.023. But Petitioners cited no statute or rule that prohibits a local government from adopting LDRs before a local plan is effective, or that implement another local government's plan (in this case the County Plan). While the LDC was adopted for the purpose of implementing a City Plan that the City believed would be in effect when the LDC was adopted, the City agrees that until the new City Plan becomes effective, the LDC implements the County Plan. Even though the two Plans are not identical, and may even be inconsistent with each other in certain respects, this does automatically create an inconsistency between the LDC and County Plan. Rather, it is necessary to determine consistency between those two documents, and not the City Plan. Except for testimony regarding one provision in the LDC and its alleged inconsistency with language in the County FLUE, no evidence was presented, nor was a ground raised, alleging that other inconsistencies exist. The Table note and the County Plan do not conflict. The LDC is not "inconsistent" merely because it was initially intended to implement a local plan that has not yet become effective. Petitioners next contend that the LDC changes the uses, densities, and intensities permitted by the County Plan and is therefore inconsistent with that Plan. Specifically, they contend that the note following the Zoning Compatibility Table in Chapter 1, Section 5 of the LDC is inconsistent with the language on pages I-62 and 63 (now renumbered as pages I-73 and I-74) of the County Plan. In other words, they assert that an inconsistency arises because the note requires them to down- zone their property before development, while the County Plan deems their zoning to be consistent with the County LUP map unless a special planning study is undertaken. The evidence establishes that if there is a conflict between zoning and land use on property within the City, it is necessary to defer to the language on pages I-62 and I-63 of the County FLUE for direction. This is because the County Plan is the effective plan for the City. Under that language, if no planning study has been conducted, the zoning would be deemed to be consistent with the land use. On the other hand, if a planning study is undertaken, and an inconsistency is found, the property can be rezoned in a manner that would make it consistent with the land use. Therefore, the LDC does not change the use, density, or intensity on Petitioners' property that is permitted under the County Plan. It is at least fairly debatable that there is no conflict between the Table note and the County Plan. Finally, Petitioners contend that the LDC changes the uses, densities, and intensities permitted by the not yet effective City Plan because the current industrial zoning designation will be inconsistent with the LDR land use designation. Petitioners argue that once the new City Plan becomes effective, the LDC requires them to down-zone their property before development. However, this concern will materialize only if or when the new City Plan, as now written, becomes effective; therefore, it is premature. Further, the definition of "land development regulation" specifically excludes "an action which results in zoning or rezoning of land." See § 163.3213(2)(b), Fla. Stat. Because the challenged regulation (the note to the Table) is "an action which results in zoning or rezoning of land," the issue cannot be raised in an administrative review of land development regulations. Id. The other contentions raised by Petitioner are either new issues that go beyond the scope of the Petition filed in this case or are without merit.
The Issue Whether the amendments to the Hendry County Comprehensive Plan adopted on February 25, 2014, by County Ordinance No. 2014- 03, are “in compliance,” as that term is defined in section 163.3184(1)(b), Florida Statutes (2013).1/
Findings Of Fact The Parties and Standing Respondent, Hendry County (Respondent or County), is a political subdivision of the State of Florida with the duty and responsibility to adopt and amend a comprehensive growth management plan pursuant to section 163.3167. Petitioner, the Seminole Tribe of Florida (Petitioner or Seminole Tribe), owns real property consisting of the Big Cypress Seminole Indian Reservation and adjacent non-reservation lands located in the County. The address of the main tribal office is 31000 Josie Billie Highway, Clewiston, Florida 33440. On February 25, 2014, the Board of County Commissioners held a public hearing and adopted the Plan Amendment. The Seminole Tribe submitted written and oral comments to the County concerning the Plan Amendment through their counsel and several Tribal members at the adoption public hearing. Existing Land Uses and Future Designations Hendry County is approximately 1,190 square miles in size. The County is predominantly an agriculturally-based community with roughly 55 percent of the total land area in agricultural production and another 12 percent designated as preserve. Approximately 71 percent of the land area in the County is designated Agriculture on the Future Land Use Map (FLUM).2/ Lands within the Agriculture Future Land Use Category (Ag FLU), some 529,936 acres, predominantly comprise the central, southern and eastern portion of the County. The Ag FLU designates those lands which “will continue in a rural and/or agricultural state through the planning horizon of 2040.” The County has limited property designated for future industrial and commercial use. Less than one-half percent of the land area on the FLUM is designated as Industrial. Less than two-tenths percent is designated as Commercial. Other future land use categories which allow Industrial development include Agriculture, Public, Multi-Use Development, and land within the Rodina sector plan, which authorizes a maximum of 1,900,000 square feet of Office, Civic, and Industrial uses. Industrial uses allowed within the Agriculture land use category include processing of agricultural products as Level One uses allowed as permitted uses, special exceptions, or accessory uses under the Land Development Code. A number of other uses, such as utilities, bio-fuel plants, mining, and solid waste recovery, are allowed as Level Two uses which require rezoning of the property to a Planned Unit Development, with significant review by County staff and approval by the Board of County Commissioners. Less than one percent of the land area is designated for Public Use. The Public land use category designates areas which are publicly-owned, semi-public, or private lands authorized for public purposes, such as utilities and solid waste facilities. The largest industrial site in the County is the AirGlades industrial complex, which is designated as a Public land use on the FLUM. The site is approximately 2,400 acres in size, but only roughly 200 acres is in industrial use. The complex cannot be fully developed due to inadequate County wastewater facilities serving the site, Federal Aviation Authority restrictions (e.g., height limitations) on development in proximity to the Airglades airport, and lack of opportunity for fee ownership of property owned by the County.3/ Roughly one-half percent of the land area is designated Multi-Use. Designated lands are generally located adjacent to the primary transportation system and existing or programmed utilities. The purpose of this land use category is to promote new development and redevelopment of the properties located within the category. The Floor Area Ratio (FAR) for Industrial development in the Multi-Use category is limited to 0.75. As with industrial uses, commercial uses are allowed in land use categories other than Commercial. The Agriculture category allows commercial uses such as ornamental horticulture and nurseries. Non-residential intensity is generally limited to an FAR of .40. Commercial development is allowed within both the Medium–Density and High-Density Residential FLU Categories; however, development is limited to residential-serving commercial, must be approved through the PUD rezoning process, and is limited to 15 percent of the uses within the PUD. Less than one percent of the County is designated as Rural Special Density, and, under the existing Plan, this designation cannot be expanded. The Residential Special Density category allows commercial and retail on no more than 10 percent of the designated area and with a total cap of 200 square feet at buildout. Commercial development is also allowed within the Multi-Use category, but is limited to an FAR of .25 for retail commercial, .50 for mixed-use buildings (maximum of 25 percent retail), and .30 FAR for mixed-use buildings with commercial on the first floor. The County is sparsely populated with concentrations surrounding the cities of Clewiston and LaBelle, including Port LaBelle, as well as the unincorporated areas known as Felda and Harlem. The cities of LaBelle and Clewiston and the unincorporated populated areas are located at the northernmost end of the County along State Road 80 (SR 80). The Felda Community is located in the northwestern portion of the County, south of the City of LaBelle. Most of the development in the County since 1999 has occurred in and surrounding the incorporated areas of LaBelle and Clewiston, primarily adjacent to the City of LaBelle and along SR 80 from LaBelle to the Lee County line. The vast majority of land in the County is not served by centralized public utilities, such as sewer and water. Existing public utilities, including centralized water and sewer, are limited to the northernmost areas of the County surrounding the cities of LaBelle and Clewiston, and along SR 80. South of LaBelle and Clewiston, there are only three north/south and two east/west principle arterial or collector roads in the County. All of these are two-lane roads, and only SR 29 south of LaBelle is planned to be widened to four lanes under either alternative in the County’s 2040 long-range transportation plan. Economic Conditions It is undisputed that the economic condition of the County is dire. The County ranks high in many negative economic indicators, including a 30 percent poverty rate (compared to 17 percent statewide), the highest unemployment rate in the state for 34 of the most recent 36 months, and an annual wage $10,000 lower than the state average. Roughly 80 percent of County school children qualify for a free or reduced-price lunch, and a high percentage of the County population are Medicaid recipients. The County’s ability to raise revenue through taxation is limited by the extent of property exempt from ad valorem taxation (e.g., government-owned property), and the extent classified as Agricultural and assessed at less than just value. Slightly more than half of the just value of property in the County is subject to an Agricultural classification. Another 21 percent of the just value of property in the County is government-owned, thus exempt from ad valorem taxation. More than half of the parcels in the County are taxed as vacant residential, and less than two percent are taxable commercial properties. On May 24, 2011, the Board of County Commissioners conducted a workshop on proposed new Mission, Vision, and Core Values statements for the County. On September 13, 2011, the Board adopted the following Vision statement: “To be an outstanding rural community in which to live, work, raise a family and enjoy life by creating an economic environment where people can prosper.” The Plan Amendment The Plan Amendment was adopted in an effort to attract large-scale commercial and industrial businesses to locate in, and bring jobs to, the County. Under the Plan Amendment, a new development project that is designated as an Economic Engine Project (EEP), and “large-scale commercial and/or industrial” developments, are expressly permitted in any and all FLU categories throughout the County with the exception of Agricultural Conservation, Residential - Pre-Existing Rural Estates, and Felda Estates. The Plan Amendment is designed to spur economic development by “streamlining” the permitting process to give the County a competitive advantage in attracting new business. By permitting EEPs and large-scale commercial and industrial uses in nearly every future land use category, the Plan Amendment is intended to eliminate the costs (in both time and money) of processing comprehensive plan amendments for future development projects. The amount of land eligible for siting either an EEP or a large-scale commercial and/or industrial development under the Plan Amendment is approximately 580,000 acres.4/ The majority of that land area, 529,936.49 acres, is located within the Agriculture FLU category. The Plan Amendment significantly rewrites the Economic Development Element of the County’s Plan, and adds new policies to Chapter 1, Goal 2 of the Future Land Use Element (FLUE), related to “Innovative Planning and Development Strategies.” The Plan Amendment rewrites Goal 2 as follows:5/ In order to protect water resources, protect the environment and wildlife habitat, build a more sustainable tax base, encourage economic development, promote energy efficiency, and to permit job creation for the citizens and residents of Hendry County, the following innovative land use planning techniques should be encouraged: In order to build a sustainable tax base, encourage economic development, promote job creation, and support vibrant rural and urban communities, the following flexible development strategies are encouraged: Innovative and flexible planning and development strategies list in Section 163.3168, Florida Statutes. Innovative and creative planning tools. Innovative Flexible and strategic land use techniques listed and defined in this comprehensive plan. The Plan Amendment adds the following new Objective and Policies to FLUE Goal 2: Objective 2.1: Recognize the substantial advantages of innovative approaches to economic development to meet the needs of the existing and future urban, suburban and rural areas. Policy 2.1.1: A qualifying County economic development and job creation project (Economic Engine Project) is a project that complies with Policy 10.1.7. of the Economic Development Element, Hendry County's compatibility requirements, Policy 2.1.2, and which will have adequate infrastructure. These projects shall be allowed in any category listed in the Future Land Use Element except those lands designated as Agriculture Conservation, Residential/Pre- Existing Rural Estates, and Felda Estates residential areas, consistent with the goals, objectives, and policies of the Economic Development Element. Additionally, Economic Engine Projects shall be allowed in adopted sector plans only if they advance or further the goals, objectives and policies of respective lands pursuant to 163.3245, and the sector plan. Densities and Intensities shall not exceed the values that are established for commercial and industrial uses in the respective land use categories. In the residential land use categories, an Economic Engine Project shall not exceed an Intensity of 0.25 FAR. Policy 2.1.2: Large-scale commercial and/or industrial developments will be allowed in any Future Land Use category, except those lands designated as Agriculture Conservation, Residential/Pre-Existing Rural Estates, and Felda Estates residential areas if they meet the requirements below. In addition, large-scale commercial and/or industrial developments will be allowed in adopted sector plans only if they advance or further the goals, objectives and policies of respective lands pursuant to 163.3245, F.S., the sector plan, and meet the requirements below. Policy 2.1.2 does not apply to industrial development located in the industrial land use category nor commercial development located in the commercial land use category. The development is approved as a PUD as provided in the Land Development Code; The development is consistent with siting proposals developed by County staff and approved by the Board of County Commissioners; The project has direct access to principal arterials and collectors or access to the principal arterials and collectors via local roads with adequate capacity which can be readily provided by the development; The project has access to, will upgrade/extend existing utilities, or construct on-site utilities; or a public or private provider will extend and/or expand the utilities (including an upgrade if necessary) or has the extension of utilities in the utility's financially feasible plan. The project must have access to all existing or planned necessary utilities, such as water, sewer, electricity, natural gas, cable, broadband, or telephone; The project has access to and can provide on-site rail facilities, when appropriate; The project will provide sufficient open space, buffers, and screening from exterior boundaries where warranted to address all compatibility issues. Large-scale Commercial and/or Industrial development must be a minimum of eighty (80) acres. The County reserves the right to require the project area to be larger if the County finds that a project with more land is necessary to address the impacts of the development on the surrounding area, or if the County concludes that a larger site is necessary to provide a viable project. The project must demonstrate that it will produce at least fifty (50) new jobs within three years after the project is initiated. The development must contribute positively to the County's economy. If the project requires that the County expend funds not already provided for in the County Capital Improvement Program, the developer shall cooperate with the County in obtaining the funds. This provision includes requiring the County to accelerate a programmed project. If necessary, the owner/developer of the project will work with the appropriate educational facilities to create the necessary education and training programs that will enable Hendry County residents to be employed with the Large- scale Commercial and/or Industrial development. Intensities shall not exceed the Floor Area Ratio for Commercial and/or Industrial uses that are established in their respective land use categories. In the residential land use categories, an Economic Engine Project shall not exceed an Intensity of 0.25 FAR. Densities shall not exceed the Floor Area Ratio for Commercial uses that are established in their respective land use categories. Additionally, the Plan Amendment adds the following definitions to the Plan: "Economic Engine Project" means a qualifying County economic development and job creation project which complies with Policy 10.1.7. of the Economic Development Element and means the proposed development, redevelopment or expansion of a target industry. "Target Industry" means an industry that contributes to County or regional economic diversification and competitiveness. Targeted industries that are eligible to qualify as a County-approved Economic Engine Project include, but are not limited to: The targeted industries and strategic areas of emphasis listed with Enterprise Florida The targeted industries of Florida's Heartland Regional Economic Development Initiative Projects aligned with efforts of Visit Florida Projects that promote tourism Marine Industries; and Agricultural Industries New Economic Development Element Policy 10.1.7, reads as follows: The County Administrator has the authority to designate a project as a County-approved Economic Engine Project provided it meets the definition of an Economic Engine Project, the criterion in future land use element Objective 2.1, and policies 2.1.1- 2.1.2. Petitioner’s Challenge Petitioner challenges the Plan Amendment as not “in compliance” with chapter 163. Specifically, Petitioner alleges that the Plan Amendment fails to appropriately plan for orderly future growth by providing measurable and predictable standards to guide and control the future growth and distribution of large-scale commercial and industrial developments and Economic Engine Projects throughout the County; is not based on relevant and appropriate data and analysis; is internally inconsistent with other goals, objectives, and policies in the Plan; and fails to discourage urban sprawl. Meaningful and Predictable Standards Section 163.3177(1) provides, “The [local government comprehensive plan] shall establish meaningful and predictable standards for the use and development of land and provide meaningful guidelines for the content of more detailed land development and use regulations.” Section 163.3177(6)(a) requires the local government to designate, through the FLUE, the “proposed future general distribution, location, and extent of the uses of land for” commercial and industrial categories of use. Further, this section requires the local government to include the “approximate acreage and the general range of density or intensity of use . . . for the gross land area in each existing land use category.” Subparagraph 163.3177(6)(a)1. requires local governments to define each future land use category “in terms of uses included” and to include “standards to be followed in the control and distribution of population densities and building and structure intensities.” Designated Economic Engine Projects The Plan Amendment does not define an EEP in a manner sufficient to put property owners on notice as to what use might be approved within the approximately 580,000 acres affected by the Plan Amendment. The Plan Amendment defines an EEP as a “proposed development, redevelopment or expansion of a target industry.” “Target industry” is further defined by the Plan Amendment as “an industry that contributes to County or regional economic diversification and competitiveness.” The definition continues, as follows: Targeted industries that are eligible to qualify as a County-approved Economic Engine Project include, but are not limited to: The targeted industries and strategic areas of emphasis listed with Enterprise Florida The targeted industries of Florida’s Heartland Regional Economic Development Initiative Projects aligned with efforts of Visit Florida Projects that promote tourism Marine Industries Agricultural Industries Under Policy 2.1.1, a project that meets the definitions above may be designated as an EEP by the County Administrator, pursuant to Policy 10.1.7, if it meets the criterion in Policy 2.1.2, and if it “complies with the County’s compatibility requirements and [has] adequate infrastructure.” As adopted, the Plan Amendment provides no meaningful standard for the use or development of land for an EEP. The definition of an industry that “contributes to County or regional economic diversification and competitiveness” is essentially open-ended, defining an EEP only in the sense that it must be different from the existing predominate County industry -- Agriculture. Yet, even that distinction is eliminated by the inclusion of “Agricultural Industries” on the list of target industries “that are eligible to qualify as a County-approved” EEP. The list of industries defined as “eligible to qualify as a County-approved” EEP provides no meaningful standard because it incorporates by reference industries listed by, targeted by, or “aligned with,” private and quasi-government entities such as Enterprise Florida, Visit Florida, and Florida’s Heartland Regional Economic Development Initiative. The definition does not even fix to a specific date the list of targeted industries designated by those business development entities, thus rendering the Amendment “self-amending,” without any meaningful list of qualifying uses. Moreover, the definition of “target industry” incorporates these third-party lists with the qualification “including but not limited to.” Thus, determination of an EEP is at the sole discretion of the County Administrator. Sarah Catala, Hendry County associate planner, is the author of the Plan Amendment. Ms. Catala testified that an EEP could encompass a wide variety of uses, including ecotourism (e.g., bird-watching tours), manufacturing, and large-scale commercial development such as a Super Walmart. The Plan Amendment is essentially circular. The definition of an EEP refers to compliance with Policy 10.1.7, but Policy 10.1.7 refers back to the definition and the criteria in Policies 2.1.1 and 2.1.2. Policy 2.1.1 requires an EEP to comply with Policy 10.1.7, as well as Policy 2.1.2. Objective 2.1 and Policies 2.1.1 and 2.1.2 lack meaningful and predictable standards for the use and development of EEPs. Policy 2.1.1, as previously referenced, refers the reader to Policy 2.1.2 and further states that EEPs must “comply with Hendry County’s compatibility requirements” and must have “adequate infrastructure.” The Plan Amendment does not define either “compatibility requirements” or “adequate infrastructure.” Nor does the Plan Amendment cross-reference any specific compatibility or infrastructure requirement in either the Plan or the County’s Land Development Regulations. The County highlights Policy 2.1.2 as the measurable criterion that directs the location, timing and extent of development of both EEPs and large-scale commercial and industrial developments throughout the County. However, as discussed below, Policy 2.1.2 does not resolve the Plan Amendment’s failure to provide meaningful and predictable standards directing the location, amount and timing of the development of EEPs or large-scale commercial and industrial in the County. Large-scale Commercial and Industrial Developments Policy 2.1.2 adds “large-scale commercial and industrial developments” as an allowable use in every FLU category in the County with the exception of the same three categories from which EEPs are excluded: Agriculture Conservation, Residential/Pre-Existing Rural Estates, and Felda Estates. Large-scale commercial and industrial developments must meet the requirements listed in paragraphs (a) through (n) of Policy 2.1.2.6/ Policy 2.1.2(a) requires EEPs and large-scale commercial and industrial developments allowed by the Plan Amendment to undergo a rezoning to Planned Unit Development (PUD) during which time various site-specific criteria found in the land development regulations will be applied to development of a particular project. The PUD rezoning criterion in the County’s LDRs govern the location of a particular use on a specific property. The PUD requirements do not relate in any way to the appropriate location of either an economic project or large-scale commercial or industrial development within the approximately 580,000 acres open for those developments under the Plan Amendment. Thus, this criterion is not a meaningful standard that provides for the general distribution, location, and extent of land for EEPs or large-scale commercial or industrial use. Policy 2.1.2(b) requires EEPs and large-scale commercial and industrial developments allowed by the Plan Amendment to be “consistent with siting proposals developed by County staff and approved by the Board of County Commissioners.” It is undisputed that the said siting proposals have yet to be developed by staff. Ms. Catala anticipates developing a locational matrix that will “match up locations in the County with the needs of a business.” As such, the siting proposals will provide locational standards for future EEPs and large- scale commercial and industrial developments. As written and adopted, though, the Plan Amendment contains no such standards. Policy 2.1.2(c) requires EEPs and large-scale commercial and industrial developments to have “direct access to principal arterials and collectors or access to the principal arterials and collectors via local roads with adequate capacity which can be readily provided by the development.” This criterion simply requires EEPs and large-scale commercial and industrial developments to have access to a roadway of some sort. It does not guide developments to locate within proximity to a roadway, or require direct access to a particular class of roadway. The criterion does not preclude the developer from building a road from the project to an existing local roadway. Furthermore, the Plan Amendment neither defines the term “adequate capacity” nor cross-references an existing definition of that term elsewhere in the Plan. Without a definition, the reader is left to speculate whether a particular project site is appropriate in proximity to any particular roadway. As written, Policy 2.1.2(c) does not provide meaningful standards for the location, distribution, or extent of either EEPs or large-scale commercial or industrial projects within the approximately 580,000 acres designated eligible for these uses under the Plan Amendment. Policy 2.1.2(d) relates to the provision of utilities to serve an EEP or large-scale commercial or industrial project. The Policy reads as follows: The project has access to, will upgrade/extend, or construct on-site utilities; or a public or private provider will extend and/or expand the utilities (including an upgrade if necessary) or has the extension of utilities in the utility’s financially feasible plan. The project must have access to all existing or planned necessary utilities, such as water, sewer, electricity, natural gas, cable, broadband, or telephone. This criterion provides so many alternatives, it is essentially meaningless. Boiled down, the provision requires only that the project have utilities, which is essential to any development. The criterion does not direct the location of one of these projects to areas where utilities exist or are planned, but rather allows them anywhere within the approximately 580,000 acres as long as the developer provides needed utilities, somehow, some way. Policy 2.1.2(e) requires “[t]he project [to have] access to and . . . provide on-site rail facilities, when appropriate[.]” This criterion provides locational criterion to the extent that a development for which rail facilities are integral must locate in proximity thereto. However, that criterion is self-evident. The policy does not add any guidance for the location, distribution, and extent of EEPs and large- scale commercial or industrial projects which do not require rail facilities. Policy 2.1.2(f) requires the project to “provide sufficient open space, buffers, and screening from exterior boundaries where warranted to address all compatibility issues.” Buffers, screening, and open space requirements are addressed at the PUD rezoning stage of development and do not provide guidance as to the location of development within any particular land area. Furthermore, the language does not direct an EEP or large-scale commercial or industrial development away from existing uses which may be incompatible therewith. The Plan Amendment actually anticipates incompatibility and requires development techniques to address incompatibilities at the rezoning stage. Policy 2.1.2(g) requires a minimum of 80 acres for a large-scale commercial or industrial development. The policy allows the County to increase that minimum size “if the County finds that a project with more land is necessary to address the impacts of the development on the surrounding area, or if the County concludes that a larger site is necessary to provide a viable project.” The policy has a veneer of locational criterion: it excludes development or redevelopment of parcels, or aggregated parcels, which are smaller than the 80 acre threshold. However, the policy provides an exception for the County to require larger parcels solely at its discretion. Again, the policy anticipates incompatibility between large- scale commercial or industrial development and the existing land uses. Policies 2.1.2(h), (i), (j), (k), (l), and (m) bear no relationship to location, distribution, or extent of the land uses allowed under the Plan Amendment. Petitioner has proven beyond fair debate that the Plan Amendment neither provides for the general distribution, location, and extent of the uses of land for commercial and industrial purposes nor meaningful standards for the future development of EEPs and large-scale commercial and industrial development. Section 163.3177(1) requires local government plan amendments to establish meaningful guidelines for the content of more-detailed land development regulations. Policy 2.1.2(b) requires large-scale commercial and industrial developments to be consistent with “siting proposals,” which Ms. Catala testified are anticipated to be adopted in the County’s land development code. Ms. Catala generally described a matrix that would help industry “get the best fit for their needs in the County.” The Plan Amendment does not provide any guidelines for adoption of a matrix or any other siting proposals to be adopted by County staff and approved by the Board of County Commissioners pursuant to Policy 2.1.2.(b). Lastly, section 163.3177(6)(a) requires that the FLUE establish the general range of density and intensity of the uses allowed. Ms. Catala testified that the intent of the Plan Amendment is not to change the density or intensity of uses from those already allowed in the plan. The plain language of the Plan Amendment does not support a finding that densities and intensities of use remain the same under the Plan Amendment. The intensity of non- residential development allowed under the Plan Amendment is, at best, unclear, and in some cases left entirely to the discretion of the Board of County Commissioners. Policy 2.1.1 provides that the densities and intensities of EEPs “shall not exceed the values that are established for commercial and industrial uses in the respective land use categories.” The County argues that a fair reading of the Policy restricts non-residential development to the intensities established in the underlying category for non-residential development. Under Policy 2.1.2, intensities of large-scale commercial and industrial developments “shall not exceed the Floor Area Ratio for Commercial and/or Industrial Uses established in their respective land use categories.” While a fair reading of Policy 2.1.1 restricts the intensity of commercial or industrial development to the density established in the underlying land use district, Policy 2.1.2 does not. The pronoun “their” refers back to the Commercial and Industrial land use categories. Thus, under Policy 2.1.2, commercial and industrial uses can develop in other land use categories at the intensities established in the Commercial or Industrial category. Further, both Policy 2.1.1 and Policy 2.1.2 cap EEP intensity at 0.25 FAR in residential FLU categories. This language overrides the existing cap on non-residential development in those categories established in the FLUE. It also overrides those FLU categories, such as Residential Low- Density, which establish an FAR of 0.00. Finally, Policy 2.1.2 contains no intensity cap on development of commercial and industrial development within residential FLU categories. The County explains that large- scale commercial and industrial developments are simply not allowed in FLU categories, such as Residential Low-Density, which establish an FAR of 0.00. The County’s interpretation is not consistent with the plain language of the policy. Policy 2.1.2 specifically allows large-scale commercial and industrial development in all land use categories except Agricultural-Conservation, Residential/ Pre-Existing Rural Estates, and Felda Estates. If the County intended to exclude other FLU categories, they would have been included in the list of exceptions. Petitioner has proven beyond fair debate that the Plan Amendment does not establish the general range of intensity of large-scale commercial and industrial development. Data and Analysis Section 163.3177(6)(a)2. requires local government FLUE amendments “to be based upon surveys, studies, and data regarding the area, as applicable” including the following: The amount of land required to accommodate anticipated growth. The projected permanent and seasonal population of the area. The character of the undeveloped land. The availability of water supplies, public facilities, and services. The need for redevelopment, including the renewal of blighted areas and the elimination of nonconforming uses which are inconsistent with the character of the community. The compatibility of uses on land adjacent to an airport as defined in s. 330.35 and consistent with s. 333.02. The discouragement of urban sprawl. The need for job creation, capital investment, and economic development that will strengthen and diversify the community’s economy. The need to modify land uses and development patterns with antiquated subdivisions. County staff did not collect data or perform an analysis of the character of the undeveloped land affected by the Plan Amendment. County staff did not perform any analysis of the suitability of the land area affected by the Plan Amendment for either a large-scale commercial or industrial development nor for an EEP. County staff did not perform an analysis of the availability of the County water supplies, wastewater treatment, or other public facilities, to serve large-scale commercial or industrial development or an EEP located within the area affected by the Plan Amendment. In fact, County staff acknowledged that wastewater treatment facilities are inadequate to support full buildout of the industrial sites available at the Airglades airport facility. County staff did not perform an analysis of the compatibility of large-scale commercial or industrial development adjacent to the Airglades airport facility. In preparing the Plan Amendment, County staff clearly relied upon data reflecting the County’s needs for job creation, economic development, and a diversified economy, including the Department of Revenue Property Tax Overview for Hendry County, and the fact that the County is designated a Rural Area of Critical State Concern. County staff also considered, in support of the Plan Amendment, the County Commission’s recently-adopted Vision statement: “To be an outstanding rural community in which to live, work, raise a family and enjoy life by creating an economic environment where people can prosper.” No evidence was introduced to support a finding that County staff analyzed whether the Plan Amendment would achieve the goals of strengthening and diversifying the County’s economy. The County introduced the testimony of Greg Gillman, the County’s Economic Development Director, regarding his efforts to attract new business to the County, as well as the obstacles the County faces in these efforts. Mr. Gillman testified regarding five particular scenarios in which he worked with companies to find a suitable location in the County. In one scenario, the price was too high for the potential buyer. In another, the potential buyer was put off by the wooded acreage. In another, the seller would not subdivide. In another, the property is undergoing a PUD rezoning process. In the final scenario, Mr. Gillman testified the potential buyer rejected all proposed sites without explanation. Mr. Gillman did not give a single example of a scenario in which a potential business opportunity was lost due to the need to change the FLUM designation of a property. In fact, Mr. Gillman testified that he does not even show sites without appropriate land use classifications to potential buyers. While there is a plethora of data on the limited amount of land in the County classified for commercial and industrial uses, County staff gathered no data regarding, and conducted no analysis of, the vacancy rate of sites on which commercial and industrial uses are currently allowed. Mr. Gillman provided anecdotal evidence regarding recent efforts to redevelop vacant sites, some of which have been successful. Ms. Catala testified that, in addition to relying on the County’s Vision statement and economic data, she reviewed the comprehensive plans of other jurisdictions. From that review, she gleaned the idea of an EEP. The County introduced no evidence to support a finding that the threshold of 80 acres for an EEP was based upon data at all. Mr. Gillman’s testimony revealed that Ms. Catala originally proposed a higher threshold (perhaps 120 acres), but that he recommended a smaller acreage. Mr. Gillman gave no explanation of the basis for his recommendation. Section 163.3177(f) provides, “To be based on data means to react to it an appropriate way and to the extent necessary indicated by the data available on that particular subject at the time of adoption of the plan or plan amendment at issue.” Given the lack of evidence linking the Plan Amendment to spurring economic development, the County failed to demonstrate that it reacted appropriately to the economic data on which it relied. Even if Mr. Gillman’s anecdotes were accepted as data, they do not support eliminating plan amendments to allow commercial and industrial development in a variety of other land use categories. Internal Inconsistency Section 163.3177(2) provides as follows: Coordination of the several elements of the local comprehensive plan shall be a major objective of the planning process. The several elements of the comprehensive plan shall be consistent. The Petitioner alleges the Plan Amendment changes to the FLUE and Economic Development Element are inconsistent with a number of goals, objectives, and policies found within the FLUE and in other plan elements. Each one is taken in turn. Future Land Use Element First, Petitioner alleges internal inconsistency within the FLUE, specifically between the Plan Amendment and FLUE Goal 1, Objective 1.1, and Policies 1.1.1, 1.1.3, 1.1.4, 1.1.5, 1.1.9, 1.1.10, 1.1.11, and 1.1.13. Policy 1.1.1 governs land uses allowed within the Agriculture FLU category. The policy states, in pertinent part, as follows: Purpose The purpose of the Agriculture Future Land Use Category is to define those areas within Hendry County which will continue in a rural and/or agricultural state through the planning horizon of 2040. * * * Location Standards Areas classified as Agriculture are located within the rural areas of Hendry County. Lands in this category are not within the urban area, but may be adjacent to the urban area. Some of these lands may be converted to urban uses within the 2040 planning horizon. However, the majority of the lands classified Agriculture will remain in a rural, agricultural land use through the year 2040. The Plan Amendment affects more land designated as Agriculture than that designated in any other category. Slightly more than 70 percent of the County, almost 530,000 acres, is designated as Agriculture, and all of it is subject to development for an EEP or an 80-acre minimum commercial or industrial project under the Plan Amendment. Development of ill-defined EEPs and 80-acre minimum large-scale commercial and industrial projects is not consistent with designating lands “which will continue in a rural and/or agricultural state” through 2040. Respondent counters that the Plan Amendment is not inconsistent with Policy 1.1.1 because that Policy already allows a number of non-traditional agricultural uses which are commercial and/or industrial in nature, and may be sited through the PUD rezoning process, just as the uses allowed under the Plan Amendment. Policy 1.1.1 authorizes the use of Agriculture lands for utilities, bio-fuel plants, mining and earth extraction and processing operations, solid waste facilities, resource recovery facilities, and other similar uses. The County’s argument is not persuasive.7/ The non- agricultural uses allowed under the existing plan are agriculturally-related or agriculture-dependent uses, such as bio-fuel, mining, and resource recovery, or uses which, by their nature, are best suited to less-populated rural areas, such as utilities and solid waste facilities. In contrast, large-scale commercial and industrial uses are not limited to agriculturally-related or utility uses. Under the Plan Amendment, anything from an auto parts manufacturing plant to a Super Walmart could be developed in areas designated Agriculture. Any number of urban uses could be developed under the auspices of an EEP or large-scale commercial. Under the Plan Amendment, no amendment to the County’s comprehensive plan will be needed to allow such urban uses in the Agriculture category. Policies 1.1.3, 1.1.4, and 1.1.5 govern land uses in the following FLU categories: Residential – Rural Estates, Residential – Medium Density, and Residential – High Density, respectively. According to Policy 1.1.3, the purpose of the Residential – Rural Estates category is “to define those areas within Hendry County which have been or should be developed at lower density in order to promote and protect the rural lifestyle through the planning horizon of 2040.” The Policy permits only residential and customary accessory uses within the category. The Policy specifically sets a FAR of 0.00 for non- residential development. According to Policy 1.1.4, the purpose of the Residential – Medium Density category is “to identify those areas within Hendry County which currently, or should be, encouraged to become the primary location of residential development offering a mixture of residential products at suburban/urban style density through the planning horizon 2040.” The policy permits single- and multi-family development, as well as mobile homes, and customary accessory uses. Commercial development is allowed only as an element of mixed-use developments, of which commercial is limited to 15 percent. Additional limitations on commercial apply, including limits on size and character, location within the mixed-use development, and buffering from adjacent residential uses. Policy 1.1.4 establishes an FAR of 0.10 for non-residential development. According to Policy 1.1.5, the purpose of the Residential – High Density category is “to define those areas within Hendry County which are or should become higher density residential development through the planning horizon 2040.” The policy permits all types of residential development and customary accessory uses. As with medium-density category, Policy 1.1.5 allows some commercial development within mixed-use developments subject to limitations on size and character, location within the mixed-use development, and buffering. The policy establishes an FAR of 0.10 for non-residential development. Under the Plan Amendment, each of these three Residential categories is available for siting an EEP. New Policy 2.1.2 allows for development of EEPs in these categories at an FAR of 0.25. The Plan Amendment allows EEPs within the Residential Rural Estates category directly in contravention of Policy 1.1.3, which limits uses to residential, recreational, and limited agricultural, and provides zero intensity for non- residential uses. As previously noted, the Plan Amendment broadly defines EEPs, and the record supports a finding that such a project could encompass anything from a manufacturing facility to a Super Walmart. The broad array of uses to diversify the County’s economy is in conflict with the County’s previous decision, reflected in Policy 1.1.3 to designate these areas for future development at low-density residential “to promote and protect the rural lifestyle.” Likewise, the Plan Amendment opens up the Residential Medium Density and Residential – High Density categories for location of ill-defined EEPs in contravention of Policies 1.1.4 and 1.1.5, which limit development in those categories to primarily residential, only allowing commercial within a mixed- use development and limited to a maximum of 15 percent. Furthermore, the Plan Amendment allows these developments at a greater intensity than the FAR of 0.10 established for non- residential density in those categories. The parties disagreed as to whether the Plan Amendment authorizes large-scale commercial and industrial development in the Residential – Rural Estates category governed by Policy 1.1.3. The argument primarily turns on interpretation of new Policy 2.1.2, as discussed in the previous section herein titled “Meaningful and Predictable Standards.” The County contends that the correct interpretation of Policy 2.1.2 allows a large-scale commercial or industrial development at the maximum intensity established in the underlying land use category. In other words, if the underlying land use category establishes an FAR of 0.00 for industrial development, no industrial development is allowed. However, if the same category establishes an FAR for commercial development, the Plan Amendment allows commercial development in that category limited to the intensity established by the FAR. The undersigned has rejected that interpretation as discussed in the prior section herein. Petitioner contends that the language allows commercial and industrial development in every non-exempt land use category at the intensities established in the Commercial and/or Industrial land use category, as applicable. Petitioner’s interpretation is the correct interpretation, and indeed the only possible reading of the plain language of Policy 2.1.2(l).8/ Policy 1.1.9 governs uses in the Commercial land use category. The Policy allows non-residential development at the following intensities: Retail Commercial – 0.25 FAR Office – 0.50 FAR 0.50 FAR for mixed-use building with a maximum of 25% retail and a minimum of 75% office 0.30 FAR for mixed-use development with commercial on the first floor and residential on stories above the first floor. Allowing large-scale commercial development at the stated intensities directly conflicts with Policy 1.1.3, which provides an FAR of 0.00 for non-residential development in Residential – Rural Estates; Policy 1.1.4, which caps intensity at 0.10 for commercial in Residential – Medium; and Policy 1.1.5, which provides an FAR of 0.10 in Residential – High. Thus, Plan Amendment Policy 2.2.1 is in conflict with Policies 1.1.3, 1.1.4, and 1.1.5. Policy 1.1.10 governs uses in the Industrial land use category. The Policy allows industrial development at an intensity of 0.75. Allowing large-scale industrial development at an intensity of 0.75 directly conflicts with Policy 1.1.3, which provides an FAR of 0.00 for non-residential development in Residential – Rural Estates; and Policies 1.1.4 and 1.1.5, which limit non-residential uses to commercial and recreation in the Residential – Medium and Residential – High land use categories. Thus, Plan Amendment Policy 2.1.2 is in conflict with Policies 1.1.3, 1.1.4, and 1.1.5. Petitioner alleges the Plan Amendment is inconsistent with Policies 1.1.9 and 1.1.10 governing development within the Commercial and Industrial categories, respectively. The allegations were not supported by a preponderance of the evidence. The Plan Amendment does not alter either the uses allowed in those categories or the intensity of development allowed therein. Those policies are essentially unscathed. However, because the Plan Amendment allows the types and intensities of development described in the Commercial and Industrial categories to occur in residential and other categories in which those uses and intensities conflict, the Plan Amendment is inconsistent with the policies governing those residential and other categories. Policies 1.1.9 and 1.1.10 are merely the conduits through which Policy 2.1.2 is found to be inconsistent with Policies 1.1.3, 1.1.4, and 1.1.5. Policy 1.1.11 governs land uses in the Public category. The Policy establishes the following purpose and uses: Purpose The purpose of the Public Future Land Use Category is to establish regulations relative to use and location of publicly- owned lands, semi-public lands, and private lands authorized for public purposes which currently exist or which may become public through the planning horizon 2040. Description/Uses Lands in this category are areas designated for public and semi-public uses, including governmental buildings, schools, churches, and worship centers, utilities, solid