The Issue Whether the Small Scale Comprehensive Plan Amendment No. 2003-03 (Plan Amendment) to the City of Miami Future Land Use Map (FLUM), adopted by Ordinance No. 12492, is "in compliance" as defined by Section 163.3184(1)(b), Florida Statutes, and whether Petitioners have standing as “affected person[s]” as defined by Section 163.3184(1)(a), Florida Statutes, in this proceeding.
Findings Of Fact Background The Parties Petitioners, Dr. Ellen Monkus, James Veber, and Gonzalo De Ramon, reside in Spring Garden, a historic neighborhood located within the City of Miami, across the Miami River and to the north of the property subject to the Plan Amendment. Petitioners do not own or operate a port facility, or property on which a port facility is located or property that falls within the definition of “Port of Miami River” found in the City’s Comprehensive Plan. See Finding of Fact 53. Petitioners do not own property within the East Little Havana neighborhood. Petitioners are members of the Spring Garden Civic Association (Association) and Mr. Veber is the president of the Association. Dr. Monkus is a physician and retired from the University of Miami School of Nursing. Mr. De Ramon is a senior vice president for community development for Bank of America; a board member of the Miami-Dade Affordable Housing Advisory Board; and the chair of the Housing Committee for the Homeless Trust. Petitioners are “affected person[s]” and have standing to participate in this proceeding. See Findings of Fact 26-31. The City is a political subdivision of the State of Florida. The City initially adopted its Comprehensive Plan in 1989, and it was most recently revised in April 2004. RAD owns the 6.31-acre parcel (the Property), which is subject of the Plan Amendment. RAD submitted comments to the City at both City Commission hearings held on January 22, 2004, and February 26, 2004. RAD is an “affected person” and has standing to participate as a party in this proceeding. The Property The parties stipulated that the Property is located on the south side of the Miami River in the East Little Havana neighborhood.2 The Property is situated on the part of the Miami River known as the “middle river.” See Finding of Fact 35. The Property is bordered by Northwest 7th Street and South River Drive to the south, a Dade County maintenance facility and a fire station to the west, and a marine maintenance facility to the east. See Intervenors’ Exhibits 1 and 2, for two photographs and identifications of the surrounding area.3 The Property has been vacant for at least ten years. The Property was designated “Industrial” on the City’s FLUM prior to the challenged Plan Amendment, which changed the land use to “Restricted Commercial.” See Endnote 4. Across the Miami River to the north are “Medium Density Multifamily” and “Single Family Residential” land use designations where the Petitioners reside. The Small Scale Plan Amendment Application On or about November 4, 2003, RAD’s predecessor in interest filed with the City an application (Application), requesting a change in land use designation for the Property from “Industrial” to “Restricted Commercial” by amending the FLUM of the Comprehensive Plan.4 The Application was submitted at the same time as applications for a zoning change and a major use special permit (MUSP), because RAD intends to develop a mixed-use project (the Development Project) on the Property. As stipulated, the Application included all items required by all applicable statutes and ordinances for the requested Plan Amendment. Prior to the submission of the land use change Application, the Miami River Commission (MRC) and the Miami River Commission Urban Infill Working Group and Greenways Subcommittee (MRC Subcommittee) reviewed the Development Project.5 The composition of the MRC (18 members) is determined by Section 163.06, Florida Statutes, and includes a neighborhood representative from Spring Garden, the Chair of the Miami River Marine Group, and the Chair of the Marine Council. The MRC acts only in an advisory capacity to the City on issues affecting the Miami River. The MRC provides the Commission with “an official statement” on items impacting the Miami River. When the MRC reviews proposed projects, it determines only if the projects comply with the Miami River Greenway Action Plan6 and the Miami River Corridor Urban Infill Plan (UIP),7 which is the MRC’s strategic plan. Although adopted by the MRC in 2002, the UIP has not been adopted by the City and is not binding on the City’s decisions. After reviewing the Development Project, the MRC Subcommittee voted to recommend to the MRC that it be approved, subject to conditions to which RAD agreed. Upon receiving the MRC Subcommittee’s recommendation, the MRC unanimously (of the members present) voted to recommend approval of the Development Project based on the findings that it is consistent with the UIP and the Miami River Greenway Action Plan (Greenway Plan). The Greenway Plan is incorporated into the UIP, but is a separate plan. See Endnote 6. The MRC submitted a letter, which reflected its recommendation, to the City’s Planning and Zoning Department (P&Z Department) and presented its recommendation to the Commission at the Commission’s January 22, 2004, and February 26, 2004, meetings.8 The P&Z Department reviewed the Application and presented its analysis and favorable recommendation to the City’s Planning Advisory Board (PAB). On December 17, 2003, after a public hearing, the PAB voted to recommend approval of the land use change. The Application was presented to the Commission at public hearings held on January 22, 2004 (“First Reading”), and February 26, 2004 (“Second Reading”), (collectively the Commission Hearings), at which time the P&Z Department provided its written analysis and recommendation for approval of the Application.9 (The application for the zoning change was also presented to the Commission on January 22, 2004. On February 26, 2004, the Commission also considered the Plan Amendment, the zoning change, and the MUSP application.) The P&Z Department’s recommendation for approval of the Plan Amendment took into consideration that “the change to ‘Restricted Commercial’ is also a logical designation and will allow greater flexibility in developing the property in a manner that will be beneficial to the surrounding area.” The analysis also stated that “the existing land use pattern in this neighborhood should be changed” because, in part, the Plan Amendment “promotes and facilitates economic development and growth of job opportunities in the