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 plan amendments adopted by the City of St. Pete Beach (City) by Ordinance No. 2008-15 on August 26, 2008, are in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: The Parties The City is a municipality in southwestern Pinellas County. Following an Evaluation and Appraisal Report (EAR) process, the City adopted its current Plan in 1998 (also known as the 2010 Plan), which has been found to be in compliance. Since 2007, municipalities within Pinellas County have participated in the Pilot Program for adoption of comprehensive plan amendments. The statutory process is described in Section 163.32465, Florida Statutes. Under the Pilot Program, municipalities have "reduced state oversight of local comprehensive planning," and plan amendments may be enacted in "an alternative, expedited plan amendment adoption and review process." Id. Although the City must send a transmittal package to the Department (and other designated agencies and entities) for its preliminary review, the Department does not issue an Objections, Recommendations, and Comments Report or a notice of intent. Instead, the Department "may provide comments regarding the amendment or amendments to the local government." Id. It may also initiate an administrative proceeding to challenge whether such amendments are in compliance, but it chose not to do so here. The amendments in dispute were adopted under the Pilot Program. Petitioner is a resident of, and owns property in, the City, and he submitted oral and written comments and objections concerning the proposed amendments. As such, he is an affected person and has standing to participate in this proceeding. The parties have stipulated that Lorraine Huhn and Deborah Nicklaus reside and own property within the City, and that both individuals submitted comments to the City during the transmittal public hearing on June 16, 2008, and/or the adoption public hearing on August 26, 2008. Therefore, they are affected persons and have standing to participate. According to the parties' Pre-Hearing Stipulation, SOLV is a Florida non-profit corporation with a principal address of 6370 Gulf Boulevard, St. Pete Beach, Florida. The parties have also stipulated that SOLV operates a business within the City. Whether it submitted comments to the City between the transmittal hearing on June 24, 2008, and the adoption hearing on August 26, 2008, is in dispute. SOLV's President, Lorraine Huhn, presented comments at the City's adoption hearing on August 26, 2008. See Petitioner's Exhibit 15, pages 63-64. During her brief oral presentation to the City Commission in support of the amendments, she did not state that she was speaking on behalf of SOLV, and at no time did she refer to that organization. However, on August 2, 2008, Ms. Huhn sent an email on behalf of SOLV to the City Clerk, which arguably can be interpreted as written support for the Ordinance being challenged. See Intervenors' Exhibit 9. Also, an email authored by the City Manager on August 1, 2008, indicates that SOLV representatives met with City representatives on July 31, 2008, to discuss the proposed amendments. See Intervenors' Exhibit 10. Since these written and oral comments were submitted between the transmittal and adoption hearings, SOLV meets the definition of an affected person and has standing to participate in this proceeding. Background By way of background, the City was initially incorporated in 1957 as St. Petersburg Beach by consolidating the towns of Pass-a-Grille, Don CeSar, Belle Vista, St. Petersburg Beach, and certain unincorporated areas of Pinellas County. It occupies a six-mile long barrier island (known as Long Key), which lies between the Gulf of Mexico and Boca Ciega Bay, with a maximum width of three-quarters of a mile and an area of approximately 2.25 square miles or 1,286.14 acres. The name was shortened to St. Pete Beach in 1994 to lessen the confusion with the City of St. Petersburg, which lies to the east. The City has about 4.5 miles of beaches and is very densely populated. Most of the City has been developed with only 13.40 acres, or around one percent of the land, vacant and undeveloped. The entire City is within the flood plain, and much of the City is within the Coastal High Hazard Area (CHHA). The current population is around 10,000. To place the current dispute in proper perspective, a history of events that began in 2002 is necessary. With the assistance of a consulting firm, beginning in April 2002 the City initiated redevelopment planning efforts for various areas within the City including Corey Avenue/Blind Pass Road, Pass-a- Grille, Gulf Boulevard, and residential neighborhoods. The intention of this effort was to define the starting point for subsequent master planning efforts by the City. A Final Report (also known as the Visioning Statement or Plan) was issued by the consulting firm in July 