waste handling and disposal facilities, airports, logistic centers when operated on public property, recycling facilities, and similar public and semi-public uses. This category may also include publicly-owned parks and other public/semi-public recreational facilities. There is no dispute that the Plan Amendment would allow both EEPs and large-scale commercial and industrial uses within the Public land use category. Large-scale commercial and industrial development is inconsistent with the purpose of the Public land use category adopted in Policy 1.1.11 and the uses established therein. Because the Plan Amendment provides no clear definition of an EEP, and leaves the determination solely to the County Administrator, it is impossible to determine whether allowing said development in the Public land use category would necessarily be inconsistent with Policy 1.1.11. Policy 1.1.13 governs uses in the Leisure/Recreation category. The Policy establishes the following purpose and uses: Purpose The purpose of the Leisure/Recreation Future Land Use Category is to define those areas within Hendry County which are used or may become used for free standing/independent leisure/recreation activities through the planning horizon 2040. * * * Description/Uses Leisure/Recreation areas are sites which are currently developed for leisure/recreation facilities or undeveloped sites which are designated for development as leisure/ recreation facilities. . . . Uses allowed within this category shall be limited to sports facilities whether individually developed or in sports complexes, active and/or passive parks, recreation vehicle parks, campgrounds (whether primitive or improved), marinas, golf courses, equestrian centers and riding areas, sporting clay facilities, eco tourism activities, and similar leisure and recreation facilities and ancillary facilities. Large-scale industrial and commercial development would directly conflict with the purpose and types of use allowed within this category pursuant to Policy 1.1.13. As the Plan Amendment provides a very broad definition of EEP, it is impossible to determine that every such use would be inconsistent with Policy 1.1.13. In fact, since an EEP may include eco-tourism uses, location within Leisure/Recreation may be entirely suitable. Petitioner next contends that the Plan Amendment is internally inconsistent with Policy 1.5.17, which provides, as follows: The County’s development regulations shall specifically encourage redevelopment, infill development, compatibility with adjacent uses, and curtailment of uses inconsistent with the character and land uses of surrounding area, and shall discourage urban sprawl. No evidence was introduced regarding whether the County’s land development regulations fall short of this Policy mandate. The County’s expert testified that he had not reviewed the County’s land development regulations to determine whether they met this requirement. Petitioner’s expert provided no testimony on this issue. Petitioner did not prove the Plan Amendment is inconsistent with Policy 1.5.17. Other Plan Elements Next, Petitioner contends the Plan Amendment is inconsistent with Infrastructure Element Objective 7.A.3 and Policy 7.A.3.1, which read as follows: Objective 7.A.3: The County shall maximize use of existing sewer facilities and discourage urban sprawl within infill development. In addition, limit the extension of sewer service to areas designated for urban development on the Future Land Use Map. This Objective shall be implemented through the following policies: Policy 7.A.3.1: The Future Land Use Element and Map allows density and the most flexibility for development in the areas near the Cities where sewer facilities are available, or are more feasible for sewer connections than the more remote areas. The Plan Amendment allows development of both EEPs and large-scale commercial and industrial projects regardless of the availability of existing sewer facilities to the project site. The Plan Amendment expresses no preference between, and alternately allows said development with either, access to existing sewer facilities, or provision of on-site wastewater treatment. The Plan Amendment does not change the land use designations on the existing Future Land Use Map. Nearly 580,000 acres opened up for EEPs and large-scale commercial and industrial development under the Plan Amendment is designated on the FLUM as Agriculture. Policy 1.1.1 specifically defines the Agriculture category for those areas of the County “which will continue in a rural and/or agricultural state through the planning horizon of 2040.” The Policy clearly characterizes the Agriculture designations on the FLUM as “rural areas of Hendry County,” and, while it recognizes that “some of these lands may be converted to urban uses” within the planning horizon, “the majority of the lands classified Agriculture will remain in a rural, agricultural land use through the year 2040.” Policy 2.1.2 specifically allows a public or private provider to “extend and/or expand” utilities in order to serve an EEP or large-scale commercial or industrial development. Thus, the Plan Amendment does not “limit the extension of sewer service to areas designated for urban development on the Future Land Use Map” as required by Objective 7.A.3. Likewise, the Plan Amendment does not “allow the greatest density and the most flexibility for development in the areas near the Cities where sewer facilities are available, or are more feasible for sewer extensions than the more remote areas.” Indeed, Ms. Catala testified consistently that one of the main objectives of the Plan Amendment was to provide more flexibility for development than allowed under the existing plan. Next, Petitioner maintains the Plan Amendment is inconsistent with Traffic Circulation Element Policy 8.5.3, which reads as follows: Revisions of the roads on the Future Traffic Circulation Map shall be coordinated with and connect or directly serve existing development areas or projected growth areas shown on the Future Land Use Map. The Plan Amendment does not revise any roads on the Future Traffic Circulation Map. No evidence was presented that the said revisions would not be coordinated with existing or projected growth areas shown on the Future Land Use Map. Thus, Petitioner did not prove the Plan Amendment is inconsistent with Policy 8.5.3. Next, Petitioner contends the Plan Amendment is inconsistent with Concurrency Management Element Policy 9.2.1, which reads, as follows: The Future Land Use Map is developed to coincide with the availability of public facilities and/or natural resources such that new facilities are not necessarily required for new development. The Plan Amendment allows both EEPs and large-scale commercial and industrial development to occur without regard to availability of public facilities. Although Policy 2.1.2 recognizes the importance of serving these new projects by adequate utilities of all types, it specifically allows public providers to build new, or extend existing, infrastructure to serve those developments. Further, the Plan Amendment anticipates the construction of new facilities to serve these developments, even requiring the County to accelerate projects in its Capital Improvements Program. The Plan Amendment conflicts with Policy 9.2.1 by authorizing development in areas on the FLUM for which public facilities are neither available nor planned. Future Land Use Map Series Finally, Petitioner alleges the Plan Amendment is inconsistent with the maps adopted in the current plan, specifically the FLUM and Conservation Map series. Because the Plan Amendment allows large-scale commercial and industrial developments in land use categories with which those uses are inconsistent, the location and distribution of uses shown on the FLUM are no longer accurate. The Conservation Map series indicates the generalized location in the County of eight different environmental categories, including soils, panther habitat, and historical resources. Very little evidence was adduced relative to whether the Plan Amendment directly conflicted with any one of the maps in the series. The evidence presented related more to the issue of whether the Plan Amendment was supported by data and analysis. Petitioner did not prove beyond fair debate that the Plan Amendment directly conflicts with the Conservation Map series. Urban Sprawl Petitioner’s final challenge to the Plan Amendment is that it does not discourage urban sprawl as required by section 163.3177(6)(a)9. Section 163.3177(6)(a)9.b. provides as follows: The future land use element or plan amendment shall be determined to discourage the proliferation of urban sprawl if it incorporates a development pattern or urban form that achieves four or more of the following: Directs or locates economic growth and associated land development to geographic areas of the community in a manner that does not have an adverse impact on and protects natural resources and ecosystems. Promotes the efficient and cost- effective provision or extension of public infrastructure and services. Promotes walkable and connected communities and provides for compact development and a mix of uses at densities and intensities that will support a range of housing choices and a multimodal transportation system, including pedestrian, bicycle, and transit, if available. Promotes conservation of water and energy. Preserves agricultural areas and activities, including siliviculture, and dormant, unique, and prime farmlands and soils. Preserves open space and natural lands and provides for public open space and recreation needs. Creates a balance of land uses based upon demands of the residential population for the nonresidential needs of an area. Provides uses, densities, and intensities of use and urban form that would remediate an existing or planned development pattern in the vicinity that constitutes urban sprawl or if it provides for an innovative development pattern such as transit-oriented development or new towns as defined in s. 163.3164. Petitioner maintains the Plan Amendment does not meet any of the listed criterion, thus the Plan Amendment does not discourage the proliferation of urban sprawl. The County maintains the Plan Amendment meets at least four of the foregoing indicators, and, thus, must be determined to discourage the proliferation of urban sprawl. The County’s expert witness testified that, in his opinion, the Plan Amendment meets indicators I, II, IV, V, VII, and perhaps VI. In making the following findings, the undersigned considered the testimony of both Petitioner’s and Respondent’s expert witnesses and found Petitioner’s expert opinions to be the more credible and persuasive. The Plan Amendment meets indicator I if it directs or locates EEPs and large-scale commercial and industrial development “in a manner that does not have an adverse impact on and protects natural resources and ecosystems.” The Plan Amendment contains no locational criteria for EEPs and large-scale commercial and industrial developments within the 580,000 acres of land opened up for these uses under the Plan Amendment. County staff had data, in the form of the existing conservation land use map series and the soils map, to draw from in determining areas inappropriate for these types of development. Ms. Catala did not rely upon that data, however, explaining instead that her knowledge of the location of wetlands, floodplains, and other natural resources within the subject area was derived from her day-to-day work. Ms. Catala performed no analysis of the impact of potential large-scale commercial or industrial uses on the natural resources and ecosystems which are present in the affected area. The County argues that the Plan Amendment meets criterion I because it does not allow the subject developments in the Agriculture Conservation Land Use Category, thus the Plan Amendment directs development away from natural resources located in that category. Policy 1.1.1(b). states the purpose of the Agriculture Conservation category is to define those areas within the County which are predominantly jurisdictional wetlands or contain a large portion of wetlands. Land in this category also includes state projects designed to meet the water quality and quantity goals related to the Comprehensive Everglades Restoration Plan. The policy strictly limits both the type and intensity of development which may be located within this category. For example, non-agricultural development is limited to large-lot single-family homes, clustered developments, and rural PUDs, at an intensity no greater than 0.10. The County’s argument misses the mark. The issue is not whether the uses allowed under the Plan Amendment are excluded from land in protected categories, but whether the Plan Amendment directs development away from natural resources present in the 580,000 acres affected by the Plan Amendment. The Conservation Element Map Series documents the location of wetland, floodplains, primary and secondary panther habitat, and hydric soils within the County, including the area affected by the Plan Amendment. Because the Plan Amendment allows the subject development to occur anywhere within the 580,000 acres without regard to location of natural resources, it cannot be found to direct or locate development “in a manner that does not have an adverse impact on and protects natural resources and ecosystems.” The Plan Amendment does not meet criterion I. Criterion II applies if the Plan Amendment promotes the efficient and cost-effective provision or extension of public infrastructure and services. The Plan Amendment allows the subject development to locate without regard to the availability of public infrastructure or services. The Plan Amendment acknowledges that the development must be served, but anticipates that a public or private provider may have to extend services to the property, and does not discourage location of said projects in remote areas where said services are neither available nor planned. Further, the Plan Amendment acknowledges that the County may have to “expend funds not already provided for in the County Capital Improvement Program” to serve the development. Extending services to remote areas of the County is neither efficient nor cost-effective, especially in light of the fact that development could occur in multiple far-flung areas under the Plan Amendment. The Plan Amendment does not meet criterion II. Likewise, the Plan Amendment does not meet sprawl criterion IV because it does nothing to promote conservation of water and energy. The Amendment allows on-site utilities, including wells, to service new development. By allowing development in remote areas of the County, the Plan Amendment does not promote energy conservation. Likewise, the Plan Amendment does not meet criterion V, “[p]reserves agricultural areas and activities, including silviculture, and dormant, unique and prime farmland and soils.” The Plan Amendment does not relate to the soils map and direct development away from prime farmland and soils. Further, the Plan Amendment allows conversion of some 580,000 acres of land designated “Agriculture” to non-agricultural uses. Lands in the Agriculture land use category have been designated by the County to “continue in a rural and/or agricultural state through the planning horizon of 2040.” The Plan Amendment meets criterion VI if it “preserves open space and natural lands and provides for public open space and recreation needs.” The County’s expert testified that the Plan Amendment will increase the County’s tax base so that more public open space and recreation can be provided. Petitioner’s expert testified that the subject developments will intrude into rural open spaces and natural lands and “could change the scenic landscape” of the County. The Plan Amendment does not meet criterion VI. Criterion VII applies if the Plan Amendment creates a balance of land uses based upon demands of the residential population for the non-residential needs of the area. Neither party introduced any evidence regarding the amount of commercial or industrial development needed to serve the residential population of the County. Certainly the unemployment statistics indicate a need for employment opportunities. Petitioner did not prove that the Plan Amendment does not meet criterion VII. Criterion III and VIII do not apply to the Plan Amendment. Having determined that the Plan Amendment does not meet four or more of the criterion to be determined not to promote the proliferation of urban sprawl, the analysis then turns to the primary indicators of urban sprawl. Section 163.3177(6)(a)9.a. lays out 13 primary indicators that a plan amendment does not discourage the proliferation of urban sprawl. Again, the evidence conflicted as to whether the Plan Amendment meets any of the indicators. In making the following findings, the undersigned has considered the testimony of both Petitioner’s and Respondent’s expert witnesses, and found the testimony of Petitioner’s expert to be the more credible and persuasive. The Plan Amendment meets several of the primary indicators of the proliferation of urban sprawl. The Plan Amendment allows loosely-identified EEPs and large-scale commercial development to occur in roughly 580,000 largely rural acres currently designated for Agriculture. The Plan Amendment does not limit location of these developments within the Agriculture designation. Thus, the Plan Amendment “[p]romotes, allows, or designates significant amounts of urban development to occur in rural areas at substantial distances from existing urban areas while using undeveloped lands that are available and suitable for development” which is indicator II. Promoting these areas for development is, in fact, the main purpose of the Plan Amendment. Indicator IV is triggered if the Plan Amendment “[f]ails to adequately protect and conserve” a litany of natural resources and natural systems. The Plan Amendment meets this indicator because it does not direct development away from natural resources which may be located within the 580,000 acres in which it promotes development. Under the Plan Amendment, vast areas currently in, or designated for, agricultural uses, are allowed to convert to urban uses without a plan amendment. The Plan Amendment does not direct development away from existing agricultural uses. Thus, the Plan Amendment meets indicator V: “Fails to adequately protect adjacent agricultural areas and activities, including silviculture, active agricultural and silvicultural activities, passive agricultural activities, and dormant, unique, and prime farmlands and soils.” Similarly, the Plan Amendment “[f]ails to provide a clear separation between rural and urban uses[,]” thus triggering indicator IX. On the issue of public facilities, the Plan Amendment meets both criterion VI and VII. The Plan Amendment fails to maximize the use of existing public facilities because it does not direct development to areas where public facilities, including roads, sewer, and water, are available. Likewise, the Plan Amendment fails to maximize the use of future public facilities, because it allows development to occur in areas where public facilities are not planned. In addition, the Plan Amendment anticipates the extension of facilities to serve potentially far-flung development, but would not require subsequent future development to locate where the new service was available (i.e., infill development). For this same reason, the Plan Amendment discourages infill development, triggering indicator X. Similary, because it allows scattered large-scale development, the Plan Amendment triggers indicator VIII: “Allows for land use patterns or timing which disproportionately increase the cost in time, money, and energy of providing and maintaining” a litany of public facilities and services. Petitioner did not prove by a preponderance of the evidence that the Plan Amendment triggers indicators I, III, XI, XII, and XIII. Petitioner proved that the Plan Amendment meets indicators II, IV, V, VI, VII, VIII, IX, and X. On balance, the Plan Amendment does not discourage the proliferation of urban sprawl.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a Final Order determining that the Plan Amendment is not “in compliance.” DONE AND ENTERED this 12th day of February, 2015, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of February, 2015.
The Issue The issues in this case are whether the Small Scale Comprehensive Plan Amendment No. 05S-01 (the Plan Amendment) adopted by Polk County (County) through the enactment of Ordinance No. 05-004 is “in compliance,” as that term is defined by Section 163.3184(1)(b), Florida Statutes,1 and whether Petitioner, Citizens for Proper Planning, Inc. (CPPI), has standing as an “affected person” as defined by Section 163.3184(1)(a), Florida Statutes, in this proceeding.
Findings Of Fact The ECRA is a local special district governmental agency established pursuant to Chapter 163, Part III, Florida Statutes, and is composed of a seven-member board of directors. The boundaries of the Eloise Community Redevelopment Area include an area consisting of approximately 665 acres within the unincorporated Eloise area of Polk County (the Redevelopment Area). The Subject Property is located within the Redevelopment Area. See JE 8A. The ECRA meets once a month, except July, when they do not normally meet. Its purpose is to discuss and implement the ECRA Redevelopment Plan’s six objectives within the Redevelopment Area. The ECRA opposed the Plan Amendment by and through its attorney and submitted oral and written comments, recommendations, and objections to the County regarding the Plan Amendment during the Plan Amendment adoption proceedings. As a part of its presentation to the County regarding the Plan Amendment, the ECRA delivered to the County, ECRA Resolution No. R-05-01, objecting to the Plan Amendment. The parties agree that the ECRA has standing in this proceeding. Petitioner, Bruce Bachman (Mr. Bachman), resides in Winter Haven, Polk County, Florida. His residence is located outside of the Redevelopment Area and is approximately three (3) miles from the Subject Property. He is employed as the operator (since 1980) and general manager of Phoenix Industries, LLP, (Phoenix), located at 621 Snively Avenue, County Road (CR) 655 in Eloise, which is adjacent to and across the street from the Subject Property. Mr. Bachman has served as the Chairman of the Board of Directors of the ECRA since 1998. Phoenix operates a warehousing and distribution complex for dry, refrigerated, and frozen food products east of Snively Avenue and across the street from the Subject Property. The Phoenix property stretches north and south within an elongated area within the Redevelopment Area, and is open 24-hours a day, seven days a week.2 See JE 8A at "30". (The railroad, designated with a red line, runs north and south through the Phoenix property. JE 8A.) Phoenix has spent approximately $115,000 changing the angles of its buildings and moving docks so that trucks could maneuver on the property, and not have to enter Snively Avenue to do so. Mr. Bachman is involved with the Eloise residential area and the Redevelopment Area generally and his contributions to the Eloise area are well-noted in the record. His work with the community includes working with the students at Snively Elementary School. Individually, and on behalf of the ECRA, Mr. Bachman submitted oral and written comments, recommendations, and objections to the County during the Plan Amendment adoption proceedings. The parties agree that Mr. Bachman has standing in this proceeding. Petitioner, Johnny Brooks (Mr. Brooks), resides at 143 8th Street, Eloise, Polk County, Florida, approximately three (3) blocks southwest from the Subject Property. His home is located within the main residential component of the Redevelopment Area. He was born in Eloise (on 5th Street) and has lived, with his wife, at the 8th Street address for 41 years. Mr. Brooks also serves as Vice-Chairman of the Board of Directors of the ECRA. Although disabled, Mr. Brooks is an active member of the Eloise Community. For example, he and his wife conduct a “homework club” at the Eloise Community Resource Center (opened in 2002) located between 7th and 8th Streets and Snively Avenue, which is east and down the block from his residence. JE 8A at "2". They also use the computer lab at the resource center for adult education. They use the neighborhood Snively/Brooks Park, JE 8A at "4", approximately one block south of the Brooks' residence and west of the Snively Elementary School, JE 8A at "3", for, among other activities, Easter egg hunts and Christmas parties. Mr. Brooks is also involved in the Eloise Neighborhood Association, which offers adult computer classes, GED classes, and classes in English as a Second Language. He and his family use other resources within the Redevelopment Area, such as the Snively Elementary School, and a post office, JE 8A at "1", which is located approximately one block north of the Subject Property between 4th and 5th Streets, near Snively Avenue. Mr. Brooks attends the Eloise United Methodist Church (built in 1966-1967), which is located on land designated as Industrial (IND) on the FLUM. 3 JE 8A at "10". This church is located on the southwest side of Snively Avenue, and approximately five or six blocks south of the Subject Property and approximately two blocks south of the Snively Elementary School and the Snively-Brooks Park.4 Mr. Brooks submitted oral comments, recommendations, and objections to the County during the Plan Amendment adoption proceedings. The parties agree that Mr. Brooks has standing in this proceeding. CPPI is an organization comprised of approximately two hundred members, located throughout Polk County, Florida. CPPI has been an existing corporation since 2002. No application, request to join or payment of dues is currently required for membership. According to its executive chairperson, Jean Reed, its purpose is to "better plan for our growth in Polk County." Ms. Reed lives approximately one mile east of Eloise and four of five of the CPPI Board of Directors live within a mile of Eloise. All CPPI members live in the County. CPPI had been involved in County hearings and an administrative hearing involving a small scale comprehensive plan amendment. The organization currently encourages donations and plans to charge dues next year. CPPI submitted oral comments, recommendations and objections to the County during the Plan Amendment adoption proceedings. No evidence was presented to show that CPPI owns real property within the County. The County and the Intervenor dispute CPPI’s standing in this proceeding. The County is a political subdivision of the State of Florida, empowered to adopt, implement, and amend its Comprehensive Plan in accordance with the laws of Florida. Intervenor, Don C. Smith (Smith or Intervenor), owns the Subject Property. He purchased the Subject Property of 9.9 acres, which is part of a contiguous 20-acre site, in May of 2003. Mr. Smith learned that the Subject Property had an RL-4 land use designation just prior to his purchase of the Subject Property. The parties agree that Mr. Smith has standing in this proceeding. The Eloise Community Redevelopment Area The Redevelopment Area consists of approximately 665 acres. EE 2, Plan at 30. It is generally bounded by the CSX railroad to the north of US 17; by Lake Lulu and Shell Road on the east; by Snively Avenue (CR 655) on the south; and by Wahneta Canal and a portion of Wahneta farms on the west. JE 8A.5 (Snively Avenue is a four-lane undivided, major collector highway, but is not a buffer.) Both historically and presently, the Redevelopment Area has been composed of mixed uses in an urban area. Under the FLUM, there are eight separate land uses within the Redevelopment Area: Industrial (IND), Business Park Center (BPC- 2), High Impact Commercial (HIC), Institutional (INST-1), Community Activity Center (CAC), Residential Suburban (RS), Residential Low-1 (RL-1), and Residential Low-4 (RL-4). JE 8A. Beginning at the northern portion of the Redevelopment Area and moving from west to east, south of the CSX railroad and approximately one block south of US 17, the land uses designated on the FLUM are HIC, CAC, and HIC. Moving southward and east of Snively Avenue, the land use designation for a triangular portion of land is BPC-2. The land use designation adjacent to and immediately south of the BPC-2 designation and east of Snively Avenue is designated as IND. The IND designation covers the land in a southerly direction until Snively Avenue intersects with Croton Road. The land to the east and adjacent to the BPC-2 and IND designations is designated as RL-1. There is a small portion of land near Shell and Croton Roads at the southern boundary of the Redevelopment Area designated as Residential Suburban (RS). (The RS designation continues to the east outside of the Redevelopment Area. Lake Lulu is to the east of the eastern RL-1 and RS designations.) There is also land designated as RL-1 west of Snively Avenue, bisected by Unnamed Street, extending west of Wahneta Canal and south-southwest of the Snively Elementary School/Snively-Brooks Park area, to the southwestern boundary of the Redevelopment Area.6 The Snively Elementary School and the Snively-Brooks Park are located in the INST-1 land use designation.7 JE 8A. Approximately 150 children walk to and from this elementary school (with another 60 to middle and high schools outside the Redevelopment Area), utilizing the sidewalk bordering the western portion of Snively Avenue. The majority of the children attending the elementary school reside in the RL-4 designated area (mainly between 1st and 9th Streets). Mr. Smith agreed that the elementary school was in close proximity to the Subject Property. Mr. Smith testified that after meetings with the ECRA, he moved the fence in front of the Subject Property and business back ten feet so that the children could have more room to walk down the street. He also instructed his drivers of big trucks and heavy equipment not to enter the Subject Property during times when the children are going to and from school. There are several school crossings, crossing Snively Avenue. There is a bus stop at 5th Street and Snively Avenue for children attending middle and high school. JE 8A at "6". There are also bus stops on 7th Street and in front of the elementary school. JE 8A at "5" and "7". Except for the residential portions of the CAC and BPC-2 areas, the primary residential area of the Redevelopment Area is generally bounded by US 17 and 1st Street on the north, the Wahneta Canal on the west, and to just north of Snively Elementary School and 9th Street on the south. JE 8A; EE 2, Plan at 6 and Figure 2. The Eloise Community Redevelopment Area Uses 1. In General The Redevelopment Area, for at least the last 40 years, has supported a wide variety of industrial, commercial, institutional, and residential uses. Mr. Brooks and Mr. Smith testified that the Redevelopment Area has supported these mixed uses and has historically been defined by the interrelationship of these various uses with the predominant industrial activities within its boundaries. In the past, the established residential area (RL-4) was once a successful working-class neighborhood which primarily provided homes to those workers who were employed in the citrus plants located within the industrial classified areas. That residential area is now blighted and provides housing for low and moderate income families. Though well established, the RL-4 residential area contains a substantial number of vacant lots within that residential designated area. 2. Redevelopment Area Problems and Redevelopment During the early 1980’s, Eloise was a troubled community, suffering, for example, from theft and vandalism. The community had difficulty finding minority contractors willing to work at Phoenix because of the problems associated with the community. By the early 1990s, the residential area of the Redevelopment Area had deteriorated to such an extent that the Housing and Neighborhood Development Division (HND), an agency of the County, became actively involved in the redevelopment of the community. In 1992, the Eloise Neighborhood Association was formed. In 1996, a Neighborhood Revitalization/Redevelopment Plan was commissioned by HND. This plan was prepared by County staff. Also in 1996, the HND and the Eloise Neighborhood Association prepared the Eloise Neighborhood Revitalization/Redevelopment Plan, which “focused on the 138 acres generally bounded by the CSX Railroad on the east, the railroad and US 17 on the north, the Wahneta Canal on the west, to just south of the Snively Elementary School. Its recommendations included improved social services, land use changes, housing programs and infrastructure improvements.” In 1998, a Declaration of Slum and Blight was adopted by the Board through Resolutions Nos. 98-08 and 98-66, which, respectively, made a finding of blighting conditions in Eloise and adopted a redevelopment plan for Eloise. As a result, the ERCA was created pursuant to Section 163.356, Florida Statutes, to rehabilitate, conserve, and/or redevelop the Redevelopment Area. In 2000, the Board, pursuant to Section 163.360, Florida Statutes, adopted Ordinance No. 00-33, approving of the Eloise Redevelopment Plan as the Community Development Plan for the Redevelopment Area. It was the purpose and intent of the Board that the Eloise Redevelopment Plan be implemented in the Redevelopment Area. The Board made numerous findings in Ordinance No. 00- 33 including a determination that “[t]he Plan conforms to the general plan of the county as a whole” and that “[t]he Plan conforms to the Polk County Comprehensive Plan.” The Board also determined that “[t]he need for housing accommodations has increased in the area.” The Eloise Redevelopment Plan has not been adopted as part of the County's Comprehensive Plan. Thus, the Plan Amendment need not be consistent with the Eloise Redevelopment Plan to be “in compliance.” The May 2000, Eloise Redevelopment Plan describes the then existing ownership patterns such that “[t]he existing Eloise residential neighborhood between 1st and 9th Streets is subdivided into platted, fifty-foot wide lots. Most are 100-125 feet in depth. Lots along 9th Street abutting the school are platted as 70-foot wide lots. The ownership pattern in this area typically follows the lot lines. Most are individually owned lots. (See Figure 6).” EE 2, Plan at 16. Particularly relevant here, it is also stated: “Lots 33 and 34 [part of the Subject Property] are each approximately 9 acres and are owned by Alterman Transport Corporation (ATC). The site is currently used for storage and, in the past, was zoned GI [General Industrial] and R-3. In the current Comprehensive Plan, however, this site is planned for Residential Suburban (RS) to be compatible with the surrounding neighborhood. The trucks are a legal-nonconforming use and may continue but any future development shall comply with the RS land use district.” EE 2, Plan at 16. The Eloise Redevelopment Plan also recommended that the Alterman Trucking Annex, also known as the Alterman Transportation Corporation, be developed for up to 75 single- family homes by the end of 2004. EE 2, Plan at 32; JE 3 at 3 of (The Subject Property was also formerly known as the Alterman Motor Freight Terminal. JE 2, 8/10/2004 site map.) In 2001, the County also changed the classification of the Subject Property from RS to RL-4 pursuant to Ordinance No. 01-45. See Finding of Fact 54. In addition to the creation of the ECRA, the County, through the HND, has attempted to revitalize the Redevelopment Area. Since 1993, HND has spent approximately $4.4 million dollars in these efforts. These funds have been spent on community policing ($424,790), slum and blight clearing ($47,428), housing rehabilitation ($186,807), parks and recreation ($149,982), water/sewer/drainage ($1,094,677), construction of the Eloise Community Center ($2,147,037), replacement of five homes ($314,138), and rehabilitation and repair of five homes ($46,819). As part of the Eloise Redevelopment Plan, many additional infrastructure improvements have been proposed, such as fire hydrants, turnaround areas for emergency vehicles and fire trucks, storm water installation, and sewer for the Residential Area of Eloise between 1st and 9th Streets and between Snively Avenue and the canal. The proposed projects for water, sewer, and storm water include 350 parcels to be served in this Residential Area. The construction of the Eloise Community Center has been the most costly expense in these efforts. After the County obtained this parcel from Phoenix Industries, it was discovered that the land was contaminated and more than $400,000 was spent on environmental clean-up costs for this property. The ECRA and the County have made progress in the area of code enforcement. Furthermore, crime has been cut in half and a drinking ordinance was passed by the County upon request of the ECRA and the Eloise Neighborhood Association. Eloise, with the County's cooperation, also initiated a Community- Oriented Policing program. There has been an increase in construction in the area, both on the residential and commercial/industrial side of Snively Avenue. The ECRA has also been working on a beautification strategy. For example, Phoenix spent $35,000 for landscaping, removing barbed wire, installing an irrigation system, and installing an attractive entrance to its facilities. Further beautification is planned for other areas along Snively Avenue, the main gateway to the area from US 17, and improvements to Snively Elementary School, for which the ECRA allocated up to $10,000. Currently, the socio-economic status of the families living within the residential portion of the Redevelopment Area is low and moderate income. But, as noted above, the area is being revitalized, including the addition of several Habitat for Humanity-built homes. Mr. Bachman confirmed that "[t]hings have changed now," including the employment of minorities and an increase in diversity at the elementary school. The Subject Property The Subject Property is located within the Redevelopment Area on the southwest side of Snively Avenue between 5th and 6th Streets. JE 8A. The Subject Property consists of approximately 9.9 acres, which is part of a 20-acre parcel owned by Mr. Smith. Tr. 261. (There is a vacant parcel not subject to the Plan Amendment, also acquired by Mr. Smith at the same time, adjacent to and west of the Subject Property, which appears to be within a flood zone area. JE 8A at “46”. The canal serves as the western border for this parcel.) Currently, there are ten to eleven residences along 5th Street, north of the Subject Property, and ten residences between the Subject Property and 6th Street, south of the Subject Property. See EE 7. There does not appear to be any appreciable distance between these residences and the Subject Property. Aside from the residential homes north and south of the Subject Property, there are also retail, auto repair, and other commercial uses which border on Snively Avenue. See, e.g., IE 1, aerial with 15 photographs; JE 3 at 5 of 27; Tr. 295-297; JE 8A. According to Mr. Smith, he requested the land use designation change to cure the non-conforming status of the Subject Property. All operations on the Subject Property had ceased for less than one year when he purchased the Subject Property. The Subject Property has historically and, except as noted above, continuously been utilized since the late 1960’s for industrial-type purposes, including motor freight activities which include loading and unloading citrus trucks, racking, truck repair, and truck weighing. These activities would not necessarily be restricted to an Industrial land use designation;8 the current use of the Subject Property as a motor freight terminal is also permitted within a BPC-2 land use designation. There has been no substantial change in the use of the Subject Property since 1980.9 Mr. Brooks testified that while he was growing up in Eloise, the Subject Property "was primarily truck parking for the citrus plant." He "worked for the scale house back in the late 60's before the plant went down and all [they] did was like park the trucks there for unloading and which would be in the citrus plant itself." However, he never knew the Subject Property "to be an industrial park itself," during the late 1960's. Historically, Mr. Snively, who died in 1957, owned several different businesses across the street from the Subject Property, including a fresh fruit packing house, JE 8A at "20", juice plant, JE 8A at "21", concentrate plant, JE 8A at “22”. The plant closed in 1969 or 1970. In and around 1972, during the summer, Mr. Smith worked for the Snively operation when they parked their citrus trucks on the Subject Property and then for the Alterman operation on-site when he loaded and unloaded trucks. Under the County's zoning ordinance adopted in November 1970, the Subject Property, along with the Phoenix Industries Property, its adjoining property, and the property southeast and adjacent to Snively Elementary School, were zoned as General Industrial (GI). Like the Subject Property, this industrial area is located east and immediately adjacent to property classified as residential (RS) (although the property is presently undeveloped). By an amendment to the FLUM adopted by Ordinance No. 91-06 on April 19, 1991, the Subject Property was classified as RS, rather than IND.10 At the same time, the Phoenix Industries Property, its adjoining property, and the property immediately adjacent to Snively Elementary all maintained their Industrial classification. The May 2000 Eloise Redevelopment Plan recommended, in part, consideration of "a plan amendment from RS to RL-4 for the properties north of Snively [Elementary] School and west of Snively Avenue" which included the Subject Property. EE 2, Plan at 38. On July 11, 2001, the County adopted Ordinance No. 01- 45, which changed the land use designation on the FLUM from RS to RL-4, for all of the property (including the Subject Property) between 1st Street and just south of 9th Street and between Snively Avenue on the east and the canal on the west. EE 1 at map page 2. The land use designation for the Snively- Brooks Park was also changed to INST-1 from IND. Other land use designations were changed pursuant to Ordinance No. 01-45. EE 1. See also Tr. 130-136, 139-140. The FLUM changes implemented strategies set forth in the Eloise Redevelopment Plan and adopted recommended changes to the FLUM. See Tr. 163. The RL-4 designated property is located immediately adjacent to and on the north, west, and south sides of the Subject Property. JE 8A. Across Snively Avenue from the RL-4 property is the industrial area which was previously used in the citrus industry and which is currently used by Phoenix warehousing and trucking activities. JE 8A. "The purpose of the [RL-4] District is to provide areas for low density residential needs of residents in urban areas who desire areas with smaller lots, a minimum of 6,000 square feet." § 204A7., Land Development Code (LDC). The County and Mr. Smith contend that the Subject Property was mistakenly or erroneously classified as RS in 1991 and RL-4 in 2001. However, the preponderance of the evidence indicates that no mistake or error was made in 1991 or 2001 based, in part, on the chronology of events regarding the land use changes mentioned above. Merle H. Bishop, A.I.C.P., the current Director of Growth Management for the County, has been an employee of Polk County for 30 years, and was involved in the adoption of the original Comprehensive Plan in 1991. In preparing land use designations for the initial FLUM, he used aerial photographs primarily and the existing zoning at the time. Since that time, he and staff have discovered errors in mapping the land uses of property, including industrial. Typically, the errors have been corrected when presented to the Board for comprehensive plan changes to the FLUM. Mr. Bishop testified that pursuant to a policy in the Comprehensive Plan, the County desired to “recognize industrial uses.” Tr. 444-445. According to Mr. Bishop, an active industrial use would only be eliminated with good reason, i.e., such as it was a remote and isolated industrial use. Tr. 455. According to Mr. Bishop, the Subject Property, the southern parcel by the elementary school, and the Phoenix Industries property made up a major industrial use area. Tr. 456. Although Mr. Bishop stated the Subject Property "would have been" designated as Industrial in 1991 given its use, Tr. 511-512, Mr. Bishop could not "say whether or not [they] missed this on the map when [they] mapped it. I mean it appears -- I mean, when you look at the map, it's very general; or whether there was an intention to not map it." Tr. 483-484. Mr. Bishop did not testify persuasively that the Board, in 1991 or in 2001, erroneously designated the Subject Property as RS and then RL-4. The February 2, 2005, staff report, mentions the applicant’s contention that a mapping error occurred, but implicitly rejects this argument. JE 3 at 11 and 12 of 27. Staff stated: The site has recently changed ownership and the current property owner wants the non-conforming uses to become conforming uses. Recognizing the existing use will enable to [sic] owner to continue utilizing the site as it has historically been used and allow the redevelopment of the property as needed. In addition, the use has remained the same since the early 1970’s according to the applicant. The applicant also states that Policy 2.113-A2 of the Comprehensive Plan states that the [FLUM] Series shall include all major existing industrial areas; since the property has historically been used for industrial uses, the recognition of the site will correct the County’s mapping error. On the other hand, staff and the ECRA has [sic] indicated, for this and the prior requested land use change (CPA 04A-05), that the impacts to the residential neighborhood is [sic] more significant than the redevelopment of the site for commercial or industrial uses. The County worked with the residents, business owners, and land owners in the area to develop a redevelopment plan, in which, the site was intentionally made non-conforming by the community and the County in order to create separation between the industrial uses across the street from the residential uses on the west side of CR 655 (Rifle Range Road [sic]). Therefore, the applicant’s primary argument for recognizing the historical use is not relevant. JE 3 at 12 of 27. Mr. Bishop was not directly involved with the staff review although he participated at the pubic hearing before the Board. If the Subject Property were vacant, Mr. Bishop would not recommend an Industrial land use designation. He supports the land use change because of the existing (at the time) use of the Subject Property and to have the property be a conforming use. Tr. 506-507. The history of industrial-type use on both the Subject Property and other sites in the Redevelopment Area has been a subject of significant concern. Although no tests have been conducted to determine whether the Subject Property is contaminated, Dr. Cherry testified that as a result of its long industrial use, it is likely that contamination will be present, which would render its use for residential purposes not realistic. Tr. 221-223. Since the subject property is located near the property upon which the community center was constructed and both parcels were part of a larger industrial area and utilized for similar uses, Dr. Cherry suspects that the Subject Property will likewise be contaminated. Tr. 222. If the Subject Property is contaminated, it is Dr. Cherry's opinion that there will be insufficient funds to clean the area. Tr. 219. Consequently, Dr. Cherry opined that if the Subject Property could not be used for industrial purposes, it would likely be unable to be developed as residential and most likely would be abandoned, thereby becoming a “brownfield.” This would significantly burden the redevelopment efforts in the Redevelopment Area. However, the Subject Property has not been declared a “brownfield” and no finding can be made regarding the environmental condition of the Subject Property based upon the record of this case. The Small Scale Plan Amendment Application and Adoption On or about August 10, 2004, Mr. Smith filed an application requesting the County to re-designate the land use of the Subject Property from RL-4 to IND. JE 2. According to the “Narrative Summary,” “[t]his change will provide for the continuation of historical motor freight uses and provide for optional industrial uses.” Id. On January 4, 2005, the County published Notice in a newspaper of local circulation providing that the Board would consider the adoption of the Plan Amendment at its meeting of January 19, 2005. At the January 19, 2005, meeting, the County tabled consideration of the Plan Amendment to its meeting of February 2, 2005. The Polk County Planning Division Staff report is dated February 2, 2005. This report contains a detailed analysis of the application. The Planning Division recommended denial of the Plan Amendment. (The report indicates that the Planning Commission recommended approval (3 to 1 vote) of the Plan Amendment.) The Planning Division found, in part, that "the proposed development request IS NOT compatible with surrounding land uses and general character of the area of the residential uses on the southern side of Snively Avenue (CR 655) and IS NOT consistent with the Polk County Comprehensive Plan for a land use change to Industrial (IND) because it would likely intrude into the existing residential neighborhood, allow for more intensive uses to be developed next to existing homes, and not be consistent with the approved Eloise Redevelopment Plan." (Emphasis is original). On February 2, 2005, the Board voted to adopt the Plan Amendment by the adoption of Ordinance No. 05-004.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order concluding that the Plan Amendment adopted by Polk County Ordinance No. 05-004 is not "in compliance" as defined in Section 163.3184(1)(b), Florida Statutes. DONE AND ENTERED this 8th day of July, 2005, 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 8th day of July, 2005.
The Issue Whether the Department of Community Affairs (Department) should be precluded from prosecuting the instant challenge to the Comprehensive Development Master Plan (CDMP) of Metropolitan Dade County (Metro-Dade, Dade County or County), as amended by Ordinance No. 90-28, on the ground that it did not comply with the statutory prerequisites to instituting such a challenge? Whether the Redland Citizens Association, Inc., the Sierra Club, the League of Women Voters, Evelyn B. Sutton, Martin Motes, Frances L. Mitchell, Rod Jude, Bruce Rohde and Carol Rist (hereinafter referred to collectively as "the Objectors") are "affected persons," within the meaning of Section 163.3184(1)(a), Florida Statutes, entitled to intervene in this matter and pursue their challenge to the CDMP, as amended by Ordinance No. 90-28? Whether Carol Rist's motion to amend her petition for leave to intervene in this matter should be granted? Whether the challenged amendments made to the CDMP through the adoption of Ordinance No. 90-28, specifically those resulting from the approval of Applications 39, 40 and 47, have rendered the CDMP not "in compliance," within the meaning of Section 163.3184(1)(b), Florida Statutes? Whether John H. Wellenhofer is entitled to an award of fees and costs against the Department pursuant to Section 163.3184(12), Florida Statutes?
