Conclusions An Administrative Law Judge (“ALJ”) of the Division of Administrative Hearings has entered an Order Closing File which relinquishes jurisdiction to the Department of Community Affairs (“Department”) of all of the issues raised in the Petition. A copy of the Order is attached to this Final Order as Exhibit A.
Conclusions An Administrative Law Judge of the Division of Administrative Hearings has entered an Order Closing File following the Notice of Dismissal filed by Petitioners, A copy of the Order is attached as Exhibit A.
Other Judicial Opinions REVIEW OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030(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 APPROPRIATE DISTRICT COURT OF APPEAL, MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. Final Order No. DCA10-GM-039 CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned designated Agency. Clerk, and that true and correct copies furnished to the persons listed below in the manner described, on this ebreary? 2010. March, * U.S. Mail: The Honorable Bram D. E. Canter Administrative Law Judge Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 Jeffrey Brown, Esq. Oertel, Fernandez, Cole & Bryant, P.A. P.O. Box 1110 301 South Bronough Street Tallahassee, Florida 32302 Kenneth G. Oertel, Esq. Oertel, Fernandez, Cole & Bryant, P.A P.O. Box 1110 301 South Bronough Street Tallahassee, Florida 32302-1110 Michael P. Donaldson, Esq. Carlton Fields, P.A. 215 South Monroe Street, Suite 500 P.O. Drawer 190 Tallahassee, Florida 32302-0190 Robert C. Apgar, Esq. Greenberg Traurig, P.A. 101 East College Avenue Tallahassee, Florida 32301 e been day of Paula Ford Agency Clerk Sherry Spiers, Esq. Greenberg Traurig, P.A. P.O. Box 1838 101 East College Avenue Tallahassee, Florida 32301 Deborah S. Minnis, Esq. Ausley & McMullen, P.A. P.O. Box 391 Tallahassee, Florida 32302 Robert A. Routa, Esq. Robert A. Routa, P.A. P.O. Drawer 6506 Tallahassee, Florida 32314-6506 Martha Harrell Chumbler, Esq. Carlton Fields, P.A. ; 215 South Monroe Street, Suite 500 P.O. Drawer 190 Tallahassee, Florida 32302-0190 Nancy G. Linnan, Esq. P.O. Box 190 Tallahassee, Florida 32302-0190 Hand Delivery: Matthew Davis Assistant General Counsel Department of Community Affairs - 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Final Order No. DCA10-GM-039
Conclusions An Administrative Law Judge of the Division of Administrative Hearings has entered an Order Closing File and relinquishing jurisdiction 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 9.030(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 APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. Final Order No. DCA11-GM-008 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 to the persons listed below jn the manner described, on this — day of January, 2011. yy A fas 4 Paula Ford, Agency Clerk DEPARTMENT OF COMMUNITY AFFAIRS 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 By U.S. Mail and electronic mail: Thomas A. Cloud, Esq. Clayton Bricklemeyer, Esq. City Attorney, Polk City David Smolker, Esq. GRAY ROBINSON, P.A. Bricklemeyer & Smolker, P.A. Post Office Box 3068 500 East Kennedy Boulevard, Suite 200 Orlando, Florida 32802-3068 Tampa, Florida 33602-4708 tcloud@gray-robinson.com claytonb@bsbfirm.com davids@bsbfirm.com Jack P. Brandon, Esq. Michael T. Gallaher, Esq. Peterson & Myers, P.A. Post Office Box 1079 Lake Wales, FL 33859-1079 jbrandon@petersonmyers.com mgallaher@petersonmyers.com STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS DEPARTMENT OF COMMUNITY AFFAIRS, Petitioner, Case Nos. 10-0045GM 10-2797DRI vs. CITY OF POLK CITY, Respondent, and POLK CITY ASSOCIATES, LLC, AND COLE'S PROPERTY, LLC, Intervenors. ORDER CLOSING FILES This cause having come before the undersigned on the Notice of Voluntary Dismissal, filed January 10, 2011, and the undersigned being fully advised, it is, therefore, ORDERED that the files of the Division of Administrative Hearings in the above-captioned matter are hereby closed. DONE AND ORDERED this llth day of January, 2011, in Tallahassee, Leon County, Florida. Blac aad J. LAWRENCE JOHNSTON 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 EXHIBIT Filed with the Clerk of the Division of Administrative Hearings this llth day of January, 2011. COPIES FURNISHED: David L. Jordan, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399 Jeffery Sullivan, Esquire Stidham & Stidham, P.A. 150 East Davidson Street Bartow, Florida 33831 Jack P. Brandon, Esquire Peterson & Myers Post Office Box 1079 Lake Wales, Florida 33859-1079 K. Clayton Bricklemyer, Esquire Bricklemyer, Smolker & Bolves, P.A. 500 East Kennedy Boulevard, Suite 200 Tampa, Florida 33602 Thomas A. Cloud, Esquire Gray Robinson, P.A. 301 East Pine Street, Suite 1400 Post Office Box 3068 Orlando, Florida 32802-3068
The Issue The issue is whether the City of Jacksonville's (City's) amendment to the Future Land Use Map (FLUM), also known as Ordinance No. 2007-355-E, and a related text amendment to Conservation/Coastal Management Element Policy 7.3.1 adopted by Ordinance No. 2008-315-E are in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: The Parties The City (which also comprises Duval County) is a local government in northeast Florida whose eastern boundary adjoins the Atlantic Ocean. The City is partially bisected by the St. Johns River (River), which begins several hundred miles to the south, flows north through the lower half of the City, and then turns east, eventually emptying into the Atlantic Ocean. The Intracoastal Waterway is connected to the River and runs parallel to the coast. The City adopted the plan amendments which are being challenged by the Department and Intervenors. Intervenor Valerie Britt and the six resident intervenors own property and/or reside within the City. They each presented oral or written comments to the City regarding both amendments before transmittal but before their adoption. As such, they are affected persons and have standing to participate in this matter. Moody (formerly known as the Moody Land Company, Inc.) owns property and operates a business within the City. Moody submitted oral or written comments in support of both amendments to the City after transmittal but before adoption of the amendments. As such, it has standing as an affected person to participate. The Department is the state land planning agency charged with the responsibility for reviewing plan amendments of local governments, including the City. Coastal High-Hazard Area Because the CHHA is relevant to both the FLUM amendment and the text amendment challenges, a brief overview of its history and development is appropriate. For local governments abutting the Atlantic Ocean or Gulf of Mexico, or that include or are contiguous to waters of the state, Section 163.3178, Florida Statutes, enumerates certain requirements that must be included within the coastal management element of their comprehensive plans. See § 163.3178(2)(a)-(k), Fla. Stat. The purpose of this directive is that comprehensive plans should "protect human life and limit public expenditures in areas that are subject to destruction by natural disaster." § 163.3178(1), Fla. Stat. Because it lies adjacent to the Atlantic Ocean, the City is subject to these requirements. One of the requirements is the designation of a CHHA in the element. § 163.3178(2)(h), Fla. Stat. "[F]or uniformity and planning purposes," prior to 2006, the CHHA was simply defined as "category 1 evacuation zones." § 163.3178(2)(h), Fla. Stat. (2005). Presumably to eliminate inconsistencies in the application of this broad definition, in 2006 the Legislature redefined the term as ”the area below the elevation of the category 1 storm surge line as established by a Sea, Lake, and Overland Surges from Hurricanes (SLOSH) model." § 163.3178(2)(h), Fla. Stat. (2006). The new law required that no later than July 1, 2008, local governments situated on or near Florida's coastline amend their "future land use map and coastal management element to include the new definition of [CHHA] and to depict the [CHHA] on the [FLUM]." § 163.3178(9)(c), Fla. Stat. Because Policy 7.3.1 of the Conservation/Coastal Management Element of the City's current Plan still utilizes the old definition of CHHA, Ordinance No. 2008-315-E was adopted for the purpose of complying with this requirement. The SLOSH model is a computerized model developed by the National Oceanic and Atmospheric Administration's National Weather Service to calculate hurricane storm surge heights. Storm surge is the abnormal rise of water caused by wind and the pressure forces of hurricanes. Based upon various inputs, such as the direction and speed of a hurricane, initial water elevation, topography, and bathymetry, the model produces a display with storm tide elevations per grid cell. The use of a grid cell enables the model to predict storm surge in a smaller land area. The outputs of the model are storm surge elevations averaged over grid cells, which are accurate to within twenty percent based upon post-storm observations from tide gauges behind coastal barrier islands. In July 1998, the Northeast Florida Regional Planning Council, now known as the Northeast Florida Regional Council, published a four-volume Storm Surge Atlas (Atlas) as a public safety planning tool to assist with hurricane evacuation planning within northeast Florida. (Each regional planning council in the State is tasked with this responsibility.) Volume 2 applies to Duval County. The Atlas reflects SLOSH model storm surge data on a map with land elevations and water features, thus providing emergency planners information they can use to evacuate coastal areas at appropriate times. Areas depicted in the Atlas below the elevation of the category 1 storm surge line are subject to evacuation and are considered to be in the CHHA. In preparing the Atlas, the Council used not only SLOSH model data, but other "suggested changes" (not otherwise disclosed) by emergency manager directors. Because of the time and effort involved in preparing the original Atlas, it has not been revised since its original publication in 1998. The topographical data input for the SLOSH model and the base map for Volume 2 of the Atlas was the 7.5-Minute Series Jacksonville Beach Quadrangle Map produced by the United States Geological Survey. These maps are used to establish