2002. See Respondent's Exhibit 1. This was followed by a master planning process by another consulting firm, which was intended, among other things, to develop a strategy for dealing with the redevelopment of older and outdated properties within the resort area of the City (along the Gulf of Mexico), rather than having them converted into residential condominiums because of existing regulatory restrictions. The final Master Plan was presented to the City Commission in August 2003. See Respondent's Exhibit 3. In response to the Master Plan, on June 28, 2005, the City enacted Ordinance 2004-24, known as the City's Community Redevelopment Plan (Redevelopment Plan), which implemented many of the recommendations in the Master Plan. See Respondent's Exhibit 8. Among other things, the Redevelopment Plan created a new land use category, the Community Redevelopment District, which included two sub-districts, the Gulf Boulevard Redevelopment District, depicted on Map 10 of Exhibit 8, and the Downtown Redevelopment District, depicted on Map 11 of the same exhibit. The amendment was intended to establish standards for redevelopment in the so-called "resort" area of the City, which runs north-south along Gulf Boulevard adjacent to the beach on the western side of Long Key, while the same thing was intended for the core downtown area. Although Petitioner is correct that Ordinance No. 2008-15 differs from Ordinance No. 2004-24 in some respects, there are many similarities between the two, including the creation of the two Redevelopment Districts, additional character districts within the two main Districts, and the maps of the Districts. Also, both Ordinances have many of the same Goals, Objectives, and Policies, and both include unnumbered narrative text setting out allowable uses as density and intensity standards. On August 19, 2005, Petitioner and a non-profit association filed a challenge to Ordinance No. 2004-24 under Section 163.3184, Florida Statutes. See Citizens for Responsible Growth and William C. Pyle v. Department of Community Affairs and City of St. Pete Beach, DOAH Case No. 05- 3159GM. The challengers later voluntarily dismissed their petition, the case was closed on October 17, 2005, and the Department found the amendments to be in compliance. Under the City's Charter, however, citizens may petition to require reconsideration by the City Commission of any adopted ordinance and, if the City Commission fails to repeal an ordinance so reconsidered, to approve or reject it at a City election. See Petitioner's Exhibit 26; § 7.02, City Charter. (Ten percent of the qualified registered voters in the City must sign a petition in order to have an ordinance placed on the ballot for approval or disapproval.) Petitioners in DOAH Case No. 05-3159GM were instrumental, at least in part, in securing the necessary number of voters to sign a petition, and a majority of the registered voters in the City later voted to repeal the Ordinance in 2006. Pursuant to that vote, the City Commission repealed Ordinance No. 2004-24 and it never took effect. In 2008, six ordinances (Ordinance Nos. 2008-09 through 2008-14) were proposed as citizen initiatives. After the City refused to act on the six initiatives, SOLV and others filed suit against City officials seeking a vote on the six ordinances. See Save Our Little Village, Inc., et al. v. Commissioner Linda Chaney, et al., Case No. 08-2408-CI-8 (6th Circuit, Pinellas County). On March 31, 2008, the City adopted Resolution 2008-09 approving a Settlement Agreement in the law suit. See Joint Exhibit 1, Appendix C. The Settlement Agreement required the City to transmit and adopt the Ordinance being challenged here subject to various conditions and limitations, if the voters approved Ordinance No. 2008-10, which was a Petition by SOVL proposing an ordinance to amend the Countywide Future Land Use Plan. (The City is required by the Countywide Plan Rules to transmit the countywide plan map amendment to the Pinellas County Planning Council for its review in order to adopt the City plan amendment. This process is described in Petitioner's Exhibit 33.) Notably, the City's staff did not prepare the text or the accompanying supporting data for Ordinance No. 2008-15; rather, the text and all supporting data were prepared by SOLV. The voters approved Ordinance No. 2008-10 on June 3, 2008, which provided for the review and approval of the amendments being challenged here. Pursuant to the results of the referendum, on June 16, 2008, the City approved Ordinance Nos. 2008-15, 2008-24, and 2008-25. Only the first Ordinance is in issue here; the other two are not contested. As required by Section 163.32465(4)(a), Florida Statutes, the amendments were then transmitted to the Department, Department of Environmental Protection, Department of Education, Department of State, Department of Transportation District Seven, Tampa Bay Regional Planning