Findings Of Fact Based upon the record evidence, the following Findings of Fact are made: Metropolitan Dade County: A General Overview Metropolitan Dade County is one of Florida's coastal counties. It is located in the southeastern part of the state and is bordered by Broward County on the north, by Monroe County on the south and southwest, by Collier County on the northwest and by the Atlantic Ocean on the east. Within the boundaries of Metropolitan Dade County are 1,413,629 acres, or approximately 2,209 square miles, of land and water. The major natural features of the County are the Florida Everglades National Park, tropical vegetation, an Atlantic Ocean coastline with several peninsulas and inlets, including Biscayne National Park at Biscayne Bay, and several barrier islands and reefs. The County contains several bodies of water, including various lakes, rivers and streams. Among the most noteworthy water bodies are the Intracoastal Waterway in the eastern part of the County and the expansive wetland systems and their accompanying wildlife habitat located primarily in the western part of the County. Among the major man-made features of the County are I Florida Turnpike, the Metrorail System, canals, causeways connecting Miami Beach and the barrier islands to the mainland, Miami International Airport, Kendall Airport, and Homestead Air Force Base. Metropolitan Dade County is Florida's most populous county with a population approaching two million people. On average, Dade County's population has grown by approximately 36,000 persons per year since the 1970's. There are 26 incorporated municipalities located in Metropolitan Dade County, including the City of Miami, whose downtown area may be viewed as the principal focal point of the entire metropolitan area. Metropolitan Dade County Home Rule Amendment, Charter and Selected Ordinances In 1956, the statewide electorate adopted Article VIII, Section 11 of the 1885 Florida Constitution granting "the electors of Dade County, Florida, . . . power to adopt, revise, and amend from time to time a home rule charter of government for Dade County, Florida, under which the Board of County Commissioners of Dade County shall be the governing body." 4/ The following year, the electors of the County adopted such a home rule charter (Charter). Section 1.01 of the Charter provides that the "Board of County Commissioners shall be the legislative and governing body of the county and shall have the power to carry on a central metropolitan government." The power to "[p]repare and enforce comprehensive plans for the development of the county" is expressly mentioned in Section 1.01 as within the Board's authority. Other powers of the Board specifically enumerated in Section 1.01 include the power to provide, regulate, develop and enforce master plans for the control of traffic; to provide and regulate sewage collection and disposal, waste collection and disposal and water supply programs; to establish and administer drainage programs; to establish and administer conservation programs; and to establish and administer housing programs. Section 4.07 of the Charter establishes a Department of Planning as a unit of central metropolitan County government. This section provides as follows: The department of planning shall be headed by a planning director appointed by the County Manager. The planning director shall be qual- ified in the field of planning by special training and experience. Under the supervision of the Manager and with the advice of the Planning Advisory Board elsewhere provided for in this Charter, the planning director shall among other things: Conduct studies of county population, land use, facilities, resources, and needs and other factors which influence the county's development, and on the basis of such studies prepare such official and other maps and re- ports as, taken together, constitute a master plan for the welfare, recreational, economic, and physical development of the county. Prepare for review by the Planning Advi- sory Board, and for adoption by the Board of County Commissioners, zoning, subdivision, and related regulations for the unincorporated areas of the county and minimum standards governing zoning, subdivision, and related re- gulations for the municipalities; and prepare recommendations to effectuate the master plan and to coordinate the county's proposed capital improvements with the master plan. Review the municipal systems of planning, zoning, subdivision, and related regulations and make recommendations thereon with a view to coordinating such municipal systems with one another and with those of the county. By ordinance, codified in Section 2-106.1 of the Code of Metropolitan Dade County, the Department of Planning has been designated as the County's local planning agency "responsible for the preparation of the Comprehensive Development master plan for the county." Section 4.08(A) of the Charter directs the Board of County Commissioners to, "by ordinance create a Planning Advisory Board." The Board has done so. The Planning Advisory Board (PAB), as established by the Board, is a nine-member body. The members of the PAB are citizens appointed by the Board. Section 5.02 of the Charter describes the powers that may be exercised by the County's municipalities. It provides as follows: Each municipality shall have the authority to exercise all powers relating to local affairs not inconsistent with this Charter. Each municipality may provide for higher standards of zoning, service and regulation than those provided for by the Board of County Commis- sioners in order that its individual character and standards may be preserved for its citizens. Comprehensive Planning in the County: An Historical Perspective Metropolitan Dade County's first Comprehensive Development Master Plan was adopted by the Board in 1965. This initial version of the CDMP was based upon the unrealistic projection that the County would have two and one half million residents at the planning horizon. To accommodate this projected population, it provided for a spread pattern of low density residential growth, served by numerous expressways. Substantial changes to the CDMP were made in 1975 based upon a lower, more realistic population projection and a consideration of environmental and infrastructure constraints. The result was a plan that provided for a more compact form of urban development concentrated around nodes of activity in the eastern portions of the County. The 1975 version of the CDMP introduced the concept of an urban development boundary. The urban development boundary (UDB) was, and remains to this date, an important part of the plan's urban containment strategy. As its name suggests, the UDB is a line drawn on the plan's future land use map (FLUM) that indicates where urban development will be permitted to reach by the end of the planning period. Since 1975, the CDMP has been amended on various occasions. On eight of these occasions, including most recently in 1990, the amendments have included an expansion of the area inside the UDB. As a result of these amendments, the area inside the UDB has increased by more than 32,000 acres. Notwithstanding the various amendments that have been made to the CDMP, its overall approach, focus and direction have remained essentially the same since 1975. Since 1975, the CDMP's policies have "encourage[d] in-filling, redevelopment, and contiguous development in order to lessen urban sprawl and the associated transportation and energy costs." For years, the CDMP has required the coordination of development with services, the protection of agriculture as a viable economic use of land, the encouragement of a broad spectrum of housing allowing for choice of location, the protection of communities from encroachment by incompatible uses, and a wide variety of other goals, objectives and policies which remain the foundation of the CDMP. The 1988 CDMP In December 1988, the Board of County Commissioners adopted Ordinance No. 88-110 entitled "The Master Plan Amendatory Ordinance" (Amendatory Ordinance). The Amendatory Ordinance revised and reformatted the CDMP in an effort to comply with changes made to the state's growth management laws in 1985. The CDMP's primary planning horizon was extended by the Amendatory Ordinance to the year 2000. Like the current version, the version of the CDMP adopted in 1988 (1988 CDMP) had an statement of legislative intent and the following eleven separate elements, containing goals, objectives and policies and other textual material, as well as maps depicting future conditions, including a future land use map: land use; traffic circulation; mass transit; port and aviation; housing; conservation; water, sewer and solid waste; recreation and open space; coastal management; intergovernmental coordination; and capital improvements. Prior to the adoption of the Amendatory Ordinance, the County's Planning Department prepared a "support component," containing background data and analyses, for each of the foregoing elements. These "support components" were used in the formulation of the 1988 CDMP and they were transmitted to the Department of Community Affairs for the Department's consideration during the compliance review process. The 1988 CDMP: Land Use Element "Support Component" The "support component" for the 1988 CDMP land use element (LUSC) was a 232-page document that analyzed existing and future land uses in Dade County, including the amount of land that would be needed and available to accommodate anticipated growth, the County's projected population, the environmental characteristics of the County's undeveloped land, the availability of urban services in the County, and those areas in need of redevelopment. According to the LUSC, as of 1985, of the County's 1,413,629 acres, 86,111.5 acres (6.09%) were devoted to residential uses, 9,389.1 acres (.66%) were devoted to commercial uses, 770.3 acres (.05%) were devoted to hotels, motels and other transient uses, 15,128.9 acres (1.07%) were devoted to industrial uses, 8,967.6 acres (.63%) were devoted to institutional uses, 660,620.7 acres (46.73%) were devoted to parks and recreational open space, 5/ 69,091.3 acres (4.89%) were devoted to transportation, communications and utilities, 93,187.6 acres (6.59%) were devoted to agriculture, 18,268.9 acres (1.29%) were inland waters, 162,640.0 acres (11.51%) were coastal waters, and 289,453.2 acres (20.48%) were undeveloped or vacant. Of this undeveloped or vacant land, 149,823.5 acres (10.55%) were environmentally sensitive. The LUSC examined the pattern of growth in Dade County over the years and reported that, in the 1970's and 1980's, growth occurred primarily in the unincorporated area on the western fringe of the urbanized portion of the County. According the LUSC, this pattern of growth is anticipated to "persist throughout the remainder of this century and beyond." This projection was accompanied by the following explanation: Urban development opportunities are limited on the coastal ridge and on the barrier islands because there is little remaining developable land. It is on the western fringes that land is available. In Dade County these western growth areas extend from the Broward line to the farm lands and open areas of South Dade. With respect to what the future holds for the "urban interior," the following was stated: In the County's urban interior, its central city areas, growth will be modest or nonexis- tent. In most of these areas there is little remaining developable land and projected de- clines in average household size will offset whatever new development occurs. The Downtown area . . . is projected to show some modest gains in the 1990s and beyond, as downtown development efforts succeed in attracting more residents to the County's heart. The LUSC also contained an analysis performed by the Planning Department of the supply of vacant land available for development and the demand that would exist for such land on a countywide and sub-area basis during the planning period. 6/ In determining the supply of land available for residential development, the Planning Department considered the development potential of only vacant and agricultural land inside the UDB, as it existed prior to the adoption of the 1988 CDMP (pre-1988 UDB). Neither redevelopment opportunities, nor the residential capacity of land outside the pre-UDB, were taken into consideration. For each tract of vacant and agricultural land inside the pre- 1988 UDB, the Planning Department ascertained the number of units that would be able to be built, employing a methodology that was described as follows in the LUSC: This determination is based on the current [pre-1988] CDMP Land Use Plan density classi- fication, with numerous exceptions: In areas where no neighborhood or municipal plan has been adopted since the CDMP map classification was established for the parcel, existing zoning is used if greater than agricultural use (AU) or general use (GU). Where the existing zoning is used and land is zoned and platted for single family use, the development capacity of this land is determined by counting the vacant platted lots. In addi- tion, whenever the density of zoned land is further limited by covenants or approved site plans, those conditions are reflected. Where land is unplatted and zoned for estate den- sity residential, but is designated on the CDMP in a higher residential density category and is substantially surrounded by land that is zoned or designated for higher residential density, the land is assigned the density of the surrounding development. Similarly, small parcels zoned AU or GU are assigned a zoning classification comparable to surrounding de- velopment. AU and GU parcels 10 acres or larger are assigned the Plan density appli- cable to the area. In places where neighbor- hood or municipal plans have been adopted or completed since the CDMP classification was established for the parcel and the neighborhood or municipal plan shows a higher use or den- sity, the neighborhood or municipal plan density is used in estimating the development capacity. In instances where the existing zoning permits greater development than the neighborhood or municipal plan proposes, the zoned density is utilized. The gross supply for each area is discounted by a factor of 6 percent to reflect the finding that 6 percent of land in fully developed areas is typically vacant at any given time. The methodology employed by the Planning Department to determine the supply of land available in the County to accommodate growth is professionally accepted. To determine the demand that would exist for residential land during the planning period, the Planning Department first estimated the 1985 countywide population and then projected what the countywide population would be in the years 2000 and 2010. In so doing, it utilized a component methodology, which examined the three components of population change --births, deaths and migration. This methodology is professionally accepted. The Planning Department also made population estimates and projections for each of the minor statistical areas (MSAs) in the County. In making these estimates and projections, it used an extrapolation methodology that is professionally accepted. 7/ Pursuant to this methodology, a portion of the countywide projected population was allocated to each MSA based upon such factors as long- term subarea growth trends, estimates of current subarea population and existing subarea housing units, and subarea development capacity. The Planning Department estimated that the 1985 countywide population was 1,771,000 and it projected that the countywide population would be 2,102,000 by the year 2000 and 2,331,000 by the year 2010. Its population estimates and projections for MSA 6.1 and MSA 6.2, which collectively comprise an area of the County on the western urban fringe known as West Kendall, and MSA 7.2, which is part of the South Dade area of the County, were as follows: 1985- MSA 6.1: 76,961; MSA 6.2: 36,820; MSA 7.2: 32,791; year 2000- MSA 6.1: 135,932; MSA 6.2: 94,628; MSA 7.2: 44,127; year 2010- MSA 6.1: 162,611; MSA 6.2: 124,414; MSA 7.2: 52,518. It was noted in the LUSC that the West Kendall area was the "fastest growing part of Dade County in the 1970's and early 1980's" and that this area was "projected to account for about 38% of the County's growth" from 1985 to 1990. MSA 7.2 was described in the LUSC as among the "rapidly developing areas" of the County. The countywide and MSA population estimates and projections made by the Planning Department not only appeared in the LUSC, but they were adopted by the Board of County Commissioners and included in the future land use element of the 1988 CDMP. After making these population estimates and projections, the Planning Department sought to ascertain the future demand for new housing in the County. As it explained in the LUSC: This projection is a function of the projected population increase. The methodology assumes that the mix of housing units in that area will remain as it is currently and that house- hold sizes will decline slowly. Residential unit requirements are derived from the pro- jected increase in households with a 5 percent allowance for vacancy of dwelling units. The Planning Department projected that countywide demand would be 9,150 total units annually until 1990, 10,731 total units annually between 1990 and 1995, 10,983 total units annually between 1995 and the year 2000, 11,449 total units annually between the year 2000 and the year 2005 and 11,734 total units annually between the year 2005 and the year 2010. For MSA 6.2 and 7.2, the Planning Department's demand projections were as follows: MSA 6.2- 1,498 total units annually until 1990, 1,739 total units annually between 1990 and 1995, 1,630 total units annually between 1995 and the year 2000, 1,453 total units annually between the year 2000 and the year 2005, and 1,288 total units annually between the year 2005 and the year 2010; MSA 7.2- 269 total units annually until 1990, 309 total units annually between 1990 and 1995, 332 total units annually between 1995 and the year 2000, 360 total units annually between the year 2000 and the year 2005, and 373 total units annually between the year 2005 and the year 2010. Having projected future housing demand, the Planning Department then compared the projected demand to the supply of available residential land and concluded that, assuming no additional residential capacity was added, there was a sufficient aggregate supply of single-family and multifamily housing units inside the pre-1988 UDB to accommodate projected growth until the year 2008. 8/ With respect to MSA 6.2 and MSA 7.2, the Planning Department concluded that the former had sufficient residential capacity to last until the year 2001 and that the latter's supply of residential land would be depleted a year earlier. Notwithstanding its conclusion that there was a sufficient supply of residential land inside the pre-1988 UDB to last until the year 2008, the Planning Department recommended that the 1988 version of the CDMP provide even more residential capacity within the UDB. 9/ It explained its position on the matter as follows in the LUSC: [The urban development boundary] contains sufficient capacities to sustain single family development until 2004 and multi-family development until 2014. However, it is recognized that decisions regarding the development and purchase of residences involve complexities that trans- cend the single consideration of the presence of vacant zoned land. Market conditions, neighborhood pressure, transportation or service deficiencies, and investment deci- sions can impede development of vacant parcels. 10/ The proposed land use plan for 2000 and 2010 includes substantially more additional land than indicated above to insure that no short- ages will occur. . . . [T]he proposed LUP map for 2000 and 2010 in- cludes capacities for an additional 23,590 single family-type dwelling units in the area located between the 1990 urban development boundary of the comprehensive plan LUP map which is currently in effect, and the pro- posed year 2000 UDB of the proposed plan map. The Planning Department also inventoried the supply of land available for industrial and commercial development in the County. As reported in the LUSC, it determined that, as of 1985, the County had almost a 50-year supply of industrial land and a 16.6-year supply of commercial land. It further determined, and reported in the LUSC, that, as of 1985, MSA 6.2 had a 5.1-year supply of commercial land and a 92.5-year supply of industrial land and that MSA 7.2 had a 10.1-year supply of commercial land and a 48.7-year supply of industrial land. The 1988 CDMP: Compliance Review and Stipulated Settlement Agreement The 1988 CDMP was submitted to the Department of Community Affairs for its review. On January 30, 1989, the Department issued its statement of intent to find the 1988 CDMP not "in compliance." The Department's objection to the plan concerned the low level of service standards the plan established for certain roadways. The Department subsequently, by petition, referred the matter to the Division of Administrative Hearings. Thereafter, the Department and County entered into a stipulated settlement agreement. Pursuant to the agreement, the County was to make certain changes to the 1988 CDMP to satisfy the concerns expressed by the Department in its statement of intent. The changes involved the 1988 CDMP's capital improvements element and its traffic circulation element. The County was to amend the capital improvements element to incorporate the primary components of the County's existing concurrency management system. The traffic circulation element was to be amended to establish three geographical zones or "tiers." One of the zones, the area inside the UDB east of the Palmetto Expressway (N.W. 77th Avenue), was to be denominated the "Urban Infill Area." 11/ The level of service standards for roadways in the Urban Infill Area were to be lower than those for roadways in the other two zones. Although these level of service standards for roadways in the Urban Infill Area were extremely low, and may have been unacceptable under other circumstances, it was felt that they were necessary, at least on a temporary basis, to promote infill development and encourage the use of mass transit, including the County's rapid rail system, which is underutilized. The agreement provided that if the County made these changes, the Department would find the 1988 CDMP, as amended in accordance with the agreement, "in compliance" and would recommend to the Administration Commission that the compliance proceeding that had been initiated by the Department be dismissed without the imposition of any sanctions. The County made the changes described the settlement agreement by adopting Ordinance No. 90-37. On June 14, 1990, the Department published its notice of intent to find the 1988 CDMP, as amended by Ordinance No. 90-37, "in compliance." This finding was made notwithstanding that the LUSC indicated that there was enough land inside the pre-1988 UDB to accommodate residential development well beyond the year 2000 and there had been, as a result of the Amendatory Ordinance's westward extension of the UDB and its redesignation of certain lands inside the realigned UDB, an addition to the existing supply of land available for residential development. The 1989-1990 CDMP Amendment Application Cycle A total of 71 applications to amend the CDMP were filed during the 1989-1990 CDMP amendment application cycle (Amendment Cycle). Twenty-seven of these applications were filed by private citizens as authorized by County ordinance. The remaining applications were filed by the Planning Department. Of the 27 privately filed applications, 25 requested changes to the FLUM and two requested changes to the text of the CDMP's land use element. The Planning Director filed a like number of applications to amend the FLUM. Application 39 Among the privately filed applications was Application 39, which was submitted by John H. Wellenhofer. The subject of Application 39 was a 25-acre parcel of land owned by Wellenhofer (Wellenhofer's property). Wellenhofer's property is in Study Area G and MSA 6.2. It is bounded on the north by Southwest 116th Street, on the south by Southwest 118th Street, on the east by Southwest 142nd Avenue and on the west by Southwest 144th Avenue. The property was located near, but inside, the UDB as established by the 1988 CDMP (1988 UDB). Through Application 39, Wellenhofer requested that the land use designation of his property on the FLUM be changed from "industrial and office" to "low density residential" (up to six dwelling units per gross acre). Application 39 and the Tamiami Airport The southern boundary of Wellenhofer's property lies two blocks, or approximately 660 feet, to the north of Tamiami Airport. The Tamiami Airport, which was opened in 1967, serves as a general aviation reliever for Miami International Airport. Tamiami is 1,380 acres in size and is the busiest general aviation airport in the County. The aircraft that use Tamiami are light aircraft, principally single and twin propeller driven airplanes. Tamiami does not, and in any event is not equipped to, handle commercial aircraft. Tamiami has three runways: (1) the north runway (9L-27R), an east- west runway; (2) the south runway (9R-27L), a parallel east-west runway; and the diagonal runway (13-31), a northwest-southeast runway. The north runway, which is the runway closest to Wellenhofer's property, lacks facilities to permit navigation by instrument for flights at night or in inclement weather. The flight pattern for the north runway is an oval shape. Wellenhofer's property is not under any portion of this flight pattern, nor is it under the flight patterns for the other two runways. It lies in the center of the oval created by the flight pattern for the north runway. It should be noted, however, that there are instances where aircraft, for one reason or another, deviate from these flight patterns. Residential communities in the vicinity of Tamiami already exist. A recent proposal to lengthen the south runway was opposed by a large number of the residents of these communities. In the face of such opposition, no action was taken on the proposal. Because of the noise generated by airport operations, residential uses in the area surrounding an airport may be incompatible with those operations. 12/ The CDMP recognizes that there is the potential for such land use incompatibility. It mandates that the federal government's 65/75 LDN contour standard contained in 14 C.F.R., Part 150, be used to determine if a particular residential use in the vicinity of an airport would be incompatible with the operations at that airport. The noise contour at 65 LDN for the north runway at Tamiami does not leave the airport property and barely leaves the runway itself. That is not to say, however, that one standing on Wellenhofer's property cannot hear the sound of aircraft using the airport. Wellenhofer's property is separated from Tamiami by land that is designated on the FLUM for "industrial and office" use. An identical 660 foot, "industrial and office" buffer separates the airport from the residential lands that lie to the south of the western end of the airport. The area immediately to the north, to the south and to the east of Tamiami is denominated an "employment center" in the CDMP. Accordingly, a substantial amount of land in this area, particularly to the east of the airport, has been designated on the FLUM for "industrial and office" use. Land immediately to the west of the site of current airport operations at Tamiami is designated on the FLUM for "transportation-terminals" use. Immediately west of this land is a large expanse of land, outside the UDB, which is designated on the FLUM for "agriculture" use. The CDMP's port and aviation facilities element indicates that "future aviation facility improvements are proposed to be made on or adjacent to the sites of existing airports" in the County and that the "westward 1,900 foot extension of the southern runway at Tamiami Airport" is one such proposed improvement that will be the subject of future consideration. Application 40 Another application filed by a private applicant during the Amendment Cycle was Application 40. It was submitted by the Suchmans. The subject of Application 40 was 320 acres of land (Application 40 property) located in Study Area G and MSA 6.2 and bounded on the north by Southwest 136th Street, on the south by Southwest 152nd Street, on the east by Southwest 157th Avenue and the Black Creek Canal, and on the west by Southwest 162nd Avenue. This land was located outside, but contiguous to on the north and east, the 1988 UDB. Immediately to the north of the Application 40 property is land that is shown on the FLUM as part of the western end of the Tamiami Airport. The CSX railroad tracks run parallel to the southern perimeter of the airport and they bisect the Application 40 property. The land immediately to the east of the Application 40 property which is north of the railroad tracks is designated on the FLUM for "industrial and office" use. The land immediately to the east of the Application 40 property which is south of the railroad tracks is designated on the FLUM for "low density residential communities" use. The land immediately to the south and the west of the Application 40 property is designated on the FLUM for "agriculture" use. At the time of the filing of Application 40, the area immediately surrounding the Application 40 property was undeveloped and in agricultural use. By the time of the formal hearing in the instant case, however, residential development was underway on a portion of the land immediately to the east of the Application 40 property which is south of the railroad tracks. Further to the east is a large scale residential development known as "Country Walk." The Suchmans own 190 acres of the Application 40 property. All but 30 acres of the land they own is on the western side of the property. The Suchmans first acquired an interest in the property in 1973 or 1974. They are in the real estate business and they purchased the property for investment purposes. While the Suchmans are not involved in the agricultural business, over the years they have leased their land to tenants who have used it for agricultural purposes. Since about 1987, it has become increasingly difficult, albeit not impossible, for the Suchmans to find such tenants. At least up until the time of the formal hearing in the instant case, their property was being actively farmed. The Suchmans, through Application 40, originally sought to have the land use designation of the Application 40 property north of the railroad tracks changed from "agriculture" to "industrial and office" and to have the land use designation of the remaining 280 acres of the property changed from "agriculture" to "low density residential." 13/ Subsequently, at the final adoption hearing, they amended their application. The Suchmans' amended application sought redesignation only of that land within the boundaries of the Application 40 property that the Suchmans owned: the western 20 acres of the Application 40 property north of the railroad tracks (from "agriculture" to "industrial and office" use); and 170 acres of the remaining land (from "agriculture" to "low density residential"). Under the amended application, the 130 acres of the Application 40 property not owned by the Suchmans was to remain designated for "agriculture" use. 14/ In addition to seeking the redesignation of their land, the Suchmans' application, in both its original and amended form, requested that the 1988 UDB be extended to encompass all 320 acres of the Application 40 property. Application 47 Application 47 was also filed by a private applicant. It was submitted by Alajuela N.V. The subject of Application 47 was an 160-acre tract of land (Application 47 property) located in Study Area I and MSA 7.2 and bounded by Southwest 264th Street on the north, Southwest 272nd Street on the south, Southwest 157th Avenue on the east and Southwest 162nd Avenue on the west. This land was located outside, but contiguous to on the south and east, the 1988 UDB. Immediately to the south and to the east of the Application 47 property is land designated on the FLUM for "estate density residential communities" use (up to 2.5 dwelling units per gross acre). The land immediately to the north and to the west of the Application 47 property is designated "agriculture" on the FLUM. Through its application, Alajuela N.V. requested that the land use designation on the FLUM of the Application 47 property be changed from "agriculture" to "estate density residential" 15/ and that the 1988 UDB be extended to encompass this property. Alajuela N.V. owns the entire western half of the Application 47 property. The eastern 80 acres is divided into a number of parcels, the majority of which are under five acres, with different owners. The eastern half of the Application 47 property contains 15 acres of Dade County pine forest. The Application 47 property lies approximately three-quarters of a mile both to the west and north of the U.S. 1 corridor in South Dade, which, according to the LUSC, "[s]ince 1970 . . . [has] experienced particularly heavy development and intensification of land use." This puts it on the southern fringe of an area of South Dade known as the Redlands. While the boundaries of the Redlands are not precise, it is generally understood to range from Southwest 184th Street on the north to the urbanizing areas of the City of Homestead on the south and from U.S. 1 on the east to a meandering line on the west where predominantly mixed agricultural and residential uses end and large-scale agricultural operations generally uninterrupted by residential development begin. While there is significant agricultural activity in the Redlands, primarily involving grove and nursery operations, 16/ an increasing residential trend has been established, particularly on the urbanizing fringes of the area and on parcels less than five acres in size that, because of the grandfathering provisions of the CDMP, are not subject to the restriction imposed by the CDMP that lands designated for "agriculture" use not be used for residential development in excess of one unit per five acres. Residential developments lying south of the Application 47 property constitute the urbanizing area of the City of Homestead. Homestead is a CDMP- designated activity center and, according to the LUSC, it was the fastest growing municipality in Dade County during the period from 1970 to 1987. Homestead's northern jurisdictional limits lie approximately two miles south of the Application 47 property. A substantial portion of the land between the Application 47 property and Homestead is presently undeveloped. The Application 47 property is approximately four and one half miles, by road, from the Homestead Air Force Base, a CDMP-designated employment center. Also in proximity to the Application 47 property are the Homestead/Florida City Enterprise Zone; the Villages of Homestead, which is a 7,000 acre development of regional impact; and commercial and industrial development along the U.S. 1 corridor in South Dade. 17/ The land immediately surrounding the Application 47 property is currently being used primarily for agricultural purposes, however, there is also residential development, as well as vacant land in the area. The western half of the Application 47 property is presently in active agricultural use. The eastern half of the Application 47 property is also the site of agricultural activity. Unlike the western half of the property, however, the eastern half is not used exclusively for agricultural purposes. Residences are located in this half of the property. Other Applications of Note Application 58, which was filed by the Planning Department, sought an amendment to the text of the land use element which would allow new agricultural uses in utility easements and right-of-way areas inside the UDB. Application 62 was another application filed by the Planning Department. Through Application 62, the Planning Department sought to have the Board of County Commissioners update and revise the countywide and MSA population estimates and the MSA population projections for the years 2000 and 2010 that had been adopted as part of the CDMP's land use element in 1988. In Application 62, the Planning Department recommended that the 1985 countywide and MSA population estimates found in the CDMP be replaced by 1989 estimates, including the following: countywide- 1,894,999; MSA 6.1- 92,715; MSA 6.2- 50,841; and MSA 7.2- 33,511. With respect to the population projections adopted in 1988, the Planning Department requested that they be modified to reflect a different distribution of the projected countywide population. The proposed modifications, as they pertained to MSA 6.1, MSA 6.2 and MSA 7.2, were as follows: year 2000- MSA 6.1: 137,612; MSA 6.2: 89,404; MSA 7.2: 42,012; year 2010- MSA 6.1: 175,504; MSA 6.2: 124,380; MSA 7.2: 53,823. In making these modified projections, the Planning Department utilized the same professionally accepted methodology it had used to make the projections that had been adopted in 1988. The Planning Department did not propose in Application 62 that any material change be made to the year 2000 or the year 2010 countywide population projections. A third application filed by the Planning Department was Application This application sought to have the Board of County Commissioners amend the text of the land use element to provide for the establishment of Traditional Neighborhood Developments (TNDs) by the adoption of land use regulations. Under the proposed amendment, TNDs, designed to provide a mix of employment opportunities, to offer a full range of housing types, and to discourage internal automobile use, among other objectives, would be permitted in areas designated for residential use on the FLUM. Planning Department's Preliminary Recommendations Report On August 25, 1989, the Planning Department prepared, for the benefit of the Board of County Commissioners, and published a two-volume report (PR Report) containing its initial recommendations on the 71 applications filed during the Amendment Cycle, as well as the background information and analyses upon which those recommendations were based. In its PR Report, the Planning Department analyzed, among other things, the amount of land that was needed and available to accommodate anticipated growth. In conducting its analysis, the Planning Department employed essentially the same, professionally accepted methodology, previously described in this Recommended Order, that it had used in 1988. The population estimates and projections upon which it relied were the updated and revised estimates and projections that were the subject of Application 62. The Planning Department estimated that in 1989 the County's residential capacity was 247,438 total dwelling units (134,333 single-family units and 113,105 multifamily units). Countywide demand was projected to be 9,157 total dwelling units a year from 1989 to 1995, 10,920 total dwelling units a year from 1995 to the year 2000, 11,440 total dwelling units a year from the year 2000 to the year 2005, and 11,601 total dwelling units a year from the year 2005 to the year 2010. Under this scenario, in the year 2010, there would remain a residential capacity of 22,689 total dwelling units. According to the Planning Department's analysis, this remaining countywide residential capacity would be depleted in the year 2012 (depletion year). The Planning Department forecast an earlier depletion year, 2009, for single-family units. In addition to analyzing countywide residential capacity, the Planning Department conducted an analysis of the amount of land that was available in the County for commercial and industrial development. The Planning Department's analysis revealed that the County had sufficient commercial capacity to last until the year 2008 and that it had sufficient industrial capacity to last until the year 2041. The Planning Department analyzed residential, commercial and industrial capacity, not only on a countywide basis, but on a subarea basis as well. This subarea analysis yielded the following forecast as to Study Areas G and I and MSAs 6.2 and 7.2: Study Area G- depletion year for residential land: year 2005 (all dwelling units), year 2006 (single-family units), and year 2005 (multifamily units); depletion year for commercial land: year 2003; and depletion year for industrial land: year 2076. Study Area I- depletion year for residential land: year 2019 (all dwelling units), year 2016 (single-family units), and year 2030 (multifamily units); depletion year for commercial land: year 2015; and depletion year for industrial land: year 2091. MSA 6.2- depletion year for residential land: year 2006 (all dwelling units), year 2002 (single-family units), and year 2025 (multifamily units); 18/ depletion year for commercial land: 1995; and depletion year for industrial land: year 2075. MSA 7.2- depletion year for commercial land: year 2009; and depletion year for industrial land: year 2078. In its PR Report, the Planning Department also surveyed the environmental, physical and archaeological/historic conditions in each study area of the County, with particular emphasis on the lands that were the subject of the various applications to amend the FLUM (hereinafter referred to collectively as the "application properties"). The PR Report noted that Study Area G, "a large area (approx. 81 sq. mi.) located along the westerly fringe of southwestern Dade County," was characterized by the following environmental, physical and archaeological/historical conditions: Study Area G encompasses the western portions of the Snapper Creek (C-2), C-100 and Black Creek (C-1) canal drainage basins. Natural ground elevations range from five to six feet msl in the northwestern portion of the area to ten to fifteen feet in the part of the Study area generally south of SW 120 Street. Similarly, there is a gradient in the soil conditions from the NW to the SE. In the NW quarter of the area, generally west of 144 Avenue and north of Kendall Drive, the limerock substrate is covered with seasonally flooded Everglades peats and mucks. The southern and eastern three quarters of the study area is generally characterized by well drained rocklands interspersed with poorly drained marls in the former transverse glades. Where organic soils exist, they must be re- moved prior to filling to meet County flood criteria. Therefore as much as four feet of fill may be required to meet the County cri- teria in the northwestern part of this area. The average groundwater table elevations range from above five feet in the northwest to four feet in the southeast. Therefore, the area of Bird Drive and much of the area north of Kendall Drive west of SW 137 Avenue has tradi- tionally experienced considerable flooding and drainage problems. * * * Approximately 70 percent (5,522 acres) of the Bird Drive Basin is vegetated with native wet- land wet prairie, shrub and tree island habi- tats. However, 3,083 acres are heavily or moderately invaded by the exotic tree, Malaleuca. In 1987 the County initiated a Special Area Management Planning (SAMP) pro- cess for this area to develop a wetlands miti- gation plan and funding proposals that will facilitate development in some portions of the Bird Drive Everglades Basin. The poten- tial presence of a new 140-million gallon per day (mgd) Biscayne Aquifer water wellfield in the western part of the Bird Drive Basin has made the feasibility of on-site wetland miti- gation highly questionable for the Basin area. Therefore, the County is exploring several off-site mitigation options as part of the SAMP. Proposals to develop in this Basin are presently constrained by language in the adopted components of the CDMP which tie de- velopment orders to the conclusion of the SAMP, unless the applicants can demonstrate vested rights. * * * In the portion of the study area south of Kendall Drive, the most significant environ- mental resources are stands of native pinelands. There are several environmentally sensitive pinelands in Study Area G, however, none of the properties included in applications 34-4 contain significant natural, historical o archaeological resources. . . . Table 1G of the PR Report contained the following information regarding the specific environmental, physical and archaeological/historic characteristics of Wellenhofer's property and the Application 40 property: Wellenhofer's Property: Soils- rockdale/rockland; drainage characteristics of soils- good; elevation: eight feet; drainage basin- C-100; wetlands permits required- none; native wetland communities- none; natural forest communities- none; endangered species- none; within wellfield protection area?- no; archaeological/historic resources- none. The Application 40 Property: Soils- rockdale, marl; depth of organic soils (marl)- one foot; drainage characteristics: good; elevation: eight feet; drainage basin: Black Creek Canal; wetlands permits required- none; native wetland communities- none; natural forest communities- none; endangered species- none; within wellfield protection area?- no; archaeological/historic resources- none. The environmental, physical and archaeological/historic characteristics of Study Area I, "a large (approx. 164 sq. mi.) region of south Dade County," were described as follows in the PR Report: Study Area I includes portions of CDMP Envi- ronmental Protection Subarea A, Biscayne National Park; Subarea D, the C-111 Wetlands; Subarea E; the Southeast wetlands; and Subarea F, Coastal Wetlands and Hammocks. These areas have been so designated because they contain important, relatively unstressed high-quality wetlands, which provide important water quality and wildlife values. Study Area I also includes a large part of CDMP Open Land Subarea 5. In most of the area east of Krome Avenue and west of U.S. 1, natural ground elevations range from ten to fifteen feet msl on the ridge and from five to ten feet in the former sloughs. The area east of the Turnpike and south of Florida City is less than five feet mean sea level. The highest average groundwater levels are at or above the ground surface throughout most of the area east of the Turnpike Extension and south of Florida City. Saltwater intrusion in the Aquifer extends two to five miles inland in this low lying area. In the area west of the Turnpike and east of Levees-31N and 31W, the soils are rocklands except in the former sloughs where marls pre- dominate. East of the Turnpike and south of Florida City, marls are the dominant soil type except along the coast where peats occur. The Black Creek (C-1), C-102, Mowry (C-103), North Canal, Florida City and C-111 canal sys- tems drain much of the northern and eastern portion of this study area. The area east of the Turnpike has recurring flooding and drainage problems due to its low elevation and flat gradient. The western portions of the C-102, C-103 and much of the C-111 drainage basins have limited flood protection. There is no flood protection in the area south of the Florida City Canal east of US 1 or in most of the area west of US 1 and south of Ingraham Highway. . . . * * * This study area also includes most of the environmentally sensitive natural forest com- munities that remain in Dade County. Appli- cation 47 contains a 15-acre pineland which presently receives maximum protection because it is outside the UDB and zoned AU. At the most, 20 percent of the pineland could be re- moved under the provisions of Chapter 24-60 of the Code of Metropolitan Dade County. . . . Table 1I of the PR Report contained the following additional information regarding the specific environmental, physical and archaeological/historic characteristics of the Application 47 property: Soils- rockland; drainage characteristics of soils- good; elevation: eleven to twelve feet; drainage basin- C-103; wetlands permits required- none; native wetland communities- none; endangered species- none; within wellfield protection area?- no; archaeological/historic resources- none. The PR Report also provided general information regarding existing land uses within each study area and more detailed information regarding existing land uses within and adjacent to each application property. The following was said with respect to existing land use patterns within Study Areas G and I: Study Area G- About half of this study area is suburban in character while the other half is primarily agriculture or undeveloped. The study area also contains a special agricul- tural area known as "horse country" for eques- trian related activities. The urbanizing portion is primarily residential with support- ing commercial and industrial activities. Residential areas include a range of housing from detached, single dwelling units to attached, multiple dwelling units at medium density. The area also contains two major recreation facilities-- Metrozoo and a county park. The major concentration of commercial activities has occurred along major thoroughfares such as North Kendall Drive. Some industries and offices are clustered in the vicinity of Tamiami Airport, a major general aviation facility located in the study area. Study Area I- This study area includes var- ious types of agricultural activities and rural development as well as suburban develop- ment largely oriented to US 1. The suburban development is primarily residential with supporting commercial uses. Although most of the housing is detached, single dwelling units, residential areas also include attached, multiple dwelling units at medium density. There are also several districts for industries and offices, some of which are oriented to expressway and railway systems. More than half of this study area is used for agriculture or is undeveloped. Much of the area is floodplain and the eastern fringe is subject to coastal flooding. Some of these areas are used for parks, preserves and water management areas. The area also contains several wellfields for public water supply, which are located inland from the coast and a major military installation-- Homestead Air Force Base. The PR Report stated the following with respect to the existing land uses within and adjacent to Wellenhofer's property, the Application 40 property and the Application 47 property: Wellenhofer's Property: The area, which con- tains 25 acres, is being used for agricultural purposes. Land located in the vicinity to the south and west is also being used for agriculture while zoned IU-C. The land on the north side is being developed for residential purposes. Boys Town home is located immediately to the west. The site is located one quarter mile north of Tamiami Airport. . . . The Application 40 Property: The area, which contains 320 acres, is being used for agricul- tural purposes. . . . Land in the vicinity on all four sides is also being used for agriculture. Tamiami Airport is located to the northeast of this site. The Application 47 Property: Most of the land in this area is being used for agriculture. The remainder is being used for rural residences or is vacant. The vacant parcels are zoned for agriculture (AU). Land in the vicinity on all sides has the same character. It is primarily agriculture with scattered rural residences or vacant parcels. These vacant parcels are also zoned for agri- culture (AU). The PR Report examined not only existing land use patterns, but future development patterns as well. The future development pattern set forth in the 1988 CDMP for Study Areas G and I were described in the PR Report as follows: Study Area G- The future land use pattern adopted for this area provides primarily for continued residential uses at low, and low-medium densities, with industrial and office development bordering the Tamiami airport. Nodes of commercial uses are pro- vided for at certain major intersections cen- trally located to serve the resident popula- tion. The western portions of the Study Area are slated for continued agricultural produc- tion, while the extreme northwest corner of the Area is designated as Open Land to pro- tect the West Wellfield. Study Area I- The future development pattern established for this area provides for mixed residential infilling (primarily estate, low density and low-medium-density, with some medium-high density located along SW 200 Street east of US 1). Commercial infilling is provided for along both sides of US 1 and along SW 312 Street. Major industrial areas are established south of SW 312 Street and west of 142 Avenue, west of SW 177 Avenue in the Homestead-Florida City area, north and south of 248 Street west of US 1 and south of SW 184 Street between US 1 and the HEFT [Homestead Extension to the Florida Turnpike]. The areas outside of, but contiguous to, the year 2000 Urban Development Boundary (UDB) are, for the most part, designated Agriculture, with land to the south and east designated as Open Land graduating to Environmental Protec- tion designations further south. . . . The PR Report also contained an evaluation of the current and future condition of public services in each study area, including an analysis, where possible, of each application's impact on these services. The public services addressed were roadways, transit, schools, parks, water, sewer, solid waste, and fire and rescue. The projected impacts of Applications 39, 40 (in its original form) and 47 on roadways were described as follows in the PR Report: Application 39: [Application 39 will result] in reduced peak hour trips affecting the year 2010 network in this [study] area. None of the roads within the area of this application were projected to operate worse than LOS D in the year 2010. Application 40: Due to its proximity to SW 177 Avenue, the combined 1422 peak hour trips generated by this amendment primarily impact SW 177 Avenue, which is already projected to operate at LOS F. The long term adopted standard for this road is LOS C. Even without this application the road does not meet this adopted standard. Application 47: Application 47 . . . if de- veloped would generate approximately 171 residential based peak hour trips in 2010. . . . Generally, this application would have negligible impacts on the LOS traffic conditions in 2010. The projected impacts of Applications 39, 40 (in its original form) and 47 on transit were described as follows in the PR Report: Applications 39 and 40: In general, no signi- ficant amount of transit trips would be generated by the amendment applications in this Study Area [G], even though a number of the applications (i.e. . . . 