the ground elevations for the grids but are limited in their ability to do fine resolution, that is, provide detailed information regarding the elevation for small areas of land within the grid. Although the Atlas indicates that it used the most current quadrangle map available, which was the 1994 version, the Council actually used the 1981 version. Except for some minor items, however, the record does not disclose any material differences between the two maps. Therefore, the use of the older version does not affect the validity of the information in the Atlas. The Atlas further indicates that the base contours taken from the Quadrangle Map were five-foot contours. However, both the 1981 and the 1994 versions of the Quadrangle Map only show a ten-foot contour line just to the south and southwest of the Moody property, and no five-foot contour lines. See Moody Exhibit BRJ-3. Thus, the map was "just saying that this property [the Moody property] is 10 feet or less." Time/History points are specific points within SLOSH grid cells that are selected by the Council for the purpose of giving detailed information at the point selected. Many of the points are on or near critical roadways. The Moody property is directly underneath Time/History Point 73. In terms of size, the Moody property is a very small percentage of the total grid cell in which that point is located. According to the Atlas, Point 73 is where Atlantic Boulevard crosses the Intracoastal Waterway. The Department, City, and Moody agree, and the Atlas indicates, that the maximum category 1 storm surge elevation at that point is five feet. Therefore, any land that is in the vicinity of Time/History Point 73 and is less than or equal to five feet in elevation will be inundated by the maximum category 1 hurricane storm surge. According to the legend on the Atlas, areas depicted in dark blue can anticipate inundation in a category 1 storm. The geographic area within Time/History Point 73 is shown on Plate 6 of Volume 2 of the Atlas and depicts the entire Moody property, as well the land in the vicinity of that point, in dark blue, thus implying that all or most of Moody's property is within the storm surge for a category 1 storm. However, it is noted that a significant portion of the Moody property is obscured by the Point 73 label on the Atlas' Plate 6. Even so, given the broad brush scope of that document and the solid dark blue color extending along the Intracoastal Waterway in that area, it is fair to infer that the land area under the label is also dark blue and subject to category 1 evacuation requirements. For land use planning throughout the State, the Department uses the CHHA that is established in the Atlas published by the local regional planning council. (In both the existing and amended versions of Policy 7.3.1, the City also uses the Atlas for purposes of delineating the CHHA.) Therefore, if the Atlas depicts a geographic area as being in the CHHA, the Department relies upon that information when it reviews plan amendments proposing to increase density within that area. In doing so, the Department acknowledges that the Atlas necessarily reflects the areas subject to storm surge on a "broad-brush regional approach," but points out that it would be impractical to attempt to carve out extremely small areas along the coast or waterways, parcel by parcel or acre by acre, which might have elevations above the storm surge line and not be subject to the development requirements within a CHHA. It also points out that if exceptions to the storm surge line in the Atlas are allowed, the CHHA requirements could be circumvented by a landowner simply placing fill on the property to raise the elevation. Finally, the SLOSH model is based on average elevations for an entire grid cell, and the model cannot produce a map with land elevations for specific parcels. The Department suggests, however, that generalized data is the best data available for conducting an analysis of storm surge. Because of the "broad-brush" and "averaging" constraints inherent in the Atlas and SLOSH, and the fact that the Atlas' delineation of the CHHA is used primarily for evacuation planning purposes rather than land use planning, the City and Moody contend that site-specific data is more desirable when determining land use entitlements. They suggest that professionally prepared surveys are far more accurate and precise in determining the elevation on a parcel than the Quadrangle Map, which in this case only depicted ten-foot contours. In this vein, the amended version of Policy 7.3.1 (which is the subject of Case No. 08-4193GM) allows a property owner to submit site-specific data (such as a survey) to demonstrate that the property, or part of it, is not below the category 1 storm surge elevation and is not within the CHHA. An increase of density (or development) within a CHHA is not barred by the statute. In fact, Section 163.3178(9)(a), Florida Statutes, provides that plan amendments proposing an increase in density within a CHHA may be found in compliance if the adopted level of service (LOS) for out-of-county hurricane evacuation is maintained for a category 5 storm event; or (b) a 12-hour evacuation time to shelter is maintained for a category 5 storm event and shelter reasonably expected to accommodate the residents of the contemplated development is available; or (c) appropriate mitigation is provided that will satisfy the provisions of items (a) and (b), including payment of money, contribution of land, and construction of hurricane shelters and transportation facilities. Therefore, even if the Moody parcel is found to be within a CHHA, it may still increase density within that parcel so long as the above criteria are met. By way of example, payments into a shelter mitigation fund would be one way to mitigate the effects of increasing residential density within the CHHA. FLUM Amendment The property In early 1995, Moody acquired the 77.22-acre tract of property which is the subject of the FLUM amendment, although it has been used as an industrial shipyard since 1951. The property lies on the north side of Atlantic Boulevard, a principal arterial roadway which generally extends from the coast (beginning just north of Neptune Beach) westward to the "downtown" area. The eastern boundary of the property adjoins the Intracoastal Waterway. Approximately 37 acres of the property, or a little less than one-half of the total acreage, consists of environmentally sensitive saltwater marshes. These are located on the west, north, and northeast sides of the property. Near the southwest corner of the property there is also a small wetland scrub vegetative community. The commercial activities on the current site consist of approximately 116,500 square feet of heavy industrial uses involved in the construction and repair of large ships. They are located on that part of the southern half of the property which sits closest to Atlantic Boulevard and the Intracoastal Waterway. The site also includes a small harbor for docking of ships. The area immediately surrounding the existing boat basin in the south-central part of the property has been environmentally disturbed as part of the ongoing shipyard operations. The development surrounding the Moody site is a mix of residential, commercial, and industrial uses. Single-family residences are the dominant use, occupying seventy-four percent of parcels within a one-half mile radius of the property. Britt and the resident intervenors all reside or own property in a residential development known as Pablo Point, which begins a hundred feet or so to the west of the Moody property, separated only by a marshland. Directly south of the Moody property, and on the south side of Atlantic Boulevard, is a new development known as HarborTown, which in 2002 was the subject of two land use changes, one from Agriculture IV to Conservation and one from Water-Dependent and Water Related (WD-WR) to Community/General Commercial (C/GC). A companion Planned Unit Development (PUD) provides for a mixed residential development with a maximum of 690 dwelling units, 28,000 square feet of office and commercial space, 150 wet slips, and conservation of approximately 29 acres of marshlands. According to the Atlas, it appears that at least part, if not all, of that development may be within the CHHA. The property is accessed by a service road at the Intracoastal Waterway, off Atlantic Boulevard. The eastbound exit ramp, which would be used by emergency rescue teams to access the site, exits to the right and goes under Atlantic Boulevard adjacent to the Intracoastal Waterway in order to reach the Moody site. Egress from the site westbound is by way of a service road on the north side of Atlantic Boulevard. The Moody property is in two flood zones: X5 and AE. Flood zone X5 generally corresponds with the upland areas at the center of the property that have been historically disturbed by shipyard operations and are not likely to flood. Floodzone AE generally corresponds with the environmentally sensitive wetland areas of the property and will likely flood in a 100-year storm. The Application and Review Process Sometime in 2006, Moody filed an application with the City to change the land use designation on its property from WD- WR and Agriculture IV to C/GC. The WD-WR classification allows for water dependent industrial uses such as shipyards, industrial docks, and port facilities. The Agriculture IV land use allows various agriculture uses and single-family residential development at the maximum density of 2.5 units per acre. The C/GC designation permits a wide range of uses, including multi-family residential and boat storage and sales, and is the same land use classification as the HarborTown project across Atlantic Boulevard and to the south. In contrast to the Agriculture IV land use, however, the C/GC land use allows residential development up to twenty units per gross acre. Thus, the map amendment will result in a potential net increase in development by 1,146 dwelling units and 200,245 square feet of nonresidential land use. After reviewing the application, the City approved the map change in December 2006 as a part of its semi-annual land use changes to its Plan. The amendment was then transmitted to the Department for its review. On March 5, 2007, the Department issued