Council, Southwest Florida Water Management District, and Pinellas County Planning Department for their review and comment, if any. Comments on the amendments were offered by the Department on August 1, 2008, and by the Department of Transportation, Department of Education, and Tampa Bay Regional Planning Council. On August 26, 2008, the City adopted Ordinance No. 2008-15. Petitioner's challenge was then timely filed with the Division of Administrative Hearings on September 24, 2008. See § 163.32465(6)(a), Fla. Stat. ("[a]ny 'affected person' as defined in s. 163.3184(1)(a) may file a petition with the Division of Administrative Hearings . . . within 30 days after the local government adopts the amendment"). The Ordinance Ordinance No. 2008-15 establishes a new land use category, the Community Redevelopment District, which includes the Downtown and Gulf Boulevard Redevelopment Districts comprised of eleven character districts, and implements that change by amending the FLUM and certain text provisions within the FLUE and HE. The two new Districts comprise approximately twenty percent of the total land area of the City, or around 248.25 acres. The amendments are found in Attachment A, consisting of 115 pages, which is attached to the Ordinance. Attachment A includes six maps found on page 40 (Map 1 - Community Redevelopment Districts Location); page 41 (Map 2 - Gulf Boulevard Redevelopment Character Districts); page 42 (Map 3 - Downtown Community Redevelopment District 1); page 110 (Map 10 - Future Land Use Map - Gulf Boulevard Redevelopment District, Proposed Future Land Use); page 111 (Map 11 - Future Land Use Map - Downtown Redevelopment District, Proposed Future Land Use); and page 112 (Map 12 - Coastal High Hazard Area - Storm Surge for Category 1 (2007), St. Pete Beach, FL). Pages 1 through 6 are introductory material outlining the need for redevelopment. Pages 7 through 112 pertain to the Future Land Use Element, while pages 113 through 115 relate to the Housing Element. Because SOLV (rather than the City) prepared Attachment A, this is probably the reason why some parts of the lengthy Attachment A have been drafted in narrative style. Besides Attachment A, support documentation for the amendments is attached to the Ordinance and includes the legal notices published in a local newspaper; Citizen Courtesy Information Lists; Commission and Planning Board Agendas; excerpts from Division 31 of the City's Land Development Code; copies of various Ordinances; and a 127-page Special Area Plan submitted to the Pinellas Planning Council and Countywide Planning Authority in support of the amendment that was necessary in order for the City to adopt the Ordinance. In addition, the data and analyses used for the adoption of Ordinance No. 2004-24 were relied upon to support the amendments, including the Visioning Plan and the Master Plan. Petitioner's Objections In paragraphs 9 through 25 of his Petition, which are in the section entitled "Disputed Issues of Material Fact And/or Mixed Disputes [sic] Issues of Fact and Law," Dr. Pyle contends that the amendments adopted by the Ordinance are not in compliance for numerous reasons. The parties' Pre-Hearing Stipulation also states that "the Disputed Issues of Material Fact and/or Mixed Questions of Fact or Law set forth in the Petition for Administrative Hearing in this matter remain disputed issues for the purposes of the final hearing." In his Proposed Recommended Order, however, Petitioner states in a more concise fashion that the amendments are not in compliance because they: are not clearly based upon appropriate data, including data required for the FLUE; [are not] based upon and supported by an appropriate analysis of the best available data; did not demonstrate "need"; [are] inconsistent with the State Comprehensive Plan; [are] not "financially feasible"; [do] not meet format requirements; [do] not contain two planning periods; establish a mixed-use FLUM designation of CRD [Community Redevelopment District] that [does] not meet the statutory and rule requirements; [are] internally inconsistent; and [do] not meet the minimum procedural and notice requirements. These objections will be considered below, although not in the order listed above. Procedural Irregularities Petitioner contends that the City failed to follow certain notice requirements and therefore he was unduly prejudiced by these irregularities. Specifically, he claims that the notices published by the City in the St. Petersburg Times on June 8 and August 20, 2008, did not advise the public of all amendments, particularly one relating to the Resort Facilities Overlay District; did not include a map showing areas subject to the FLUM amendments in relation to major streets; did not advise that the City was amending the coastal construction control line (CCCL) definition in the Preservation land use category; and the actual changes being made "did