39, 40, ) are located in areas projected to have service improvements by 2010. Therefore, no additional service improvements are warranted beyond those that will be required to serve the area in general for 2010. Application 47: [N]o significant amount of transit trips would be generated by Applica- tion . . . 47. The projected impacts of Applications 39, 40 (in its original form) and 47 on schools were described as follows in the PR Report: Applications 39 and 40: It is estimated that the applications [in Study Area G] would in- crease the student population by [a total of] 2,784 students. . . . Application 40 would generate 874 additional students; . . . The other applications for residential use [including Application 39] would generate less than a hundred new students each. Application 47: If Application 47 were ap- proved, it would generate an additional 239 students at all grade levels. The greatest impact would be felt at the elementary school level, where an additional 129 students would have to be accommodated. Redland Elementary, which is the elementary school that would pro- bably serve the subject Application Area, is operating at a utilization rate of 163 percent. Additional classrooms are planned for construc- tion at Redland Elementary over the next few years, raising this school's number of Exist- ing Satisfactory Student Stations (ESSS) from 523 to 901. In addition, a relief school for Redland Elementary is to be built in this area by mid-1993, providing an additional 885 SSS. The projected impacts of Applications 39, 40 (in its original form) and 47 on parks were described as follows in the PR Report: Applications 39 and 40: Study Area G cur- rently meets the park level of service stan- dard (LOS) and is expected to meet the LOS in the year 2000. . . Despite the rapid popula- tion growth in the area, the LOS has remained above standard in part because of recreational facilities and open space that are provided in the planned residential developments which characterize the Study Area. Approval of those applications requesting new residential uses in Study Area G could result in a lowering of the LOS for parks if new park land is not provided. Application 47: By the year 2000, MSA 7.2 is expected to fall below standard if no addi- tional parks are provided. * * * Application 47 lies within MSA 7.2 which is currently above the LOS standard but is expected to fall below standard if no addi- tional park land is provided. The PR Report indicated that the fire and rescue response times to Wellenhofer's property, the Application 40 property and the Application 47 property were four minutes, 13 minutes, and three to four minutes, respectively, and that roadway accessibility to all three sites was good. With respect to the Application 40 property, the PR Report further noted that it "would be serviced by the planned Richmond Station after its completion in 1992-93," which would reduce the response time to the site to no more than six minutes. Water and sewer service in Study Areas G and I was described as follows in the PR Report: Study Area G: Water and sewer service is provided to Study Area G by WASAD [Metro- politan Dade County Water and Sewer Authority Department]. The area is characterized by large residential developments which have been built over the past decade. Water and sewer service was constructed by area devel- opers in many cases, and most of the developed area is served. . . . . [T]he 'Horse Country' area west of the Turnpike is not connected to either water or sewer. Potable Water Supply Water is supplied to Study Area G by WASAD's Alexander Orr Water Treatment Facility. This facility's current design rating is 178 MGD, and the historical maximum day water demand has been 146 MGD. . . . The Orr facility currently produces water which meets all federal, state and county drinking water standards. WASAD has recently made improve- ments to the Alexander Orr facility and devel- oped a long term expansion program. By 1990, it is expected that the plant will attain a rated capacity of 220 MGD. A major improvement to the distribution system in this Study Area is the completion of the 36/48 inch main which extends along SW 137 Avenue from SW 122 Street to SW 184 Street. In conjunction with other improvements, the system in this area is being connected to the South Miami Heights and the Orr Treatment Plants, providing adequate capacity for the southern portion of Study Area G. Improvements that are scheduled for 1989-90 include the extension of the 36 inch water main along Kendall Drive to SW 157 Avenue, and continued construction of the 96 inch raw water main that will deliver water from the new West Wellfield to the Alexander Orr Treat- ment Plant. Sewer Study Area G is served by the South District Wastewater Treatment and Disposal Facility. This facility has a current design capacity of 75 MGD. Based on a 12-month running average daily flow for this plant was 75 MGD. . . . Expansions to the South District facility are programmed for completion in 1994 to increase the design capacity to 112.5 MGD. Sewage effluent produced by this plant also conforms to federal, state and county effluent standards and is disposed of via deep well injection. Study Area I: Most of Study Area I is in agri- cultural use and relies primarily on private wells and septic tanks. WASAD serves the devel- oped areas in unincorporated Dade County. Florida City provides water service within the city limits and sewer service is provided by WASAD. A portion of the study area is also served by the City of Homestead. Homestead's franchised service area extends a short dis- tance outside the City limits: it is bounded irregularly on the East, on the West by SW 192 Avenue, by the City limits on the South, and on the North by SW 296 Street. Water distri- bution and sewage collection systems are main- tained by the Air Force to serve Homestead Air Force Base. Potable Water Supply The northeast corner of the Study Area is con- nected to WASAD's regional water supply system and is served by the Alexander Orr Treatment Plant. . . . [T]he served area south of SW 248 Street is not yet connected to the regional system. This area is served by the former Rex Utility system, which is now owned by WASAD, and by the City of Homestead. The Rex system has a rated capacity of 16.2 mgd and a maximum water demand of 8.81 mgd. The Homestead plant has a rated capacity of 9.9 mgd and a maximum demand of 7.7 mgd. . . . Water produced by these treatment plants meets federal, state, and county drinking water standards. A major improvement scheduled for this area is a 48 inch main which will run south along SW 127 Avenue from 248 Street to SW 280 Street to connect the existing systems to the Alexander Orr Treatment Plant. Upon completion of this main in 1990 or 1991, the . . . treatment plants of the Rex system will be phased out. . . . Sewer Florida City and the unincorporated portion of Study Area I are served by the South District Wastewater Treatment and Disposal Facility, which has a current design capacity of 75 mgd and an average daily flow of 84.2% of rated capacity. Expansions to the South District facility, programmed for completion in 1994, will increase the design capacity to 112.5 mgd. Sewage effluent treated by this plant conforms to the federal, state and county effluent stan- dards and is disposed of via deep-well injection. . . . The only remaining sewage treatment plant in Dade County is operated by the City of Homestead. The plant is designed to treat 2.25 mgd and its capacity is in the process of being evaluated by the Florida Department of Environmental Regula- tion. The Homestead system currently operates under an agreement to divert a portion of its wastewater to WASAD for treatment and disposal. . . . The following was indicated in the PR Report concerning the water and sewer service available to Wellenhofer's property, the Application 40 property and the Application 47 Property: Wellenhofer's property: distance to nearest water main- 1320 feet; diameter of this main- 12 inches; location of this main- SW 112th Street and SW 142nd Avenue; distance to nearest sewer main- 4000 feet; location of this main- SW 112th Street and SW 137th Avenue. The Application 40 Property: distance to nearest water main- 0 feet; diameter of this main- 24 inches; location of this main; SW 152nd Street and SW 157th Avenue; distance to nearest sewer main- one mile; location of this main- SW 136th Street and SW 147th Avenue. The Application 47 Property: distance to near- est water main- 2640 feet; diameter of this main- 12 inches; location of this main- SW 157th Avenue and 280th Street; distance to nearest sewer main- 3960 feet; location of this main- SW 157th Avenue and SW 284th Street. 19/ The significance of the availability of water and sewer service to a particular application property was described as follows in the PR Report: Although specific requirements under Chapter 24 of the Code of Metropolitan Dade County vary with land use, most new development in Dade County is required to connect to the public water or sewer system, or to both. The timing of new development is heavily depen- dent on the availability of these services. Where water and sewer service does not exist and is not planned, the services may be pro- vided by the developer. When construction is completed, the facilities are donated to the utility. The proximity of an application area to exist- ing or programmed water and sewer lines is an important indicator of whether or not the area is likely to develop within the 2000 time frame of the Urban Development boundary. . . . The following observations were made in the PR report regarding solid waste services in the County: The Metro-Dade Department of Solid Waste Management provides both collection and dis- posal services for Dade County. The Department is responsible for the final dis- posal of solid waste generated anywhere in the County and for residential collection in the urbanized portions of unincorporated Dade County. Residents in sparsely developed areas of the County are responsible for delivering their waste to a proper disposal site. In general, industrial and commercial businesses often use private haulers who can provide customized service that is not available from the County. . . . Countywide, the solid waste disposal system has sufficient capacity to maintain the adopted level of service of 7 pounds per person per day through 1995. The Department's Objections, Recommendations and Comments Report (ORC) The Board of County Commissioners took preliminary action on the applications filed during the Amendment Cycle and transmitted to the Department its proposed amendment to the CDMP. Accompanying the proposed amendment was the PR Report. The Department issued its Objections, Recommendations and Comments Report (ORC) on February 2, 1990. A copy of the ORC, accompanied by a cover letter, was sent to the Mayor of Metropolitan Dade County, the Honorable Stephen P. Clark, that same day. The cover letter advised the Mayor that if he "would like the Department to participate in the public hearing for amendment adoption, such request should be received by the Department, certified mail, at least 14 days prior to the scheduled hearing date." The following were the statements made in the ORC that referenced Applications 39, 40 and 47: FUTURE LAND USE ELEMENT OBJECTIONS * * * Analysis 1. 9J-5.006(2)(b) The analysis of the character of the existing vacant or undeveloped land in order to deter- mine its suitability for use does not support the plan amendments that propose to extend the Urban Development Boundary (UDB) by 845 acres. The analysis demonstrates that the UDB as cur- rently delineated ensures an adequate supply of each land use will be available for the planning timeframe. In addition, the existing analysis identifies this region as environmen- tally sensitive and not suitable for urban uses. Recommendation Revise the plan amendments to retain the UDB as currently delineated in the adopted Metro-Dade Comprehensive Development Master Plan (CDMP) or include analysis that would justify extension of the UDB for urban uses while not causing adverse impacts to the environmentally sensitive lands in the East Everglades Area. 2. 9J-5.006(2)(c)2. The analysis of the amount of land needed to accommodate the projected population, as re- vised in Amendment 62, does not support plan amendments 18, 37, 40, 41 and 47 which propose to extend the UDB by an additional 845 acres. The analysis demonstrates that there is ade- quate amount of land uses designated within the current UDB to accommodate the projected population within the planning timeframe. Therefore, the extension of the UDB into the East Everglades area would encourage urban sprawl. Recommendation Revise the plan amendments to be consistent with the analysis. The plan amendments must justify the proposed need for additional land outside of the current UDB to accommodate the projected population. 3. 9J-5.006(2)(e) The analysis of the proposed development of flood prone areas does not support plan amend- ments 18, 37, 40, 41 and 47 which would extend the UDB by 845 acres. The new growth would be directed into the flood prone areas on the eastern edge of the Everglades. . . . Recommendation Revise the plan amendments to not extend the UDB and to either retain the existing land uses or designate land uses that are compat- ible with the environmentally sensitive nature of . . . the Everglades region. Goals, Objectives and Policies 4. 9J-5.006(3)(b)1. Plan amendments 18, 37, 40, 41 and 47, which would extend the UDB by 845 acres, are incon- sistent with Objective 1, page I-1, which states that decisions regarding the location of future land use in Dade County will be based on the physical and financial feasibility for providing services as adopted in the CDMP. The analysis demonstrates that the County has not planned on providing services outside the existing UDB; therefore the extension of the UDB at this time would appear to be premature. Recommendation Revise the amendments to retain the UDB as currently delineated in the CDMP. * * * 8. 9J-5.006(3)(b)7. Plan amendments 18, 37, 40, 41 and 47, which would extend the UDB by 845 acres, are incon- sistent with Objective 3, page I-4, which states that the urban growth shall emphasize concentration around centers of activity rather than sprawl. The analysis of the land needed to accommodate the projected population demonstrates that there will be an adequate supply of vacant land within the UDB for the duration of the planning timeframe. Recommendation Revise the amendments to retain the UDB as currently delineated in the CDMP. * * * 12. 9J-5.006(3)(c)3. Plan amendments 18, 37, 40, 41 and 47, which would extend the UDB by 845 acres, are incon- sistent with Policy 1B, page I-1, which states that the County will first provide services for the area within the UDB. The amendments are located outside of the existing UDB and the analysis demonstrates that there is no need to extend the UDB for residential or industrial land uses. Recommendation Retain the UDB as currently delineated. * * * Future Land Use Map(s) 14. 9J-5.006(4)(a) Plan amendments 18, 37, 40, 41 and 47 which entail the extension of the Urban Development boundary are not supported by the data and analysis. The designation of residential uses is not supported by the analysis which shows an adequate supply of residential land for the planning timeframe. . . . These ex- tensions would be premature according to the data and analysis submitted with the plan amendments and would increase development pressure toward the Everglades. Recommendation Retain the Urban Development Boundary as cur- rently delineated. Encourage new residential development in the Urban Infill Area where the infrastructure already exists to support higher densities and where the CDMP has speci- fically made commitments to direct development in order to discourage urban sprawl and to pro- tect the environmental integrity of the Ever- glades. * * * PORTS, AVIATION AND RELATED FACILITIES A. OBJECTIONS * * * Goals, Objectives and Policies 1. 9J-5.009(3)(c)1. Plan amendments 38 and 39, which would change industrial/office land use to low density resi- dential, are inconsistent with Policy 4C, page IV-4, which supports zoning that would protect existing and proposed aviation flight paths. These amendments would promote the encroachment of residential land uses into the Tamiami Airport area guaranteeing a future conflict of land uses. Recommendation Retain the existing land uses or propose land uses that would be compatible with the existing airport and the surrounding supporting aviation industries. * * * SANITARY SEWER, SOLID WASTE, DRAINAGE, POTABLE WATER, AND NATURAL GROUNDWATER AQUIFER RECHARGE ELEMENT A. OBJECTIONS Goals, Objectives, and Policies 1. 9J-5.011(2)(b)3. Plan amendments 18, 37, 40, 41 and 47 which entail the extension of the Urban Development boundary are inconsistent with Objective 1 and Policy 1A, page VII-1, which state that the area within the UDB shall have first priority for urban services as a measure to discourage urban sprawl. The designation of residential uses is not supported by the analysis which shows an adequate supply of residential land for the planning timeframe. . . . These extensions would be premature according to the data and analysis submitted with the plan amendments and would increase development pressure toward the Everglades. Recommendation Retain the Urban Development boundary as cur- rently delineated. Encourage new residential development in the Urban Infill Area where the infrastructure already exists to support higher densities and where the CDMP has speci- fically made commitments to direct development in order to discourage urban sprawl and protect the environmental integrity of the Everglades. The ORC also addressed the proposed plan amendment's consistency with the State of Florida Comprehensive Plan (State Plan) and the Regional Plan for South Florida (Regional Plan), which was prepared and adopted by the South Florida Regional Planning Council. The following was alleged with respect to the proposed amendment's consistency with the State Plan: STATE COMPREHENSIVE PLAN CONSISTENCY OBJECTIONS 1. 9J-5.021 The proposed Comprehensive Development Master Plan amendments are not consistent with and fail to address adequately the following sub- sections of s. 187.201, F.S. (1988 Supplement), State Comprehensive Plan policies: Housing (5)(b)3., which requires the supply of safe, affordable and sanitary housing for low and moderate income persons and the elderly, because the proposed amendments would change existing residential uses, that would be feasible for affordable housing, to non-residential uses; and Water Resources (8)(b)4., which requires the protection and use of natural water systems in lieu of struc- tural alternatives and restore modified sys- tems, because the proposed amendments would create land uses which would encroach upon wellfield protection areas; and Coastal and Marine Resources (9)(b)4., which requires the protection of coastal resources, marine resources, and dune systems from the adverse effects of develop- ment, because of the proposed amendment to change definitions which would give residen- tial densities to submerged marine lands; and Natural Systems and Recreational Lands (10)(b)7., which requires the County to pro- tect and restore the ecological functions of wetland systems to ensure their long-term environmental, economic and recreational value, because the proposed amendments would expand the UDB into the East Everglades Area and potentially permit noncompatible land uses within wetland study areas and wellfield pro- tection areas; and (10)(b)8., which requires promotion of res- toration of the Everglades system and of the hydrological and ecological functions of de- graded or substantially disrupted surface waters, because of the proposed amendment which would expand the UDB into the East Everglades Area; and Land Use (16)(b)2., which requires incentives and dis- incentives which encourage a separation of urban and rural land uses, because the pro- posed amendments would expand the UDB into the East Everglades Area which would encourage urban sprawl; and Public Facilities (18)(b)1., which requires incentive for devel- oping land in a way that maximizes the uses of existing public facilities, because the pro- posed amendments would remove residential uses along arterials and reduce the effectiveness of the mass transit system. The ORC contained the following recommendation concerning what needed to be done, in the Department's view, to cure these alleged inconsistencies: The proposed comprehensive plan amendments must be revised to include specific, measur- able objectives and implementing policies, supported by adequate data and analysis, that are consistent with the above-referenced poli- cies of the State Comprehensive Plan. The following was alleged in the ORC concerning the proposed amendment's consistency with the Regional Plan: REGIONAL POLICY PLAN CONSISTENCY OBJECTIONS 1. 9J-5.021(1) The proposed Comprehensive Development Master Plan amendments are not consistent with and fail to address adequately the following subsections of the Regional Plan for South Florida: Policy 57.1.2., which requires giving priority to development in areas within which adequate services are either programmed or available, because of the proposed amendments which would expand the UDB into the East Everglades Area; and Policy 64.2.1, which requires that land use around the airport be strictly controlled to prevent unnecessary social or economic con- flicts and costs, because of the proposed amendments which would place residential uses in close proximity to Tamiami Airport; and Policy 69.1.1., which encourages appropriate activities to ensure the continued viability of agriculture, because the proposed amend- ments which would expand the UDB into the East Everglades Area. The ORC contained the following recommendation concerning what needed to be done, in the Department's view, to cure these alleged inconsistencies: The proposed comprehensive plan amendments must be revised to include specific, measur- able objectives and policies, supported by adequate data and analysis, that are consis- tent with the policies of the Regional Plan for South Florida. Under the heading of "Internal Consistency" in the ORC, the following remarks were made: INTERNAL CONSISTENCY OBJECTIONS 1. 9J-5.005(5)(b) Each map depicting future conditions in the plan (including the future land use map) must reflect goals, objectives and policies in each element, as those goals, objectives and policies exist or are modified to meet the requirements of Chapter 9J-5, F.A.C., Chapter 163, F.S., the State Comprehensive Plan (Chapter 187, F.S.) and the comprehensive regional policy plan, as recommended in this report. Recommendation Ensure that future conditions maps are modi- fied to reflect goals, objectives and policies in each element. COMMENTS See individual elements. Those objections, recommendations and comments made in the ORC that are not recited above specifically referenced applications other than Applications 39, 40 and 47. The Planning Department's Response to the ORC On March 21, 1990, the Planning Department published a written response to the ORC (Response). In its Response, the Planning Department concurred with the position that Applications 39, 40 and 47 should not be approved, but it took issue with certain statements made in the ORC relating to these applications. The Planning Department pointed out that the "East Everglades was the area located west of the L-31 Everglades containment levee and south of the Tamiami Trail," and that "[A]pplications [18, 37, 40, 41 and 47 we]re no closer than two miles [to the east] of the East Everglades" and did not extend to any areas designated "environmental protection" on the FLUM. The Planning Department further noted that the Application 40 property and the Application 47 property were not subject to recurring flooding. With respect to the lone objection in the ORC which specifically mentioned Application 39, the Planning Department observed that it "incorrectly cite[d] Policy 4C [of the Port and Aviation Facilities Element of the CDMP]; it should be Policy 4D." The Planning Department added that, although the Department had not so indicated, Application 39 was "also inconsistent with Objective 8 of the Port and Aviation Element which seeks to maximize compatibility between airports and the surrounding communities." Combined Recommendations of the Planning Department and the PAB On February 27, 1990, and February 28, 1990, respectively, following a joint public hearing held on February 23, 1990, the Planning Department, acting in its capacity as the local planning agency, and the PAB adopted resolutions containing their recommendations to the Board of County Commissioners regarding the final action to be taken on the applications filed during the Amendment Cycle. Thereafter, prior to the final adoption hearing, the Planning Department published a document entitled "Combined Recommendations of the Metropolitan Dade County Planning Department (Local Planning Agency) and the Planning Advisory Board" (CR Report), which set forth these recommendations, and summarized the rationale upon which they were based. Both the Planning Department and PAB recommended that Application 39 be denied. According to the CR Report, these recommendations were based upon the following considerations: The south boundary of this site is located only two blocks from the Kendall-Tamiami Execu- tive Airport. The application area is within the area designated on County comprehensive plans as industrial/commercial since 1965 to insure airport/community compatibility. The continued non-residential designation of this area also conforms to the standard adopted in 1989 by the State Legislature (but vetoed by the Governor because of unrelated funding pro- visions) which provided that "residential construction should not be permitted within an area contiguous to an airport measuring one-half of the length of the longest runway on either side of each runway centerline." The Aviation Department estimates that the housing proposed in the application area would be subject to more than ten times ambient noise levels which would result in many complaints from occupants. For example, virtually all of the 5,200 petitioners concerned about perceived airport noise impacts of the recently rejected runway extension lived further from the airport than would the occupants of housing proposed within the area. Approval of this application would conflict with the need for the County to protect its airport, and with the need to retain opportunity sites for employment activities in west Kendall. The Planning Department recommended that Application 40 be denied. According to the CR Report, this recommendation was based upon the following considerations: This Application is located in the Agri- cultural area west of Black Creek Canal. The Agricultural Land Use Plan adopted by the Board of County Commissioners established that Canal as the Agricultural area boundary in this area of the County, to be amended for urban development only at such time as there is a documented need. The Planning Department believes that the need does not yet exist. 20/ Approval of this Application would be premature. The CDMP currently contains within the year 2000 Urban Development Boundary (UDB), enough land countywide to sustain projected industrial needs well beyond the year 2010, and residential needs to the year 2015. Within this Study Area there is also enough industrial land to accommodate projected residential growth beyond the year 2010 and to accommodate projected residential growth until the year 2005. While current projections indicate that the single family supply west of the Turnpike between Kendall Drive and Eureka Drive does not contain much surplus beyond the year 2000, the CDMP provides alternative loca- tions, including an abundance of supply in the Turnpike corridor south of Cutler Ridge. The Planning Department will closely monitor growth trends in the various subareas of the County and will recommend adjustments when warranted in the future. The PAB recommended that Application 40 be approved. The CR Report indicated that the PAB's reasoning with respect to this matter was as follows: Because this is the area where people want to live, sprawl is justified and the urban devel- opment boundary should be expanded. In re- sponse to DCA's objections, the PAB noted that services are available adjacent to this Appli- cation. Both the Planning Department and PAB recommended the denial of Application 47. The following reasons were given in the CR Report for their recommendations: The area is currently designated Agricul- ture on the Land Use Plan map, and is used for agricultural purposes. The Agricultural Land Use Plan adopted by the Board of County Commis- sioners recommends that the area designated Agriculture should not be redesignated for urban use until there is a documented need for more urban land. Approval of this Application would be very premature. The CDMP currently contains enough land within the year 2000 Urban Development Boundary in this Study Area to accommodate projected demand well beyond the year 2010. Similarly, in the area west of US 1 there is enough land for single-family type residences to accommodate projected demand through the year 2010. There is no current need to promote urban development of this Application area. This site contains fifteen acres of Dade County pine forest listed in Dade County's forest land inventory as having high environ- mental quality. It should not be prematurely urbanized. The Final Adoption Hearing: The Department's Participation On March 12, 1990, Mayor Clark mailed, by United States Express Mail, a letter to the Department requesting that it participate in the hearing at which final action would be taken by the Board of County Commissioners on the outstanding applications filed during the Amendment Cycle. The body of the letter read as follows: The Board of County Commissioners requests that the Florida Department of Community Affairs participate in its hearing to address biennial applications requesting amendments to the 2000-2010 Comprehensive Development Master Plan (CDMP) for Metropolitan Dade County. This request is made pursuant to Section 9J-11.011(2) of the Florida Adminis- trative Code and Section 2-116.1(4) of the Code of Metropolitan Dade County. The public hearing will be held on Monday, March 26, 1990, at 9:00 AM in the Commission Chambers, 111 N.W. 1 Street, Miami. If neces- sary, this hearing will be continued on Tuesday, March 27, 1990, in the Commission Chambers. The purpose of this hearing is to afford the Board of County Commissioners an opportunity to hear the applicants explain their applica- tions and to receive public comments on the applications, on the "Objections, Recommenda- tions, and Comments" report submitted by the Florida Department of Community Affairs, and on the recommendations of the Planning Advi- sory Board and of the Local Planning Agency. At the conclusion of this hearing, the Board of County Commissioners will take final action to approve, approve with change, or deny each of the applications. Should you or your staff need any assistance or additional information regarding this hearing, please contact Mr. Robert Usherson, Chief, Metropolitan Planning Division, Metro-Dade Planning Department, at (305)375-2835, (Suncom) 445-2835. The Department, by letter, advised Mayor Clark that it would send a Department representative to "participate" in the hearing. The body of the letter read as follows: In response to your request of March 12, 1990, the Department of Community Affairs will send a representative to participate in the March 26, 1990, public hearing to adopt the proposed Metro Dade County comprehensive plan amendments. The Department's representative is authorized to restate our position as expressed in the Department's February 3, 1990 [sic] Objections, Recommendations and Comments Report, and to listen to all parties. It is the Department's position that the adoption public hearing is not the proper forum for modifying the Depart- ment's position or approving proposed revisions to the comprehensive plan. The Department's representative will be without authority to modify the Department's position or approve proposals discussed at the public hearing. The Department's representative will be authorized, however, to comment on proposals to resolve objections included in the report. Final approval of any proposal may only be granted by the Secretary of the Department of Community Affairs. The Department's role with respect to approv- ing proposed revisions will begin upon adop- tion and submittal of the comprehensive plan, pursuant to Chapter 9J-11.011, Florida Admin- istrative Code. If I may be of further assis- tance in this matter, please contact me at (904)488-9210. The Department representative selected to attend the final adoption hearing was Harry Schmertman, a Planner IV with the Department. Schmertman had not been involved in the preparation of the ORC. He reviewed the report, however, before attending the hearing. Schmertman arrived at the Commission Chambers on the morning of March 26, 1990, prior to the commencement of the hearing. Upon his arrival, he spoke with the County's Planning Director and requested that he be recognized at the outset of the hearing. The Planning Director responded that "the Mayor would take care of that." Following this conversation, Schmertman took a seat "[a]pproximately five or six rows back [from the front] in the center of the auditorium." Thereafter, the hearing formally convened. Shortly after the commencement of the hearing, before any applications were discussed, Mayor Clark introduced Schmertman and indicated that he was attending the hearing on behalf of the Department. Immediately following the Mayor's introduction of Schmertman, the Chairman of the PAB, Lester Goldstein, presented the PAB's recommendations to the Board. During his presentation, Goldstein expressed disappointment over the various factual inaccuracies in the Department's ORC. Schmertman did not respond to Goldstein's comments, nor did he at any time attempt to modify or explain any statement or position taken by the Department in the ORC. Indeed, he made no public remarks while in attendance at the hearing. While Schmertman did not address the Board of County Commissioners at the hearing, at no time during the hearing was he asked to do so. Furthermore, the members of the Board gave no indication that they did not understand, and therefore needed clarification of, the Department's position on the applications under consideration. At around 4:30 p.m., before the conclusion of the hearing on that day, Schmertman left the Commission Chambers to return to Tallahassee. Neither he, nor any other Department representative, was present for the remainder of the hearing on that day or for the continuation of the hearing on the following day, when public discussion and debate ended and a formal vote was taken on each of the pending applications. 21/ Schmertman did not tell anyone that he was leaving the Commission Chambers. He reasonably believed, however, that there was no need to announce his departure because he was "in a very obvious location . . . and was very visible leaving." No member of the Board, nor any other County representative, asked Schmertman, as he was leaving, to remain until the conclusion of the hearing. The Final Adoption Hearing: The Objectors' Participation The Redland Citizen Association, Inc. (RCA) is a nonprofit Florida corporation, which has as its stated purpose and primary activity the preservation and promotion of the agrarian character and lifestyle of the Redlands area of South Dade. The RCA engages in fundraising to obtain the financial resources necessary to accomplish this objective. The RCA has approximately 700 to 800 members, all of whom reside in or around the Redlands in Dade County. At all times material hereto, Martin Motes has been a member of the RCA, resided in a home that he owns in the Redlands, and owned and operated a wholesale orchid nursery business located on property adjacent to his residence, three quarters of a mile north of the Application 47 property. Motes appeared before the Board of County Commissioners at the final adoption hearing. On behalf of the RCA and its members, including himself, he expressed opposition to Application 47. He argued that the change sought through this application was "premature" and constituted an "unwarranted and unwanted" extension of urban development into a viable agricultural area. Neither Motes, nor any other representative of the RCA, objected to any application other than Application 47. 22/ The Sierra Club is a nonprofit national organization organized for the following purpose: To explore, enjoy and protect the wild places of the earth, to practice and promote the re- sponsible use of the earth's ecosystems and resources, to educate and enlist humanity to protect and restore the quality of the natural and human environment, and to use all lawful means to carry out these objectives. The Sierra Club, Miami Group, is a local division of the national organization specifically chartered to include residents of both Dade and Monroe Counties. It has a Dade County address. At all times material hereto Bruce Rohde has been a member of the Sierra Club and resided in a home that he owns in Dade County. Rohde appeared before the Board of County Commissioners at the final adoption hearing. On behalf of the Sierra Club and its members, including himself, he expressed opposition to Applications 40 and 47, among others. He contended that the extensions of the UDB requested through Applications 40 and 47 were "premature." Neither Rohde, nor any other representative of the Sierra Club, objected to Application 39. The League of Women Voters of the United States is a national organization. The League of Women Voters of Florida is a state organization. The League of Women Voters of Dade County, Inc. (League) is a nonprofit Florida corporation affiliated with the national and state organizations. The League's purpose, as stated in its Articles of Incorporation, is as follows: [T]o promote political responsibility through informed and active participation of citizens in government and to take action on govern- mental measures and policies in the public interest in conformity with the principles of The League of Women Voters of the United States and The League of Women Voters of Florida. It engages in fundraising to obtain the financial resources necessary to accomplish this objective. The League rents office space in Dade County out of which it conducts its operations. 23/ At all times material hereto, Carol Rist has been a member of the League, resided in a home that she owns in Dade County, and owned and operated a Dade County business. Rist appeared before the Board of County Commissioners at the final adoption hearing. On behalf of the League and its members, including herself, she expressed opposition to various applications, including Applications 39, 40 and 47. With respect to Applications 40 and 47, her arguments were similar to those advanced by Rohde at the hearing. As to Application 39, she contended that Wellenhofer's property was too close to the airport to be used for residential purposes and that it was a desirable site for the location of an office complex to which residents of the West Kendall area would be able to commute. 24/ At all times material hereto, Evelyn B. Sutton has resided in a home that she owns in the eastern half of the Application 47 property. Sutton appeared before the Board of County Commissioners at the final adoption hearing. She expressed her opposition to Application 47, contending that its approval would have an adverse impact upon the unique agrarian character and lifestyle of the Redlands. She did not object to any application other than Application 47. At all times material hereto, Frances L. Mitchell has resided in a home that she owns in the eastern half of the Application 47 property. Mitchell and some of her neighbors retained an attorney, who appeared before the Board of County Commissioners at the final adoption hearing and made a presentation on their behalf. The attorney advised the Board that his clients were in opposition to Application 47 because it was "premature" and represented unneeded "leapfrog residential development in the heart of the Redlands." Neither Mitchell, her attorney, nor any other representative acting on her behalf, objected to any application other than Application 47. At all times material hereto, Rod Jude has resided in a home that he owns in Dade County and owned and operated a Dade County wholesale nursery business. Jude appeared before the Board of County Commissioners at the final adoption hearing. He expressed his opposition to Application 40, arguing that there was no demonstrated need for the conversion of the Application 40 property to non-agricultural uses. Jude also objected to Applications 37, 41 and 42. He did not address either Application 39 or Application 47. The Final Adoption Hearing: The Applicants' Participation Jeffrey E. Lehrman, Esquire, appeared before the Board of County Commissioners at the final adoption hearing and made a presentation in support of Application 39 on behalf of Wellenhofer. In addition to making an oral presentation, Lehrman gave the members of the Board written materials. During his presentation, Lehrman stated, among other things, the following: Application 39 represented infill, not leapfrog, development; such development would not adversely impact upon, nor would it be adversely impacted by, the Tamiami Airport; there had been significant residential development in the area around Wellenhofer's property in recent years; the approval of Application 39 would not interfere with any existing flight patterns; Wellenhofer's property was not under an existing flight path, but rather was in a "hole-in-the-doughnut" and therefore was distinguishable from properties that were the subject of other applications; Tamiami's north runway was an auxiliary runway unequipped to handle operations at night and in bad weather; the applicable 65/75 LDN noise contour did not intrude upon Wellenhofer's property; the new statute that the Planning Department had referenced in recommending denial of Application 39 had been vetoed by the Governor and therefore was really no statute at all; helicopter training took place on the south, rather than the north, side of the airport; and if Application 39 was approved, a buffer of industrial land would still exist between Wellenhofer's property and the airport. Thomas Carlos, Esquire, appeared before the Board of County Commissioners at the final adoption hearing and made a presentation in support of Application 40 on behalf of the Suchmans. Carlos was assisted by James Holland, a professional planner with the firm of Post, Buckley, Shuh and Jernigan (Post Buckley), Jack Schnettler, a professional traffic engineer with Post Buckley, Richard Tobin, President of Strategy Research Corporation, Inc. (SRC), a national research firm with offices in Florida, and Richard Roth, Vice- President of SRC in charge of planning research studies. During his opening remarks, Carlos advised the County Commission that the Suchmans had executed a covenant obligating themselves to developing their property in accordance with the Traditional Neighborhood Development concept. He then introduced Holland to the Commission. During his presentation, Holland did, among other things, the following: summarized the contents of Table 1G of the PR Report relating to the environmental, physical and archaeological/historic conditions that existed on the Application 40 property; contrasted the Application 40 property with the undeveloped lands in MSA 6.1 already within the UDB which, he argued, had marginal development potential because of undesirable environmental constraints; opined that, as a consequence of these impediments to development in MSA 6.1, MSA 6.2 would experience an increase in demand; showed a graphic depicting land use patterns in and around the Application 40 property, including the amount of land available for residential development in the area; displayed another graphic showing future Urban Services Areas in unincorporated Dade County, including the Tamiami area; in conjunction with the these graphics, argued that the residential development of the Application 40 property was in furtherance of the Tamiami area's designation as an employment center; quoted from a Planning Department report that suggested that development around the Tamiami Airport would reduce metropolitan transportation needs; asserted that the use of the Application 40 property for residential purposes would comply with federal guidelines as well as those found in the CDMP; in support of this assertion, presented a graphic illustrating that no part of the proposed residential portion of the Application 40 property would be included in the 65/75 LDN contours which measure the noise generated by airport operations; and described the urban services which were available or programmed to serve the Application 40 property. Jack Schnettler's presentation addressed traffic and transit issues. He presented a graphic showing the existing and programmed transportation network in the vicinity of the Application 40 property and highlighted particular improvement projects that he considered worthy of note. In describing the this transportation network, he commented that it augmented the employment center character of the area. Schnettler expressed the view that the property would be adequately served by transit and roadways. In addition, he disagreed with the Planning Department's forecast that approval of Application 40 would adversely impact upon the level of service on Southwest 177th Avenue, which, he noted, was located one and half miles to the west of the application property. Tobin and Roth briefly summarized a written report that SRC had prepared for the Suchmans and other private applicants (SRC Report). The report analyzed housing demand in the West Kendall area. The SRC Report concluded that the supply of residential land in MSA 6.2 25/ would be depleted in the year 2004 under a low case scenario, in 1998 under a medium case scenario, and in 1996 under a high case scenario, which the report opined, without explanation or reasonable justification, was "the one most likely to occur." As noted above, in its PR Report, the Planning Department had projected a depletion year of 2006, which the SRC Report criticized as being "out of touch with reality." In making its projections, SRC compared the yearly average of new housing units built and sold in MSA 6.2 from 1980 to 1984, which was a down period for the housing industry in Dade County, to the yearly average of new housing units build and sold in MSA 6.2 from 1985 to 1988, which was a boom period for the housing industry in the County. The information used by SRC regarding the number of housing units constructed and sold during these years was obtained from the Dade County Tax Assessor's office. Under the low case scenario, SRC assumed that housing demand in MSA 6.2 would remain constant at its 1985 to 1988 yearly average of 1,780 units. Under the medium case scenario, SRC assumed that the rate of housing demand would increase by about 35% over the 1985 to 1988 experience (which was 70% above the 1980 to 1984 experience). Under the high case scenario, SRC assumed that the 70% increase in housing demand between 1980 to 1984 and 1985 to 1988 would continue unabated until the supply of residential land was depleted, an assumption that is even more unrealistic than the assumptions underlying low and medium case scenarios. SRC reached these conclusions without analyzing housing demand on a countywide basis. Neither did it rely upon any population projections, notwithstanding that housing demand is driven by population growth. Furthermore, it did not take into consideration the cyclical fluctuations that characterize the housing market, nor did it account for vacant units in its projections. A professionally accepted methodology is one that is replicable, transparent, documented, free of error and inaccuracies, based upon assumptions that are clearly stated and reasonable and designed to avoid improbable and unlikely outcomes given past trends. In projecting housing demand for MSA 6.2., SRC did not utilize a methodology meeting these requirements. In addition to the oral presentations made by Carlos, Holland, Schnettler, Tobin and Roth, the Suchmans also presented to the Board of County Commissioners a written memorandum authored by Carlos and David S. Goldwich, Esquire, with attachments, including a copy of the SRC Report, copies of excerpts from Planning Department publications, and a copy of a recent article appearing in "New Miami Magazine," which reported that "Dade farmers, mostly by shifting production to new areas to the west actually increased total acres under tillage from 78,263 in 1981 to 84,534 in 1987" and that "Dade agricultural acreage [was] not expected to shrink substantially, despite encroachments by developers." The memorandum made many of the same arguments that were advanced by those who spoke on behalf of the Suchmans at the final adoption hearing. Robert Traurig, Esquire, appeared before the Board of County Commissioners at the final adoption hearing and made a presentation in support of Application 47 on behalf of Alajuela N.V. During his presentation, Traurig stated, among other things, the following: the Application 47 property was contiguous to the 1988 UDB; the failure to include the property within the UDB was an oversight that should be corrected; there was significant residential development surrounding the property in all directions; the area in which the property is located was an area in transition; it was changing from an agricultural area to one that was predominantly residential in character; as demonstrated by the recent development in the area, there was a demand for housing in this part of the County; most of the people who wanted to live in this area could not afford the five-acre estates allowed on property designated for "agricultural" use under the CDMP; the redesignation of the Application 47 property sought by Alajuela N.V. would not have an adverse impact on the agricultural industry in the County; such redesignation was not premature nor would it result in leapfrog development; there were no environmental impediments to the development of the Application 47 property; the elevation of the property was 11 feet above sea level and drainage was good; there were no wetlands on the site; the tree colony on the eastern half of the property would be protected by County ordinance; and there were roadways, parks, fire service and other urban services available to serve the property. The Final Adoption Hearing: The Aviation Director's Comments At the request of Commissioner Hawkins, Rick Elder, the County's Aviation Director, commented on four application properties in Study Area G that were in close proximity to the Tamiami Airport, including Wellenhofer's property. Elder stated that there were no flight patterns over Wellenhofer's property. With respect to noise, he noted that Wellenhofer's property was not within the 65/75 LDN contour. Elder did not indicate that he had any safety concerns regarding Application 39. The Final Adoption Hearing: Debate and Vote by the Board Following the conclusion of that portion of the final adoption hearing devoted to public discussion and debate on March 27, 1990, the Board of County Commissioners considered and voted on each of the pending applications. At the request of Commissioner Hawkins, the first application to be considered and voted on by the Board was the TND application, Application 71. The Board voted to approve Application 71. The remaining applications were considered and voted on in sequential order. During the Commissioners' debate on Application 39 and other applications in the vicinity of Tamiami Airport, Commissioner Gersten expressed the view that, with respect to these applications, neither noise nor safety should be a concern. Commissioner Schreiber concurred. Commissioner Valdes remarked that, although he was opposed to the other applications under consideration, he was not opposed to Application 39 because the property that was the subject of the application was not, according to Aviation Director Elder, under a flight pattern. Commissioner Dusseau indicated his opposition to Application 39. He argued that there was no need for residential development on Wellenhofer's property and that it was preferable to retain its "industrial and office" land use designation to further the creation of an activity center around the airport. Application 39 was approved by a five to three vote. When Application 40 came up for consideration, Commissioner Hawkins recommended that the application be modified. While he did not object to the extension of the UDB to include the Application 40 property, he suggested that only the application property owned by the Suchmans be redesignated for residential use. He explained that, not only would this modification eliminate concerns generated by the application regarding compatibility with airport operations, it would set the stage for the development of a TND in the West Kendall area. Commissioner Hawkins noted that the County Commission had long wanted to have a TND in this area and that the Suchmans were willing to develop their property as a TND if it was redesignated for residential use. Commissioner Dusseau responded to these comments by indicating that he favored the TND concept, but that he did not believe that the Suchmans property was where such a TND should be located. Application 40, as modified pursuant to Commissioner Hawkins' recommendation, initially failed to win approval on a tie vote. On the motion of Commissioner Winn, Application 40, as so modified, was reconsidered. On reconsideration, it was approved by a six to two vote. Application 47 was also approved by a six to two vote. Application 58, which proposed to allow new commercial agricultural uses within the UDB, and Application 62, with its revised population estimates and projections, were among the other applications that were approved by the Board of County Commissioners at the final adoption hearing. Of the applications seeking an extension of the UDB, only Applications 40 and 47 were approved. A total of 49 applications, either in their original form or as modified, were approved by the Board. The majority of these applications, like Applications 39, 40 and 47, sought to change one or more land use designations on the FLUM. Other approved applications, in addition to Applications 39, 40 and 47, that sought to have the Board of County Commissioners change a non- residential land use to a residential land use were Applications 12, 13, 14, 26, 28 and 44. 