its Objections, Recommendations and Comments (ORC) Report, which noted six objections and one comment. Despite the objections contained in the ORC, on May 14, 2008, the City approved the map change by enacting Ordinance No. 2007-355-E. In conjunction with the land use change, the City also approved a PUD for the property (Ordinance No. 2007-356-E enacted the same date), which authorizes a maximum residential development of four residential buildings and 590 dwelling units on the property. This density would be achieved by the construction of four twelve-story buildings, each standing around 144 feet high. In addition, Moody intends to develop marina-related specialty retail (including a club, retail, and restaurant activities) not exceeding 6,500 square feet; a marina consisting of 650 slips, a minimum of which will be available to the public on a first come, first served basis; and a public boat ramp. However, the PUD conditions the residential approval through the restriction that no residential development shall be permitted on any portion of the property in the CHHA unless residential units are made available as a result of a program of mitigation for development in the CHHA, approved by the City and the Department under Section 163.3178(9)(a), Florida Statutes. This meant that the mitigation plan would take those impacts created by residential density in vulnerable areas and negate those impacts by minimizing the time it would take to evacuate and by providing adequate sheltering for those individuals if there was not adequate sheltering already available. On July 9, 2008, the Department issued its Statement of Intent to Find Comprehensive Plan Amendments Not in Compliance (Statement of Intent). (This action was directed not only to Ordinance No. 2007-355-E, but also to the other sixteen FLUM amendments, as well as certain other amendments not relevant here.) On August 1, 2008, the Department filed its Petition alleging that Ordinance No. 2007-355-E is not in compliance. The Department and Intervenors' Objections Moody (with the City's concurrence) has acknowledged on the record that the FLUM amendment is not in compliance. Although the Department has stated a number of reasons why the amendment is not in compliance, unfortunately, there is no record stipulation by the parties as to which specific deficiencies in the Statement of Intent, if any, the City and Moody still dispute. Further, in their Joint Proposed Recommended Order, the City and Moody contend that the Department and supporting Intervenors failed to sustain their objections in several respects. Because of this, a discussion of the Department and Intervenors' objections is appropriate. This Recommended Order will focus only on the objections to the amendment as adopted by the City, and not whether proposed mitigation measures will bring the amendment into compliance. The Department asserts that the FLUM amendment is not in compliance for four reasons. First, it alleges that the City has failed to direct population concentrations away from a known or predicted CHHA, maintain or reduce hurricane evacuation times, or present sufficient mitigation to offset these impacts. Fla. Admin. Code R. 9J-5.012(3)(b)6. and 7.; § 163.3178(9)(a), Fla. Stat. Second, it alleges that the amendment does not comply with the wetlands protection and conservation requirements of Florida Administrative Code Rule 9J-5.013(3), and it is internally inconsistent with Conservation/Coastal Management Element Goal 4 and Objective 4.1 of the Plan. Third, the Department alleges that the amendment will cause LOS standards on two segments of Atlantic Boulevard to fail, that the traffic analysis performed by Moody was flawed, and that the amendment did not include a financially feasible transportation improvement plan to mitigate traffic impacts. Fla. Admin. Code 9J-5.019(3)(a), (c), and (h). Finally, it contends that because of these deficiencies, the amendment is inconsistent with certain goals and policies of the State Comprehensive Plan (State Plan) and Northeast Florida Strategic Regional Policy Plan (Regional Plan). In resolving these contentions, it is noted that the Department's Petition adopts the allegations in the Statement of Intent, which alleges that the amendment is inconsistent with numerous provisions within Chapter 163, Florida Statutes, Florida Administrative Code Rule Chapter 9J-5, and the City, State, and Regional Plans. However, in its Proposed Recommended Order, the Department relies on only some, but not all, of these grounds for urging that the amendment be found not in compliance.3 The undersigned assumes that the Department has simply conformed its allegations to the proof adduced at hearing. (In any event, because the parties agree the amendment is not in compliance, this assumption does not affect the outcome of the case.) Britt and the resident intervenors are aligned with the Department and also contend that the amendment is inconsistent with Future Land Use Element Objective 1.1 and Policies 1.1.7, 1.1.10, and 1.1.14; Conservation/Coastal Management Element Goals 2, 3, 4, and 7, Objectives 4.1 and 7.4, and Policies 2.8.3, 7.1.6, 7.1.9, 7.3.12, 7.4.8, 7.4.12, and 11.1.1; and Transportation Element Objectives 1.1 and 1.2 and Policy 1.1.4. They further assert that archeological resources will be impacted. Development Within the CHHA The Department has alleged that the FLUM amendment constitutes a failure by the City to direct population concentrations away from a known or predicted CHHA, maintain or reduce hurricane evacuation times, or present sufficient mitigation to offset these impacts. These requirements are applicable when an increase in density is proposed for property within a CHHA. See Fla. Admin. Code R. 9J-5.012(3)(b)6. and 7.; § 163.3178(9)(a), Fla. Stat. As noted above, the parties sharply disagree on whether, for land use entitlement purposes, the entire site is within a CHHA. Although existing and amended Policy 7.3.1 rely upon the Atlas for delineating the areas of the City within the CHHA, the proposed amendment to Policy 7.3.1 also allows property owners to provide site-specific data indicating that the property is above the category 1 storm surge elevation and therefore is not subject to the development constraints associated with the CHHA. A professionally prepared survey confirms that about 23.88 acres of the Moody property, mostly located at the south- center of the site where existing commercial activities take place, are above five feet in elevation. (The elevation on the entire parcel ranges from two or three feet along the marsh of the lower lands to nearly twelve feet in the southwest corner of the property, or an average elevation of about seven feet.) Therefore, only the approximately 53.34 acres of the property below five feet in elevation can be expected to be inundated by the maximum category 1 storm surge; the other 23.88 acres will not be affected. The areas on the property which are above the five- foot contour line are connected to Atlantic Boulevard by a service road with an elevation of eleven or twelve feet down to eight feet at its lowest point. Thus, this part of the property is unlikely to ever become completely surrounded by water or inaccessible by emergency personnel or others by car in a category 1 storm event. Even those areas that are below five feet and subject to the storm surge will only reach and maintain an elevation of five feet of water for five or ten minutes before the water begins receding. The evidence shows that slightly less than twenty-four acres of the property are above the category 1 storm surge elevation of five feet, as established by the SLOSH. The evidence further shows that the Atlas is not the most accurate or precise in terms of land elevations because it only depicts ten-foot contours taken from the Quadrangle Map. Thus, it does not identify the elevation on any property less than ten feet. Because of this, on a site-specific scale, based on the Atlas, it cannot be said with certainty that a site or portions of a site are inside or outside of the CHHA. The more persuasive evidence supports a finding that, for land use entitlement purposes within the City, a professionally prepared survey constitutes the best available data regarding land elevations. Therefore, as long as Moody restricts its development to the twenty-four acres that have an elevation of five feet or higher, the mitigation requirements cited by the Department for development within a CHHA do not apply. Environmental Issues The Department asserts that the amendment fails to comply with the wetlands protection and conservation requirements of Florida Administrative Code Rule 9J-5.013(3)(a) and (b) and is internally inconsistent with Goal 4 and Objective 4.1 of the Conservation/Coastal Management Element of the Plan. The Department also cites to Section 163.3177(6)(d), Florida Statutes,4 which requires that the Plan protect wetlands and other natural resources. These requirements are relevant here since the site to be developed is bordered on the north and west by wetland areas and other environmentally sensitive lands that are characterized as primarily saltwater marshes. Florida Administrative Code Rule 9J-5.013(3)(a) and addresses policies regarding the protection and conservation of wetlands. It reads as follows: Wetlands and the natural functions of wetlands shall be protected and conserved. The adequate and appropriate protection and conservation of wetlands shall be accomplished through a comprehensive planning process which includes consideration of the types, values, functions, sizes, conditions and locations of wetlands, and which is based on supporting data and analysis. Future land uses which are incompatible with the protection and conservation of wetlands and wetland functions shall be directed away from the wetlands. The type, intensity or density, extent, distribution and location of allowable land uses and the types, values, functions, sizes, conditions and location of wetlands are land use factors which shall be considered when directing incompatible land uses away from wetlands. Land uses shall be distributed in a manner that minimizes the effect and impact on wetlands. The protection and conservation of wetlands by the direction of incompatible land uses away from wetlands shall occur in