not comport with the title of the adopted Ordinance." Copies of the published notices, albeit in very small and sometimes illegible print, are found in Joint Exhibit 2. Assuming all of these notice deficiencies are true, Petitioner did not establish that he was prejudiced by any irregularities. Besides being intimately involved in this controversy since its inception in 2002, the evidence shows that he attended both the transmittal and adoption hearings of Ordinance No. 2008-15; that he addressed the City Commission at both meetings; that he was provided copies of all pertinent documents; that through counsel he filed a Petition requesting a formal evidentiary hearing, which raises a litany of compliance issues; that he was allowed to conduct discovery; and that he was given an opportunity to fully litigate each issue in his Petition. The contention that he was prejudiced by procedural irregularities is hereby rejected. Planning Time Frames Petitioner alleges that the Plan, as amended, does not set forth either a short-term planning time frame for the five- year period following adoption, or a long-term planning timeframe for at least a ten-year period following adoption. He contends that this is inconsistent with Florida Administrative Code Rule 9J-5.005(4), which requires that "[e]ach local government comprehensive plan shall include at least two planning periods: one for at least the first five year period subsequent to the plan's adoption and one for at least an overall 10-year period." See also § 163.3177(3)(a)5., Fla. Stat. The existing Plan includes at least two planning periods, a Capital Improvements Plan (CIP) covering the first five years after the adoption of the Plan in 1998, and the School Board's Five-Year Work Program for fiscal year 2007-08 through 2011-2012. Although the CIP was first adopted in 1998, the statutory deadline for all local governments to transmit an updated CIP was December 1, 2008, or after the amendment was adopted. Also, the existing Plan utilized a population estimate from the Bureau of Economic and Business Research (BEBR) to project population for the City for the upcoming ten-year period. Besides the above time frames, the new amendment contains two other planning time frames for implementation of the redevelopment incentives in the Plan. First, it contains a Residential Unit Reserve section for the new District, holding specific numbers of residential units in reserve in three of the character districts (Downtown Core Residential District, Commercial Corridor Blind Pass Road District, and Commercial Corridor Gulf Boulevard District) for the first five years after adoption of the plan amendments. See Joint Exhibit 2, pages 106-107. This allows the City to evaluate the effectiveness of the redevelopment incentives in the amendment without releasing all residential density otherwise authorized. Second, the amendment contains a General Residential Unit Density Pool Reserve of 195 residential units in the Large Resort District which cannot be released in the first ten years after adoption of the amendment. See Joint Exhibit 2, page 108. Like the other provision, this planning tool allows the City to reevaluate the effectiveness of the redevelopment incentives in the amendment prior to authorizing additional density. Petitioner's own planner agreed that these time frames were part of the planning period for the proposed amendment. While Petitioner contends that the time periods are "minimum waiting periods not tied to any fixed time frame," it is reasonable to infer from the evidence that they will become operative once the Ordinance is implemented. The preponderance of the evidence shows that the Plan, as amended, complies with the requirement for two planning time frames and is not inconsistent with either the rule or statute. Mixed-Use Categories Florida Administrative Code Rule 9J-5.006(4)(c) encourages mixed use categories of land and provides that if they are used, "policies for the implementation of such mixed uses shall be included in the comprehensive plan, including the types of land uses allowed, the percentage distribution among the mix of uses, or other objective measurement, and the density and intensity of each use." Petitioner contends that FLUE Policy 2.1.1 establishes a new mixed use district (the Community Redevelopment District) but the Plan, as amended, does not contain the requirements set forth in the rule. The Community Redevelopment District is a mixed use land use category, as is each of the character districts included within the two sub-districts. The Plan identifies four character districts within the Gulf Boulevard Redevelopment District (Large Resort, Boutique Hotel/Condo, Activity Center, and Bayou Residential) and seven character districts within the Downtown Redevelopment District (Town Center Core, Town Center Corey Circle, Town Center Coquina West, Downtown Core Residential, Upham