26/ Approximately 410 acres of land were redesignated on the FLUM from non-residential to residential land uses as a result of the approval of Applications 12, 13, 14, 26, 28, 39, 40, 44 and 47. Assuming that the properties that were the subject of these applications will be able to develop at the maximum residential densities indicated on the FLUM, these redesignations will have increased the supply of residential land in the County by approximately 1930 dwelling units. 208. The approval of Applications 1, 2, 3, 4, 9, 11, 14, 23, 27, 29, 45 and 46 resulted in the redesignation on the FLUM of approximately 115 acres of land from residential to non-residential land uses. Assuming that the properties that were the subject of these applications would have been able to develop at the maximum residential densities indicated on the FLUM, these redesignations may be said to have reduced the supply of residential land in the County by approximately 910 dwelling units. Applications 5, 6, 19, 22 and 24 sought to have land designated on the FLUM for "low density residential" use redesignated for "office/residential" use. Applications 8, 15 and 16 sought to have land designated on the FLUM "medium density residential" redesignated "office/residential." These eight applications were all approved. Approximately 105 acres of land were redesignated "office/residential" as a result of the approval of these eight applications. Assuming that the properties that were the subject of these applications would have been able to develop at their maximum pre-approval residential densities, as indicated on the FLUM, and further assuming that, after these redesignations, they will be developed as office sites exclusively, these redesignations may be said to have reduced the supply of residential land in the County by approximately 1960 dwelling units. If the assumption were made that these redesignated properties will experience both office and residential development 27/ and that the residential development will amount to one half the number of dwelling units that would have been constructed had the property not been redesignated, the reduction in the supply of residential land resulting from these redesignations instead would be 980 dwelling units. It is unlikely, however, that as many as 980 dwelling units will be built on these properties. There were other applications, in addition to those specifically mentioned above, that sought FLUM redesignations and were approved by the Board of County Commissioners, however, they involved a change from one non- residential land use to another non-residential land use and therefore did not have a direct impact on the supply of residential land in the County. When viewed collectively, the changes made by the Board of County Commissioners to the FLUM during the Amendment Cycle have not been shown to have resulted in any appreciable increase in the supply of residential land in the County as a whole. That is not to say, however, that the Board's actions did not serve to increase the supply of residential land in certain areas of the County. For instance, by virtue of its approval of Applications 40 and 47, the Board added to the supply of residential land on the urban fringe in Study Area G and Study Area I, respectively. Following its vote on each of the pending applications, the Board adopted Ordinance No. 90-28, which amended the CDMP in a manner consistent with Board's actions on these applications. (The CDMP, as so amended, will be referred to as the "1990 CDMP." Ordinance No. 90-28 will be referred to as the 1990 Plan Amendment.) The CDMP, as Amended by Ordinance No. 90-28: Key Provisions Statement of Legislative Intent The 1990 CDMP contains a Statement of Legislative Intent. It provides as follows: This Statement expresses the legislative in- tent of the Board of County Commissioners with regard to the Comprehensive Development Master Plan (CDMP). This statement is applicable to the CDMP in its entirety and is declared to be incorporated by reference into each element thereof. Nothing in the CDMP shall be construed or applied to constitute a temporary or permanent taking of private property or the abrogation of vested rights as determined to exist by the Code of Metropolitan Dade County, Florida. The CDMP shall not be construed to preempt considerations of fundamental fairness that may arise from a strict application of the Plan. Accordingly, the Plan shall not be deemed to require any particular action where the Plan is incomplete or internally inconsistent, or that would constitute a taking of private property without due process or fair compensa- tion, or would deny equal protection of the laws. The CDMP is intended to set general guide- lines and principles concerning its purposes and contents. The CDMP is not a substitute for land development regulations. The CDMP contains long-range policies for Dade County. Numerous policies contained in the CDMP must be implemented through the County's land development regulations. Neces- sary revisions will be made to the County's land development regulations by the date required by Section 163.3202, FS. Other policies of the plan propose the establishment of new administrative programs, the modifica- tion of existing programs, or other administra- tive actions. It is the intent of Dade County that these actions and programs be initiated by the date that Dade County adopts its next Evaluation and Appraisal (EAR) report, unless another date is specifically established in the Plan. The CDMP is not intended to preempt the processes whereby applications may be filed for relief from land development regulations. Rather, it is the intent of the Board of County Commissioners that such applications be filed, considered and finally determined, and that administrative remedies exhausted, where a strict application of the CDMP would contravene the legislative intent as expressed herein. The Board recognizes that a particular application may bring into conflict, and neces- sitate a choice between, different goals, prior- ities, objectives, and provisions of the CDMP. While it is the intent of the Board that the land use element be afforded a high priority, other elements must be taken into consideration in light of the Board's responsibility to pro- vide for the multitude of needs of a large heavily populated and diverse community. This is especially true with regard to the siting of public facilities. Recognizing that County Boards and agencies will be required to balance competing policies and objectives of the CDMP, it is the intention of the County Commission that such boards and agencies consider the overall intention of the CDMP as well as portions particularly applicable to a matter under consideration in order to ensure that the CDMP, as applied, will protect the public health, safety and welfare. The term "shall" as used in the CDMP shall be construed as mandatory, subject, however, to this Statement of Legislative Intent. The term "should" shall be construed as directory. The FLUM The FLUM is an integral part of the 1990 CDMP's future land use element. It shows the proposed distribution, extent and location of permitted land uses for the entire land area of Dade County and, in so doing, reflects the CDMP's goals, policies and objectives, to the extent possible. In addition to a year 2000 UDB, the FLUM also has a year 2010 Urban Expansion Area Boundary. There are 18 land use categories represented on the FLUM: estate density residential communities; low density residential communities; low-medium density residential communities; medium density residential communities; medium-high density residential communities; high density residential communities; industrial and office; restricted industrial and office; business and office; office/residential; institutional and public facility; parks and recreation; agriculture; open lands; environmental protection; environmentally protected parks; transportation; and terminals. The FLUM also depicts activity centers, expressways, major and minor roadways, levees, canals and other bodies of water. The following advisement is set forth on the face of the FLUM: This plan map is not a zoning map! Within each map category on this plan map, numerous land uses, zoning districts and housing types may occur. This plan map may be interpreted only as provided in the plan text entitled "Inter- pretation of the Land Use Plan Map: Policy of the Land Use Element." That text provides necessary definitions and standards for allow- able land uses, densities or intensities of use for each map category and for interpretation and application of the plan as a whole. That text must be interpreted in its entirety in interpreting any one plan map category, and no provision shall be used in isolation from the remainder. The land use plan map (LUP), in conjunction with all other adopted components of the Com- prehensive Development Master Plan (CDMP), will govern all development-related actions taken or authorized by Metropolitan Dade County. The LUP Map reflects municipal land use policies adopted in municipal comprehen- sive plans. However, this plan does not supersede local land use authority of incor- porated municipal governments currently auth- orized in accordance with the Metro-Dade Charter. For further guidance on future land uses authorized within incorporated municipal- ities, consult the local comprehensive plan adopted by the pertinent municipality. The Interpretative Text That portion of the 1990 CDMP entitled "Interpretation of the Land Use Plan Map: Policy of the Land Use Element" (Interpretive Text) provides in pertinent part as follows with respect to the residential land use categories shown on the FLUM: Residential Communities The areas designated Residential Communities on the LUP map permit housing types ranging from detached single-family to attached multi- family structures including manufactured housing and mobile home parks. The residen- tial communities designations indicate the overall residential density for the area. Also permitted in residential communities, in keeping with the Plan's objectives and poli- cies, are secondary neighborhood and community serving uses such as schools, parks, and houses of worship. Some additional uses such as day care centers, foster care and group housing facilities and similar uses, and neighborhood serving institutional and utility uses may also be permitted in residential com- munities in keeping with the circumstances and conditions outlined in this section, and with the objectives and policies of this plan. * * * The Land Use Plan Map includes six residential density categories which are depicted on the Plan map by different symbols/colors. Each category is defined in terms of its maximum allowable gross residential density. Develop- ment at lower than maximum density is allowed and may be required where conditions warrant. For example, in instances where a large portion of the "gross residential acreage" is not a part of the "net" residential building area, the necessity to limit the height and scale of the buildings to that compatible with the sur- rounding area may limit the gross density. The categories do not have a bottom limit or min- imum required density; all categories include the full range of density from one dwelling unit per five acres up to the stated maximum for the category. . . . Estate Density. This density range is typi- cally characterized by detached estates which utilize only a small portion of the total par- cel. Clustering, and a variety of housing types may, however, be authorized. The maxi- mum density allowed in this category is 2.5 dwelling units per gross acre. Low Density. A larger number of units is allowed in this category than in the Estate density. The maximum density allowed is 6 dwelling units per gross acre. This density category is generally characterized by single family type housing, e.g., single family detached, cluster, zero lot line, and town- houses. It could possibly include low-rise apartments with extensive surrounding open space providing that the maximum gross den- sity is not exceeded. Low-Medium Density. This category allows up to 13 dwelling units per gross acre. The types of housing typically found in areas designated low-medium density include single family homes, townhomes, and low-rise apart- ments. Medium Density. This Density Category allows up to 25 dwelling units per gross acre. The type of housing structures typically permitted in this category include townhouses, low-rise and medium rise apartments. Medium-High Density. This category accommo- dates apartment buildings ranging up to 60 dwelling units per gross acre. In this cate- gory, the height of buildings, and therefore, the attainment of densities approaching the maximum, depends to a great extent on the dimensions of the site, conditions such as location and availability of services, ability to provide sufficient off-street parking, and the compatibility with, and impact of the development on surrounding areas. High Density. This category permits up to 125 dwelling units per gross acre. This den- sity is only found in a few areas located within certain municipalities where land costs are very high and where services will be able to meet the demands. * * * Traditional Neighborhood Developments (TNDs). Traditional neighborhood developments which incorporate a broad mixture of uses under specific design standards may also be ap- proved in Residential Communities in the manner specifically authorized in this sub- section. The purpose of the traditional neighborhood development is to enable the creation of new communities that offer social and architectural quality, characteristic of early American town planning. Many of these early models, developed prior to 1940, offer insight into the design of coherently planned communities. The concept is patterned after those inherent in these earlier developments and provides a design clarity through a hierarchy of streets, a focus towards pedes- trian activity, low scale community buildings and open squares as the focal point of the neighborhood. The County shall adopt land use regulations that incorporate the objectives of a traditional neighborhood development concept. . . 28/ Within areas designated on the LUP map as Res- idential Communities, a mixed use Traditional Neighborhood Development permitting business, office, industrial, artisanal, home occupa- tions, and other uses authorized by this subsection may be approved providing that the following criteria are met: The minimum contiguous land area is 40 acres and is not located within the Estate density category; and The site is under single-ownership at the time the master development plan or equivalent is approved; and Residential density does not exceed the density depicted on the Land Use Plan Map, except that a maximum density of ten dwelling units per acre may be approved in the Low Density category; and Public open spaces such as squares or parks comprise a minimum of five acres or five percent of the developed area, whichever is greater; and Civic uses, such as meeting halls, schools, day care centers and cultural facilities com- prise a minimum of two percent of the developed area; and Business, office and industrial uses, that are separate from residential mixed uses do not exceed seven percent of the gross land area; and Where the TND borders or is adjacent to land that is designated Estate, Low Density or Low-Medium Residential and land so designated is used for residences or is vacant, the sep- arate business, office, and industrial uses identified in item No. 6 above, and those business, office, and industrial uses mixed with other uses shall not be permitted within 175 feet of the TND boundary and all non-residential components of such uses shall be acoustically and visually screened from said bordering or adjacent land; and when a TND borders land designated Agriculture or Open Land said business, office or industrial uses shall not be permitted within 330 feet of said TND boundary; and Residential, and residential uses mixed with shop-front, artisanal and home occupation uses comprise the remainder of the developed area; and In calculating gross residential density uses listed in item No. 6 shall be excluded, all other uses may be used to determine the maximum permitted density. The Interpretive Text provides that, with respect to the "office/residential" land use category, "[u]ses allowed in this category include both professional and clerical offices and residential uses." The following is stated in the Interpretative Text in pertinent part with respect to the "agriculture" land use category: Agriculture The area designated as "Agriculture" contains the best agricultural land remaining in Dade County. 29/ The principal uses in this area should be agriculture, uses ancillary to and directly supportive of agriculture such as packing houses on compatible sites, and farm residences. Uses ancillary to, and necessary to support the rural residential community of the agricultural area may also be approved, including houses of worship and local schools. In order to protect the agricultural industry it is important that uses incompatible with agriculture, and uses and facilities that support or encourage urban development are not allowed in this area. Residential development that occurs in this area is allowed at a density of no more than one unit per five acres. 30/ Creation of new parcels smaller than five acres for residential use may be approved in the Agriculture area only if the immediate area surrounding the subject parcel on three or more sides is predominantly parcelized in a similar manner, and if a division of the sub- ject land would not precipitate additional land division in the area. No business or industrial use should be approved in the area designated Agriculture unless the use is directly supportive of local agricultural production, is located on an existing arterial roadway, and has adequate water supply and sewage disposal in accordance with Chapter 24 of the County Code, and the development order specifies the approved use(s). Other uses compatible with agriculture and with the rural residential character may be approved in the Agriculture area only if deemed to be a public necessity, or if deemed to be in the public interest and no suitable site for the use exists outside the Agriculture area. Existing quar- rying and ancillary uses in the Agriculture area may continue operation and be considered for approval of expansion. Also included in the Agriculture area are enclaves of estate density residential use approved and grandfathered by zoning, owner- ship patterns and platting activities which predate this Plan. The grandfather provisions of Sections 33-196, 33-280, and 33-280.1 of the Dade County Code shall continue to apply to this area except that lots smaller than 15,000 square feet in area are not grandfathered hereby. Moreover, all existing lawful uses and existing zoning are deemed to be consistent with this Plan unless such a use or zoning: (a) is found through a subsequent planning study, as provided in Land Use Policy 5D, to be inconsistent with the foregoing grandfather provisions or with the criteria set forth below; and (b) the implementation of such a finding will not result in a temporary or permanent taking or in the abrogation of vested rights as deter- mined by the Code of Metropolitan Dade County, Florida. . . . Also deemed to be consistent with this Plan are uses and zoning districts which have been approved by a final judicial decree which has declared this Plan to be invalid or unconstitutional as applied to a specific piece of property. This paragraph does not, however, authorize the approval or expansion of any use inconsistent with this plan. To the contrary it is the intent of this Plan to contain and prevent the expansion of inconsistent development in the Agriculture area. Activity centers are described in the Interpretative Text as "high- intensity design unified areas which will contain a concentration of different urban functions integrated both horizontally and vertically." The Interpretative Text contains the following discussion regarding the UDB: Urban Development Boundary The Urban Development Boundary (UDB) is in- cluded on the LUP map to distinguish the area where urban development may occur through the year 2000 from the areas where it should not occur. Development orders permitting urban development will generally be approved within the UDB at some time through the year 2000 provided that level-of-service standards for necessary public facilities will be met. Adequate countywide development capacity will be maintained within the UDB by expanding the UDB when the need for such expansion is deter- mined to be necessary through the Plan review and amendment process. The CDMP seeks to facilitate the necessary service improvements within the UDB to accom- modate the land uses indicated on the LUP map within the year 2000 time frame. Accordingly, public expenditures for urban service and infrastructure improvements shall be focused on the area within the UDB, and urban infra- structure is discouraged outside the UDB. In particular, the construction of new roads, or the extension, widening and paving of existing arterial or collector roadways to serve areas outside the UDB at public expense will be per- mitted only if such roadways are shown on the LUP map and in the Traffic Circulation Element. The entire unincorporated area within the UDB is eligible to receive and utilize Severable Use Rights (SURs) in accordance with provi- sions of chapter 33-B, Code of Metropolitan Dade County. Accordingly, certain developments as specified in Chapter 33-B may be entitled to density or floor area bonuses as authorized by Chapter 33-B. No new commercial agricultural use of property may be established within the Urban Development Boundary, except on property designated Agri- culture on the LUP map or zoned AU (agricultural) or GU (interim). 31/ All property within the Urban Development Boundary not designated Agri- culture or zoned AU or GU shall not be permit- ted to be used for the establishment of any new commercial agricultural use. An additional exception is that land in utility easements or rights-of-way may be approved for new commercial agricultural uses where the use would be compat- ible with, and would have no unfavorable effect on, the surrounding area. Commercial agricultural uses include, without limitation, all uses of property associated with commercial horticulture; floriculture; viticulture; forestry; dairy; livestock; poultry; apiculture; pisciculture, when the property is used principally for the production of tropical fish; all forms of farm production; and all other such uses, except retail nurseries and retail greenhouses. Inci- dental agricultural use of property specifi- cally authorized by zoning which is otherwise consistent with the LUP map does not constitute commercial agriculture within the meaning of this provision. The Urban Expansion Area is described as follows in the Interpretative Text: The Land Use Map also contains a year 2010 Urban Expansion Area (UEA) Boundary. The UEA is comprised of that area located between the 2000 UDB and the 2010 UEA Boundary. The Urban Expansion Area is the area where cur- rent projections indicate that further urban development beyond the 2000 UDB is likely to be warranted some time between the year 2000 and 2010. Until these areas are brought within the year 2000 UDB through the Plan review and amendment process, they are allowed to be used in a manner consistent with the provisions set forth for lands designated as "Agriculture" or the applicable "Open Land" area. Urban infrastructure and services should be planned for eventual extension into the UEA, sometime between the years 2000 and 2010. However, if water or sewer lines or major roadway improvements are extended beyond the UEA in order to serve a necessary public facility that has been approved consistent with the Comprehensive Development Master Plan, these improvements should be sized or restric- ted to accommodate only the needs of the public facility. The significance of the UDB and UEA Boundary is explained in the Interpretative Text as follows: Critical in achieving the desired pattern of development is the adherence to the 2000 Urban Development Boundary (UDB) and 2010 Urban Expansion Area (UEA) Boundary. Given the fundamental influences of infrastructure and service availability on land markets and development activities, the CDMP has since its inception provided that the UDB serve as an envelope within which public expenditures for urban infrastructure will be confined. In this regard the UDB serves as an urban services boundary in addition to a land use boundary. Consistency with the CDMP will ensure that actions of one single-purpose agency does not foster development that could cause other agencies to respond in kind and provide facil- ities in unanticipated locations. Such uncoor- dinated single-purpose decision making can be fiscally damaging to government and can undermine other comprehensive plan objectives. The subject of plan amendments is also addressed in the Interpretative Text, which states the following on the subject: It is recognized that the development capacity of the area within the UDB and UEA will vary with time. Part of the supply will be util- ized and additional supply will be added from time-to-time through the approval of Plan Amendments. Some land will be built upon at densities which are higher than permitted by existing zoning because rezonings will occur in the future, and some development will occur at densities lower than that permitted by zoning. Moreover, impediments can arise to the utilization, at maximum potential densities, of all lands within the boundaries. In some urbanized areas, it may be difficult to acquire sufficiently large parcels of land. In other areas, neighborhood opposition to proposed developments could alter the assumed density or character of a particular area. Because the development capacity of the LUP map fluc- tuates with time, it will be reevaluated on a periodic basis as part of the Plan review and amendment process. The Interpretative Text enumerates the following as the "long- standing concepts embodied in Dade County's CDMP:" Control the extent and phasing of urban development in order to coordinate development with programmed provision of public services. Preserve and conserve land with valuable environmental characteristics, recreation uses, or scenic appeal. Encourage development in areas most suit- able due to soil conditions, water table level, vegetation type, and degree of flood hazard. Restrict development in particularly sensitive and unique natural areas. Maximize public ownership of beaches and shorelands within the Coastal Area to insure their preservation, conservation or public use. Minimize consumption of energy for trans- portation purposes and the amount of air pol- lution from transportation sources by encour- aging a more compact urban form. Shape the pattern of urban development to maximize the efficiency of existing public facilities and support the introduction of new public facilities or services such as improved mass transit systems. Preserve sound and stable residential neighborhoods. Rejuvenate decayed areas by promoting redevelopment, rehabilitation, infilling, and the development of activity centers containing a mixture of land uses. Promote development of concentrated activity centers of different sizes and char- acter to provide economies of scale and effi- ciencies of transportation and other services for both the public and private sectors. Redirect higher intensity development towards activity centers of areas of high countywide accessibility. Allocate suitable and sufficient sites for industrial and business districts to accommodate future employment needs. Prohibit new residential development and other noise sensitive activities from locations near airport noise impact zones. Avoid excessive scattering of industrial or commercial employment locations. Encourage agriculture as a viable economic use of suitable lands. The Goal and Selected Objectives and Policies of the Future Land Use Element The following is the goal of the future land use element (FLUE) of the 1990 CDMP: Provide the best possible distribution of land use, by type and density, to meet the physical, social, cultural and economic needs of the present and future resident and tourist popu- lation in a manner that will maintain or improve the quality of the natural and man-made environ- ment and amenities, and ensure the timely and efficient provision of services. The following are among the objectives and policies found in the 1990 CDMP's FLUE: Objective 1 Decisions regarding the location, extent and intensity of future land use in Dade County, and urban expansion in particular, will be based upon the physical and financial feasi- bility of providing, by the year 2000, all urbanized areas with services at Levels of Service (LOS) which meet or exceed the minimum adopted in the Capital Improvements Element. Policies 1A. All development orders authorizing new, or significant expansion of existing urban lands uses, shall be contingent upon the pro- vision of services at the Levels of Service (LOS) which meet or exceed the LOS standards specified in the Capital Improvements Element (CIE). Metro required by Chapter 163.3202, Florida Statutes (F.S.), implement the requirements of Section 163.3202(2)(g), F.S. 1B. Priority in the provision of services and facilities and the allocation of financial re- sources for services and facilities in Dade County shall be given first to serve the area within the Urban Development Boundary (UDB) of the Land Use Plan (LUP) map. Second priority in allocations for services and facilities shall support the staged development of the Urban Expansion Area (UEA). * * * Objective 3 The location and configuration of Dade County's urban growth from 1989 through the year 2010 shall emphasize concentration around centers of activity, renewal and rehabilitation of blighted areas, and contiguous urban expansion when warranted, rather than sprawl. Policies 3A. High intensity, well designed activity centers shall be facilitated by Metro-Dade County at locations having high countywide multimodal accessibility. * * * 3C. Metro-Dade shall approve infill devel- opment on vacant sites in currently urbanized areas, and redevelopment of substandard or underdeveloped environmentally suitable urban areas contiguous to existing urban development where all necessary urban services and facili- ties are projected to have capacity to accom- modate additional demand. 3D. Metro-Dade shall seek to prevent discon- tinuous, scattered development at the urban fringe particularly in the Agriculture Areas, through its biennial CDMP amendment process, regulatory and capital improvements programs and intergovernmental coordination activities. * * * 3H. Public facility and service providers shall give priority to eliminating any infra- structure deficiencies which would impede rehabilitation or renewal of blighted areas. 3I. In formulating or amending development regulations, Dade County shall avoid creating disincentives to redevelopment of blighted areas. Where redevelopment occurs within the urban area, requirements for contributions toward provision of public facilities may be moderated where underutilized facilities or surplus capacities exist, and credit toward required infrastructure contributions may be given for the increment of development replaced by redevelopment. * * * Objective 5 Dade County shall, by the year 2000, reduce the number of land uses which are inconsistent with the uses designated on the LUP map and interpretative text, or with the character of the surrounding community. Policies 5A. Uses designated on the LUP map and inter- pretative text, which generate or cause to generate significant noise, dust, odor, vibra- tion, or truck or rail traffic, shall be pro- tected from damaging encroachment by future approval of new incompatible uses such as residential uses. 5B. Residential neighborhoods shall be pro- tected from intrusion by uses that would disrupt or degrade the health, safety, tran- quility and overall welfare of the neighbor- hood by creating such impacts as excessive noise, light, glare, odor, vibration, dust, or traffic. 5C. Complementary, but potentially incompat- ible uses shall be permitted on sites with functional neighborhoods, communities or dis- tricts only where proper design solutions can and will be used to integrate the compatible and complementary elements and buffer any potentially incompatible elements. Objective 6 Upon the adoption of this plan, all public and private activity regarding the use, development and redevelopment of land and the provision of urban services and infrastructure shall be consistent with the goal, objectives and poli- cies of this Element, with the adopted Population Estimates and Projections, and with the future uses provided by the adopted Land Use Plan (LUP) map and accompanying text entitled "Interpreta- tion of the Land Use Plan Map," as balanced with the Goals, Objectives and Policies of all Ele- ments of the Comprehensive Plan. Policies 6A. The textual material entitled "Interpre- tation of the Land Use Plan Map" contained in this Element establishes standards for allowable land uses, and densities or intensities of use for each land use category identified on the adopted Land Use Plan (LUP) map, and is declared to be an extension of these adopted Land Use Policies. 6B. All development orders authorizing a new land use or development, or redevelopment, or significant expansion of an existing use shall be contingent upon an affirmative finding that the development or use conforms to, and is consistent with the goal, objectives and poli- cies of the CDMP including the adopted LUP map and accompanying "Interpretation of the Land Use Plan Map." 6C. All planning activities pertaining to development and redevelopment in Dade County shall be consistent with the "Population Esti- mates and Projections" contained in this Element, and with the locations and extent of future land uses as identified by the LUP map and its interpretative text. 6D. The area population projections shown on the map of "Population Estimates and Projec- tions" shall be used to guide public and private entities in planning for urban devel- opment and redevelopment and to guide the location, timing, and capacity of all urban services and facilities. Objective 7 Beginning in 1989 Dade County shall maintain a process for periodic amendment to the Land Use Plan map, consistent with the adopted Goals, Objectives and Policies of this Plan, which will provide that the Land Use Plan Map accommodates urban expansion at projected countywide rates. Policies 7A. Activity centers, industrial complexes, regional shopping centers, large-scale office centers and other concentrations of signifi- cant employment shall be recognized as poten- tial structuring elements of the Metropolitan area and shall be sited on the basis of metro- politan-scale considerations at locations with good countywide multi-modal accessibility. 7B. Distribution of neighborhood or community serving retail sales uses and personal and pro- fessional offices throughout the urban area shall reflect the spatial distribution of the residential population, among other salient social, economic and physical considerations. 7C. Residential development shall occur in locations that are suitable as reflected by such factors as the following: recent trends in location and design of residential units; projected availability of service and infra- structure capacity; proximity and accessi- bility to employment, commercial and cultural centers; avoidance of natural resource degra- dation; and maintenance or creation of amenities. 7D. In conducting its planning, regulatory, and capital improvements and intergovernmental coordination activities, Dade County shall seek to facilitate planning of residential areas as neighborhoods which include recrea- tional, educational and other public facilities, houses of worship, and safe and convenient cir- culation of automotive, pedestrian and bicycle traffic. 7E. Through its planning, regulatory, capital improvements and intergovernmental coordination activities, Dade County shall continue to pro- tect agriculture as a viable economic use of land in Dade County. * * * 7G. Necessary utility facilities may be lo- cated throughout Dade County in all land use categories as provided in the "Interpretation of the Land Use Plan Map" text. 7H. The maintenance of internal consistency among all Elements of the CDMP shall be a prime consideration in evaluating all requests for amendment to any Element of the Plan. Among other considerations, the LUP map shall not be amended to provide for additional urban expansion unless traffic circulation, mass transit, water, sewer, solid waste, drainage and park and recreation facilities necessary to serve the area are included in the plan and the associated funding programs are demonstra- ted to be viable. 7I. Applications requesting amendments to the CDMP Land Use Plan map shall be evaluated to consider consistency with the Goals, Ob- jectives and Policies of all Elements, other timely issues, and in particular the extent to which the proposal, if approved, would: Satisfy a deficiency in the Plan map to accommodate projected population or economic growth of the County; Enhance or impede provision of services at adopted LOS standards. Be compatible with abutting and nearby land uses; and Enhance or degrade environmental or histor- ical resources, features or systems of County significance. Objective 8 Dade County shall continue to maintain in the Code of Metropolitan Dade County and adminis- trative regulations, and shall enhance as nec- essary, by the date required by Section 163.3203, F.S., provisions which ensure that future land use and development in Dade County is consistent with the CDMP. * * * 8D. Dade County shall continue to investigate, maintain and enhance methods, standards and reg- ulatory approaches which facilitate sound com- patible mixing of uses in projects and communi- ties. 8E. Dade County shall enhance and formalize its standards for defining and ensuring compatibility among proximate uses, and requirements for buffer- ing. Factors that will continue to be considered in determining compatibility include, but are not limited to noise, lighting, shadows, access, traffic, parking, height, bulk, landscaping, hours of operation, buffering and safety. Objective 9 Energy efficient development shall be accom- plished through metropolitan land use patterns, site planning, landscaping, building design, and development of multimodal transportation systems. Policies 9A. Dade County shall facilitate contiguous urban development, infill, redevelopment of substandard or underdeveloped urban areas, high intensity activity centers, mass transit supportive development, and mixed use projects to promote energy conservation. Selected Goals, Objectives and Policies of Other Elements The following is the goal of the 1990 CDMP's traffic circulation element: Develop, operate and maintain a safe, efficient and economical traffic circulation system in Metropolitan Dade County that provides ease of mobility to all people and for all goods, is consistent with desired land use patterns, conserves energy, and protects the natural environment. Policy 4C. of the traffic circulation element provides as follows: Dade County's priority in construction, main- tenance, and reconstruction of roadways, and the allocation of financial resources, shall be given first to serve the area within the Urban Development Boundary of the Land Use Plan Map. Second priority in transportation allocations shall support the staged develop- ment of the urbanizing portions of the County within the Urban Expansion Area. Transporta- tion improvements which encourage development in Agriculture and Open Land areas shall be avoided, except for those improvements which are necessary for public safety and which serve the localized needs of these non-urban areas. The following are among the objectives and policies of the 1990 CDMP's aviation subelement: Objective 4 Minimize air space interactions and obstruc- tions to assure the safety of aviation users and operators and residents of Dade County. Policies * * * 4D. Support zoning that would protect exis- ting and proposed aviation flight paths con- sistent with federal agency guidelines. 4E. Seek federal agency cooperation in pro- tecting future air space from development obstructions. * * * Objective 8 Maximize compatibility between airports and the surrounding communities. Policies * * * 8B. Dade County shall implement Federal Aviation Administration FAR Part 150 Noise Compatibility Studies completed for appro- priate airports through the Land Use Element of the Dade County Comprehensive Master Plan, the Dade County Zoning Ordinance, and the South Florida Building Code to provide for land use compatibility in the vicinity of these air- ports. Objective 6 and Policy 6A. of the 1990 CDMP's housing element provide as follows: Objective 6 Increase residential accessibility to public facilities, services, and employment centers throughout the County to include parks and other recreational amenities. Policies 6A. Utilize existing planning and programming mechanisms to insure that new residential devel- opment occurs only if it is coordinated with plans for the provision of an adequate level of services and facilities. Policy 6C. of the 1990 CDMP's conservation, aquifer recharge and drainage element provides as follows: Areas in Dade County having soils with good potential for agricultural use without addi- tional drainage of wetlands shall be protected from premature urban encroachment until the need for such urban conversion is demonstrated. Objective 1 and Policy 1A. of the 1990 CDMP's water, sewer and solid waste element provide as follows: Objective 1 In order to serve those areas where growth is encouraged and discourage urban sprawl, the County shall plan and provide for potable water supply, sanitary sewage disposal, and solid waste disposal services on a countywide basis in concert and in conformance with the future land use element of the comprehensive plan. Policies 1A. The area within the Urban Development Boundary of the adopted Land Use Plan Map shall have the first priority in providing potable water supply, sanitary sewage disposal, and solid waste disposal services, and for commit- ting financial resources to these services. Future development in the designated Urban Expansion Area shall have second priority in planning or investments for these services. Investments in public water and sewer service shall be avoided in those areas designated for Agriculture, Open Space, or Environmental Protection on the Land Use Plan map, except where essential to eliminate or prevent a threat to the public health or safety. Objectives 3, 4 and 5 and Policies 3B., 4A., 4B. and 5A. of the 1990 CDMP's capital improvements element provide as follows: Objective 3 Upon adoption of this Plan land use decisions will be made in the context of available fiscal resources such that scheduling and providing capital facilities for new development will not degrade adopted service levels. Policies * * * 3B. Service and facility impacts of new de- velopment must be identified and quantified so that sufficient public facilities will be planned and programmed to be available when needed. All development orders authorizing new, or significant expansion of existing urban land uses, shall be contingent upon the provision of services at the Levels of Service (LOS) which meet or exceed the adopted LOS standards. * * * Objective 4 Levels of service standards for those services listed in the CIE will be upgraded and main- tained at adopted levels. Policies 4A. By the date set in Section 163.3202 F.S., Dade County shall formalize requirements that all new development regardless of size which benefits from the provision of public facili- ties and infrastructure will bear an equitable share of the costs of such facilities, make contribution in kind or transfer land, in amounts necessary to accommodate the impact of proposed development. 