combination with other goals, objectives and policies in the comprehensive plan. Where incompatible land uses are allowed to occur, mitigation shall be considered as one means to compensate for loss of wetlands functions. Goal 4 of the Conservation/Coastal Management Element provides that a City goal shall be "[t]o achieve no further net loss of the natural functions of the City's remaining wetlands, improve the quality of the City's wetlands resources over the long-term and improve the water quality and fish and wildlife values of wetlands." Objective 4.1 of the same Element implements Goal 4 and reads as follows: The City shall protect and conserve the natural functions of its existing wetlands, including estuarine marshes. In order to achieve this objective and its associated policies, the City shall continue to work with the applicable regional, state and federal agencies charged with these regulatory responsibilities. As the FLUM amendment now reads, development is limited only by the PUD. Although the PUD contains specific criteria that can be used to prevent adverse impacts to the wetland system, unless appropriate restrictions are incorporated into the Plan itself, the PUD can be amended at any time in the future to allow the property to be developed to its maximum potential. Because the data and analysis for impacts to wetlands are based on the PUD, and not the maximum development potential, the amendment is not supported by adequate data and analysis to ensure that there will be no net loss in existing wetlands, or that existing wetlands will be preserved and protected, as required by Goal 4 and Objective 4.1. Further, the amendment is not supported by adequate data and analysis to show that the City is protecting and preserving natural resources by directing incompatible uses away from the wetlands, as required by Florida Administrative Code Rule 9J-5.013(a) and (b). Therefore, the amendment is internally inconsistent with a goal and objective and is inconsistent with a Department rule. It is also inconsistent with Florida Administrative Code Rule 9J-5.005(5), which requires that there be internal consistency within a Plan. Finally, the amendment is inconsistent with Section 163.3177(6)(d), Florida Statutes, which requires that the Plan protect all natural resources, including wetlands. Transportation Impacts The Department contends that the amendment will cause the LOS on two roadway links to fail, that the traffic analysis submitted inappropriately assumed densities and intensities that were less than allowed by the amendment, and that the amendment did not include a financially feasible transportation improvement plan to mitigate traffic. Fla. Admin. Code R. 9J- 5.019(3)(a), (c), and (h). To address potential traffic impacts from the project, Moody's engineering consultant prepared a transportation analysis and hurricane evacuation study dated April 2007. This analysis was based on the amount of development approved under the PUD rezoning, and not the maximum development allowed under the Plan. The study showed that the amendment will cause the adopted LOS standards for two links on Atlantic Boulevard to fail. Those links include the segment from the Intracoastal Waterway to San Pablo Road and the segment from San Pablo Road to Girvin Road. The study does not show how the City will maintain its LOS standards on those links, assuming that the maximum development is allowed. In this respect, the amendment is inconsistent with Florida Administrative Code Rule 9J- 5.019(3)(c) and (h). Also, the package did not include a financially feasible transportation improvement plan to mitigate the traffic impacts. Although one roadway improvement project is under construction and a second is included in the Capital Improvements Element, both of which should assist in alleviating the traffic impacts caused by the development, these mitigation measures assume that the project will be based upon the development restrictions contained in the PUD and not on the densities and intensities that are potentially allowed under the FLUM amendment. Therefore, in this respect, the amendment is inconsistent with Florida Administrative Code Rule 9J- 5.019(3)(c) and (h). After this proceeding began, the City engaged the services of Prosser Hallock Planners and Engineers to perform a Transportation Analysis Update (Update). The results of that study are dated September 2008. See Moody Exhibit AFK-4. Like the original study, the Update was "based on the site plan [described in the PUD] and not on the maximum densities allowed in the land uses requested." Therefore, because the current FLUM amendment does not restrict development to the maximum densities allowed under the land uses requested, the study fails to properly assess the traffic impacts of the changes, as required by Florida Administrative Code Rule 9J- 5.019(3)(c) and (h). To test transportation impacts from the project, both the original traffic analysis and the Update used a methodology taken from a September 2006 memorandum prepared by the DOT's District II office. See Moody Exhibit AFK-3. However, this methodology uses a "significant and adverse" test to determine road impacts for Development of Regional Impacts (DRIs) under Florida Administrative Code Rule Chapter 9J-2. In using the so- called DRI methodology, the City and Moody assumed that the Department had approved this methodology when it entered into settlement agreements with the applicants for the other sixteen FLUM amendments in Case No. 07-3539GM. However, this assumption was incorrect. While the DRI methodology is not specifically prohibited for use in a plan amendment review, a better methodology to assess traffic impacts for plan amendments is the LOS standard referred to in Florida Administrative Code Rule 9J- 5.019(3)(a) and (h). Therefore, the amendment is not consistent with this rule. Archaeological Resources The Division of Historical Resources of the Department of State has reviewed the amendment and expressed no concerns regarding potential impacts on historical or archaeological resources. The contention by Britt and the resident intervenors that such resources will be impacted has been rejected. Consistency with the State and Regional Plans The Department argues that when the State Plan is construed as a whole, the amendment is inconsistent with that Plan, in contravention of Section 187.101(3), Florida Statutes. It also contends that the amendment is inconsistent with certain policies within State Plan Goals (9)(a), (15)(a), (17)(a), and (19)(a),5 which are codified in Section 187.201, Florida Statutes. Those goals relate generally to natural systems and recreational lands, land use, public facilities, and transportation, respectively. Specifically, the Department contends the amendment is inconsistent with Policies (9)(b)1.,5., and 7., (15)(b)5. and 6., (17)(b)6., and (19)(b)15., which implement the Goals. The Department further contends that the FLUM amendment is inconsistent with Regional Goal 3.2 and Regional Policy 3.2.2. The Regional Goal requires that future development be directed away from areas most vulnerable to storm surge and flooding, while Regional Policy 3.2.2 provides that "[d]evelopment within hurricane evacuation areas should be responsible and permitted only when evacuation route capacity and shelter space capacity is available. Responsible development includes but is not limited to: structures elevated in storm surge and flooding areas, adequate drainage in flooding areas, and sufficient access for emergency response vehicles to all development." Because the FLUM amendment is now limited only by the PUD, and not by other development restrictions in the Plan, the amendment is inconsistent with the cited policies within the State Plan until appropriate remedial measures are adopted. For the same reason, the FLUM amendment is inconsistent with the Regional Goal and Policy. Other Objections Because the City and Moody concede that the amendment is not in compliance, it is unnecessary to address the remaining objections lodged by Britt and the resident intervenors. Ordinance No. 2008-315-E Prior to the adoption of Ordinance No. 2008-315-E, Policy 7.3.1 of the Conservation/Coastal Management Element read as follows: The City shall designate the Coastal High Hazard Areas (CHHA) as those areas designated as the evacuation zone for a category 1 hurricane as established by the 1998 Northeast Florida Hurricane Evacuation Study or the most current study. In order to comply with the mandate that before July 1, 2008, it amend the definition of a CHHA to be consistent with state law, the City originally proposed to amend its current policy by redefining the CHHA as follows: The Coastal High Hazard Area (CHHA) is the area below the elevation of the Category 1 storm surge line as defined by the Sea, Lake, and Overland Surges from Hurricanes (SLOSH) computerized storm surge model as established by the most current Northeast Florida Hurricane Evacuation Study. It is shown on Map C-18. In February 2008, the foregoing amendment, along with an amendment to another policy not relevant here, was transmitted to the Department for its preliminary review. On March 21, 2008, the Department issued an ORC in which it lodged only one technical objection to new Policy 7.3.1. -- that the amendment was inconsistent with Florida Administrative Code Rule 9J-5.005(2), which requires that when a local government adopts by reference a document that may be revised subsequent to plan adoption, the local government "will need to have [its] reference updated within the plan through the amendment process." For reasons not of record, this specific objection was not included in the Statement of Intent or in the parties' Joint Prehearing Stipulation. Even though the Department's Proposed Recommended Order now relies upon that objection, the issue has been waived. Heartland Environmental Council, Inc. v. Department of Community Affairs, et al., DOAH Case No. 94- 2095GM, 1996 Fla. ENV LEXIS 163 at *63 (DOAH Oct. 15, 1996; DCA Nov. 25, 1996)("[challenger] is bound by the allegations in its Petition for Hearing as to the alleged deficiencies in the Plan, as further limited by the Prehearing Stipulation filed in [the] case"). Notwithstanding the technical objection, an adoption hearing was scheduled on June 10, 