Beach Village, Commercial Corridor Blind Pass Road, and Commercial Corridor Gulf Boulevard). FLUE Policy 2.1.1 incorporates the development standards found in the "Community Redevelopment District" section of the FLUE for the two larger sub-districts and eleven smaller character districts. Therefore, it provides the policies required for the implementation of the new land use category. These policies govern the distribution, location, and extent of uses and densities and intensities of uses within the sub-districts. They also establish the boundaries, uses, densities, and intensities of use for the eleven character districts. The types of land uses allowed in each character district are clearly listed in a section of the text amendment corresponding to each character district titled "Permitted Uses and Standards." See Joint Exhibit 2, Attachment A, pages 75, 79, 82, 84, 91, 93, 98, 100, 102, and 105. For example, in the Large Resort District, primary uses are hotel, motel, resort condominium, and medium density multi-family residential. Id. at page 75. The density and intensity standards for each type of use allowed within each character district are also listed in the same sections of the Attachment. For example, the maximum density of residential development in the Boutique Hotel/Condo District is eighteen units per acre. Id. at page 75. Finally, the policies for each character district provide objective criteria governing the actual mix of uses permitted on any redevelopment site within the Community Redevelopment District. The location of each allowable use will be distributed throughout each district. For example, the Downtown Redevelopment District creates a traditional downtown core area with traditional downtown core services surrounded by residential neighborhoods buffered from commercial intrusion. See Joint Exhibit 2, Attachment A, page 36. On the other hand, the Gulf Boulevard Redevelopment District is a core resort and shopping destination for residents and visitors. Id. The Community Redevelopment District does not use a percentage distribution among the mix of uses since the City is essentially built out and already has a mix of uses within the newly-created districts. Therefore, the plan amendment accomplishes a distribution of mix of land through location of uses in multi- story buildings, rather than a percentage distribution of mix. By doing so, it satisfies the requirement of the rule. See, e.g., The University Park Neighborhood Association, Inc. v. Department of Community Affairs, et al., DOAH Case No. 92- 0691GM, 1993 Fla. ENV LEXIS 19 (DOAH Nov. 2, 1992, DCA Feb. 24, 2003). Therefore, it is found that Petitioner failed to demonstrate by a preponderance of the evidence that the amendment is inconsistent with the rule. Preservation District The plan amendment is based upon the City's Visioning Plan and Master Plan. See Respondent's Exhibits 1 and 3. Neither document contains any recommendation that the City's Preservation Land Use District be revised in any way. In the existing 2010 Plan, the Preservation District is defined in FLUE Policy 1.1.1 as those beaches seaward of the CCCL, Fuller Island, and other environmentally significant natural resource areas. No development is allowed in the Preservation District except dune walkovers. Ordinance No. 2008-15 renumbers Policy 1.1.1 as 2.1.1 and makes a one-word change (underscored below) in the definition of the Preservation District so that it now reads as follows: Preservation (P), applied to the beaches seaward of the Florida Coastal Construction Control Line, Fuller Island and other environmentally significant natural resource areas; such designated areas shall not be developed except to provide beach access dune walkovers from adjacent developed properties under the provisions of the City's Beach Management Regulations. Petitioner argues that the effect of this change is to establish a new boundary line for the Preservation District (further seaward in some instances) and to no longer use the setback line previously used by the City, which was known as the Coastal Construction and Excavation Setback Line. He further contends that the City's setback line and the Florida (State) CCCL encompass different areas along the beach. In some cases, the City's setback line is more seaward than the State, and vice versa. Petitioner contends that the data and analysis for the 2010 Plan "implies" that the location of the Preservation land use category should be based upon the more restrictive of the City setback line or State CCCL, that is, whichever is less seaward. It is fair to infer from the evidence that the underlying reason for raising this claim is that an old Travelodge motel sits just south and east of Petitioner's condominium building and is scheduled to be redeveloped as a new high-rise condominium. Petitioner is concerned that if the State CCCL (rather than the City setback