4B. Appropriate funding mechanisms will be adopted and applied by Dade County in order to assure the fiscal resources to maintain acceptable levels of service. Such funding mechanisms include special tax districts, municipal taxing service units, local option taxes, user fees, local gas taxes, general obligation bonds, impact fees, and special purpose authorities among others. * * * Objective 5 Upon the adoption of this plan development approvals will strictly adhere to all adopted growth management and land development regu- lations and will include specific reference to the means by which public facilities and infrastructure will be provided. Policies 5A. As a priority, previously approved de- velopment will be properly served prior to new development approvals under the provisions of this Plan. First priority will be to serve the area within the Urban Development Boundary (UDB) of the Land Use Plan (LUP) map. Second priority in investments for services and facilities shall support the staged development of the Urban Expansion Area (UEA). Urban ser- vices and facilities which support or encourage urban development in Agriculture and Open Land areas shall be avoided, except for those improvements necessary to protect public health and safety and which service localized needs. This element also includes a five-year schedule of capital improvements. Transmittal of Plan Amendment to the Department On or about April 3, 1990, the County Manager transmitted to the Department Ordinance No. 90-28, along with other documentation, including the written material that the Suchmans had submitted in support of their application, as well as a document prepared by the Planning Department which purported to provide "a synopsis of the information received by the Board of County Commissioners as bases for approving the applications subject to DCA objections." The Planning Department's synopsis stated the following with respect to Applications 39, 40 and 47: Application No. 39 The flight path for training flights around Tamiami-Kendall Airport circle around this application site but do not directly fly over this site. This application represents urban infill rather than leap frog development. Approval of residential use on this site will allow people to live in close proximity to the employment center around the Tamiami-Kendall Airport. Application No. 40 The site will be used for a Traditional Neighborhood Development (TND). A covenant was provided to ensure this. Services are available on sites immediately to the east. The area is not flood prone, or environmen- tally sensitive in any way. Extensive testimony and documentation was received which casts doubt on the accuracy of the Planning Department's estimates and pro- jections of growth in this area. (See enclosed exhibits). This site is nearby the industrial and office employment center which is developing around the Tamiami-Kendall Airport, therefore, urbanization of this site complements and supports the policy of promoting development around activity centers. The extension of the Coral Reef Drive corridor provides an alternative to the Kendall Drive corridor as a location for additional urban development. * * * Application 47 The site is bordered on the east and south by the year 2000 Urban Development Boundary (UDB). It is in the logical path of future urban development. To the south is the urban- izing area of Homestead. Pockets of estate residential homes and zoning exist in the area designated Agricul- ture to the north and west of this site. There are not level of service problems in the area. The area is not flood prone. The specific density of estate residences to be built on this site is not established by approving the CDMP amendment; that will be decided at a future zoning hearing. The transmittal package sent by the County Manager was received by the Department on April 6, 1990. Suchmans' Request to Receive Notice of the Department's Action By letter dated March 30, 1990, David Goldwich, Esquire, counsel for the Suchmans, requested that the Department send him a copy of the "notice of intent to find the CDMP Application No. 40 in compliance or not in compliance with Chapter 163." The Department responded to Goldwich's letter by sending him a letter, dated April 17, 1990, in which it promised to provide him with a copy of the notice of intent when it was issued. The Department's Compliance Determination: Notice and Statement of Intent In reviewing the County's 1990 Plan Amendment, the Department treated each approved application as a separate amendment to the CDMP. Following its review of these approved applications, the Department issued its notice of intent "to find the amendment(s) adopted by Ordinance 90- 28, Amendment Nos. 39, 40 and 47 NOT IN COMPLIANCE and Amendment Nos. 1 to 9, 11 to 16, 19, 22 to 24, 26 to 29, 44 to 46, 49, 51, 53 and 55 to 71 IN COMPLIANCE, pursuant to Sections 163.3184 and 163.3187, F.S." On or about May 15, 1990, the Department sent a copy of the notice of intent to the Miami Herald, along with a letter requesting that the notice be published in the May 21, 1990, edition of the Herald. Through no fault of the Department's, the notice was published in the May 24, 1990, edition of the Herald, instead of the May 21, 1990, edition as the Department had requested. The Department mailed a copy of the notice of intent to the Suchmans' counsel, 32/ although it was never received. By letter dated May 18, 1990, to Mayor Clark, the Department advised the County of its compliance determination. On May 21, 1990, the Department issued a statement of intent in which it explained the bases for its determination that "Amendment Nos. 39, 40 and 47 [were] NOT IN COMPLIANCE." In its statement of intent, the Department alleged that "Amendments 40 and 47 are not supported by an adequate suitability analysis of the vacant land to which they apply, or an adequate analysis documenting the need for the UDB expansion [in violation of] Rules 9J-5.005(2)(a), 9J- 5.006(2)(b) and 9J-5.006(2)(c), F.A.C.;" "Amendments 40 and 47 are inconsistent with other provisions in the plan (including but not limited to Objectives 1, 3 and 7, Policies 1A, 1B, 3D, and 7G and implementing procedures on p. 33 and 34 of the Future Land Use Element) concerning discouraging urban sprawl and prioritizing public facilities within the UDB [in violation of] Rules 9J- 5.005(5)(a), 9J-5.006(3)(b)7. and 9J-5.011(2)(b)3., F.A.C.;" "Amendments 40 and 47 are inconsistent with Objective 7, Policies 7E, H and I, and implementing procedures on p. 34 and 35 of the Future Land Use Element, and other provisions of the plan concerning future expansion of the UDB [in violation of] Rules 9J- 5.005(5)(a) and (b), F.A.C.;" "Amendments" 40 and 47 result in "an internal inconsistency because [they] negate the intended effect [of the settlement agreement between the Department and the County] of allowing roadway degradation in existing urban areas, which is to encourage development and redevelopment in such areas, promote public transportation and discourage urban sprawl" and, consequently, these amendments are in violation of "Rules 9J-5.006(3)(b)7. and 9J-5.011(3)(b)3., F.A.C.;" "[A]mendments 40 and 47 are not supported by data analysis which justifies changing the agricultural land use to industrial or residential land use [in violation of] Rules 9J-5.005(2)(a) and 9J-5.006(2)(c), F.A.C.;" "Amendment" 39 "inappropriately places a residential area within a proposed aviation flight path which is inconsistent with Objective 4 and Policy 4D in the Port and Aviation Element of the Dade Comprehensive Plan [in violation of] Rules 9J-5.005(5)(a) and (b), 9J-5.006(3)(b)3. and 9J- 5.006(3)(c)2., F.A.C.; "Amendments" 40 and 47 cause the CDMP to be inconsistent with Goal (16)(a) and Policies (16)(b)(2) and 18(b)(1) of the State Comprehensive Plan, as well as Policies 57.1.2 and 69.1.1 of the South Florida Regional Policy Plan; and "Amendment" 39 causes the CDMP to be inconsistent with Policy 69.1.1 of the South Florida Regional Policy Plan. Referral to the Division: The Department's Petition and Amended Petition On June 8, 1990, the Department filed a petition with the Division of Administrative Hearings. Appended to the petition were copies of the Department's notice of intent and its statement of intent. The Department alleged in the petition that the "plan amendments" made by the County through the adoption of Ordinance No. 90-28 were: not in compliance because they contain the "inconsistent provisions" described in the Statement of Intent and for the following additional reasons: Amendment 39 is inconsistent with Objec- tives 5, 6 and 7 and Policies 5B, 7C, 7D, and 7I-3 of the plan's Future Land Use Element. Rules 9J-5.005(5)(a) and (6), F.A.C. Amendment 40 is inconsistent with Objec- tives 5 and 6 and Policies 5B, 7A, 7B, 7C and 7D, of the plan's Future Land Use Element. Rule 9J-5.005(5)(a) and (b). Amendment 47 is inconsistent with Objectives 5 and 6 and Policies 5B, 7A, 7B, 7C and 7D of the plan's Future Land Use Element. On June 19, 1990, the Department filed an amended petition with the Division. That portion of the original petition excerpted above was modified to read as follows in the amended petition: The plan amendments are not in compliance because they contain the "inconsistent provisions" de- scribed in the Statement of Intent and for the following additional reasons: Amendment 40 is inconsistent with Objec- tives 5 and 6, and Policies 5B, 7A, 7B, 7C, and 7D, of the plan's Future Land Use Element. Rule 9J-5.005(5)(a) and (b). Amendment 47 is inconsistent with Objec- tives 5 and 6 and Policies 5B, 7C and 7D of the plan's Future Land Use Element. Rules 9J-5.005(5)(a) and (b). Amendments 40 and 47 are inconsistent with the following provisions of the State Comprehensive Plan: Land Use Goal (16)(a) and Policies (16)(b)1 and 2; Downtown Revitalization Goal (17)(a) and Policy (17)(b)1; Public Facilities Goal (18)(a) and Poli- cies (18)(b)1 and 2; Economy Policies (22)(b) 3 and 12; Agriculture Goal (23)(a). The Objectors' Petition for Leave to Intervene and Rist's Amended Petition On June 26, 1990, the Objectors filed with the Division a joint petition for leave to intervene in this matter. The petition incorporated the allegations that the Department had made in the original petition it had filed with the Division, as well as the recommendations that the Dade County Planning Department had made with respect to Applications 39, 40 and 47. In addition, the Objectors alleged the following in their petition regarding these approved applications: [S]aid amendments 39, 40, and 47 are inconsis- tent with the State Comprehensive Plan, Sec- tion 187.201, F.S., specifically subsections 16a, 16b1, 16b2, 17a, 17b1, 18a, 18b1, 18b2, 20a, 22b3, 22b12, and 23a. Briefly put, the amendments fail, inter alia, to preserve natural resources; fail to maintain and expand agriculture; fail to encourage the separation of rural and urban life; provide for incompatible neighboring uses; promote urban sprawl; waste public and private assets; and fail to aid in a state transpor- tation system. * * * The amendments are not supported by data showing a need for the uses approved [and] thus violate Rule 9J-5.006(2)(c), Florida Administrative Code. On December 10, 1990, at the outset of the final hearing in the instant case, Objector Rist requested permission to file an amended petition which contained the following additional allegations not found in the Objectors' joint petition for leave to intervene: Amendments 40 and 47 do not reflect and are inconsistent with "Interpretation of the Land Use Plan Map: Policy of the Land Use Element" pages I-35 through 39 and not pages 33 through 35 of the Future Land Use Element as erroneously cited in the original petition. It is alleged that amendment 40 and 47 do not reflect and are inconsistent with Policies 3A, 3H, 5A, and 7A of the Future Land Use Element of the Comprehensive Plan. Amendments 39, 40 and 47 do not reflect and are inconsistent with Policy 6C of the Con- servation Element of the Comprehensive Plan. Amendment 39 does not reflect and is incon- sistent with Objective 8 of the Ports and Avia- tion Element of the Comprehensive Plan. Amendments 40 and 47 are inconsistent with Policy 23(b)2 of the State Comprehensive Plan. Miscellaneous Findings: The State Comprehensive Plan The State Comprehensive Plan addresses issues of statewide importance. The following are among the more than 300 individual goals and policies which comprise the State Comprehensive Plan: LAND USE.- Goal.- In recognition of the importance of preserving the natural resources and enhanc- ing the quality of life of the state, develop- ment shall be directed to those areas which have in place, or have agreements to provide, the land and water resources, fiscal abilities, and service capacity to accommodate growth in an environmentally acceptable manner. Policies.- Promote state programs, investments, and development and redevelopment activities which encourage efficient development and occur in areas which will have the capacity to service new population and commerce. Develop a system of incentives, and disin- centives which encourages a separation or urban and rural land uses while protecting water supplies, resource development, and fish and wildlife habitats. * * * DOWNTOWN REVITALIZATION.- Goal.- In recognition of the importance of Florida's developing and redeveloping down- towns to the state's ability to use existing infrastructure and to accommodate growth in an orderly, efficient and environmentally accept- able manner, Florida shall encourage the cen- tralization of commercial, governmental, retail, residential, and cultural activities within downtown areas. Policies.- 1. Provide incentives for developing land in a way that maximizes the uses of existing public facilities. * * * PUBLIC FACILITIES.- Goal.- Florida shall protect the sub- stantial investments in public facilities that already exist and shall plan for and finance new facilities to serve residents in a timely, orderly, and efficient manner. Policies.- Provide incentives for developing land in a way that maximizes the uses of existing pub- lic facilities. Promote rehabilitation and reuse of exis- ting facilities, structures, and buildings as an alternative to new construction. * * * (20) TRANSPORTATION.- (a) Goal.- Florida shall direct future trans- portation improvements to aid in the management of growth and shall have a state transportation system that integrates highway, air, mass tran- sit, and other transportation modes. * * * THE ECONOMY.- Goal.- Florida shall promote an economic climate which provides economic stability, max- imizes job opportunities, and increases per capita income for its residents. Policies.- * * * Maintain, as one of the state's primary economic assets, the environment, including clean air and water, beaches, forests, historic landmarks, and agricultural and natural resour- ces. * * * 12. Encourage the development of a business climate that provides opportunities for the growth and expansion of existing state indus- tries, particularly those industries which are compatible with Florida's environment. * * * AGRICULTURE.- Goal.- Florida shall maintain and strive to expand its food, agriculture, ornamental horticulture, aquaculture, forestry, and re- lated industries in order to be a healthy and competitive force in the national and inter- national marketplace. Policies. Ensure that goals and policies contained in state and regional plans are not interpreted to permanently restrict the conversion of agricultural lands to other uses. Encourage diversification within the agri- culture industry, especially to reduce the vulnerability of communities that are largely reliant upon agriculture for either income or employment. Miscellaneous Findings: The Regional Plan for South Florida The South Florida Regional Planning Council has adopted a Regional Plan for South Florida to guide future development in Broward, Dade and Monroe Counties. The following are among the more than 650 individual goals and policies found in the Regional Plan: Regional Goal: 57.1 New development will not be permitted in areas where public facilities do not already exist, are not programmed, or cannot economic- ally be provided. Regional Policies: * * * 57.1.2 Give priority to development in areas that are in need of redevelopment and in areas within which adequate support services are either programmed or available Regional Goal: 58.1 Beginning in 1987, all land use plans and development regulations shall consider the compatibility of adjacent land uses, and the impacts of land uses on the surrounding environment. Regional Policies: * * * 58.1.7 Encourage the compatibility of adja- cent land uses. * * * Regional Policies: 64.2.1 Land use in and around air- and sea-ports must be strictly controlled to allow future increased operations, to optimize volume, and to prevent unnecessary social or economic conflicts and costs. * * * Regional Goal: The 1990-1995 rate of loss of agricul- tural land to urban uses should be reduced by 10 percent from the 1980-1985 rate. Regional Policies: Encourage activities that maintain an economic/regulatory climate to ensure the con- tinued viability of agricultural interests when those interests are balanced against other concerns. The Regional Plan contains the following "background" information regarding the goal and policies pertaining to agriculture: Agriculture is one of Florida's most important industries. Traditional agriculture (citrus, vegetables and melons, livestock, poultry, greenhouse and nursery, field and other crops) contributed 27 billion dollars to Florida's economy in 1984. The agricultural vitality of South Florida stems from its climate which allows crops to be grown throughout the year, and the production of unique crops such as mangoes. In 1980, 126,785 acres of land, 4.7 percent of the total area in South Florida, was in cropland, pasture and range land, and forest land. This represents 0.5 percent of all such land in the State. Agricultural land is rapidly being lost. . . . When compared to Broward County, Dade County generates a significantly larger share of the economic activity due to agriculture in the Region. 33/ Current 1986 figures show 85,000 acres in agriculture, producing a large variety of crops. These include: tomatoes, snap beans, Irish potatoes, squash, tropical vegetables, sweet corn and fruits such as limes, mangoes and avocados. The markets for these fruits and vegetables are mainly in New York, Philadelphia, Boston, Atlanta, and Canada. Dade County is the largest producer of toma- toes, snap beans, and squash, of any county in the State of Florida. Over 90 percent of limes and mangoes produced in the United States are grown in Dade County. Dade County has the largest ornamental nursery industry of any county in the State of Florida. The main reason for Dade's success in agriculture is South Florida's climate. Vegetables are pro- duced in mid-winter when no other areas in the U.S. are producing. These crops provide fresh produce for the country's markets. It is significant to note that Dade County ranks last in the State for average farm size (59 acres) but is fifth in the State for market value of agricultural products. Agriculture is profitable on a per acre basis because the climate allows for double cropping. . . . In 1983, the agricultural industry produced less than 1 percent of total earnings in the South Florida region. The importance of this sector cannot be measured in dollar terms alone. The general public tends to view agriculture as a transitional land use. The benefits of maintaining the agricultural economy, however, are significant. Agricultural land can provide open space between areas with urban uses, it can serve as a watershed where water is collec- ted and later used in a farm or non-farm use, it can provide a habitat for wildlife, and it can provide unique beauty. New technology and agricultural practices are also providing new opportunities for disposing of sewage sludge on agricultural lands, benefitting both the rural and urban sectors. . . . Agricultural research activities have already yielded many benefits to South Florida agri- culture. Progress has been made in developing: more efficient irrigation systems, integrated pest management, improved strains of crops in production, as well as new crops to put into production. The findings of agricultural research can continue to improve the conser- vation, production, and marketing techniques available to South Florida farmers. South Florida farmers are experiencing many of the same problems that farmers in other high growth areas are facing. 34/ Land in South Florida that is suitable for agricul- tural use is also highly suitable for urban uses. Given the geographic configuration of the Florida Peninsula agricultural areas are never far removed from urban areas. Urban growth and the pressures of suburbanization are constantly felt by the Region's farmers. 35/ Many problems arise when agricultural and urban land uses interface. Non-farm residents complain because of farm noise, smells, and such practices as fertilizer and pesticide spraying. Nuisance suits and ordinances that prohibit certain farm practices create pressures that reduce the profitability and desirability to farm. 36/ Farm land conversion to urban uses is a serious problem in our Region. 37/ Analysis of prop- erty appraiser data shows the reduction in net agricultural acreage between 1980-1985 to be 18 percent for the Region. This figure applies mainly to agricultural land in Broward County. According to the Dade County Cooperative Exten- sion Service, net agricultural acreage has re- mained stable for the past 20 years. 38/ This is because land rezoned for urban uses has been replaced by other lands converted for agricul- tural use. This represents another problem. As agricultural land is converted to urban uses, agriculture may be pushed into wetlands, wild- life habitats, and other fragile ecosystems. Miscellaneous Findings: Urban Sprawl In November, 1989, the Department of Community Affairs published a Technical Memorandum (Volume IV, Number 4) which was designed "to help local governments and interested parties understand the requirements for discouraging urban sprawl that must be met to comply with Florida's planning requirements." The memorandum defines "urban sprawl" as "scattered, untimely, poorly planned urban development that occurs in urban fringe and rural areas and frequently invades lands important for environmental and natural resource protection." According to the memorandum, "urban sprawl typically manifests itself in one or more of the following inefficient land use patterns: (1) leapfrog development; (2) ribbon or strip development; and (3) large expanses of low-density, single-dimensional development." These land use patterns are described in the memorandum as follows: Leapfrog development occurs when new develop- ment is sited away from an existing urban area, bypassing vacant parcels located in or closer to the urban area that are suitable for development. It typically results in scattered, discontinuous growth patterns in rural areas which are frequently not appro- priate for urban development. * * * Leapfrog development is not usually mixed-use, multi-dimensional development. Consequently, it works against the creation of vibrant com- munities, creates much greater dependence on automobile transportation, and results in an inefficient use of land resources. Strip or ribbon development involves the loca- tion of high amounts of commercial, retail, office and often multi-family residential de- velopment in a linear pattern along both sides of major arterial roadways. * * * Low-density, single-dimensional development consists of single land uses, typically low-density residential, spread over large land areas. Frequently, the land is in rural, forestry, agricultural, or environmentally sensitive areas that should be protected from urban development. This land-intensive devel- opment pattern, stemming from uncontrolled, poorly planned, and premature development, tends to place an undue burden on external infrastructure and major transportation connectors by not providing a complementary mix of residential and nonresidential uses. Sprawling single-use development hinders the evolution of vibrant communities, reinforces dependence upon personal automobile use, generates higher public costs for facilities and services, promotes an inefficient and unattractive use of developable land, and frequently destroys significant environmental and natural resources. The memorandum's description of "urban sprawl" is consistent with the definition most commonly employed by professional planners. Indicators of sprawl mentioned in the memorandum include the following: The amount of residential land and densities depicted on the future land use map signifi- cantly exceed the projected need for residen- tial land use by type during the planning period. In discussing this indicator, the memorandum advised that "[a]ny plan in which the amount of land designated to receive development totals more than 125 percent of the amount needed to accommodate projected need will be closely scrutinized by the DCA." In order to ascertain whether development meets the definition of "urban sprawl" used by the Department, it may be necessary to determine whether the area involved is "rural" or on the "urban fringe." The memorandum suggests that such a determination may be based upon the area's population density. According to the memorandum, areas should be classified as follows based upon their population densities Density per square mile: Classification 0-200 Rural 201-500 Exurban 501-1000 Suburban 1001-2000 Medium [Urban] Density 2001-5000 High [Urban] Density 5000+ Highest Urban Density Among the specific techniques recommended in the memorandum to curb "urban sprawl" are establishing "urban service areas and urban growth boundaries," "[p]romoting urban infill development and redevelopment," and imposing "mixed-use and clustering requirements." With respect the latter technique, the memorandum states as follows: One of the most important and critical tech- niques for discouraging sprawl is strong mixed use policies which require residential and nonresidential uses to be located in reason- ably close proximity to each other. Such policies should promote an attractive, func- tionally and physically integrated mix of commercial, office, retail, residential (including affordable housing), and recrea- tional land uses. Development designed in this manner can even occur away from existing urban areas and not represent urban sprawl if it consists of a complementary mix of residen- tial and nonresidential land uses at medium to high densities, promotes high levels of inter- nal capture, does not rely on rural arterials for local traffic movements, and encourages pedestrian and bicycle traffic. The tradi- tional neighborhood development district code is an example of how this concept can be implemented.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Administration Commission enter a final order in Case No. 90-3599GM finding that Metropolitan Dade County's 1990 Plan Amendment is "in compliance," within the meaning of Section 163.3184(1)(b), Florida Statutes. RECOMMENDED in Tallahassee, Leon County, Florida, this 26th day of December, 1991. STUART M. LERNER 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 26th day of December, 1991.
The Issue The issue is whether Polk County's small scale development amendment (CPA2003S-02) adopted by Ordinance No. 03-03 on January 22, 2003, as later amended by Ordinance No. 03-19 on March 15, 2003, is in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background Berry is the owner of a tract of land located on the southwest corner of the intersection of Eagle Lake Loop Road (County Road 540-A) and Pollard Road in Section 16, Township 29, Range 26 in the eastern part of unincorporated Polk County, Florida. The property lies south of the City of Winter Haven, east-southeast of the City of Eagle Lake, less than a mile south of Lake Eloise (on which Cypress Gardens is located), and west of U.S. Highway 27. Because Berry owns property within the County, and submitted oral and written comments to the County prior to the adoption of the challenged amendment, it has standing to participate in this action. On July 19, 2002, Berry filed an application with the County Planning Department seeking to change the land use on 9.99 acres (or just below the threshold of 10.0 acres for a small scale amendment) from RL-1 to Neighborhood Activity Center (NAC) to include approximately 4.95 acres of various neighborhood specialty shops such as a grocery store, drug store, convenience store, and dry cleaners, with the remaining acreage used as a mini-warehouse self-storage facility. In September 2002, Berry amended its application by seeking to change 3.93 acres from RL-1 to CC and 6.06 acres from RL-1 to BPC-1. The application was assigned Case File No. CPA2003S- 02. Under the County's review process, the application is first reviewed by the County Development Review Committee (Committee), then by the County Planning Commission (CPC), which either accepts or rejects the Committee's recommendation, and finally by the Board of County Commissioners (Board), which either adopts the amendment, adopts the amendment as amended by the Board, or rejects the amendment. After conducting a preliminary review of the application, on September 16, 2002, the Committee conducted a public hearing and voted to recommend approval. The matter was then transmitted to the CPC, which conducted a meeting on October 9, 2002, and recommended that the Board approve the amendment. On January 22, 2003, by a 3-2 vote, the Board adopted CPA2003S-02 changing the designation on the FLUM of the County Comprehensive Plan (Plan) as proposed by Berry. This was confirmed by the County's adoption of Ordinance No. 03-03. On February 21, 2003, Petitioners filed their Petition challenging the Berry amendment. The matter was again placed on the Board's agenda on March 19, 2003, after the County discovered that Ordinance No. 03-03 had inadvertently changed the land use on the entire parcel to CC rather a mix of CC and BPC-1. In addition, there were minor errors in the legal description of both the 3.93 and 6.06-acre parcels. Accordingly, Ordinance No. 03-19 was enacted to correct those errors. A second Petition for Formal Administrative Proceedings (with essentially the same allegations, but also adding an allegation that the same property had been improperly subject to two small scale amendments within a 12- month period) was filed by Petitioners on March 19, 2003, challenging the action taken in Ordinance No. 03-19. At the outset of the final hearing, Petitioners voluntarily dismissed two allegations contained in their Petition. In their Proposed Recommended Order, Petitioners have further narrowed the issues by addressing only the following allegations: that the property which is the subject of this proceeding exceeds 10.0 acres in size and therefore cannot qualify as a small scale amendment; and that the amendment violates Future Land Use Element (FLUE) Policies 2.102-A1, 2.113-B-3, 2.113-B-4, 2.110-C3, and 2.113-B-1 and is thus internally inconsistent with the Plan. These issues will be discussed separately below. All other allegations contained in the second Petition and the parties' Pre-Hearing Stipulation are deemed to have been withdrawn or abandoned. Because the change in the FLUM was filed and approved as a small scale plan amendment under Section 163.3187(1)(c), Florida Statutes (2003),1 a compliance review of the amendment was not made by the Department of Community Affairs (DCA). See § 163.3187(3)(a), Fla. Stat. Standing of Petitioners Durham is a realtor/developer who owns property within 250 feet of Berry's property and resides at 10 Lake Eloise Lane, Southeast, Winter Haven, Florida. He made oral and written comments to the County prior to the adoption of the amendment. As such, he qualifies as an affected person under Section 163.3184(1)(a), Florida Statutes, and has standing to bring this action. CPPI began as an association in November 2002 and was later incorporated in February 2003. Presently, it has around 100 members, all of whom reside in the County. According to its chairperson, its purpose is to "help educate and inform residents of Polk County . . . towards growth matters that may affect their daily lives." The organization "encourages donations" from its members; it was scheduled to have conducted its first annual meeting on January 10, 2004; and members prepared and circulated petitions opposing the amendment to residents of the area in December 2002 and January 2003. At least one member of CPPI made written and oral comments on its behalf to the County prior to the adoption of the amendment in March 2003. There is no evidence, however, that CPPI (as opposed to its individual members) owns property or owns or operates a business within the County. Therefore, it lacks standing to file a petition. The land and surrounding uses Berry owns a triangle-shaped parcel of land (the parent parcel) totaling around 14 acres which fronts on Eagle Lake Loop Road (a 24-foot wide urban collector road) to the north, Pollard Road (a local road) to the east, and a CSX railroad track, with right-of-way, on its western side. (Pollard Road dead ends at Eagle Lake Loop Road, and another collector road, Eloise Loop Road, continues to the north from the intersection). Pollard Road provides access to eight nearby single-family homes, which lie south of the Berry property and front on Pollard Road, and eventually terminates at the City of Winter Haven's Sewage Treatment Plant (an institutional use), which lies slightly more than a mile south of the site. To the west of the site directly across the railroad tracks and fronting on Eagle Lake Loop Road is additional property owned by Berry and on which were once located the original Berry corporate offices. The Berry office buildings are now used, at least partially, by other tenants. Although the land across the railroad tracks is classified as Residential Suburban (RS), the property can be used for offices since the buildings were constructed, and office use began, prior to the adoption of the Plan. Directly across Pollard Road to the east is a vacant 10-acre tract of land owned by the Baptist Ridge Association, which intends to construct a church on the property. Berry's property is now classified as RL-1, a land use classification which "is characterized by single-family dwelling units, duplex units, and small-scale multi-family units." Since at least the 1950s, however, or long before the County adopted its Plan, the property has been used primarily for agriculture purposes (citrus groves); therefore, Berry is grandfathered to continue this non-conforming use on its property. Presently, the entire tract of land is undeveloped and largely covered by an orange grove, which Berry describes as "past maturation and is declining." Citrus trucks and trailers have been parked on the extreme northwestern corner of the parent parcel and are used in conjunction with the citrus operation. Except for the former Berry offices, a nearby beauty salon operating out of a house, and a convenience store about three-quarters of a mile away, which all began operation before the Plan was adopted and are grandfathered as non- conforming uses, and the City of Winter Haven's large tract of institutional land to the south, all of the property within slightly less than a one-mile radius of the Berry property is classified in various residential land use categories with only residential uses. The Amendment As noted above, Berry has owned the subject property for many years. In 1987, Berry (then under the name of Jack M. Berry, Sr.) made application with the County for a zoning change on the property from Rural Conservation (RC) to Commercial (C-3) to allow typical commercial uses. The application was ultimately denied by the County on the ground, among others, that the zoning district being proposed was inconsistent with the Plan, "given the residential development pattern in the area." At least partly on the theory that the area has changed substantially in the last 15 years, Berry has filed (and the County has approved) an application seeking to change the land use on the property to commercial uses. Berry has carved out of the parent parcel two smaller parcels totaling 9.99 acres in size and seeks to change the land use on the northern parcel (3.93 acres) to CC and the land use on the southern parcel (6.06 acres) to BPC-1. The remaining land in the parent parcel, which consists of a 0.43-acre triangle-shaped parcel on the northwestern corner of the parent parcel and now used by citrus trucks, and a vacant 2.74-acre triangle-shaped parcel on the southern end, will remain R-1. (However, all parties agree that if the amendment is approved, these remaining parcels will be unsuitable for residential development.) In addition, strips of land ranging from 22 to 28 feet in width which front on Eagle Lake Loop Road and Pollard Road will be dedicated to the County for right-of-way and have not been included in the 9.99-acre amendment. Presumably, the proposed change is being done in this manner so that the total acreage is less than 10.0 acres, which qualifies the application to be processed as a small scale development amendment rather than a regular plan amendment and subject to DCA review and approval. If the change is approved, the northern part of the parcel (3.93 acres) will be changed to CC to develop convenience commercial uses. Under the Plan, the most typical tenant in this category is a convenience store, while other typical tenants include laundry, dry cleaning, barber, restaurant, gas station, and office uses. The southern (and larger) portion of the tract will be changed to BPC-1. The most typical tenant in this category is "[o]ne or more light- assembly plants, or warehouse facilities," which include a mini-warehouse storage facility. Other typical tenants described in the Plan are offices, distribution centers, research and development firms, and high-density residential, with proper buffering. (Berry says it intends to build a mini-warehouse facility on the southern parcel; however, any of the above described uses could be placed on the property if the change is approved.) Petitioners' Objections In broad terms, Petitioners have contended that the small scale amendment actually involves a use of more than 10 acres since the strips of land being dedicated as right-of-way to the County must be counted as a part of the land being amended. They also contend that the plan amendment violates five FLUE policies and is therefore internally inconsistent with the Plan. A small scale development amendment can only be adopted if "[t]he proposed amendment involves a use of 10 acres or fewer." See § 163.3187(1)(c)1., Fla. Stat. The parties have agreed that the legal description of the parcel subject to the change includes only 9.99 acres, or less than the 10-acre threshold. However, prior to the development of the site, Berry intends to dedicate to the County two strips of land, one fronting on Eagle Lake Loop Road (28 feet wide), and the other on Pollard Road (22 feet wide), for future right-of-way for some public purpose. Petitioners contend that the right-of-way constitutes essential infrastructure for the development and must be included as a part of the amendment. If this land is added to the amendment, the total acreage would obviously exceed 10.0 acres. The dedicated land is not "essential infrastructure" needed for the development activities on the land, since two roadways (Eagle Lake Loop Road and Pollard Road) already exist on the northern and eastern boundaries of the property, and they are sufficient in size to provide ingress to, and egress from, the property. Instead, the County will "bank" the land in the event some form of right-of-way activity is needed in the future. It is noted that Eagle Lake Loop Road was recently widened to 24 feet, and it is not anticipated that a further widening will occur for a number of years. There is nothing in the Plan which requires an applicant for an amendment to include all of its property in a proposed amendment, or prevents an applicant from leaving a residual piece of property out of the application. Therefore, Berry was not required to include in the amendment the right- of-way or the two smaller residual pieces of property that will remain R-1. Finally, assuming arguendo that Petitioners' contention is correct, that is, that an applicant must include right-of-way land dedicated to the local government in the total acreage calculation, Berry could still lawfully comply with the 10-acre threshold by simply reducing the other acreage being changed to CC or BPC by the amount of land being dedicated to the local government for right-of-way. Therefore, it is found that Berry has not improperly excluded from the amendment land necessary for essential infrastructure so as to violate Section 163.3187(1)(c)1., Florida Statutes, as alleged by Petitioners. Policy 2.102-A1 requires compatibility between adjacent uses. More specifically, it provides that: Land shall be developed so that adjacent uses are compatible with each other, pursuant to the requirements of other Policies in this Future Land Use Element, so that one or more of the following provisions are accomplished: there have been provisions made which buffer incompatible uses from dissimilar uses; incompatible uses are made to be more compatible to each other through limiting the intensity and scale of the more intense use; uses are transitioned through a gradual scaling of different land use activities through the use of innovative development techniques such as a Planned Unit Development. Therefore, as the Plan is now written, so long as Berry develops the land in a manner which accomplishes at least one of the three "provisions" in paragraphs a - c of the policy, so as to make the adjacent uses compatible, the proposed land use change is permissible. As noted above, except for a few non-conforming uses adjacent to, or near the property, virtually all of the area around the Berry property is designated for residential use. The area to the north and northeast is developed with up-scale (with some homes ranging to as high as $1 million in value), low density, large lot, single-family residential subdivisions, including Harbour Estates, Cedar Cove, Cypress Cove, Gaines Cove, and Valhalla. To the east of the site are more subdivisions, including Eloise Place, Skidmore, Cypress Point, Lake Eloise Estates, Eloise Pointe Estates, a mobile home park, and Little Lake Estates. The lands to the south are primarily agriculture and in active citrus groves, with eight single-family homes on Pollard Road. Finally, a church will be built on the property directly across the street from the Berry property at the southeast corner of the intersection of Eagle Lake Loop Road and Pollard Road. The County Planning Director agrees that a convenience store (which is an authorized use on CC land), standing alone, is incompatible with adjacent single-family residences. Given this acknowledgement, and the fact that a non-binding, proposed site plan submitted by Berry with its application does not provide for any buffering between the commercial uses and the residential areas, Petitioners contend that none of the conditions required for compatibility in paragraphs a through c have been met, and thus the policy has been violated. The County has made clear, however, that when a final site plan is submitted, there must be "provisions [in the site plan] . . . which buffer incompatible uses from dissimilar uses," as required by the policy. Assuming that this is done at the site plan stage, at least one of the three provisions will be accomplished, thereby satisfying the compatibility requirement. This being so, the plan amendment does not violate the policy and in this respect is not internally inconsistent with the Plan. Petitioners next contend that the amendment is inconsistent with Policy 2.110-C3, which contains locational criteria for CC property. One such criterion requires that "Convenience Centers shall be located at the intersections of arterial and/or collector roads." Because the property is at a T-shaped intersection (as opposed to a traditional cross intersection with four directions for traffic to move off the site), Petitioners assert that the property is not located at an "intersection" within the meaning of the policy. Eagle Lake Loop Road, on which the northern boundary of the property fronts, is designated as an urban collector road. That road forms an intersection with Pollard Road (a local road) and Eloise Loop Road (also an urban collector road), which meets Eagle Lake Loop Road from the north at the intersection, and then makes a 90 degree turn to the east. (When Eagle Lake Loop Road continues to the east beyond the intersection, it turns into Eloise Loop Road, and later into Thompson Nursery Road, until it eventually intersects with U.S. Highway 17.) There is no dispute that the two collector roads (Eagle Loop Lake Road and Eloise Loop Road) form a T intersection, rather than a traditional cross intersection. For many years, however, the County has considered a T intersection and a cross intersection to be the same in terms of satisfying Plan requirements. Indeed, at the present time, at least four other CC designated properties within the County are located at T intersections. The County's interpretation of the policy is consistent with sound planning principles, is reasonable and logical, and is more persuasive than the contrary view offered by Petitioners. Accordingly, it is found that the amendment does not conflict with Policy 2.110- C3. Petitioners also contend that the amendment is inconsistent with Policy 2.113-B-3, which provides that "Business-Park Centers shall be located with consideration being given to regional transportation issues, and should be located at the intersections of arterial roads, and preferably on a fixed-route mass-transit line." (Emphasis added.) The use of the word "should" (rather than "shall") is intended to state a preference, but not an absolute requirement, that BPC lands be located at the intersections of arterial roads. According to the County's Planning Director, this is because "most cases that come [before the County] don't meet the ideal situation" of satisfying every requirement, and the County has used this permissive language to give itself some degree of flexibility in handling cases that do not meet every Plan requirement. Therefore, even though it is preferable that BPC land be located at the intersection of arterial roads, this requirement is not mandatory, and the County has the flexibility to approve a BPC land use change at property not sited at the intersection of arterial roads. In contrast to the permissive language described above, Policy 2.113-B-4 provides that development within a Business-Park Center shall conform to certain development criteria, including one that Business-Park Centers shall have frontage on, or direct access to, an arterial roadway, or a frontage road or service drive which directly serves an arterial roadway. Business-Park Centers shall incorporate the use of frontage roads or shared ingress/egress facilities wherever practical. In this case, the closest arterial roadway to Berry's property is State Road 17 to the west, which is four miles away, while State Road 60, another arterial roadway, is approximately six miles to the south. These arterial roads must be accessed, at least at the beginning of the trip, by Eagle Lake Loop Road, a two-lane, 24-foot wide urban collector that runs through predominately residential neighborhoods with some homes having fences within a foot or two from the road. The County interprets the requirement that BPC land have "direct access to an arterial road" to be satisfied if the property fronts on a collector road, which then provides access to an arterial road. Under the County's interpretation, the requirement is met since Eagle Lake Loop Road provides access (albeit 4 to 6 miles away) to State Roads 17 and 60. The County says it has consistently interpreted this provision in this manner for at least ten years, and has approved other applications for changes to BPC when those parcels were located on urban collector roads. (The distance between these other BPC parcels and the arterial roads is not of record, however.) While Policy 2.113-B-1 provides that Business-Park Centers are "not intended to accommodate major commercial or other high-traffic producing facilities," they "are intended to promote employment opportunities within the region by allowing for the establishment of office parks, research and development parks, areas for light-industrial facilities, distribution centers, and mixed-use employment parks." The same policy provides that they must have a usable area of 10 acres or more, have a service-area radius of 20 miles or more, be supported by a population of 150,000 or more people, and have a gross leasable area of 500,000 to 2,000,000 square feet. Given this description of their purpose and characteristics, and the wide range of commercial activities that are allowed on Business-Park Center lands, it is not surprising that Policy 2.113-B-3 provides that BPC lands should be located "at the intersections of arterial roads, and preferably on a fixed-route mass-transit line," while Policy 2.113-B-4 requires that they "have direct frontage on, or direct access to, an arterial roadway, or a frontage road or service drive which directly serves on an arterial roadway." When reading these provisions as a whole, it is unreasonable to conclude, as the County does, that "direct access" contemplates a drive of over 4 miles, partly on a narrow two- lane road, in order to reach an arterial road. Accordingly, on this issue, Petitioners' evidence is the most persuasive, and it is found that the plan amendment conflicts with Policy 2.113-B-4 and in this respect is internally inconsistent with the Plan. Policy 2.110-C3 sets forth the following location criteria for Convenience Centers: LOCATION CRITERIA Convenience Centers shall be located at the intersections of arterial and/or collector roads. There shall be the following traveling distance, on public roads, between the center of Convenience Center and the center of any other Convenience Center, or other higher- level Activity Center, Linear Commercial Corridor, or Commercial Enclave providing for the same convenience shopping needs: One (1) mile within the UDA and UGA Two (2) miles within the SDA and UEA This required separation may be reduced if: The higher-level Activity Center, Linear Commercial Corridor or Commercial Enclave within the required distance separation is over 80 percent developed; or the proposed Convenience Center market- area radius, minimum population support is over 5,000 people. Petitioners contend that this policy has been violated in two respects: the Berry property is not located at the intersection of arterial roads; and there is an existing convenience center located within 0.8 mile of the Barry property, and Berry cannot qualify for a reduction in the required separation, as described in paragraphs a and b. For the reasons stated in Findings of Fact 30-32, it is found that the Berry property is located at the intersection of two collector roads (Eagle Lake Loop Road and Eloise Loop Road) and that a T intersection satisfies the requirements of the policy. As to the second contention, the Berry property is located within an UGA (Urban Growth Area), and an existing convenience store is located at the intersection of Rifle Range Road and Eagle Lake Loop Road, or less than a mile west of Berry's property. The land use on the property on which the store sits was recently changed (in December 2003) to BPC, which does not allow a convenience store. However, the store is a non-conforming use, having been located at that site before the Plan was adopted. The locational requirement in Policy 2.110-C-3 that CC lands within the UGA be located at least a mile apart is not the least bit vague or ambiguous: CC designated lands (and not individual convenience stores, as Petitioners suggest) must be separated by at least a mile, unless one of the two criteria for reducing this separation is met. Because there is no CC land within a one-mile radius of the Berry land, the policy has not been violated. Policy 2.113-B-1 sets forth the following relevant characteristic for Business-Park Centers: General characteristics of Business-Park Centers are: Usable Area 10 acres or more There is no dispute that the useable area for the BPC land is only 6.06 acres, or approximately 60 percent of the required acreage. Petitioners contend that the amendment violates the foregoing policy because the useable area on Barry's property is much less than "10 acres or more." While the former County Planning Director conceded that the 10-acre usable area requirement is "mandatory," he justified the amendment on the ground that the 6.06 acres "approximates" 10 acres, and thus satisfies the policy. In the same vein, the current County Planning Director asserted that if Berry was proposing a stand-alone BPC, it would have been required to have 10 usable acres. In this case, though, he pointed out that the Berry property will be used for a nonresidential mixed use (BPC and CC) totaling almost 10 acres, and therefore Berry has satisfied the requirement. The Planning Director admitted, however, that nothing in the Plan specifically allows this type of exception. He justified the County's action on the theory that the Plan "doesn't anticipate every situation that comes in," and "interpretations have to be made of the comprehensive plan and how it's applied." The requirement that Business-Park Centers have a usable area of 10 or more acres is clear and unambiguous, was characterized as being "mandatory," and is not subject to any exceptions in the Plan. This being so, the County's interpretation is found to be unreasonable and contrary to the plain language in the policy, and in this respect the plan amendment is internally inconsistent with the Plan.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order determining that the small scale development amendment (CPA2003S-02) adopted by Polk County by Ordinance No. 03-03, as amended by Ordinance No. 03-19, is not in compliance. DONE AND ENTERED this 24th day of February, 2004, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 2004.
The Issue The issue is whether the plan amendment adopted by Escambia County (County) by Ordinance No. 2017-53 on September 7, 2017, is in compliance.