2008, at which time the City proposed to amend Policy 7.3.1 by adopting the provision as submitted to the Department. During the meeting, but prior to a vote on the matter being taken, a Moody representative submitted for consideration revised language, which added the following sentence at the end of the Policy: "A property shall be deemed to be within the CHHA unless site specific, reliable data and analysis demonstrates otherwise." See City Exhibit 1. The City then adopted the proposed amendment, including the language suggested by Moody. On August 7, 2008, the Department issued a Statement of Intent to Find Comprehensive Plan Amendments Not in Compliance (Statement of Intent). A Notice was also published on August 8, 2008. The Statement of Intent indicated that the text amendment is not in compliance because it is inconsistent with the statutory definition found in Section 163.3178(2)(h), Florida Statutes, and it creates an internal inconsistency with Conservation/Coastal Element Map C-18 attached to the text amendment. That Map defines and depicts the CHHA as the Category 1 surge zone based on the SLOSH model in the Atlas. The Statement of Intent further asserts that the foregoing deficiencies render the amendment inconsistent with State Plan Goals (7)(a), (8)(a), (15)(a), and (25)(a) and Policies (7)(b)23., (15)(b)6., and (25)(b)7. and Regional Goal 3.2. All of these objections are based upon the City's inclusion at the end of the amendment the words "unless site specific, reliable data and analysis demonstrates otherwise." Intervenor Britt has adopted the objections lodged by the Department. The statutory definition of CHHA does not reference an Atlas or a Hurricane Evacuation Study, but instead only references the SLOSH storm surge elevation for a category 1 storm event. Florida Administrative Code Rule 9J-5.005(2)(c) requires that "[d]ata are to be taken from professionally accepted existing sources, such as . . . regional planning councils . . . or existing technical studies." No matter which the City uses, "[t]he data used shall be the best available data, unless the local government desires original data or special studies." Id. In this case, the City has chosen to utilize the Atlas as the best available data regarding delineation of the CHHA unless rebutted by better data and analysis in the form of "site specific, reliable data and analysis." So long as the SLOSH storm surge elevation for a category 1 storm event is used, the greater weight of evidence supports a finding that use of either the Atlas or a land survey identifying the category 1 storm surge contour line on a given property is consistent with the statutory definition. Therefore, the Department's contention that the text amendment conflicts with the statutory definition has not been accepted. The Department also contends that the text amendment creates an internal inconsistency with Map C-18 of the Plan. However, the evidence shows that Map C-18 is used for illustrative purposes only and is intended to be a depiction of the information contained in the Atlas. For the reasons cited in the previous Finding of Fact, the Department and Intervenors have failed to show beyond fair debate that the use of site specific data is inconsistent with other provisions in the Plan. The Department further contends that if the amendment is approved, the requirements of the CHHA can be circumvented by a property owner simply filling his property above the elevation of a category 1 storm surge line. Provided all applicable permitting requirements have been met, however, there is nothing of record to indicate that this would be inappropriate or unlawful. There is insufficient evidence to support a finding that the text amendment is inconsistent with the State or Regional plans. The evidence shows that the City's determination that Policy 7.3.1 is in compliance is fairly debatable. Proposed Remedial Measures for Ordinance 2007-355-E The City and Moody have proposed the following remedial measures to bring the FLUM amendment into compliance, which would be incorporated into a new text amendment or by using an asterisk on the FLUM: Limit residential development to 590 dwellings; Limit marina-related specialty retail (including club, retail, and restaurant activities) to 6,500 square feet; Make available to the general public a minimum of 100 wet and dry slips; Make available to the 590 dwelling units a maximum of 550 wet and dry slips; Comply with the current Florida Clean Marina Program as designated by state law; Confine all residential and non- residential uses (other than boat channels, basins, docks, slips, and ramps) to the mean high water line; Confine all residential uses to areas above the elevation of the Category One storm surge line as established by the Sea, Lake, and Overland Surges from Hurricanes (SLOSH) computerized storm surge model, which on the Moody property is 5.0 feet (NGVD-29); Obtain, prior to final site plan approval, a final wetlands jurisdictional line from the appropriate regulatory agencies; and Provide a conservation easement (except for boat channels, basins, docks, slips, and ramps), which will provide the highest level of protection, to the appropriate state agency or agencies for all wetlands that it or they require to be preserved. The City and Moody have also agreed to "correct certain inaccurate traffic-roadway improvement descriptions contained in its Traffic Circulation and Mass Transit 5-Year Plan" by: Revising the Hodges Boulevard roadway project to describe the construction of a 4- lane urban section from Atlantic Boulevard to Beach Boulevard; and Revising the Atlantic Intracoastal West Area Intersection Improvements roadway project (Atlantic Boulevard at Girvin Road, Hodges Boulevard, and San Pablo Road) to describe additional through lanes (from 6 to 8 lanes) to Atlantic Boulevard between each of the three intersections. No findings are made as to whether the above-proposed remedial measures will bring the FLUM amendment into compliance. See endnote 2, infra.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order determining that the plan amendment adopted by Ordinance No. 2007-355-E is not in compliance. It is further recommended that the final order make a determination that the plan amendment adopted by Ordinance No. 2008-315-E is in compliance. DONE AND ENTERED this 12th day of January, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 2009.
The Issue The issue is whether the City of Boca Raton's (City's) amendments to the Future Land Use Map (FLUM) and the Transportation Element of its Comprehensive Plan (Plan) adopted by Ordinance Nos. 4987 and 4991 on December 11, 2007, 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 eastern Palm Beach County located approximately half way between West Palm Beach and Fort Lauderdale. It adopted the Ordinances which approve the land use amendments being challenged. The Department is the state land planning agency charged with the responsibility for reviewing plan amendments of local governments, such as the City. MCZ is a joint venture real estate company (and an Illinois limited liability company) that acquired ownership of the Club in December 2004. MCZ applied to the City for the plan amendments being challenged and plans to redevelop the property which is the subject of the land use change. Through its agent and consultants, MCZ timely submitted comments to the City during the adoption of the plan amendments. Robert Dukate owns and resides on property facing one of the Club's golf courses, on which are the 29.58 acres that MCZ wishes to develop. He acknowledged that he drafted the Petition (without the assistance of counsel) which was filed in this case. Mr. Dukate timely submitted comments to the City during the adoption of the amendment. The parties agree that he is an affected person. See § 163.3184(1)(a), Fla. Stat. Save Boca is a Florida-for-profit limited liability corporation formed on June 14, 2007, or approximately two months after MCZ filed its application for approval of the plan amendments. According to Petitioners' Exhibit 5, it has around eighty members, although Mr. Dukate stated at hearing that it has "[a]pproximately 70," of which around thirty-five own property at the Club, and twenty-eight live directly adjacent to the proposed development. The corporation's Operating Agreement approved on June 24, 2007, indicates that Save Boca is a "member managed organization." Petitioners' Exhibit 12. However, it has only one manager, Lillian Dukate (Mr. Dukate's wife), who also serves as its Treasurer. Even though Ms. Dukate is the sole manager of the corporation and signed the Petition, she had no role in the drafting of the document. She added that she only reviewed "a little" of the Petition before it was filed in February 2008 and "just kind of skimmed through it just to see what it was." There is one other officer, Ann Pinkocze, who serves as Secretary but has no involvement with the corporation except for signing checks. The Petition alleges that the organization "submitted oral and/or written comments and objections to the amendment during the adoption process." This was confirmed at hearing by Mr. Dukate who indicated that the organization hired an attorney (Jane West, Esquire) to submit oral or written comments to the City Commission during the adoption process. There is some confusion regarding the nature and purpose of the organization. Neither the Articles of Incorporation nor the Operating Agreement (the only two documents pertaining to the operation of the corporation) provides that information. At hearing, Mr. Dukate, who was responsible for its formation, stated that the corporation was formed "for the purposes of saving green space within the City of Boca Raton at the request of many residents in this particular community." He added that it is not necessarily limited to activities within the City and denied that it was formed specifically to oppose these plan amendments or "reap the benefits of any negotiations [it] might have with the developer." Although Section III.6 of the Operating Agreement requires that the organization conduct "an annual membership meeting," and it provides that "any member may call a special membership meeting at any time by communicating to all other members the plan to schedule a special meeting," there