line) is used, it will allow the new building to be constructed closer to the Gulf of Mexico, presumably reducing his view and beach access. The City's witness Holly established that the City does not have a CCCL. Rather, it has an excavation and setback line. He further established that the City has consistently enforced the Preservation District geographically as the area seaward of the State CCCL. Also, the City's land development regulations implementing the existing Plan define the Preservation District as the property seaward of the State CCCL. The Countywide Plan also uses the State CCCL. The amendment is clarifying in nature and is intended to make the text in the City's Plan consistent with the Countywide Plan and existing enforcement practices. As explained by Mr. Holly, the City's setback line predates the establishment of the State CCCL, and functions much in the same manner as the State CCCL "in that it precludes structural development seaward of that line without specific application for approval of variance for those standards." See Transcript, page 415. Petitioner has failed to establish by a preponderance of the evidence that this clarifying change in the definition of the Preservation District in FLUE Policy 2.1.1 is not supported by adequate data and analysis. Format of Plan Amendment Petitioner next contends that the plan amendment is inconsistent with Florida Administrative Code Rule 9J-5.005(1), which contains general format requirements for comprehensive plans. For example, he points out that there are lengthy unnumbered narrative sections in Attachment A that apparently supplement the numbered sections, that the references to the land development regulations do not identify the specific land development regulation adopted by reference, that the series of maps are not labeled properly, and that the maps do not include north-south arrows or a scale. The amendment contains specific goals, objectives, and policies for the Community Redevelopment District. See Joint Exhibit 2, pages 43-48. It also contains goals, objectives, and policies for the two redevelopment districts, numbered policies for each character district, as well as unnumbered text setting forth permitted uses and standards for each character district. See Joint Exhibit 2, pages 67-70, 71-77, 78-80, 83-85, 86-90, 90-92, 92-94, 94-97, 97-98, 99-101, 101-103, and 104-106. The deposition testimony of Michael McDaniel, Chief of the Department's Office of Comprehensive Planning, established that while they are not typically used, the narrative sections of Attachment A are permissible to explain the goals, policies, and objectives. He further stated that nothing in the governing statutes or rules requires that all material adopted as part of a plan be labeled as, or be in the form of, a goal, policy, or objective, that many variations of format are found in plans adopted by local governments throughout the State, and that the Plan, as amended, is not inconsistent with any requirement. As to the makeup of the maps, Mr. McDaniel stated that while the Department prefers that maps be labeled as future land use maps, and that they contain the detail suggested by Petitioner, a failure to do so does not render the plan amendment not in compliance. Finally, he stated that the Department staff had no difficulty in understanding the maps or map series when they were reviewed by the Department in July 2008. Notably, the Department did not address any of these format issues when it prepared comments to the proposed amendment on August 1, 2008. Petitioner has failed to show by a preponderance of the evidence that the plan amendment is inconsistent with the requirements of Florida Administrative Code Rule 9J-5.005(1). Data and Analyses Petitioner alleges that the City failed to rely upon the best available data sources to support the amendment, that a proper analysis of the data was not made, and that the City did not react to the data in an appropriate way, as required by Florida Administrative Code Rule 9J-5.005(2). Petitioner presented no expert testimony or other evidence supporting the claim that the plan amendment lacked supporting data and analysis. Although he introduced into evidence various documents on the theory that this information constituted better data than that used by the City, the evidence does not support this allegation. For example, various documents concerning hurricane evacuation times were submitted, including the Tampa Bay Regional Hurricane Evacuation Study Update 2006, the Pinellas County Local Mitigation Strategy (LMS), and the 2008 Statewide Emergency Shelter Plan. See Petitioner's Exhibits 4, 16, and Since the plan amendment does not increase density, however, it does not conflict with established hurricane evacuation times. Also, the City is not increasing population to be evacuated to other zones; therefore, the Statewide Emergency Shelter Plan is