Findings Of Fact Background Petitioner owns real property and resides in the County. She submitted written comments to the County during the adoption phase of the amendment. She is an affected person within the meaning of section 163.3184(1)(a), Florida Statutes. The County is a local government that is subject to the requirements of chapter 163, Florida Statutes. A sector plan is the process in which the local government engages in long-term planning for an area of at least 5,000 acres. §§ 163.3164(42) and 163.3245(1), Fla. Stat. It involves two levels of planning: a) a long-term master plan, and b) a Detailed Specific Area Plan (DSAP), which implements the master plan. A DSAP is created for an area that is at least 1,000 acres and identifies the distribution, extent, and location of future uses and public facilities. § 163.3245(3), Fla. Stat. While the DSAP is created by a local development order that is not subject to state compliance review, an amendment to an adopted sector plan is a plan amendment reviewed under the State Coordinated Review process. § 163.3184(2)(c), Fla. Stat. The development standards in the DSAP are separate and distinct from the development standards in non-sector plan properties. On June 3, 2010, the County approved Ordinance No. 2010-16, which adopted Evaluation and Appraisal Report-based amendments to the Plan, including a new Optional Sector Plan (OSP). The Ordinance was challenged by the Department of Community Affairs (DCA) and assigned DOAH Case No. 10-6857GM. In response to the DCA challenge, on February 3, 2011, the County adopted Ordinance No. 2011-3 as a stipulated remedial amendment. The Ordinance establishes a long-term master plan for central Escambia County known as the Mid-West Escambia County Sector Plan (Sector Plan). The Sector Plan is comprised of approximately 15,000 acres, north of Interstate 10, west of Highway 29, and south of Highway 196. The area is depicted on the Future Land Use Map (FLUM) as the OSP. The DCA determined the Ordinance to be in compliance. To implement the long-term master plan, on September 9, 2011, the County adopted Ordinance No. 2011-29, which establishes two DSAPs: Muskogee DSAP and Jacks Branch DSAP. Petitioner's residence and the subject property are located within the Jacks Branch DSAP. State compliance review of that action under section 163.3184(3) or (4) was not required. In 2011, the Legislature created the right to opt out or withdraw from a sector plan. See § 163.3245(8), Fla. Stat. This can be accomplished "only with the approval of the local government by plan amendment adopted and reviewed pursuant to s. 163.3184." Id. In response to the statutory amendment, the County adopted a plan amendment which provides that any additions to, or deletions from, a DSAP must follow the established procedures in the Plan. See Ex. 40, p. 14. In order to consolidate the County zoning districts, on April 16, 2015, the County adopted Ordinance No. 2015-12, which repealed the entire Land Development Code (LDC) and replaced it with a new LDC, which has a county-wide rezoning plan. After the first (and only) application to opt out of the Sector Plan was filed by a property owner, on March 16, 2017, the County amended the LDC through Ordinance No. 2017-14, which establishes seven criteria for evaluating this type of request. See LDC, § 2-7.4. The Ordinance was not challenged. According to the County, the criteria were actually drafted by the Department of Economic Opportunity (DEO) and require it to consider the following: All standard Comprehensive Plan map criteria; Comprehensive Plan requirement for changes to an existing DSAP; The size of the subject parcel in relation to the individual DSAP land use category and in relation to the overall Sector Plan, to specifically include the aggregate acreage of any previously granted opt-outs; The existing transportation infrastructure and any impact the proposed opt-out may have on the capacity of the infrastructure; The underlying existing zoning category and its compatibility with surrounding DSAP land use designations; The consistency of the requested future land use designation with the underlying zoning; and The previous future land use designation. Besides the foregoing criteria, subsection 2-7.4(b) provides that when the County reviews an opt-out application: [t]o the extent possible, the staff analysis and the reviewing bodies shall consider whether the applicant lost development rights or was effectively downzoned as part of the Sector Plan adoption. The Board may take into consideration any other relevant factors in making its determination related to the request. Once a parcel is removed from the County's Sector Plan, the underlying zoning that was in effect when the Sector Plan was created remains the same, but a new future land use (FLU) category must be assigned to the property by a plan amendment. § 163.3245(8), Fla. Stat. Withdrawing from a DSAP does not modify the DSAP because the DSAP is the development standard itself. The Property The parcel lies on the eastern edge of the DSAP about ten miles north of Interstate 10 on the northwest corner of Highway 29 and Neal Road. Highway 29 is a major four-lane arterial road running in a north-south direction with a median in the middle. The road is maintained by the state. Neal Road is a small, two-lane County road that intersects with Highway 29 from the west and provides access to a residential area where Petitioner resides. Existing commercial development is located on the east side of Highway 29. Most recently, a Family Dollar Store was developed directly across the street from the property. Currently, the parcel is vacant and lies in the Conservation Neighborhood District, which permits a maximum density of three dwelling units per gross acre and is the lowest density of residential development allowed in the Sector Plan. Only residential uses are allowed in the district, which is intended to treat stormwater and preserve open space and wildlife. Based on maps of the area, Petitioner's property appears to be no more than one-half mile west of the subject property. The character of the area in Petitioner's neighborhood is low-density residential development. Before the Sector Plan was adopted, the assigned land use on the parcel was MU-S. This use is intended for "a mix of residential and non-residential uses while promoting compatible infill development and the separation of urban and suburban land uses." Its express purpose is to serve as a mixed-use area. As described by a County witness, "the mixed-use aspect of it allows a non-residential component first, but, again, it's predominately residential, low-density residential." The range of allowable uses includes residential, retail services, professional office, recreational facilities, and public and civic, with a maximum intensity of a 1.0 floor area ratio. Until the Sector Plan was created, the parcel was zoned as Gateway Business District (GBD). Under the new rezoning plan established in 2015, all parcels outside the Sector Plan which were zoned GBD were consolidated with similar zoning categories into the new district of Heavy Commercial/ Light Industrial (HC/LI). Permitted uses under this district are residential, retail sales, retail services, public and civic, recreation and entertainment, industrial and related, agricultural and related, and "other uses," such as billboards, outdoor sales, trade shops, warehouses, and the like. Once a parcel is withdrawn from the Sector Plan, it retains the underlying zoning in effect when the DSAP was established. Because the new zoning scheme consolidates GBD into HC/LI, the parcel will revert to HC/LI. Therefore, the zoning and land use will be the same as they were before the Sector Plan was created. This combination is not unusual, as there are "multiple parcels" outside the DSAP that have this zoning/land use pairing. The Challenged Amendment In June 2016, the property owner filed an application with the County requesting that his parcel be removed from the Mid-West Sector Plan. At that time, neither the County nor the applicant realized that a new land use must be assigned. Consequently, no request for a new land use was made. Because this was the first time an opt-out application had been filed with any local government, the County had a series of meetings with DEO seeking guidance on how to proceed. It was told by DEO that the opt-out application and a FLU change should be processed in the same manner as a FLUM amendment and then reviewed under the State Coordinated Review process. DEO also provided suggested criteria that should be considered when processing such an application. These criteria were adopted as new LDC section 2-7.4. The County followed all steps suggested by DEO. DEO instructed the County to require a second application from the property owner, which included a request for a new land use category. After the second application was filed, the County began the process of determining whether the application satisfied the opt-out criteria in section 2-7.4 and relevant Plan requirements. The second application addressed the FLU requirement and contained the analysis required for each component of the Plan. A future land use of Mixed-Use Urban (MU-U) was initially requested by the owner. This category is consistent with HC/LI zoning, but is a much more intense land use category than MU-S. Because of concerns that the MU-U land use would not be compatible with the surrounding neighborhood in the DSAP, the County changed the proposed new land use to MU-S, the use assigned to the property before the Sector Plan was adopted. MU-S is the same land use assigned to other non-Sector Plan parcels surrounding the subject property, and there are non- industrial uses within the HC/LI zoning district that are consistent with MU-S. If the application is approved, only 25 potential residential units will be removed from the total Sector Plan, and the reduction in total developable area will be de minimis. Except for a change to the DSAP map and the acreage table, no changes to the text of the DSAP are made. During the application process, the County addressed natural resources, wetlands, historically significant sites, and impacts on the environment. The County also evaluated the application in light of the criteria found in section 2-7.4 and determined that, as a whole, it satisfied those requirements. See Cnty. Ex. 34, pp. 28-39. Because a proposed use of the property was not submitted with the application, an analysis of a specific use was not made. When a site plan to develop the property is filed, the proposed use will be evaluated by the Development Review Committee, and then by the Board of County Commissioners. That review will ensure that the intended development will not be inconsistent with the zoning district and land use assigned to the parcel. The opt-out request was debated extensively during a series of ten public hearings that began in September 2016. Members of the public were allowed to speak for or against the proposal. On September 7, 2017, the County voted to amend the Plan by (a) allowing the parcel to withdraw from the OSP, removing the Sector Plan overlay on the parcel, and amending the FLUM by assigning the property a MU-S land use designation. No other changes were made. The amendment does not create a remnant area or fragmented DSAP. The amendment was transmitted to DEO for review under the State Coordinated Review process. DEO determined it met the requirements of chapter 163 for compliance purposes. The State Coordinated Review is more comprehensive than the Expedited Review process under section 163.3184(3). On November 8, 2017, a Notice of Intent to find the amendment in compliance was issued by DEO. See Cnty. Ex. 39. Petitioner filed her Petition within 30 days after the Ordinance was adopted, but before DEO issued its Notice of Intent. Therefore, it was timely. Besides DEO's review, the Department of Transportation and Department of Education reviewed the proposal for impacts on transportation and school concurrency, respectively. No further information was requested from the County by any agency. Petitioner's Objections In the parties' Pre-hearing Stipulation, Petitioner raises a procedural objection to the manner in which the withdrawal application was adopted. She also alleges generally that the amendment creates inconsistent and incompatible zoning and future land use pairing in violation of sections 163.3177(2) and 163.3194(1); is inconsistent with the FLU Element; conflicts with statutory provisions regarding compatibility of adjacent land uses; and lacks sufficient data and analysis required by section 163.3177(1)(f). These contentions, and others not directly related to a compliance challenge, are addressed below. Petitioner first contends an opt-out application must be adopted by a local development order, rather than by a plan amendment. She argues the County erred by not providing her the opportunity to cross-examine witnesses at the adoption hearing and failing to subject the proposal to more "intense review and analysis." The quasi-judicial process requires strict scrutiny of a local government's action, rather than a fairly debatable standard of review, and provides third parties the right to challenge the local government's decision in circuit court, rather than in a section 163.3184 proceeding. This contention has been rejected and is addressed in the Conclusions of Law. Petitioner contends approval of the application will lead to further requests by other property owners to opt out of the Sector Plan. Currently, there are over 1,000 property owners in the Sector Plan. During the County hearings, staff identified 24 or 25 other properties that might choose to file an opt-out application in the future. Whether those owners will do so is no more than speculation at this point. The County responds that it will evaluate each application on a case-by- case basis. A case-by-case analysis is necessary because an application involving a large parcel of property would clearly have a different analysis than one which involves only 8.67 acres. More importantly, because the opt-out process is a statutory right created by the Legislature, the County is obligated to consider every opt-out application filed, and if it satisfies the applicable criteria, it must be approved. In any event, there is nothing in sections 163.3184 or 163.3245 which requires the local government to deny an application merely because another property owner might file a similar application at some point in the future. Petitioner contends the County acted "unreasonably" because it did not establish opt-out criteria until after the application was filed. The County's action was reasonable under the circumstances because it had no standards or precedent for reviewing this type of application; at the direction of DEO, the criteria were adopted before final action on the application was taken; and the criteria were considered by the County. Petitioner contends the criteria in section 2-7.4 are vague and lack specific, objective evaluation standards. However, Ordinance No. 2017-14 was never challenged and is presumed to be valid. Petitioner contends HC/LI zoning is inconsistent with the MU-S land use and violates sections 163.3177(2) and 163.3194(1)(b).1/ Those provisions require generally that zoning regulations and land uses be consistent with one another and the elements of the Plan. The zoning and land use will be the same as existed before the Sector Plan was adopted. They correlate with the zoning and land use on numerous other non-Sector Plan parcels in the immediate area and throughout the County. MU-S contemplates a mixed-use area, while HC/LI contains a variety of residential, commercial, and industrial uses. Although industrial uses are inconsistent with the land use, see Endnote 1, there are many other uses within the zoning district that are compatible with MU-S. It is fairly debatable that the zoning and land use designation are compatible. FLU Objective 1.3 provides that future land use designations should "discourage urban sprawl, promote mixed use, compact development in urban areas, and support development compatible with the protection and preservation of rural areas." By allowing more intensive development next to the Conservation Neighborhood District, Petitioner contends the plan amendment is inconsistent with this directive because it encourages urban sprawl. "Sprawl" is defined in chapter 3 of the Plan as [h]aphazard growth of dispersed, leap- frog and strip development in suburbs and rural areas and along highways; typically, sprawl is automobile-dependent, single use, resource-consuming, and low-density development in previously rural areas and disconnected from existing development and infrastructure. The parcels on the east side of Highway 29 have similar zoning and land uses as the subject property and are interspersed with commercial development. Therefore, future development on the subject property would not be "disconnected from existing development and infrastructure," and it would not leap-frog into non-developed areas. It is fairly debatable that the plan amendment does not encourage urban sprawl. Petitioner contends the underlying zoning on the parcel is incompatible with the land use in her neighborhood. Although the County considered this issue, it points out that the Sector Plan and Comprehensive Plan have different development standards, and therefore there is no requirement that it consider the compatibility of non-Sector Plan property with property in the DSAP. Moreover, to restore the property rights that an owner once had, when the withdrawal application is approved, the property should revert to the underlying zoning in existence when the Sector Plan was established. Notwithstanding the foregoing, LDC section 2-7.4(a)5. requires that when reviewing an opt-out application, the County must consider "[t]he underlying existing zoning category and its compatibility with surrounding DSAP land use designations." To this end, the County addressed this factor by assigning a less intense MU-S land use to the parcel so that more intense uses allowed by HC/LI would be prohibited or minimized. It is fairly datable that the underlying zoning will be compatible with the neighboring area. Petitioner contends the amendment is not supported by data and analysis, as required by section 163.3177(1)(f). Prior to adopting the amendment, the County staff made a qualitative and quantitative analysis of impacts on natural resources, wetlands, historically significant sites, the environment, and adjacent lands. Because Highway 29 is a state road, the County has limited planning responsibilities for traffic impacts. Even so, a limited analysis of traffic impacts is found in County Exhibit 17. In addition, the Department of Transportation performed a more complete analysis of traffic impacts attributable to the amendment. Because the parcel is currently vacant, traffic impacts on Neal Road cannot be fully analyzed until a site plan is filed. A review of school concurrency issues was performed by the Department of Education and no adverse comments were submitted. The County verified that Emerald Coast Utility Authority had available water, sewer, and garbage capacity to serve the parcel. Finally, the County took into account the fact that removal of such a small parcel from the edge of the eastern side of the Sector Plan would have minimal, if any, effect on the Sector Plan goals and objectives. It is fairly debatable that the amendment is supported by relevant and appropriate data and analysis. All other contentions not specifically discussed have been considered and rejected.
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 Ordinance No. 2017-53 is in compliance. DONE AND ENTERED this 10th day of May, 2018, 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 10th day of May, 2018.
The Issue The issue is whether two map changes on the Future Land Use Map (FLUM) of the Comprehensive Plan (Plan) adopted by Taylor County (County) by Ordinance Nos. 2009-15 and 2009-17 on December 15, 2009, are in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: The Parties The Department is the state planning agency charged with the responsibility of reviewing and approving amendments to comprehensive plans adopted by local governments. The County is a local government that administers a Plan. It adopted the two plan amendments that are the subject of this proceeding. It is considered a "rural" county with a current population of around 20,000 residents. Dr. Hutchins owns property in the County. Although his initial pleading alleges, and his Proposed Recommended Order states, that he "submitted oral comments regarding the subject amendments at transmittal and prior to adoption of the amendment," no evidence was presented at hearing that Dr. Hutchins did so during the adoption process. Ms. Redding and Mr. Wood are siblings and along with three other members of the Wood family jointly own property in the County. Like Dr. Hutchins, no evidence was presented at the hearing that either Intervenor submitted written or oral comments to the County during the adoption process. History Preceding the Amendments The process for adopting the County's first Plan, including the FLUM, began around 1988. For the purpose of drafting a FLUM, a Planning Board (Board) was created consisting of seven individuals, all of whom were volunteers with no formal planning experience. However, they received advice and assistance from two outside consultants, who also advised the County concerning the appropriate text to be used in the new Plan. Four members of the Board, including its former Chairman, testified at the final hearing. Over the next two years, the Board conducted meetings, spoke with numerous property owners, and collected information in order to assign each parcel an appropriate land use category. The collective efforts of the Board culminated in a large, hand- colored FLUM (consisting of numerous sections of aerial maps patched together) that was affixed to the wall of what is now the courtroom on the second floor in the County Courthouse. Testimony by former members of the Board established that the Hutchins parcel (then owned by Colin and Lucille Kelly) and the Bird Island parcel (owned by Wood, Redding, and other family members) were assigned a classification of Mixed Use-Urban Development. Because the County does not have a zoning code, the properties were never assigned a zoning classification consistent with that land use category. This classification was based upon the fact that at least two different businesses were being conducted on each parcel at the time, and the owners requested that they be given that classification. In the case of the Hutchins (then Kelly) property, it was being used to conduct a commercial fishing operation as well as a small construction company (with dump trucks, bulldozers, and front end loaders) that had a contract with Proctor & Gamble (now known as Buckeye Technologies, Inc.) to maintain roads. An office for the construction company was located in a separate mobile home placed on the property. Mr. Bird was a commercial fisherman and operated a wholesale fish business on Bird Island. Also, both he and his mother had separate homes on the property, another structure was used to store fish nets, and docking facilities for other commercial fisherman were maintained. Many of these structures were blown away during the so-called Storm of the Century on March 13, 1993, and never replaced. Except for property within the small communities of Keaton Beach, Dekle Beach, Denzel Beach, and Steinhatchee, and a few other small parcels, such as Dark Island, Cedar Island, and Intervenors' property, all of the remaining land along the coastline was placed in either Conservation or Agriculture. An unusual feature of the County is that it has one of the longest coastlines in the State (58 miles), stretching on the Gulf of Mexico from Jefferson County to Dixie County. Because around 88 percent of the coastline is owned by the State, very little waterfront land is left for development. In fact, Dr. Hutchins pointed out that except for his property and Bird Island, no other vacant, upland Gulf-front property within the County is in private ownership at this time. The FLUM, with the foregoing classifications, was adopted by the County by Ordinance No. 90-4 on June 19, 1990. Before it was submitted to the Department for its review, the County was advised by the Department that it would not accept the large, hand-colored FLUM in that format. Rather, the Department required that the map be reduced in size and digitized. To comply with this request, the original FLUM was dismantled into smaller sections and hand-carried to a firm in Crystal River that had the capability of reducing the large map into digital form. The original FLUM was then returned to the County Courthouse. When the larger map was reduced in size and converted to a digital format, it was not parcel-specific and failed to pick up the Hutchins parcel and Bird Island. Instead, except for larger tracts of land, especially in the small communities noted in Finding of Fact 8, the entire coastline was shown as being Conservation or Agriculture. This error was not detected by County officials or the affected property owners since they continued to rely upon the designations shown on the large, hand-colored FLUM in the Courthouse. The Department reviewed the FLUM, as digitized, assumed that the Hutchins and Bird Island property were Agriculture and Conservation, and found those parts of the FLUM to be in compliance. This agency action occurred on or about October 1, 1990. Thus, the Department never undertook a compliance review for either parcel with the intended higher density/intensity land use. In 1995, the room in which the original FLUM was mounted was taken over by another occupant of the Courthouse, and the original FLUM was moved to a different floor. During or after the moving process, it was lost or accidentally destroyed and its whereabouts have been unknown since that time. In 1993, Dr. Hutchins purchased his property from Colin and Lucille Kelly. Based on a conversation with a County employee, he purchased the property with the understanding that it was classified as Mixed Use-Urban Development. Although he had no specific plans to develop the property at that time, and still has none, the Mixed Use-Urban Development land use category was the major inducement for him to purchase the property. In 2005, Dr. Hutchins was approached by an investor who wished to develop the property at a later time. When the investor contacted the County to confirm its land use designation, Dr. Hutchins learned for the first time that the digitized map approved by the Department reflected the property carried an Agriculture/Rural Residential land use. Because of this, the agreement with the potential investor was never consummated. In a similar vein, Mr. Wood, who served on the Board that assigned land use designations to property on the original FLUM, and knew that the Board had designated his property as Mixed Use-Urban Development, placed the Bird Island property on the market in 2005 representing that it was classified in that category. A prospective purchaser checked with the County to verify its land use and learned that it was Conservation. Mr. Wood was unaware of this error until that time. Because of this, the sale was never consummated. After 2005, the County and Department held numerous meetings in an attempt to resolve this dispute. The Department refused to allow the FLUM to be changed to reflect the original land use designations. This led to the County adopting the two challenged amendments to correct what it characterizes as a "scrivener's error." Besides the two parcels that are in dispute here, on an undisclosed date, two other parcels (in the interior part of the County) were discovered by the County to have the wrong land use category as a result of the digitizing process. Both should have been placed in the Industrial land use category, and after a review, the Department had no objection to those errors being corrected by an amendment. The Plan Amendments On December 15, 2009, the County adopted Ordinance Nos. 2009-15 and 2009-17, also known as CPA 08-1 and CPA 08-3. The first amendment changed the land use on the 14-acre Hutchins parcel from Agriculture/Rural Residential to Mixed Use-Urban Development. The present land use allows one dwelling unit per 5 acres while the new land use designation allows up to 12 dwelling units per acre and a 60 percent impervious surface ratio for nonresidential development. See Department Exhibit 1, Future Land Use Policy I.3.2. Thus, up to 126 residential units and 96,476 square feet of non-residential development could be built on the Hutchins site. The second amendment changed the land use on the 3.36-acre Bird Island parcel from Agriculture-2 and Conservation to Mixed Use-Urban Development. The former land use allows one dwelling unit per 40 acres while the new land use would permit the same density/intensity as the Hutchins parcel. The new category would allow up to 30 residential units and 21,954 square feet of non-residential development. The amendments were transmitted by the County to the Department for its review in early April 2009. On June 5, 2009, the Department issued its Objections, Recommendations and Comments (ORC) report. The Department lodged objections to both amendments generally on the grounds the sites are not environmentally suitable for the proposed density and intensity increases; the amendments authorize an improper increase in density within the Coastal High Hazard Area (CHHA) without proper mitigation; the amendments failed to discourage urban sprawl; and they are internally inconsistent with existing provisions within the Plan. The ORC recommended that the County not adopt the amendments. Besides the Department, DEP and the Regional Planning Council also provided written comments on the amendments. By letter dated May 8, 2009, DEP generally noted that it had concerns regarding development adjacent to the Big Bend Seagrasses Aquatic Preserve (the Preserve) where the parcels are located, and that careful planning strategies should be used for any development on the land. See Department Exhibit 4. The Regional Planning Council issued a staff report on February 25, 2010, generally concluding that the amendments were consistent with the applicable Strategic Regional Policy Plan goals and objectives. See Department Exhibit 15; County Exhibit 1. The County did not respond in writing to the ORC. On December 15, 2009, it adopted the amendments without change. On March 10, 2010, the Department published its Notice of Intent to find the amendments not in compliance in the Taco Times. On March 16, 2010, the Department filed its Petition with DOAH raising the same grounds that are in its Notice of Intent. The Property The Hutchins parcel is located in the southwest part of the County, a few miles south of Keaton Beach, with around 500 to 600 feet fronting on the Gulf of Mexico. The 14 upland acres that are the subject of this case are a sub-site of a larger 25-acre parcel owned by Dr. Hutchins, with the remaining 11 acres being adjoining wetlands on the north and south sides. Dr. Hutchins has built a home on pilings on his property along with a smaller ancillary structure. Photographs indicate that except for trees, the remainder of the upland property is vacant. Bird Island also lies on the Gulf of Mexico just northwest of the Hutchins parcel and is surrounded by water on three sides. Photographs reflect one residence and a dock still on the property. The two parcels are separated by "marsh grass and a little water." Both parcels of property are easily accessible to, and just west of, County Road 361, a paved two- lane highway that begins south of the subject properties and runs adjacent to, or near, the coastline, eventually turning northeast and terminating on U.S. Highway 19 south of Perry. Both properties abut portions of the Gulf of Mexico that have been designated as an Outstanding Florida Water (OFW). The waters are a part of the Preserve, which was established in 1985 and is managed by DEP. The Preserve has exceptional biological, aesthetic, and scientific value. The two parcels are located in the Coastal High Hazard Area (CHHA). That is to say, they are in "the area below the elevation of the category 1 storm surge line as established by a Sea, Lake, and Overland Surges from Hurricanes (SLOSH) computerized storm surge model." § 163.3178(2)(h), Fla. Stat. In order to increase density within the CHHA, the County must meet certain criteria set forth in Section 163.3178(9)(a), Florida Statutes. The Department's Objections As summarized in its Proposed Recommended Order, the Department contends that the two plan amendments are not in compliance because the sites are not environmentally suitable for the proposed density and intensity increases; there is an improper increase in density within the CHHA without proper mitigation; and the amendments fail to discourage urban sprawl. Although the Notice of Intent also raised the issue of whether the amendments are internally inconsistent with other provisions in the County's existing Plan, the Proposed Recommended Order does not address any specific internal inconsistencies, and the evidence focuses on the first three concerns. Therefore, the undersigned has assumed that those objections have been withdrawn or abandoned. Environmental Suitability With the exception of an area in the middle part of the County's coastline (where the Fenholloway River flows into the Gulf), the Preserve extends along the County's entire coastline, including the area in which the two parcels are located. The Preserve, designated as an OFW, contains various types of seagrasses, whose function is to provide habitat for a number of species, improve water quality, and reduce currents or wave energy in the event of a storm. It is undisputed that the seagrass beds near the amendment sites are high-quality, healthy, and of high environmental value. Coastal marshes are prevalent in the area of the County where the amendment sites are located. They serve many functions, including cleaning water flowing into The Preserve, functioning as a habitat for a number of species, and acting as a coastal barrier against storm surge during large storm events. Section 163.3177(6)(d), Florida Statutes, requires that local governments protect and conserve natural resources through the conservation element of the local plan. See also Fla. Admin. Code R. 9J-5.006(3)(b)4. A Department rule also requires local governments to limit the specific impacts and cumulative impacts of development or redevelopment upon water quality and living marine resources. See Rule 9J-5.012(3)(c)1. High-density development (up to 12 units per acre) on the parcels clearly has the potential to negatively impact coastal marshes and seagrasses adjacent to and near the subject sites. Although Dr. Hutchins indicated that he would develop his property only to the extent allowed by DEP so that the marshes and seagrasses would be safeguarded, the Department's practice for many years has been to assume that the property will be developed at its maximum allowable density and intensity. See, e.g., Sheridan v. Lee Cty, et al., Case No. 90- 7791 (DOAH Jan. 27, 1992; DCA June 28, 1993; Admin. Comm. Feb. 15, 1994)(compliance determination must be made based on maximum impacts authorized by the amendment terms, not speculation of a lesser impact). Mr. Wood's development intentions are not known. In any event, the two parcels potentially authorize 156 residential units and 113,430 square feet of non-residential uses adjacent to an OFW. Even so, the Mixed Use-Urban Development land use designation may still be permissible if specific conditions limiting the density/intensity on the parcels are incorporated into the Plan by asterisk or text language in conjunction with a new amendment. As noted in the Conclusions of Law, this planning practice has been used in other cases. Without any limitations, though, the preponderance of the evidence supports a finding that the maximum allowable density/intensity contravenes the cited statute and rules. CHHA Both parcels are located within the CHHA of the County. Section 163.3178(2)(h), Florida Statutes, requires that the County establish mitigation criteria for plan amendments located in the CHHA. Probably because of its small size in terms of population, and the lack of development (or ability to do so) along the coastline, the County has no goals, objectives, or policies addressing criteria for mitigation. Rule 9J-5.012(3)(b)6. requires that a plan "direct population concentrations away from known or predicted coastal high-hazard areas." Also, Rule 9J-5.012(3)(b)7. requires that a plan "maintain or reduce evacuation times." Prior to 2006, the Department would allow a local government to comply with the foregoing rules by allowing density increases in the CHHA if the local government decreased a similar type of density elsewhere. This practice was known as "offsets." In 2006, however, the Legislature amended the statute to include criteria for compliance with the two rules. Due to the change in the law, the Department no longer engages in the practice of offsets for land use changes in the CHHA. Instead, it requires a local government that proposes to increase density within the CHHA to meet the requirements of Section 163.3178(9)(a)1.-3., Florida Statutes. Under the statute, if the County can demonstrate a 16-hour out-of-county evacuation time for a category 5 storm event as measured on the Saffir-Simpson scale and a 12-hour evacuation time to shelter within the County for a category 5 storm event, an increase in density within the CHHA may be allowed. See § 163.3178(9)(a)1. and 2., Fla. Stat. Alternatively, the County may use one of the mitigation measures described in Section 163.3178(9)(a)3., Florida Statutes. Except for Coastal Element Objective IX-7 of the Plan, which provides that the County maintain a hurricane evacuation time of 9 hours for a category 1 storm, see County Exhibit 7, no data and analysis, such as a hurricane evacuation study for a category 5 storm event, was presented to demonstrate compliance with these requirements. Dr. Hutchins' submission during the mediation process of an evacuation plan for a category 3 storm does not satisfy this criterion. Typically, a local government will have an adopted plan for a category 5 storm, as well as an evacuation model. The preponderance of the evidence supports a finding that the mitigation measures in Section 163.3178(9)(a), Florida Statutes, have not been satisfied. At hearing, the County and Dr. Hutchins contended that offsets should still be used in this case to satisfy the mitigation requirements. They point out that the County has recently purchased property (totaling 51.7 acres) that is designated Mixed Use-Urban Development and more than compensates for any potential increase of residents needing to evacuate if the two amendments are found to be in compliance. As noted above, however, the practice of offsets was discontinued in 2006 with the passage of the new law. Notwithstanding assertions to the contrary, there was no legal requirement that the Department notify every affected local government and property owner that it was discontinuing that practice to comply with the new law.2 Urban Sprawl Rule 9J-5.006(5)(g)1.-13. identifies thirteen "primary" indicators of urban sprawl. The Department contends that eight indicators are "tripped" or "triggered" by the new amendments and collectively they indicate that the proliferation of urban sprawl is not discouraged. No evidence was presented regarding five indicators. According to the rule, "[t]he presence and potential effects of multiple indicators shall be considered to determine whether they collectively reflect a failure to discourage urban sprawl." Fla. Admin. Code R. 9J- 5.006(5)(d). Indicator 1 is tripped if the amendments allow uses in excess of demonstrated need. In this case no need analysis for additional land in the Mixed Use-Urban Development category was submitted by the County. The absence of a study is sufficient to trigger this indicator. Indicator 2 is tripped if the amendments allow "significant" amounts of urban development to occur in rural areas at substantial distances from existing urban areas. The only true existing "urban" area in the County, as that term is commonly understood, is the City of Perry. Other residential and some commercial development (but to a much lesser degree) is found mainly in a few small communities on the coastline such as Steinhatchee, an unincorporated community perhaps 15 miles south of the subject parcels with probably around 1,500 residents, and Keaton Beach and Dekle Beach, both having no more than a few hundred residents each. (Official recognition has been taken of the population data.) Keaton Beach is around 2 or 3 miles north of the subject property and has condominiums and other limited residential/commercial development. In addition, Dark Island is located a short distance north of Bird Island and is classified as Mixed Use-Urban Development, which authorizes the higher density/intensity development. Given this lack of "urban areas" in the County, virtually any development outside of Perry could arguably be considered "urban development . . . in rural areas at substantial distances from existing urban areas while leaping over undeveloped lands which are available and suitable for development." Fla. Admin. Code R. 9J-5.006(5)(g)2. Notwithstanding this unique (and perhaps unfair) situation, it is fair to characterize the potential addition of 12 units per acre as urban development and a total of around 150 residential units with associated commercial development as "substantial" when considering the County's size and existing development. Therefore, the second indicator has been triggered. Indicator 3 is triggered if the amendments allow urban development in "radial, strip, isolated or ribbon patterns generally emanating from existing urban development." Because urban development will occur in a rural, isolated area, this indicator is triggered. Indicator 4 is triggered if there is premature development of rural land that fails to adequately protect and conserve natural resources. The evidence supports a finding that this indicator is triggered. Indicators 6, 7, and 8 are related to the orderly and efficient provision of existing and future public services and facilities. The evidence shows that the area is not currently served by central sewer and is not near any fire or police stations. While no public facilities are planned for that area in the five year capital improvement schedule, at a meeting in March 2010 the Taylor County Coastal Water & Sewer District indicated that a request for partial federal funding to extend central sewer services to Fish Creek, which lies beyond and to the south of the subject parcels, would be placed on the April agenda. See County Exhibit 7. Whether a request was actually made at that meeting is not of record. In any event, Coastal Element Policy IX.6.5 provides that where central sewer is not available in an area classified as Mixed Use-Urban Development, septic tanks may be used within the CHHA. See Department Exhibit 1. As to fire and law enforcement support, there is insufficient evidence to establish that these services cannot be provided in an efficient manner. Given these circumstances, there is less than a preponderance of the evidence to support a finding that indicators 6 through 8 are triggered. Indicator 9 is triggered if the plan amendments fail to provide a clear separation between rural and urban uses. There is insufficient evidence to support a finding that this indicator is triggered. Collectively, the presence of four indicators is sufficient to support a finding that the County has failed to discourage urban sprawl. E. Scrivener's Error The County and Intervenors rely heavily upon the fact that the plan amendments are in compliance because the amendments simply correct an error that occurred when, at the Department's direction in 1990, the original FLUM was reduced in size and digitized. While at first blush this argument is appealing, it assumes that the Department would have approved the new land use classifications in 1990 when it performed a compliance review of the original FLUM. But this never occurred, and the new amendments give the Department its first opportunity to determine if the new land uses are in compliance. It is undisputed that on an undisclosed date the Department approved an amendment based on the same type of error. While the record is somewhat confusing, it appears that in that case, the two properties were Industrial, they were not located in the CHHA, and on-going business concerns were operating on the properties. Intervenor Hutchins also cited several instances where mapping errors were allowed to be corrected by subsequent plan amendments. Where final agency action in those matters is of record, however, it shows that approval was given only after a compliance review was made by the Department.3
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order determining that Plan Amendments CPA 08-1 and CPA 08-3 adopted by Ordinance Nos. 2009-15 and 2009-17 are not in compliance. DONE AND ENTERED this 13th day of December, 2010, 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 13th day of December, 2010.