is no evidence that the organization has ever held a meeting or passed a resolution. This fact was partially acknowledged by Mr. Dukate when he confirmed that no meetings have been held since the City adopted the amendments in December 2007. Minimal activities conducted by the organization include the filing of a Petition and participating in this matter, sending emails and correspondence to members of the Boca Teeca community, and the hiring of one expert and counsel shortly before the hearing. According to a letter he wrote to his neighbors on June 22, 2007, or around a week after Save Boca was formed, Mr. Dukate urged them to join Save Boca "to coordinate the process" of negotiating with MCZ on behalf of the community in order to reduce the impact of the project as much as possible. Intervenor's Exhibit 21. In an earlier email authored by Mr. Dukate on June 10, 2007, concerning the possibility of hiring an attorney to oppose the project, he stated that "[c]onsidering the amount of money that the city was extracting from this developer -- $3myn [$3 million] + $185K for the median beautification + more money for work-force housing -- we should have no trouble getting in excess of $300k for our community, or almost $10k/house." Intervenor's Exhibit 22. Through cross-examination at hearing, Intervenor sought to establish that there was no action ever taken by the corporation to approve the filing of a petition in this case. However, that issue was not pursued in the Joint Proposed Recommended Order and it is assumed that claim has been abandoned. The Operating Agreement indicates that all management decisions will require "the approval of a majority of managers" and that "[a]ction by written consent may be taken without a meeting, without prior notice, and without a vote." Petitioners' Exhibit 12, page 1. Ms. Dukate is the only manager and she alone could presumably make a decision to initiate a legal proceeding on behalf of Save Boca. Except for the Petition itself, there is no evidence of any other "written consent." Background As noted above, MCZ purchased the Club in December 2004. The Club consists of approximately 212 acres on which are located a residential community known as Boca Teeca, three nine- hole golf courses (known as the north, west, and south courses), a clubhouse, an inn, and maintenance facilities. The Club is bounded on the west by Interstate 95 (I-95), on its southern border by Yamato Road, by a railroad track which lies just west of North Dixie Highway (State Road 811) on its eastern side, and by a canal on its northern boundary. Northwest Second Avenue (a part of which is also known as Boca Raton Boulevard), a City- maintained road, runs in a north-south direction through the eastern half of the property, while Jeffrey Street intersects with Northwest Second Avenue and runs from there through the center of the property in a northwest direction and eventually crosses over I-95 where it becomes Clint Moore Road. MCZ plans to redesign the Club by significantly upgrading the eighteen-hole championship golf course, creating a new nine-hole executive golf course from an existing nine-hole championship course, creating new enhanced social facilities, and constructing 211 new townhome units. The townhomes will be constructed on approximately 29.58 acres in the southwest portion of the property just east of I-95 and south of Jeffrey Street. Nine holes of the existing golf course are currently located on that site and will be eliminated, to be replaced by a nine-hole executive course in another area of the Club. It is fair to infer that one of the driving forces behind this challenge is Petitioners' opposition to the construction of 211 townhomes on what is now open space (currently a nine-hole golf course) lying to the west-southwest of the homes of Mr. Dukate and presumably some other Save Boca members. By application filed with the City on April 10, 2007, MCZ sought approval of the two plan amendments in question, including a change in the 29.58 acres from Recreation and Open Space to Residential Medium (Ordinance No. 4987) and a text amendment (consisting of a new goal, policy, and four objectives and an amendment to an existing policy) to the City's Transportation Element (Ordinance No. 4991). The FLUM amendment allows a density on the property not to exceed 9.5 units per acre, although MCZ has agreed to not exceed 7.1 units per acre. See Policy LU.1.1.2. The text amendments specifically provide for the adoption of an Alternate Traffic Concurrency Standard (ATCS). The effect of the text amendments is to allow a new interim level of service (LOS) standard (1,960 two-way peak hour trips) for that portion of Northwest Second Avenue extending from Yamato Road to Jeffrey Street to account for the anticipated impacts of the proposed development. This was necessary since the traffic volume on the roadway has been, and is currently, exceeding the upper limit of its established LOS E (1,550 vehicles at peak hour). Any development approved pursuant to the ATCS must also employ certain mitigation measures, such as improved turn lanes. The amendments were considered at a meeting of the City's Planning and Zoning Board on June 7, 2007. With one dissenting vote, the Board recommended approval to the City. The amendments were then considered and approved by the City Council at a public hearing conducted on September 11, 2007. On September 25, 2007, the amendment package was transmitted to the Department for its review. (The amendment package included four Ordinances; however, only two are in issue.) On November 30, 2007, the Department issued its Objections, Recommendations and Comment Report (ORC), which cited objections relating to ensuring adequate potable water and transportation capacity to support the proposed map amendments and establishing a level of service (LOS) standard "consistent with Rule 9J-5, F.A.C." More specifically, in terms of traffic impacts, the Department was concerned that the City had only evaluated the impacts of the proposed development rather than the maximum development potential that would be allowed under the new land use category. On December 11, 2007, the City Council voted to adopt Ordinance Nos. 4987 and 4991, which approved the change in the FLUM and amended the Transportation Element. The amendment package was transmitted to the Department for its final review on December 17, 2007. That package included revised data and analysis in response to the ORC. See Finding of Fact 44, infra. On January 25, 2008, a Department staff report was issued recommending that the two Ordinances be found in compliance. This was approved by the Office of Comprehensive Planning on January 28, 2008. On February 4, 2008, the Department published its Notice of Intent in the Boca Raton News. On February 25, 2008, Petitioners filed their Petition contending that Ordinance Nos. 4987 and 4991 were not in compliance. As grounds, they asserted that Ordinance No. 4987 (the FLUM amendment) is inconsistent with Objective REC. 3.1.0 of the Plan, while they generally contended that Ordinance No. 4991 (the text amendment) is inconsistent with the EAR and various provisions within the Transportation Element of the Plan, is not supported by adequate data and analysis, and violates the concurrency statute. Petitioners' Objections Petitioners first contend that the FLUM amendment is inconsistent with Objective REC 3.1.0, which requires the City to "[d]esignate, acquire, or otherwise preserve a system of open space" that, among other things, "provides visual relief from urban development." The Petition alleges that the amendment "reduces the availability of open space, as well as, the availability of land designated for recreational use within the city and does not provide visual relief from urban development." Petition, paragraph 15. Mr. Dukate's residence is approximately 150 feet from the location of the proposed townhome development and overlooks a golf course, some trees, and I-95 in the distance. The proposed townhomes are designed to resemble villas in a Key West architectural style and are clustered in groups of six connected by pedestrian walkways. The height restriction for all units is thirty-five feet. However, the townhomes closest to the single-family homes have been designed as two- story units. There will be significant landscaping and a buffer between the townhomes and I-95 and the existing single-family homes to the east. The evidence shows that if the property is developed, it will provide visual relief from urban development. In addition, the proposed development provides substantial open space on site, over sixty percent more than is required by the City's Land Development Code. The FLUM amendment also furthers the cited Objective by providing pedestrian and bicycle linkages between parks, schools, residential, and commercial areas. Although the issue of compatibility was not raised in the Petition except in the context of proving standing, the City's Principal Planner, Jennifer Hofmeister, established that her review of the FLUM amendment was a "lot more detailed and specific than a lot of other local governments would do [for] their compatibility analysis." Ms. Hofmeister concluded that the two uses are compatible under the current Plan. In making her analysis, she reviewed the adjacent land uses on the FLUM, the proposed site plan submitted by MCZ, including the maximum height of the townhomes, and the densities allowed by single- family neighborhoods and the new land use. Ms. Hofmeister further noted that higher density housing has existed adjacent to single-family homes in the area just north of Yamato Road since the Club was developed in 1973 or 1974. She also pointed out that in the field of planning, medium density (such as townhomes) is considered a transitional land use in the residential land use category and is compatible with a single- family neighborhood. Petitioners' planning expert, Deborah Golden-Gestner, acknowledged that while she had reviewed parts of the application file, such as the Department of Transportation's (DOT) traffic comments, she had never seen or reviewed the challenged plan amendments before she presented testimony at the final hearing. Ms. Golden-Gestner contended that the City's review process was flawed because it failed to consider the 