irrelevant. Finally, the amendment is not contrary to any mitigation strategies in the LMS. Population estimates for the year 2006 prepared by the BEBR were introduced by Petitioner, presumably for the purpose of showing that more current population data should have been used, rather than the 2000 Census data relied upon by the City. See Petitioner's Exhibit 21. However, there is no requirement that the City update its population estimates and projections each time it adopts an amendment. According to Mr. McDaniel, this is normally done every seven years at the time of the EAR. In any event, the BEBR estimates an increase in population in the City of only 48 persons during the six-year period from 2000 to 2006 (from 10,002 to 10,050). Petitioner also introduced a list of claims for flood losses within the last ten years in the City for the purpose of demonstrating that the City failed to consider the location of these properties in adopting the amendment. However, the evidence shows that redevelopment policies in the amendment would bring existing older structures up to National Flood Insurance Protection standards. A list of Licensed Dwelling Units was also introduced to show that the list relied upon by the City was incomplete and failed to include a motel in close proximity to Petitioner's condominium. Assuming that this is true, the error was minor and did not affect the overall validity of the City's data. The plan amendment is supported by the City's visioning project, economic analysis, master planning project, and evaluation of infrastructure capacity and availability of services. It is also supported by data submitted by SOLV to the County in support of the amendment to the Countywide Future Land Use Plan, which includes the Special Area Plan. The more persuasive evidence supports a finding that there is relevant and appropriate data supporting the amendment, that the data was properly analyzed, and that the City reacted in an appropriate manner. Internal Inconsistency Petitioner further alleges that the plan amendment is internally inconsistent with Intergovernmental Element Policy 1.5.3, which requires that the City coordinate with the Pinellas County Emergency Management Department when adopting map amendments resulting in an increase in population within the CHHA. Under the existing definition of the CHHA in the 2010 Plan, the entire City is within the CHHA. The amendment implements a new definition, as required by Section 163.3178(2), Florida Statutes, which removes some parts of the City from the CHHA. Because the new amendment does not relate to either hurricane shelters or evacuation routes, and does not increase the residential density in the CHHA, compliance with the cited policy was not required. Petitioner further alleged that FLUE Policy 4.1.1 is internally inconsistent with Goals 2 and 3 of the Conservation and Coastal Element as well as the implementing objectives for those Goals. However, no testimony or other credible evidence was offered on this issue and the claim must fail. The preponderance of the evidence supports a finding that the Plan, as amended, in not internally inconsistent with other Plan provisions. Need Petitioner contends that the City did not prepare an analysis of need for future land uses authorized by the Ordinance, that it did not prepare an updated existing land use map series, that no tabular form of the approximate acreage and general range of density and intensity of each existing land use was prepared, and no population projections were presented, as required by Florida Administrative Code Rule 9J-5.006(1)(a), (b), (c), and (g). Therefore, he argues that the plan amendment is not supported by a demonstration of need for the new land use category to accommodate the anticipated growth. The supporting documentation for the plan amendment demonstrates the need for redevelopment of the City's lodging establishments, the need for additional height for tourist lodging uses in order to prevent conversion of those uses to condominium uses, and the need for aesthetic and other design changes to the City's building facades, streetscapes, and public areas with the redevelopment area. See Joint Exhibit 2, Attachment A, pages 1-3. The plan amendment does not propose new density to accommodate new populations. In fact, it reduces the overall residential density in the City, and the total amount of dwelling units, temporary lodging units, and non-residential (commercial) floor area ratio will also be reduced. Because the plan amendment does not increase the total amount of development, but is simply a plan for redevelopment of existing uses, there is no requirement that a need analysis be prepared. Financial Feasibility Petitioner also contends that the Plan, as amended, has not been shown to be financially feasible and does not include an updated five-year CIP. See § 163.3177(3)(a)5., Fla. Stat. ("the comprehensive