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 City of Crestview's (City's) small-scale development amendment adopted by Ordinance No. 1370 on November 26, 2007, is in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background B & H is a Florida corporation which owns and operates a number of concrete batch plants and a surveying and engineering company known as Integrated Engineering Solutions, LLC. The parties have stipulated that B & H is the owner of property within the City and submitted comments to the City in support of the change in the land use prior to the adoption of the plan amendment. As such, B & H is an affected person and has standing to participate in this matter. In 2005, B & H purchased a 75.56-acre tract of vacant, undeveloped land in the unincorporated part of Okaloosa County (County), just southwest of the City. The parcel is generally bounded on its northern side by Interstate 10 (I-10) and by a 150-foot wide Gulf Power Company easement on its southern boundary. All of the property carried a County land use designation of RR, which limits development to one residential unit per five acres. See Future Land Use Element (FLUE) Policy 10.1.e. (Petitioner's Exhibit A). After B & H purchased the property, it applied for development approval (including a land use change from RR to an industrial) from the County. In the face of substantial public opposition, and a negative staff recommendation, B & H withdrew its application during a County Planning Commission hearing on April 12, 2007. (The County staff noted that the property "is located in the immediate vicinity of . . . a residential subdivision"; that a wide range of industrial uses would be allowed on the property if it was changed to IN; that the requested action would have the effect of "spot zoning"; that there is no shortage of industrial-zoned lands in other areas of the County; and that "the requested action is not compatible with the proximate residential subdivision and does not result in an appropriate transition of uses, densities, and intensities as expressed in [FLUE] Policy 4.4.") Shortly thereafter, B & H filed a petition for voluntary annexation with the City. On August 27, 2007, the City annexed a 9.98-acre parcel of B & H's land lying in the eastern half of the larger parcel. (The remainder of the larger parcel remains in the County.) B & H then filed an application in the form of a small-scale development amendment seeking a change in the land use on the property from RR to IN. Because the size of the parcel was less than 10 acres, the change in land use was accomplished by this type of amendment, which is not reviewed by the Department of Community Affairs (Department). See § 163.3187(1)(c)1. and (3)(a), Fla. Stat. According to FLUE Policy 7.A.3.4.f. in the City's Plan, the IN category is designed to protect lands for production and distribution of goods and for other industrial activities. A wide range of industrial uses and commercial uses are allowed in this category. Specific uses include light and heavy manufacturing, assembly, training facilities, vehicle repair (including body work and painting), packaging, processing, wholesale business and warehousing, truck terminals, borrow pits, asphalt/concrete plants, heavy equipment sales, service and/or rentals, and other uses similar to those listed herein. Residential uses are prohibited except as an accessory to a permitted use. In addition to the application for a change in the FLUM, B & H submitted an application for site plan approval for a concrete batch plant to be located on the southern end of the subject property. This use would be consistent with the IN category. However, until this proceeding is concluded, the site plan will not be reviewed, modified, or approved by the City, and therefore any development provisions incorporated therein are not final. Further, the proposed use (a concrete batch plant) requires the issuance of a permit by the Department of Environmental Protection (DEP). On September 9, 2007, the City Planning Commission conducted a public hearing to consider the amendment and voted 4-1 to recommend approval of the application to the City Council. On October 8, 2007, a first reading of Ordinance No. 1370 implementing the amendment occurred at the City Council meeting. On October 22, 2007, a public hearing was held before the City Council. The City Council voted 3-2 to deny the amendment. On November 13, 2007, the City Council conducted another public hearing for the first reading of the amendment. On November 26, 2007, the City Council conducted a second public hearing on the amendment and adopted Ordinance No. 1370 enacting the amendment. (New zoning on the land will not be imposed until or unless the plan amendment here is found to be in compliance.) Although not subject to review by the Department, the following day the City sent a copy of the adopted Ordinance to the Department. On December 24, 2007, Petitioner, who resides in Antioch Estates, a nearby residential subdivision located within the City, filed her Petition with DOAH. On February 7, 2008, she moved to amend the Petition and authorization to do so was granted by Order dated February 8, 2008. In her Amended Petition, she generally contended that the amendment is not in compliance because it is internally inconsistent with other Plan provisions in several respects; the amendment is not supported by adequate data and analysis; the property being reclassified is greater than 10 acres in size and therefore cannot qualify as a small-scale development amendment; the City did not analyze the financial feasibility of the amendment; and the City failed to conduct the necessary intergovernmental coordination and review. The parties have stipulated that Petitioner resides within the City and offered comments in opposition to the amendment prior to its adoption. As such, she is an affected person and has standing to challenge the amendment. At the hearing, Petitioner, who is a planner for the City of Destin but resides in Crestview, acknowledged that before she filed her initial Petition, her husband was contacted by a representative of Couch Ready Mix USA (Couch), a non-party who operates a concrete batch plant 0.8 miles southeast of Antioch Estates on Old Antioch Road, and with whom B & H would compete if the application is approved and a new concrete batch plant constructed on the site. However, Petitioner stated that she would have filed a petition even if her husband had not been contacted by Couch. Even so, it is fair to infer from the evidence that funding for Petitioner's counsel and two experts was provided by Couch. The Subject Property The subject property is a 9.98-acre parcel bordered on the north by I-10 and on the east, west, and south by property owned by B & H, all of which is designated RR and zoned Agricultural. Directly to the east of the larger B & H parcel is a 70-foot strip of vacant land owned by Rhett Enzor, a non- party whose land stretches from I-10 southward to the Gulf Power easement. The Enzor property also carries a RR land use designation and Agricultural zoning. Besides the 70-foot strip on the eastern side, Mr. Enzor owns the other property that surrounds the larger parcel to the south and west; however, the extent of that property is not of record. Just to the east-northeast and adjacent to the Enzor property is a residential subdivision (Antioch Estates) comprised of around 125 homes. The subdivision is divided into two sections - the larger section lying north of I-10 and the smaller section located just south of I-10. It is unclear whether the entire subdivision has 125 units, or if the southern portion alone has that number. In any event, Petitioner and members of the public who offered comments at the hearing reside in the southern portion of the subdivision and oppose the application. At its closest point, the western boundary of the subdivision (particularly lots 51-55) appears to be slightly more than 600 feet from the 9.98-acre parcel, but no more than 70 feet or so from the eastern boundary of the larger parcel. The distance to the proposed concrete batch plant, which will lie in the south-southwest end of the subject property, is slightly less than one-quarter mile. An elementary school (Antioch Elementary School) with an enrollment of around 800 students and 100 staff, built sometime after 1996, is located just east of Antioch Estates. A former borrow pit, Blocker Pit, lies south of the subdivision, while an active borrow pit, Garret Pit, lies around one-half mile or so southeast of the subdivision. Antioch Estates is classified by the City as Low Density Residential (LDR), while the school is in the Public Use land use category. Under FLUE Policy 7.A.3.4.a., the LDR category "is limited to residential uses, customary accessory uses, recreation uses, churches and places of worship and planned unit developments. Non-profit and civic organizations may be permitted by special exception. This category is intended for single family homes which may be developed with up to six (6) units per gross acre." Antioch Road appears to be a major arterial road running in a northwest-southeast direction (crossing over or under I-10) just east of the elementary school. (Less than a mile southeast of the school, Antioch Road becomes P.J. Adams Parkway.) All vehicles wishing to access the school, Antioch Estates, or the 9.98-parcel (as well as the larger B & H parcel) must do so by turning off of Antioch Road onto Garret Pit Road, a County-maintained road which intersects with Antioch Road just south of I-10. Within a short distance, Garret Pit Road intersects with Whitehurst Lane, a paved road which runs in a northwest direction from Garret Pit Road to the school and eventually makes a loop in the subdivision. At the Whitehurst Lane intersection, Garret Pit Road turns into a dirt road. Vehicles traveling to B & H's property continue south on Garret Pit Road for 300 feet or so until it intersects with Point Center Road, a privately-owned, unplatted and undedicated dirt road which runs directly west from Garrett Pit Road (and roughly parallel to I-10) through the Enzor strip and into the eastern side of the B & H property. From there, it appears that vehicles would turn south for a short distance on Borrow Pit Road (also referred to as Barrow Pit Road on certain map exhibits), another dirt road which eventually turns westward when it reaches the southern boundary of B & H property. The 9.98-acre parcel is around 66 feet north of Borrow Point Road. According to a B & H witness, Point Center Road and Borrow Pit Road are not actually roads, but are more akin to dirt trails which trucks now use to reach the excavating and land fill sites. Finally, Point Center Road passes approximately 140 feet south of, and parallel to, the southern boundary of Antioch Estates. When the subject property was annexed into the City, it retained the County FLUM designation of RR and zoning of Agricultural. The FLUM and zoning designations are retained until a plan amendment and rezoning is approved by the City. Under the County's Plan, residential uses in RR must not exceed one unit per five acres. There is currently an inactive borrow pit (covering around six acres) on the southern part of the 9.98-acre parcel, which extends westward into the larger parcel. B & H says it has no intention of resuming this operation. A small storage facility with "manholes," "pipe," and other "equipment" sits on the southwestern corner of the property, while a small wetlands area of less than an acre occupies the northwestern corner. To the west of the subject parcel on the northwestern corner of the larger parcel is an active, permitted 7.5-acre Construction & Demolition (C & D) landfill. There is some ambiguity in the testimony over the actual size of the landfill; however, in DEP's letter of intent dated March 17, 2006, which transferred Permit No. 0002800-002-SO from the original owner (Point Center, Inc.) to B & H, it stated that B & H is authorized to operate a 7.5-acre disposal unit until March 17, 2010. See Petitioner's Exhibit B. Although the useful life of the existing C & D landfill will eventually run out, at the hearing B & H's Project Manager stated that the company has an application pending with DEP to expand the landfill. The status of that matter is unknown. Expansion of a non-conforming land use, however, may be problematic. See Finding of Fact 21, infra. Besides the active C & D landfill, B & H is also periodically retrieving fill dirt from the larger parcel for site work operations, using up to 30 dump trucks for this work. According to a witness, the larger parcel still has around 3,000,000 cubic yards of usable dirt. Whether B & H is authorized to conduct borrow pit operations on the larger parcel is not of record. More than likely, once the landfill is used up (or no later than March 2010 when the permit expires unless it is renewed), the non-conforming use will have run its course, and the RR designation will apply to all future activities on the larger parcel. Although the entire B & H parcel was classified as RR, the borrow pit and C & D landfill are non-conforming uses under the County's Plan, presumably having been in existence before the County's Plan was adopted. A non-conforming use is one where the actual use of the property is not consistent with the future land use of the comprehensive plan or not consistent with the zoning of the property. There are very strict parameters as to whether or not you can change or modify a non-conforming use. Normally, changes to non-conforming uses are not allowed. A non-conforming use can not be expanded. B & H has acknowledged that it intends to seek annexation of the entire larger parcel into the City. With the exception of the C & D landfill, it is also planning to request a FLUM amendment from RR to IN for the remainder of the larger parcel. Thus, if the instant application is approved, it is fair to say that this action will be the forerunner of an effort to reclassify the entire 75.56 acres (except the 7.5-acre landfill) as industrial property, leaving only the 70-foot strip of Enzor property as a RR buffer between the industrial land and the subdivision. Petitioner's Objections Ten-Acre Maximum Petitioner's first objection is that the amendment does not meet the statutory criteria for a small-scale development amendment because the use involves more than 10 acres. See § 163.3187(1)(c)1., Fla. Stat. ("[t]he proposed amendment [must involve] a use of 10 acres or fewer"). Petitioner argues that parcel size is not the only determinant of what must be included in the amendment, and that any acreage that is integral to the design and operation of the proposed use is considered in determining whether the small scale development amendment criteria are met. Petitioner argues that B & H failed to include in the amendment all acreage that is integral to the design and operation of the proposed use. It is undisputed that the subject parcel is 9.98 acres, as determined by Kermit George, who sealed the property's survey for B & H, and as confirmed by City employee Teresa Gaillard by using the Autocad software program. Relying primarily upon site plans for the concrete batch plant filed by B & H with the City, however, Petitioner contends that the acreage (.0604 acres) related to a 66-foot driveway which will access the south side of the property from Borrow Pit Road, the acreage (1.607 acres) related to the use of Borrow Pit Road after turning off of Point Center Road, the acreage (.052 acres) for an easement necessary to run a County water line from B & H's southern property line to the smaller parcel, and the 150-foot buffer on the east side of the site (which will be required by the City when or if a concrete batch plant is permitted and built) must be included in the total amount of acreage. Excluding the buffer, Petitioner has calculated this additional land to total 1.7194 acres. Petitioner argues that even if only one of the above items is included, it would cause the size of the amendment to exceed ten acres and lose its status as a small-scale development amendment. It is fair to infer from the evidence that the dirt trail that makes up Borrow Pit Road, as well as the 66-foot trail from Borrow Pit Road to the subject property, are already being used by B & H trucks or other vehicles to access the landfill and borrow pit area. Therefore, this "infrastructure" will be used for other purposes, irrespective of whether development on the 9.98-acre parcel occurs. At the same time, the City's planning expert noted that good planning practices do not require that the land necessary to access a parcel with roads or utilities, and off-site buffering, be included in calculating whether the "use" of the parcel exceeds 10 acres. Except as to the buffering issue, this interpretation of the statutory language is more logical and reasonable than Petitioner's approach and is hereby accepted. Compare Parker v. St. Johns County et al., DOAH Case No. 02-2658, 2003 Fla. ENV LEXIS 34 at *12 (DOAH Dec. 17, 2002, DCA Feb. 27, 2003)("[i]t would be unreasonable to construe Section 163.3187(1)(c)1., Florida Statutes, as requiring local governments and applicants to calculate pro rata share impacts of off-site utilities, determine proportionate acreage based on those impacts, and apply those figures to the small scale acreage calculations"). The issue of whether the acreage related to the off- site buffering should be included as a use is not so clear cut. The City Land Development Code (LDC) requires that there be appropriate buffering between industrial and residential land uses. While the pertinent portion of the LDC is not of record, the evidence submitted by B & H and the City shows that an approximate 150-foot buffer will be necessary on the eastern side of the parcel. A City witness testified that the buffering "would normally take place upon the property being developed." However, because the use will occur in an existing borrow pit (which is 20 feet below the surface of the adjacent land), the City concluded that it would be more appropriate to place any required vegetative buffer and fencing off-site on the edge of the larger parcel, also owned by B & H. The buffering is an integral part of the project being placed on the parcel. In other words, the plant cannot be built without the required buffering. Therefore, the land on which the buffer and fence will be placed should be included as an integral part of the property's use. Compare St. George Plantation Owners' Association, Inc. v. Franklin County et al., DOAH Case No. 96- 5124GM, 1997 Fla. ENV LEXIS 37 at *18-20 (DOAH Feb. 16, 1997, Admin. Comm. Mar. 25, 1997) where three off-site absorption beds required to serve a wastewater treatment plant were considered an integral part of the facility, thereby increasing the size of the amendment's "use" from 9.6 to 14.6 acres. By adding the acreage for the 150-foot off-site buffer and fencing to the 9.98 acres, the use of the property that is the subject of the amendment clearly involves more than 10 acres and cannot qualify as a small-scale development amendment. Data and Analysis Petitioner also objects to the amendment as not being supported by relevant and appropriate data and analysis, as required by Section 163.3177(8) and (10)(e), Florida Statutes, and Florida Administrative Code Rule 9J-5.005(2). Paragraph (2)(a) of the rule requires that "plan amendments . . . shall be based upon relevant and appropriate data and the analyses applicable to each element." To be based on data "means to react to it in an appropriate way and to the extent necessary indicated by the data available on that particular subject at the time of the adoption of the . . . plan amendment at issue." Id. Petitioner points out that B & H has acknowledged (by way of answers to Requests for Admissions and stipulated facts in its Motion in Limine) that it did not present to the City any studies or data related to noise, traffic, property values, air pollution, or protected natural resources that may be impacted by, or attributable to, a concrete batch plant being placed on the subject property. She also argues that to the extent an analysis was made in the City's staff report (as to infrastructure demands, protection of wetlands and natural resources, traffic, financial feasibility, and compatibility), it was based on incorrect data or was otherwise insufficient. The City's planning consultant prepared the staff report for the City, which summarizes the data and analysis supporting the amendment. See § 1, Joint Exhibit E, which is a six and one-half page staff report. The analysis was performed on the premise that a concrete batch plant would be located on the subject property. The staff report indicates that "[t]he purpose of the amendment is to provide for the development of a concrete batch plant." See page 1, § 1, Joint Exhibit E. The staff report contains in summary form the data and analysis supporting the amendment. Section 1 reflects that the City relied upon (a) FLUM map sheet 7-5, which indicated that all adjacent lands except I-10 on the north side are in the RR land use category while lands in the vicinity are classified as LDR, MDR, Conservation, Public Lands, Industrial, and Commercial; (b) data reflecting that the existing use of land on the subject property is vacant and undeveloped; the larger B & H parcel contains a C & D landfill and is otherwise vacant; adjacent properties include numerous single-family homes and subdivisions, existing and planned multi-family projects, planned commercial uses, and a school; and wetlands are located in the northwest corner of the subject property; (c) data showing that the type of development on the property will be a concrete batch plant; (d) data showing that the amendment will "result in a significant decrease in potential demands on all City infrastructure systems" (potable water, sewer, solid waste, recreation/open space, drainage, and traffic) because it will eliminate potential future demands for residential units that would otherwise be allowed on the RR property; (e) data reflecting that the change in land use is compatible and suitable with adjacent lands because the proposed facility is "not adjacent to any homes, schools or other similar uses," and the adjacent properties are owned by B & H; (f) data showing that the site is generally level with an average elevation of 100 feet; (g) data in the Soil Survey of Okaloosa County, Florida indicating that the soil "is suited for the planned use and development of the subject property"; (h) data reflecting that there is "a small area with wetland soils" in the northwest corner of the property which will not be developed; and (i) data indicating that there are no historic and archeological resources on the property. The consultant also reviewed the current Plan to determine if the plan amendment was consistent with all relevant provisions and concluded that the "amendment is consistent with and furthers the adopted Comprehensive Plan." He added that at the same time the small-scale amendment was being considered, the City was also considering a set of large-scale amendments to its Plan (presumably to the FLUM), and the data and analysis used for those amendments provide further support for the amendment being challenged. However, the nature of the large- scale amendments, and their underlying data and analysis, are not of record or otherwise identified. Finally, the City did not perform a concurrency analysis since it says that the Department no longer requires one at the amendment stage and instead defers that task until the development process begins. Whether the City specifically considered the concerns noted in the County's staff report recommending a denial of the land use change is not clear. However, the staff report discounted the notion that the amendment would encourage urban sprawl (or "spot zoning" in the words of the County staff report) since it promotes urban infill development. In response to a criticism by Petitioner, at hearing the City's consultant utilized further data from City sources, presumably available at the time the amendment was adopted, which indicate that the total available capacity for new customer usage from the City's water system is 3.2 million gallons per day, or far more than is necessary to meet the water requirements related to the proposed industrial usage. Without providing specifics, the consultant also opined that if the County is called upon to provide water to the site, as B & H now intends, it likewise has sufficient capacity to do so. In analyzing the impacts on infrastructure, the City assumed that a change from RR to IN, and the placement of a concrete batch plant on the property, would "result in a significant decrease in potential demands on all City infrastructure systems." The more persuasive evidence shows, however, that when comparing the new traffic that would be generated by potential residential units on the property versus a concrete batch plan, the latter would probably generate an increase of at least 110 vehicle trips per day, most by heavy trucks, which is more than five times the number of trips used in the City's analysis. In contrast, the staff report stated that the projected demands from development of the plant "[i]n theory, [could result in] up to 20 trucks trips per day" but this high a number was "not likely." In this respect, the data being used and analyzed were not correct or were incomplete, and the City's assumptions drawn from that data were flawed. Thus, as to these impacts, the amendment is not supported by adequate data and analysis. Although the staff report also failed to reflect the increased water usage that would be generated by the concrete batch plant, at hearing the City relied upon available data to show that both the City and County had sufficient capacity to provide water service for the plant. To a certain degree, compatibility and suitability overlap one another. "Compatibility" is defined in Florida Administrative Code Rule 9J-5.003(23) as "a condition in which land uses or conditions can coexist in relative proximity to each other in a stable fashion over time such that no use or condition is unduly negatively impacted directly or indirectly by another use or condition." This criterion is used to evaluate whether the proposed industrial land use is compatible with the uses on nearby or adjacent properties. On the other hand, subsection (128) of the rule defines "suitability" as "the degree to which the existing characteristics and limitations of land and water are compatible with a proposed use or development." This criterion requires a determination of whether the industrial land use category is suitable in this particular area, given the existing characteristics of the land. After reviewing and analyzing data on the issue of suitability and compatibility, the City concluded that because B & H owned all the lands around the site (except on the northern boundary which adjoined I-10), "adverse issues [not otherwise identified in the report] associated with compatibility should be minimized." To further support its finding of suitability and compatibility, the report went on to state that the subject property "is not adjacent to any homes, schools or other similar uses." While the data used by the City (such as the FLUM map) were adequate, the City did not react to it in an appropriate manner. The City is correct in concluding that a change to an industrial land use category may be suitable on land where a non-conforming borrow pit already exists. However, because the proposed industrial use is in "relative proximity" to rural residential land on three of its sides, a large residential subdivision that begins no more than 200 yards away, an access road used by numerous heavy trucks which lies only 140 feet south of the subdivision, and a single outlet for all traffic exiting the subdivision, school, and B & H property, it is fair to infer that there will be a direct or indirect negative impact on those adjacent or nearby uses in contravention of Florida Administrative Code Rule 9J-5.003(123). In this respect, the amendment is not supported by adequate data and analysis. The City's recognition of the wetlands area on the subject property, and its finding in the report that such lands would be protected if development occurs, constitutes sufficient data and analysis and appropriate reaction thereto to satisfy the statute and rule. Petitioner also contends there was no analysis related to the fact that Point Center Road, the private road used to access the parcel, crosses wetlands "at the bottom of the hills," and the wetlands will be impacted by the change. As pointed out at hearing, however, the road has been there "forever," and filling of the adjacent wetlands occurred many years ago, or long before B & H acquired the property. Other than paving the road if the land change is approved, no other "filling" will occur, and the City's assessment of this matter was sufficient. All other contentions by Petitioner regarding the lack of sufficient data and analysis to support the amendment have been considered and rejected. Financial Feasibility Section 163.3177(2), Florida Statutes, requires that "the comprehensive plan shall be financially feasible." Relying upon this statute, Petitioner contends that the City failed to analyze whether the amendment was financially feasible. According to Petitioner's expert, when a FLUM change is made, a financial feasibility analysis must be made, which requires that the local government make a facility-based analysis to demonstrate whether the local government has sufficient capacity for the change. Specifically, she argues that there is no commitment from the County to provide water, and that the City did not analyze whether the City or County has the capacity to provide sufficient water to serve a concrete batch plant. Although the staff report addresses this issue in summary fashion and without specifics, at hearing the City's planning consultant testified, without contradiction, that the total available capacity from the City's water system is 3.2 million gallons per day, or far more than is necessary to meet the potential water requirements of a concrete batch plant on the site. He also opined, without contradiction, that if the County is called upon to provide the water, it likewise has sufficient capacity to do so. Based upon this analysis of available data, it is found that financial feasibility was adequately addressed by the city. Intergovernmental Coordination Petitioner next contends that the City did not evaluate and coordinate the amendment with the County, as required by Section 163.3177(4)(a), Florida Statutes, Florida Administrative Code Rule 9J-5.015, and the Intergovernmental Coordination Element (ICE) of the City's Plan. The statute provides in part that "[c]oordination of the local comprehensive plan with the comprehensive plans of . . . the county . . . shall be a major objective of the comprehensive planning process." The two most relevant provisions in the Plan on this subject, both very general in nature, are ICE Goal 13.A., which states that a goal of the Plan is to "[p]rovide coordination of this plan (ordinance) with Okaloosa County, other local governments (as appropriate) and other governmental agencies providing services within the City[,]" and ICE Objective 13.A.1., which provides that the City shall "review, on an annual basis, actions that have taken place to coordinate the Comprehensive Plan of Crestview with the Plans of other units of government and the Okaloosa County School Board." Although the County was given constructive notice of B & H's annexation request through the publication of a notice in a local newspaper on July 7, 2007, there is no evidence that the County was given specific notice that an application for a change in the FLUM had been filed by B & H and was being processed by the City, or that the County was afforded an opportunity to provide input into that process, if it chose to do so. Given the unique circumstances here, coordination is especially important since the subject property is surrounded on three sides by County land designated as RR with Agricultural zoning, the requested change would create a small industrial pocket in the middle of County RR land, and the County staff had just prepared a report recommending denial of the same change before the City annexed the property. While the cited statute, rule, and Plan provisions clearly do not contemplate that adjacent local governments have veto power over the City's ability to enact plan amendments, or that the City is required to accept alternative suggestions proposed by other entities, at a minimum they contemplate that notice of changes be given to adjacent local governments, and that those local governments be afforded the right to offer input, if any, prior to consideration of the amendment. See, e.g., City of West Palm Beach et al. v. Department of Community Affairs et al., DOAH Case Nos. 04-4336GM, 04-4337GM, and 04-4650GM, 2005 Fla. ENV LEXIS 192 at *34-35 (DOAH July 18, 2005, DCA Oct. 21, 2005). Because there was no coordination here, even minimal, the adoption of the plan amendment contravened the cited statute, rule, and ICE Goal 13.A. Internal Consistency Petitioner next argues that, contrary to the requirement in Section 163.3187(2), Florida Statutes, that there be "internal consistency" within a plan, the amendment is inconsistent with the Plan in the following respects: quality of life (Legal Element Section 1.04); compatibility (FLUE Policy 7.A.1.2.c.); school siting (FLUE Policy 7.A.9.1.); and wetlands impacts (Conservation Element Goal 11.A and Objective 11.A.2.). Petitioner first contends that the amendment is inconsistent with the stated general intent and purpose of the Plan, which is found in Section 1.04 of the Plan's Legal Element. That Element contains a "whereas" clause, the Plan's title, jurisdiction for adopting the Plan, the City Council's intent in adopting the Plan, and its effective date. The Element indicates that it is intended to implement Florida Administrative Code Rule 9J-5.001, which sets forth the broad purposes of Florida Administrative Code Rule Chapter 9J-5. Section 1.04 provides in relevant part that the Plan is intended to "maintain and improve the quality of life for all citizens of the City" and to protect and promote the "public health, safety and general welfare of its citizens." This salutary language is so broad and aspirational in nature that the undersigned does not construe it, or other provisions in the Legal Element, as an appropriate basis for finding an amendment not in compliance. Petitioner's argument is accordingly rejected. Petitioner also argues that the amendment is inconsistent with the Plan's requirement that compatibility of adjacent land uses be ensured. FLUE Policy 7.A.1.2.c. appears to be the only Plan provision specifically dealing with this issue and it provides that the LDC shall contain detailed provisions to "ensure compatibility of adjacent land uses." B & H and the City take the position that during the zoning and development phase of the process (rather than during the plan amendment stage) the LDC would be used to ensure compatibility, as required by the Plan. However, the issue of compatibility was analyzed by the City and presented to the City Council, and the staff report contains an entire section on compatibility and suitability. See Finding of Fact 30, supra; § 1, pages 3-4, Joint Exhibit E. Therefore, it is appropriate to consider at the plan amendment stage whether the change in land use is compatible with adjacent or nearby properties. As noted earlier, Antioch Estates is a low-density residential subdivision directly to the east of the B & H parcel. At its closest point, the subject property is around 200 yards from the subdivision. The distance from the subdivision to the proposed concrete batch plant is less than a quarter-mile. At the same time, the road over which the heavy trucks will travel to and from the industrial site is no more than 140 feet south of the southern boundary of the subdivision, and the connecting road eventually terminates at an outlet onto Antioch Road shared by traffic from the subdivision and school. Finally, B & H acknowledges that the proposed change here is a precursor to a request for annexation of the larger parcel into the City and a change in the land use on the larger parcel (except for the land fill) to industrial. This would leave the Enzor property (which is only 70 feet wide) as the sole remaining RR buffer with Antioch Estates. Given these considerations, the change in land use will not "[e]nsure compatibility of adjacent land uses," as required by FLUE Policy 7.A.1.2. Finally, Petitioner contends that the amendment is inconsistent with FLUE Policy 7.A.9.1.1., which provides that a "proposed school location shall be compatible with existing and projected uses of adjacent property." (Emphasis added). Since the Antioch Elementary School already exists, it appears that this provision has no application. For the same reason, Petitioner's contention that the amendment contravenes Section 1013.36(3), Florida Statutes, is also rejected. That statute requires that a new school should not be sited adjacent to factories or other properties from which noise, odors, or other disturbances would be likely to interfere with the educational program. While compatibility issues with existing schools are relevant when a map change is being made, they can only be considered in the context of Plan provisions which directly apply to those issues. Summary In summary, because the amendment involves a use of more than 10 acres, it does not meet the criteria in Section 163.3187(1)(c)1., Florida Statutes; the amendment is not supported by adequate data and analysis with respect to impacts on infrastructure (traffic) and compatibility; the amendment contravenes the statutory, rule, and Plan requirement that it be coordinated with other local governments; and it is internally inconsistent with FLUE Policy 7.A.1.2.c., which requires compatibility of adjacent uses. All other contentions raised by Petitioner have been considered and rejected.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order determining that the small-scale development amendment adopted by the City by Ordinance No. 1370 on November 26, 2007, is not in compliance. DONE AND ENTERED this 21st day of April, 2008, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of April, 2008.
The Issue The issue is whether a change on the Future Land Use Map (FLUM) of the Comprehensive Plan (Plan) adopted by Respondent, Manatee County (County), by Ordinance No. 09-31 on August 11, 2009, is in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: The Parties The Department is the state land planning agency charged with the responsibility for reviewing plan amendments of local governments, including the County. The County is a local government that administers its Plan, which it amends from time to time. The County adopted the Ordinance which approved the change in the FLUM being challenged here. Petitioner is a Florida limited liability company with offices located at 4379 Ocean Boulevard, Sarasota, Florida. It owns property in the County. Petitioner appeared at the transmittal hearing for the amendment and submitted comments on the record in opposition to the amendment. FBE is a Florida limited liability company and has contracted to purchase the subject property from Patron. It operates a renewable energy development company in the County. It submitted comments to the County during the adoption process. Patron is a Florida limited liability company that owns the subject property. It submitted comments in support of the plan amendment during the adoption process. History of the Amendment On March 27, 2009, FBE (as agent for Patron) filed a Land Development Application (application) with the County Planning Department requesting approval of a FLUM change for the property from IL to P/SP(1). See Joint Exhibit 1. The existing IL land use authorizes office, light industry, research/ corporate parks, warehouse distribution, intensive commercial uses, neighborhood retail uses, hotel/motel, selected single- family, and residential uses. See Joint Exhibit 12. The Plan describes the general range of potential uses under the new category as recreational uses, sanitary landfills, permanent water and wastewater treatment/storage/disposal facilities, and other public facilities including, but not limited to, public airports, major maintenance facilities, solid waste transfer stations, and major utility transmission corridors. Id. Residential uses are not allowed. One intent of the P/SP(1) category is to recognize facilities associated with private utilities, such as the biomass plant proposed by FBE. Id. The application indicated that FBE intends to operate a sixty-megawatt biomass integrated power plant on the property and to continue to retain all uses allowed by the IL category. (In contrast to a power plant that uses coal or oil to generate electricity, a biomass plant uses renewable energy sources such vegetative materials to create electric energy.) The power generated at the facility will be sold to Progress Energy Florida, an investor-owned public utility. The application was accepted, numbered PA-09-08, and assigned Ordinance No. 09-31. Sometime in early April 2009, a staff report was prepared by the County's Principal Planner, Leon Kotecki, which included land use characteristics and development trends, plan amendment justification, and positive and negative aspects of the application and mitigating factors. See Joint Exhibits 5 and 6. The staff report also included what is described as a Plan Amendment Detailed Review and Land Planning Analysis that discussed services and natural features, urban development considerations, and consistency with the Plan, the State Comprehensive Plan (State Plan), Florida Administrative Code Rule Chapter 9J-5,1 and relevant portions of the Florida Statutes (2009).2 The report recommended that the application be approved. In making this favorable recommendation, the planner compiled and reviewed data on land compatibility, traffic impacts, and water and sanitary uses. He also took into account the topography of the site, how the Coastal High Hazard Area (CHHA) affected the site, its proximity to Port Manatee, and the surrounding uses. On April 4, 2009, the County published an advertisement of a public hearing on the application in the Bradenton Herald and the Sarasota Herald Tribune. Also, letters were sent to all property owners within 500 feet of the proposed amendment. Petitioner received personal notice of the amendment by letter dated May 20, 2009. On April 16, 2009, the Planning Commission conducted a hearing on the plan amendment and by a 4-1 vote recommended transmitting the amendment to the Board of County Commissioners. On April 21, 2009, the Board of County Commissioners conducted a public hearing and voted 6-0 to transmit the proposed amendment (as a part of a larger amendment package) to the Department for its review. On June 29, 2009, the Department issued its Objections, Recommendations, and Comments (ORC) report for a series of map amendments, including the biomass project. See Joint Exhibit 4. In the ORC, the Department lodged an objection regarding the lack of sufficient planning guidelines as required by Future Land Use Element (FLUE) Policy 2.2.1.22(4)(b)(i), specifically noting that the amendment did not restrict the property to a particular use. Id. at p. 3. That policy requires that an amendment for a proposed P/SP(1) category include a declaration of the specific use for which the P/SP(1) category is sought. The ORC also indicated that the amendment was not consistent with various goals, policies, and objectives in the State Plan for the reasons cited in the Objections portion of the ORC. Id. at pp. 3-4. The ORC recommended that the amendment include site-specific policies establishing meaningful and predictable guidelines and standards to guide development on the site. Id. at p. 3. After receipt of the ORC, the County revised the plan amendment by including a text amendment containing ten conditions (stipulations) that would apply if the property was developed as an electric generating facility using biomass fuels and/or solar energy. These conditions were included in the adopting ordinance as a new Section D.5.4 in the General Introduction Chapter and are a part of the Plan. See Joint Exhibit 10 at pp. 4-5. The new section provides that the property is limited to an "electricity generating facility using only biomass fuels and solar energy retaining the light industrial uses as provided for in the former IL Industrial Future Land Use Category applicable to the site." Id. at p. 4. The section further provides that the ten conditions are "minimal requirements" and that further conditions may be added during the development process, as necessary. Id. at p. 5. Thus, future stipulations at a later date can exceed the minimum requirements in the County's Land Development Code. On August 11, 2009, the County conducted a public hearing and adopted Ordinance No. 09-31, with the changes presented by its staff. On September 29, 2009, the Department published its Notice of Intent to find the amendment in compliance in the Bradenton Herald. On October 20, 2009, Petitioner filed its Petition challenging the map change and text amendment. The issues have been more narrowly defined in its Proposed Recommended Order and can be summarized as follows: the amendment is internally inconsistent with FLUE Policy 2.2.1.22.2 and is inconsistent with Rule 9J-5.006(3)(c) and Section 163.3177(6)(a), Florida Statutes, because it impermissibly allows IL uses in the P/SP(1) land use category; the amendment is inconsistent with Rule 9J- 5.006(3)(c)1. and 7. and Section 163.3177(6)(a), Florida Statutes, because it impermissibly expands the uses in the P/SP(1) category by including IL uses and does not contain the required intensity standards; the amendment is internally inconsistent with FLUE Policy 2.2.1.22.4.(b)(i) because it fails to declare a specific use for the IL uses; the amendment is inconsistent with the financial feasibility requirements of Section 163.3177(2), Florida Statutes, and Rule 9J-5.019(3); the amendment is inconsistent with the requirements of Rules 9J- 5.006(2)(b) and 9J-5.005(2)(a) and Section 163.3177(6)(a), Florida Statutes, because it is not based on an analysis of the best available data regarding the suitability of the site for a biomass facility; and the amendment is inconsistent with the requirements of Rule 9J-5.005(2)(a) because it was not based on an analysis of the best available data for compatibility with residential uses in the surrounding area. The Property and Surrounding Uses Patron's property consists of around 44.4 acres and is located at 11551 and 11805 U.S. Highway 41 North in the northwest part of the County, just south of the Hillsborough County line. The eastern side of the property adjoins U.S. Highway 41, a major four-lane highway running north-south, while property owned by CSX Corporation (CSX), including an active railroad track, and then a large drainage canal border the site on its western side. (The railroad track is around one-quarter mile west of U.S. Highway 41.) West of the canal is agricultural land and a large parcel owned by Port Manatee designated as IL but used as conservation lands. To the south (in IL-designated land) lies an aircraft parts manufacturing facility owned by Trielectron Industries, which shares a boundary with Petitioner's property. To the north, the site adjoins property owned by Florida Power & Light Company, on which a substation is located. FBE plans to connect its power plant to the electric grid through this substation. The property is bisected by Armstrong Road, an unpaved County-maintained road running east-west, which provides access from U.S. Highway 41 to Patron's property and the land just west of the CSX property. Approximately one-third of the property lies north of Armstrong Road, while the remaining two-thirds lie south of the road. The southern 450 to 500 feet of the site consists of wetlands, forests, and vegetation, which serve as both a distance and visual buffer to uses to the south and southwest. (Because of these wetlands, a biomass plant would have to be constructed on the middle of the site.) Immediately west of the CSX property is an unpaved road that turns south to provide access to row crop fields and then to an 88-acre, rectangle-shaped parcel owned by Petitioner. Port Manatee, a deepwater seaport connected to the Gulf of Mexico through Tampa Bay, is less than a mile north of the site. The area between Port Manatee and Patron's property contains port-related uses which are mostly industrial uses such as construction yards and an aggregate plant. To the east of the port is a closed phosphate processing plant and associated phosphogypsum stacks, which are the remains after the phosphate is processed. The existing zoning on the property is Planned Development Encouragement Zone (PDEZ). The existing uses allowed under that category include a range of light and heavy industrial uses and are listed on the General Development Plan approved by the County on December 4, 2008. See County Exhibits 13 and 24. This information is relevant here because the zoning classification is consistent with the County's intent to focus heavy industrial uses within close proximity to Port Manatee. Development trends in the area of Port Manatee and the Patron property are predominately industrial. All of the surrounding development is either light or heavy industrial uses with the exception of six single-family homes located on Chapman Road, which terminates on the eastern side of U.S. Highway 41 just south of the site and extends eastward. The homes are located in a strip of land extending east on Chapman Road for a quarter mile or so and south for around a mile on the eastern side of U.S. Highway 41 that is classified as Retail/Office/ Residential (ROR). That category allows a range of uses including retail, wholesale or commercial uses, and public or semi-public uses. Thus, the residential units have the potential to eventually transition to nonresidential uses without a map change. There remain a few open parcels of land in the area that are available for additional development. Petitioner's property comprises around 88.7 acres. The southwest corner of Patron's property lies around one- quarter mile from the northeast corner of Petitioner's property. Counting the 450-foot green space on the southern end of Patron's property, the distance between the site of the plant and Petitioner's main parcel is around 1,900 feet. Petitioner also owns a narrow strip of land extending northward from the main parcel to Armstrong Road. This strip adjoins the western side of the CSX railroad track and provides access to the property from U.S Highway 41. On November 30, 2004, the County approved a residential project for Petitioner's property and rezoned the land from Suburban Agriculture and Suburban Agriculture/Coastal High Hazard Overlay District to Planned Development Residential/ Coastal High Hazard Overlay District. The project is known as the Estates at Bishop Harbor. The Preliminary Site Plan for the property depicted 66 lots for single-family detached residences. Before any development occurred, however, the original developer defaulted on the mortgage held by Petitioner, a foreclosure occurred, title to the property reverted to Petitioner, and no development ever occurred. The property is still vacant. At the time of the hearing, Petitioner had an application pending before the County to change the land use designation on 83.31 acres from Residential-1 (one dwelling unit per acre) to IL. The outcome of that application is unknown. The remaining 5.39 acres are already designated IL. Based on these circumstances, it is fair to infer that the long-delayed construction of the planned residential subdivision is questionable. Stipulation 6 of the approval of the change in land use on Petitioner's property was a requirement that a Notice to Buyers be included in the Declaration of Covenants and Restrictions and in the sales contracts or a separate addendum to the sales contracts and final site plans that includes language informing prospective homeowners that there are neighboring industrial uses and the potential for future industrial development including possible truck traffic and noises associated with industrial uses. Petitioner's Objections Petitioner first contends that the plan amendment is internally inconsistent with FLUE Policy 2.2.1.22.2 and inconsistent with the requirements of Rule 9J-5.006(3)(c) and Section 163.3177(6)(a), Florida Statutes, because it permits light industrial uses in the P/SP(1) land use category. Petitioner argues that IL uses are not permitted in the P/SP(1) category. It also argues that by failing to include specific intensity standards in the amendment for the allowed IL uses, the amendment is inconsistent with the requirements of Rule 9J- 5.006(3)(c)1. and 7. and Section 163.3177(6)(a), Florida Statutes. The rule requires that the FLUE contain policies regulating land use categories included on the FLUM and establishing standards for intensities of use for each future land use category. The statute requires that each land use category be defined in terms of uses allowed and include standards to be followed in the control and distribution of building and structure intensities. Policy 2.2.1.22 establishes the P/SP(1) land use category; Policy 2.2.1.22.1 describes the intent of the category; Policy 2.2.1.22.2 describes the general range of potential uses in the category; and Policy 2.2.1.22.3 provides the range of potential intensity for the category. The general range of potential uses in the P/SP(1) category include: Recreational uses, sanitary landfills, permanent water and wastewater treatment/ storage/disposal facilities and other major public facilities including but not limited to, airports owned or operated by a public entity, major maintenance facilities, solid waste transfer stations, [and] major utility transmission corridors. Also, when the P/SP(1) designation is an easement on privately-held property, other uses consistent with the adjacent future land use category or categories, where consistent with the purpose of the easement and consistent with all other goals, objectives, and policies of this Comprehensive Plan, may also be considered. (See also Policy 2.1.1.5) Policy 2.1.1.5 provides further clarification on the allowed uses in this category by requiring that the County ensure the availability of sufficient land in the P/SP(1) category "to allow development of major public or semi-public uses (e.g., electrical generation facilities . . .) in appropriate areas when compatible with surrounding development." Joint Exhibit The Plan permits light industrial uses within the P/SP(1) category. Notwithstanding the broad range of uses described above, FLUE Policy 2.2.1.5 provides the County with more flexibility in determining the appropriate uses for any given plan category. The policy states that the future land use category listings of uses are "generalized," they are not "all inclusive," and they "may be interpreted to include other land uses which are similar to or consistent with those set forth in the general range of potential uses." See Joint Exhibit 12. IL uses are similar in character and intensity to the type of uses listed in the P-SP(1) category. Because the property was classified as IL before the amendment, all of the IL uses in that category have been evaluated and determined by the County to be appropriate in terms of location, impact, and intensity. For these reasons, it is fairly debatable that the plan amendment is consistent with FLUE Policy 2.2.1.22.2, Rule 9J- 5.006(3), and Section 163.3177(6)(a), Florida Statutes. Likewise, the P-SP(1) category has a broad range of uses in terms of intensity, and even though the amendment does not contain specific intensity standards for the IL uses, the Plan contains other provisions required by Chapter 9J-5 to ensure compatibility between any future uses on the site and the surrounding properties in terms of intensity. Therefore, it is fairly debatable that the plan amendment is consistent with Rule 9J-5.006(3)(c)1. and 7. and Section 163.3177(6)(a), Florida Statutes. Petitioner further argues that the plan amendment is inconsistent with FLUE Policy 2.2.1.22.2.4(b)(i), which requires that "[a]n applicant shall be required to declare a specific use or uses for a specific piece of property for which the applicant is proposing to amend the existing future land use category to P/SP(1)." Petitioner argues that while FBE has identified one specific use for the P/SP(1) category -- a biomass plant -- it has not declared the specific use or uses which FBE is proposing under the IL category. Because the light industrial uses allowed under the IL category remain the same as before the amendment, and were previously evaluated when the Plan was originally adopted in 1989, it is fairly debatable that the amendment is consistent with FLUE Policy 2.2.1.22.2.4(b)(i). The generalized reference to IL uses is adequate since it merely recognizes uses already approved and in effect. In its Proposed Recommended Order, Petitioner also contends that the plan amendment is inconsistent with the financial feasibility requirements of Section 163.3177(2), Florida Statutes, and Rule 9J-5.019(3) because the County's five-year Capital Improvements Program contains no programmed improvements for U.S. Highway 41. The rule requires that there be a transportation analysis to support a FLUE amendment. However, this issue was not raised in the parties' Stipulation and need not be addressed. See Heartland Environmental Council, Inc. v. Dept. of Comm. Affrs., et al., Case No. 94-2098GM, 1996 Fla. ENV LEXIS 163 at *63 (DOAH Oct. 15, 1996, DCA Nov. 25, 1996)("[a party] is bound by the allegations in its Petition for Hearing . . . as further limited by the Prehearing Stipulation"). Even if it was a viable issue, the evidence shows that during the review and adoption process, the County relied upon a Florida Department of Transportation traffic analysis link sheet for February 2009 and information supplied by the applicant, which show that the current levels of service (LOS) on U.S. Highway 41 are A and B, that the projected number of peak hour trips will actually result in an overall net decrease in trips when compared to the existing Plan category, and that no capital improvements are needed. See Joint Exhibit 2 at pp. 14-15; Joint Exhibit 4. An assertion by Petitioner that the LOS on U.S. Highway 41 may deteriorate if a biomass plant is not built and the IL uses are developed to their maximum potential is speculative at best and not supported by the evidence. Petitioner next contends that the amendment is inconsistent with the requirements of Section 163.3177(6)(a), Florida Statutes, and Rules 9J-5.005(2)(a) and 9J-5.006(2)(b) because it was not based on the best available data regarding the suitability of the site for the biomass facility. The statute requires that the FLUE be based on "surveys, studies and data regarding the area, including . . . the character of undeveloped land." Rule 9J-5.005(2)(a) requires that the amendment be based on relevant and appropriate data and analysis, while Rule 9J-5.006(2)(b)3. requires that the amendment be based on an analysis of the character of the land in order to determine its suitability for use, including the topography of the site. In support of this argument, Petitioner points out that when the County planner reviewed the amendment, he assumed that less property was within the CHHA than was depicted on the FLUM, that a majority of the property was at or above 10 feet in elevation, and that it would not flood in a Category I storm event. The planner reached this conclusion based on a review of large-scale United States Geological Survey (USGS) topographic maps and Light Detecting And Ranging (LIDAR) maps. However, an undated topographic survey (prepared for an earlier prospective purchaser of the Patron property and given by Patron to FBE when it signed a contract to purchase the property) and a technical memorandum prepared by FBE's consultant, Golder Associates, Inc., on March 31, 2009, reflected that much of the property lies within the CHHA at an elevation of five feet or less, or below the 5.8-foot storm surge elevation for a Category I storm event. This information was in the personal files of FBE's president and its out-of-town consultant and was not given to the County prior to the adoption of the amendment. Petitioner argues that this information is the best available data, and that if the County had been given these documents during its review process, it would have determined that the Patron property was not suitable for industrial uses. The County was not given the survey and memorandum prepared by the FBE consultant because that information was prepared only for use at the site plan review stage. This is not unusual since the County does not require signed and sealed surveys and engineering reports during the amendment process. While the data were in existence prior to the adoption of the map change in August 2009, they were not disclosed until a few days before final hearing (through discovery) and consequently were not "available for public inspection" prior to the amendment's adoption. After analyzing the new data (over objection of opposing counsel) for the first time at hearing, the County planner indicated that if he had known that the elevation was lower than that depicted on the USGS maps, he would have "given [the application] closer consideration." Even so, he emphasized that his recommendation would still be the same because any development on the site can be protected during the development process by berms, suspension of units aboveground, and other development standards. Assuming arguendo that the data were "available for public inspection" and should have been considered for that purpose, given the rigorous standards that apply during the site approval process, it is still fairly debatable that the amendment is supported by adequate data and analysis as to the suitability of the site and that the County reacted to it in an appropriate manner. Similarly, Petitioner points out that the technical memorandum prepared by FBE's consultant on March 31, 2009, revealed that the soils on the site are not suitable for a heavily loaded structure such as a biomass plant. Therefore, it argues that the amendment was not based on professionally acceptable data and analysis with respect to the suitability of the property to support a biomass plant, as required by Section 163.3177(6)(a), Florida Statutes, and Rules 9J- 5.005(2)(a) and 9J-5.006(2)(b)2. The latter rule requires a land use analysis for soils in order to determine the suitability of proposed uses on the site. In addressing this issue in the staff report, the planner relied upon the 1983 Soil Survey of Manatee County and determined that the property had three types of soil: Bradenton Fine Sand; Chobee Loamy Fine Sand; and Wabasso Fine Sand. See Joint Exhibit 2 at p. 17. He further determined that these three soils are "poorly drained, level to nearly level, sandy to loamy, and underlain by sandy marine sediment and limestone." Id. However, because several heavy industries are already operating adjacent and within the immediate surrounding area with the same type of soil limitations, he concluded that the soil limitations could be "overcome by the proper design of drainage facilities and engineering design of buildings." Id. It is fairly debatable that the data and analysis are adequate to support the amendment in this respect, and that the County reacted to that data in an appropriate manner. Petitioner further argues the amendment violates Rule 9J-5.005(2)(a) because it is not based on a compatibility analysis of the industrial uses with the residential uses in the surrounding area. Like the preceding two objections, this one is framed in terms of a lack of the best available data to support the amendment. In its Proposed Recommended Order, Petitioner also cites as being relevant to this objection FLUE Policies 2.1.1.5 and 2.2.1.22.4.(b)(i), which require that a change in land use to P/SP(1) only be made "in appropriate areas when compatible with surrounding development," and that an applicant "provide information and analysis on the compatibility of the proposed use or uses . . . with surrounding development." Petitioner points out that there are six single-family homes, characterized by one expert as an "artifact" from an earlier era, that extend out one-half mile along Chapman Road to the east/southeast of Patron's property, and that the County failed to consider the compatibility of industrial uses with those homes. It also argues that the County's analysis was based on the construction of a sixty-megawatt facility, as proposed by FBE, and did not consider a larger, more intense facility. In making its compatibility analysis for the surrounding area, the County considered all residences on Chapman Road extending out eastward a quarter to a half mile, which included the six houses in question. With the exception of the six houses, the data relied upon by the County reflected that the entire surrounding development is either light or heavy industrial uses, which is consistent with the County's focus to encourage industrial development in the Port Manatee area. The six houses are in a strip of land designated as ROR, which allows a mix of retail, office, and residential uses. Some of the existing uses that are near the homes, and within the ROR category, are considered "intensive." Given this type of development, it is highly unlikely that more homes will be constructed in the ROR area. If and when a biomass plant is constructed, existing development standards will be used to ensure compatibility with the ROR uses. Petitioner did not refute this evidence. When considering the area and uses as a whole, it is fairly debatable that there are adequate data and analysis to support a determination that the new land use will be compatible with the residential uses in the surrounding area. All other issues raised by Petitioner and not addressed herein have been considered and found to be without merit.
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 denying USFG's Petition and determining that the plan amendment adopted by Ordinance No. 09-31 is in compliance. DONE AND ENTERED this 28th day of July, 2010, 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 28th day of July, 2010.