1973 master plan for the Boca Teeca community, which limited development to 1,774 units, of which 1,682 have been built to date. Therefore, she concluded that the FLUM amendment violates the terms of that plan since it allows 211 more units to be built. However, consistency with a master plan is not a compliance consideration. Further, the 1973 master plan was not raised as an issue in the Petition. Assuming arguendo that the master plan is data that could have been considered by the City (although this argument was not made by Petitioners), Ms. Hofmeister established that the property subject to the FLUM amendment (a golf course) has been purchased by a separate entity (MCZ) and is subject to a different master plan. Petitioners have not shown beyond fair debate that the FLUM amendment is inconsistent with the cited Objective or is otherwise not in compliance. Ordinance No. 4991 amends the Transportation Element of the Plan in several respects. First, it revises Policy TRAN. 1.3.1., which prescribes the LOS standards to be maintained on roadways during peak hour and daily conditions, by providing that an exception to those LOS standards is permitted if it is "approved pursuant to Goal 5 of the Transportation Element." At the same time, the Ordinance creates a new Goal 5 which reads as follows: GOAL TRAN. 5.0.0: IT IS THE GOAL OF THE CITY OF BOCA RATON TO IMPLEMENT INTERIM CONCURRENCY MEASURES FOR CONSTRAINED ROADWAYS IDENTIFIED IN THE COMPREHENSIVE PLAN, PENDING THE ADOPTION BY THE CITY COUNCIL OF A MULTI-MODAL TRANSPORTATION DISTRICT ("MMTD") FOR THE CITY. The City also created the following rather lengthy objective and policies to implement the above goal: OBJECTIVE TRAN. 5.1.0: The City Council shall adopt interim traffic concurrency measures that are compatible with, and supportive of, MMTD concepts and principles, including the provision of alternative modes of transportation, funding mechanisms to support transit, applicable roadway improvements and transportation mode connectivity. POLICY TRAN. 5.1.1: The Boca Raton City Council established as its "Major Issue" pursuant to the 2005 Evaluation and Appraisal Report, the adoption of an MMTD for the City. As an interim measure, pending adoption of MMTD Goal, Objective and Policy amendments to the Comprehensive Plan, the City Council desires to implement a procedure for the approval of an alternative traffic concurrency standard ("ATCS") over roadways that are constrained and exceed the adopted level-of-service as provided in Policy TRAN 1.3.1. Any development approved pursuant to the ATCS shall employ mitigation measures as provided below and must be consistent with all other provisions of the Comprehensive Plan. Any development approved pursuant to the ATCS shall implement mitigation measures including, but not limited to, the following: All development shall include on-site and off-site non-vehicular transportation improvements including sidewalks, shared use pathways, transit facilities and/or bike lanes. These improvements shall be constructed to either tie into or expand existing public facilities as a means to provide connectivity to existing regional transit facilities. All development shall continue to test for concurrency pursuant to the Palm Beach County Traffic Performance Standards Ordinance. Any required roadway network improvements otherwise consistent with the Comprehensive Plan, such as turn lanes and signalization improvements shall be constructed by, and at the expense of, the petitioner [developer]. All development shall include a Transportation Demand Management program, traffic calming techniques, a complementary mix of land uses, appropriate densities and intensities of land, access to transit facilities, access management plans and pedestrian friendly site design. Any development approved pursuant to this Comprehensive Plan goal shall enter into an agreement documenting any and all mitigation measures, including any funding necessary to implement MMTD improvements (i.e. mitigation measures) proposed to mitigate roadway level-of-service impacts. POLICY TRAN. 5.1.2: The City shall adopt appropriate Land Development Regulations prior to the approval of any development pursuant to the Code. POLICY TRAN. 5.1.3: Any request for development approval pursuant to the ATCS shall be authorized by the City Council through an amendment to the Comprehensive Plan, and shall be processed in accordance with the Conditional Land Use Amendments and Rezoning provisions found at Chapter 23, Article VI, of the Land Development Code. POLICY TRAN. 5.1.10: Policy TRAN. 1.4.8. establishes NW 2nd Avenue from Yamato Road to the northern City Limit as a 2-lane, undivided, constrained roadway, in order to, among other reasons, maintain the residential character of the adjacent neighborhoods. The following establishes the ATCS for the proposed Ocean Breeze development ("Development") (Universal Conditional Approval Request (UC-06-04)) to satisfy traffic concurrency under Goal 5 of the Transportation Element, pursuant to the purposes stated in this Goal and Objective, subject to the following mitigation measures and conditions: The level-of-service for NW 2nd Avenue between Yamato Road and Jeffrey Street is hereby established as 1,960 two-way peak hour trips. The Ocean Breeze developer shall enter into a written mitigation agreement to implement the below described mitigation measures, including but not limited to those measures provided in POLICY TRAN. 5.1.1., as more specifically defined below. The developer shall contribute $6,000,000 to the City to offset roadway capacity constraints. These dollars shall be used by the City to improve NW 2nd Avenue as a 4-lane divided highway or to fund MMTD improvements that will impact the Development. The Mitigation Agreement shall specify the disposition of funds in the event the Development Order expires. The developer shall construct the following off-site MMTD improvements: sidewalks along NW 2nd Avenue and Jeffrey Street to tie the proposed development into the City's pedestrian and bikeway system. The Mitigation Agreement shall not be transferred or assignable without the written consent of the City and it shall be entered into prior to the issuance of a Development Order. * * * (Although the terms of a mitigation agreement between a local government and a developer are not normally included in the comprehensive plan, the testimony was that local governments are now incorporating this type of language in their plans.) Petitioners have alleged that the amendments adopted by Ordinance No. 4991 are not in compliance for a number of reasons, some of which are quite general in nature and do not identify the specific parts of the lengthy text amendments that are actually being challenged. First, they argue that the amendments are inconsistent with a statement found at page 37 of the City's 2005 EAR, which reads as follows: For any significant future development to occur in this area, Boca Raton Blvd. would need to be widened to a four (4)-lane divided roadway. Developers would be required to fund this improvement. The estimated cost to widen Boca Raton Blvd. to a four (4)-lane divided road is approximately 14.3 million dollars based upon the FDOT Transportation Cost Manual. Petitioners generally assert that because the Mitigation Agreement entered into by the developer and the City only provides for $6 million for the widening of Northwest 2nd Avenue (Boca Raton Boulevard) and not the $14.3 million referred to in the EAR, the amendment and the EAR are inconsistent. An EAR is the first step in updating a local government's comprehensive plan and is prepared every seven years to determine if the plan's goals, objectives, and policies are being met, or if new goals, objectives, and policies need to be implemented. See § 163.3191, Fla. Stat.; Fla. Admin. Code R. 9J-5.003(44). Once an EAR is found to be sufficient by the Department, the next step is for the local government to adopt EAR-based amendments which incorporate the recommended revisions in the EAR. However, there is no requirement in Chapter 163, Florida Statutes, or Florida Administrative Code Rule Chapter 9J-5 that plan amendments be consistent with EAR provisions. See § 163.3184(1)(b), Fla. Stat. In fact, the City may deviate from changes recommended in the EAR, so long as the action taken is supported by adequate data and analysis. In this case, the proposed amendments are not EAR-based amendments, and the Department did not review, and was not required to review, the City's EAR to determine whether the proposed amendments were consistent with that document.6 Petitioners further allege that the City is basing the amendments on the adoption and implementation of the MMTD, which "may, or may not be adopted." Petition, paragraph 18. They go on to allege that this in turn violates GOAL TRAN. 1.0.0, which provides that a goal of the City shall be to provide a safe transportation system. The purpose of a MMTD is to promote alternative forms of transportation, such as pedestrian, bicycle, and transit modes, in order to reduce automobile trips. The 2005 EAR identified the adoption of a MMTD as a major issue for the City. Intervenor's Exhibit 7, Chapter 3. While the City is currently in the planning stages for the establishment of a MMTD, it must first have money in the budget to implement the changes and then prepare amendments to the Plan and Code of Ordinances. The precise date when this will occur, if at all, is unknown. The evidence established that the plan amendments are neither contingent nor dependent on the implementation of the MMTD. Indeed, the traffic analysis supporting the amendments has not assumed that any trips would be removed from the roadway by the implementation of the MMTD. Further, the Department did not consider the implementation of the MMTD in its review of the amendments nor deem it necessary. If the City does in fact implement the MMTD at some future date, it will need to amend its Plan by a separate amendment. Therefore, the MMTD is not relevant to determining whether the amendments are in compliance.7 Petitioners further allege that the plan amendment, which specifically modifies the LOS to allow for 1,960 two-way trips on a segment of Northwest Second Avenue, violates Policy TRAN. 1.4.8 by allowing "congestion which will jeopardize the