plan shall contain a capital improvements element [which] set[s] forth: . . . [a] schedule of capital improvements . . . "). The statutory requirement for a CIP applies to projects necessary to ensure that adopted levels of service (LOS) standards are achieved and maintained. It applies to all public facilities and services for which an LOS standard is adopted pursuant to Section 163.3180, Florida Statutes. This was confirmed by the testimony of Mr. McDaniel. The evidence shows that all relevant City infrastructure facilities are operating at or above the adopted LOS. Therefore, there are no deficiencies which need correction in order to implement the redevelopment plan. As further confirmed by Mr. McDaniel, if a plan has been found to be in compliance, and the local government proposes changes that do not create a need for capital improvements, the plan amendment does not need to include an amendment to its CIP. In this case, the amendment does not increase the total permissible amount of residential density or non-residential use within the Community Redevelopment District, and no additional infrastructure capacity is needed. Petitioner's expert identified certain infrastructure projects for which he contended an updated CIP is needed, such as sidewalks, street lighting, and bike lanes. While these types of projects are all integral to the proposed redevelopment plan, they are not subject to concurrency or the financial feasibility standard. Even if they were, Petitioner's expert agreed such improvements could be accomplished through private investment when permits for projects are issued. Because Petitioner failed to show that the plan amendment would require the construction of any new or expanded public facilities to provide additional capacity to serve the development, his contention that the plan is not financially feasible must necessarily fail. Other Contentions All other contentions not discussed herein have been considered and rejected because no evidence on the issues was presented or the more credible and persuasive evidence supports a finding that the contentions are 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 determining that the plan amendments adopted by Ordinance No. 2008-15 are in compliance. DONE AND ENTERED this 4th day of May, 2009, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of May, 2009.
Conclusions An Administrative Law Judge of. the Division of Administrative Hearings has entered an Order Closing File in this proceeding. A copy of the Order is attached to this Final Order as Exhibit A,
Other Judicial Opinions REVIEW OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 2.030 (b) (1) (C) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT’S AGENCY CLERK, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE’ SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE AFPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. Feb 7 2008 10:18 2/a7/2088 16:13 Bbag222679 DCA LEGAL : PAGE 44/86 PINAL ORDER NO. DCA 08-GM-029 CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing has been ' filed with the undersigned Agency Clerk of the Department of Community Affairs, and that true and correct copies have been furnished by U.S. Mail to each of the persons listed below on ZZ ay of 2 , 2008, thia aula Ford Agency Clerk J. Ross Macbeth, Esquire Highlands County Attorney 2543 U.S. 27 South Sebring, Florida 33871-1926 Page 4 of 4 Feb 7 2008 10:18 a2/ar/2aee 16:13 B589222679 DCA LEGAL PAGE 85/86 STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS DEPARTMENT OF COMMUNITY AFFAIRS, Petitioner, vs. Case No. 07-11516M HIGHLANDS COUNTY, Respondent . ORDER CLOSING FILE AND RELINQUISHING JURISDICTION This cause came before the Administrative Law Judge on Petitioner's motion to close file and relinquish jurisdiction in which it is reported that the parties have executed a stipulated settlement agreement that resolves their disputes. Having considered the motion and being otherwise fully advised, it is ORDERED that the file of the Division of Administrative Hearings in this case is CLOSED and jurisdiction is relinquished to the Department of Community Affairs for final action. DONE AND ORDERED this 5th day of February, 2008, in Tallahassee, Leon County, Florida. BRAM D. E. CANTER 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.atate.fl.us Filed with the Clerk of the Division of Administrative Hearings this Sth day of February, 2008. Feb 7 2008 10:18 2/a7/2088 16:13 Bbag222679 DCA LEGAL PAGE 66/86 COPIES FURNISHED: Guy Maxcy Highlands County 600 Commerce Avenue Sebring, Florida 33870 Lynette Norr, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32395-2100
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.
Conclusions An Administrative Law Judge of the Division of Administrative Hearings has entered an Order Closing File in this proceeding. A copy of the Order is attached to this Final Order as Exhibit A.