safety of not only the motorists but especially the pedestrians and the reduction of the quality of life and lead to degradation of the residential character of the community." Petition, paragraph 19. The policy allegedly contravened provides that "NW 2nd Avenue from Yamato Road to the northern city limits shall remain a 2-lane undivided constrained facility in order to maintain the residential character and provide a pedestrian and bicycle friendly culture to adjacent neighborhoods." The segment of roadway at issue is Northwest Second Avenue between Jeffrey Street and Yamato Road, which cuts through the eastern half of the Club and is a local road. Although classified as a "2-lane undivided constrained facility" in the Plan, this roadway is actually considered an undivided three-lane roadway because it has a number of dedicated left turn lanes. Like all City (or local) roads, this segment is designated LOS E, which allows for 1,550 two-way peak trips. This LOS has been consistently exceeded since 1994. (Local governments have the discretion to establish LOS standards on local roads that are not consistent with any LOS standards established by the DOT. See § 163.3180(10), Fla. Stat.) The LOS as defined in the Highway Capacity Manual and accepted by the City and Palm Beach County (County) is ultimately defined in terms of driver delay. The City Traffic Engineer, Douglass Hess, established that various improvements which are required by the City as conditions of approval for these amendments will help improve the LOS along this segment. Specifically, the developer will be required to install sidewalks along Northwest Second Avenue and turn lane improvements at the intersection of Northwest Second Avenue and Jeffrey Street. The turn lane improvements include a redesign of the north-bound turn lane (by expanding the lane from 120 feet to 300 feet long), which will allow for more storage of cars, and the addition of a new south-bound turn lane which will direct traffic to West Jeffrey Street. Mr. Hess also analyzed the intersection of Northwest Second Avenue and Jeffrey Street on a chart demonstrating the average motorist's delay during the morning and afternoon peak hours under three different scenarios. See Intervenor's Exhibit The first scenario was as the intersection currently exists in 2007 peak season; the second is 2010 conditions without the development; and the third demonstrated 2010 conditions with the development, including the lane improvements. The Exhibit reflects that the average delay in seconds during morning and afternoon peak hours under existing traffic conditions in 2007 is now 74.8 and 73.1 seconds, respectively, or LOS E. Under 2010 traffic conditions with development, including the required improvements, the average delay in seconds will be reduced to 30.5 and 47.3 seconds during morning and afternoon peak hours, respectively, or within the standards for LOS C and D. Therefore, any congestion will greatly improve with this development and the improvements required by the City. Petitioners further allege that Policy TRAN. 1.3.7 is violated "due to a lack of accurate [traffic] data being provided to the city" (Petition, paragraph 17), and "[i]ncreasing the peak-hour traffic level of service standards for a development results in having no standards at all and should not be allowed under the policies of responsible growth planning and therefore violates the concurrency requirements required by the State of Florida" Petition, paragraph 20. Policy TRAN. 1.3.7 provides that "[p]roposed land use changes shall only be approved when traffic impact studies or mitigation measures ensure that adopted roadway level-of-service standards will be upheld." The new LOS for the segment in question is 1,960 two-way peak trip hours, of which only seventy-eight are attributable to the proposed development at the Club during the peak hour. In determining the impact of the development, the City Traffic Engineer considered a number of factors. First, he noted that the traffic volumes on this segment of roadway had actually been declining over the past several years. Even so, he elected to increase the existing traffic by a compounded growth rate of 1.15 percent per year. Second, based upon data provided by the County and City, he also included committed traffic that has not yet materialized on the roadway network. This is traffic that is associated with the approved projects within the area that have not yet reached full build-out of the development. Finally, he added to the roadway network the traffic associated with the Club development. The foregoing analysis resulted in the volume on the relevant segment of roadway to be 1,908 in the peak hour. Because of concerns noted by the Department in its ORC, which asked that the City assume a total build-out of the proposed new zoning category rather than the reduced number of units proposed by MCZ, the City made a second analysis of the traffic impacts. In its second analysis, the City evaluated the impacts using a horizon year of 2012, rather than 2010. Even though the developer proposed to construct only 211 townhomes, the City assumed that there would be 281 dwelling units on the property. With these new assumptions, the traffic volume increased to 1,958, which was still within the proposed LOS standard of 1,960 vehicles during the peak hour. The City reacted appropriately to this data and analysis when it adopted the challenged amendments. In challenging Ordinance No. 4991, Petitioners relied primarily upon the testimony of Larry Hymowitz, a Transportation Planner with the DOT who submitted comments to the Department on November 21, 2007, as part of the Department's review process. See Petitioners' Exhibit 10. The DOT is one of the agencies that is required by law to be provided with copies of proposed amendments for review and to then forward its comments to the Department. In criticizing the same amendment, Ms. Golden- Gestner also relied heavily upon the DOT's comments. Although Mr. Hymowitz concluded that there was a lack of information submitted by the City to demonstrate that adequate mitigation had been proposed to offset the increased traffic from the project, he did not review the adoption package or any other documentation dated after September 2007. Therefore, he was unaware of the additional data and analysis submitted by the City. In this respect, his analysis was flawed. Mr. Hymowitz also incorrectly assumed that the LOS for the Boca Raton Boulevard segment was LOS D, or 1,250 trips per peak hour. In doing so, he overlooked a footnote in the City's transmittal package to the Department which explained that links within the jurisdiction of the City are assigned LOS E. Moreover, the only objection noted by the DOT in its written comments was related to potential traffic impacts on I-95 and U.S. Highway 1. The evidence establishes, however, that the impact of the proposed development on I-95 between Glades Road and Yamato Road (which are the roadways having the two closest ramps onto I-95) was only six trips during peak hour, which is considered to be insignificant and requires no mitigation. Similarly, the impacts on U.S. Highway 1 were small, and the impacted sections would continue to operate at an acceptable LOS D throughout the building of the project and into the horizon year of 2012. Petitioners' traffic consultant, Mr. Wyman, concluded that because Northwest Second Avenue is already a constrained roadway, and the project will generate new traffic, the City should require "proper" mitigation, such as four-laning the roadway or scaling back the development. In reaching this conclusion, Mr. Wyman questioned the accuracy of the City consultant's traffic report. He stated that if he had prepared the traffic report, he would have used more conservative estimates for pass-by trips and different directional components in the traffic count calculation. He agreed, however, that the traffic counts were done "professionally and correctly," he stated that he "respected" the methodology used by the City's consultant, and he agreed that a traffic study includes some subjective analysis by the person performing the study. Finally, in a similar vein, Petitioners have raised a broad contention that "concurrency" requirements under Section 163.3180, Florida Statutes, have been violated. Petition, paragraph 20. (Although the statute runs for eight pages, a more specific citation to a particular part of the statute was not given.) In responding to this broad contention, the Department's Regional Planning Administrator pointed out that the Department is not required to make a concurrency determination in its review of a plan amendment. Rather, its review is limited to determining whether the local government is properly planning for its public facilities. In doing so, the Department determines whether the City (a) has the facilities available at the present time to meet the needs of the proposed development, or (b) the City has plans for facilities to be in place when the impacts of the development occur. Thus, the actual concurrency determination is made by the local government at the time a development order or permit is issued. In this case, the Department determined that the new LOS standard of 1,960 trips on the impacted roadway segment was sufficient to accommodate the development of the project at the maximum development potential. Finally, contrary to Petitioners' assertion, in establishing the new LOS, the City was not required to include any capital improvements in its schedule of capital improvements since none are necessary to maintain that standard. Petitioners have failed to show beyond fair debate that the plan amendments adopted by Ordinance No. 4991 are not supported by adequate data and analysis, are inconsistent with other Plan provisions, violate the concurrency statute, or are otherwise not in compliance.
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 City's plan amendments adopted by Ordinance Nos. 4987 and 4991 are in compliance. Jurisdiction is retained for the purpose of considering Intervenor's Motions for Sanctions, Fees, and Costs, if renewed within thirty days after a final order is entered in this matter. DONE AND ENTERED this 4th day of August, 2008, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of August, 2008.