City” under Goal LU-1 and “encourage[s] a diversification in the mix of d [sic] commercial activities” under Policy LU-1.3.6. The analysis concluded by stating that the “Concurrency Management Analysis pertaining to concurrency demonstrates that no levels of service would be reduced below minimum levels” due to redevelopment of the Property, as required by Land Use Policy 1.1.1. See Finding of Fact 42. The Commission voted to approve RAD’s request for a land use change at both the First and Second Readings and adopted Ordinance No. 12492, which amended the FLUM. (The Commission also approved the zoning change and the MUSP.) The Challenge Petitioners challenge the internal consistency of the Plan Amendment with certain goals, objectives, and policies of the Comprehensive Plan and the sufficiency of data and analysis to support the Plan Amendment. Standing Introduction RAD and the City contend that Petitioners lack standing to maintain this proceeding, because they do not qualify as “affected person[s]” as defined by Section 163.3184(1)(a), Florida Statutes. Petitioners reside in Spring Garden, a historic neighborhood in the City of Miami, located across the Miami River and to the north of the Property. RAD and the City, however, assert that Petitioners failed to submit oral or written comments, recommendations, or objections “during the period of time beginning with the transmittal hearing for the plan amendment and ending with the adoption of the plan amendment.” § 163.3184(1)(a), Fla. Stat. The prescribed time period will be referred to as the “Comment Period.” Comment Period The parties agree that the Comment Period ended on February 26, 2004, the date on which the Commission voted to adopt the Plan Amendment, but disagree as to the beginning date of the Comment Period. The Commission holds two publicly noticed hearings for small scale amendments, because the City uses ordinances as the means by which small scale plan amendments are implemented. The Department of Community Affairs (Department) does not review or issue a notice of intent regarding small scale plan amendments. § 163.3187(3)(a), Fla. Stat. The Comment Period commenced at the first of those hearings—the First Reading. Petitioners’ Comments, Objections, and Recommendations As noted, on January 22, 2004, the Commission held its First Reading on the land use change and the zoning change. See Intervenor’s Exhibit 5. Mr. Dickman advised that he was “representing the neighborhood of Spring Garden” regarding the two items. Prior to presenting the testimony of two witnesses, Mr. Dickman further advised that he was “representing Spring Garden Civic Association.” The Commission’s Chairman advised that both items were on the agenda and that Mr. Dickman would technically be entitled to two presentations, but that normally “everybody comes up and says what they’ve got to say on both” and this was understood by Mr. Dickman. Mr. Dickman put into the record approximately over 100 signatures collected from neighbors and appears to reflect, in part, residents on the north side in Spring Garden and south of the Miami River. These signatures appear to be part of Petitioners’ Exhibit 2, including Petitioners’ Exhibit 1, a one- page sheet including the name and signature of Mr. De Ramon. The signatories opposed the requested MUSP, the land use amendment, and the re-zoning to allow the construction of the project. In particular, the “Petition in Opposition” states in part: “The proposed height and bulk of this project is out of scale with the single family and low density character of the Historic Spring Gardens Neighborhood and surrounding areas . . . .” It does not appear that Petitioners, Dr. Monkus and Mr. Veber signed the Petition, although each Petitioner testified during the First Reading and Mssrs. Veber and De Ramon testified during the Second Reading. During the Second Reading, Mr. Dickman announced that he was “representing the homeowners in Spring Garden.” During both hearings, Mr. Dickman opposed the Development Project and the MUSP, the zoning change, and the land use change. During the final hearing, Mr. De Ramon stated that he had legal representation at the First and Second Readings. It is a fair inference that he was referring to Mr. Dickman. Mr. Veber states that he retained Mr. Dickman to represent him at the Second Reading. During both hearings before the Commission, Petitioners’ objections and comments mainly addressed the following issues: RAD’s alleged failure to demonstrate hardship based on the current land use; the Development Project’s design, height, and density; the alleged need for mixed income housing in the neighborhood; “gentrification”; traffic; alleged light pollution; Petitioners’ contention that the Property’s zoning should be low-density residential; Petitioners’ contention that the Property should be used as a senior residential community or park; RAD’s sound study; the Development Project’s feasibility analysis; and the increase in neighborhood property values. Based upon the weight of the evidence and fair inferences to be derived from the evidence, it is concluded that Petitioners made comments, objections, and/or recommendations regarding the Plan Amendment during the Comment Period. Data and Analysis Petitioners contend that the Plan Amendment is not in compliance with Florida Administrative Code Rule 9J-5.005(2), because the Plan Amendment is not based on relevant and appropriate data, which was collected and applied in a professionally acceptable manner. Petitioners argue that the Plan Amendment is inconsistent with Section 163.3177(6)(a), Florida Statutes, because there is insufficient data and analysis to support the Plan Amendment. Petitioners did not prove that the data and analyses considered by and available to the City in approving the Plan Amendment was insufficient to support approval of the plan Amendment. See Conclusions of Law 92-96. Moreover, approval of the Plan Amendment is supported by substantial data (in existence at the time the Plan Amendment was adopted) and appropriate analysis. Approval of the Plan Amendment is consistent with the City’s analysis of the location of the Property and the surrounding neighborhood. The Property is located on the lower part of the “middle river,”10 close to downtown, and is situated near public transportation, the City’s major employment areas, and the Civic Center.11 The Civic Center, which includes medical facilities and the Criminal Justice Center, is near Northwest 12th Avenue and north of and close to the Miami River. The Property is east of Northwest 12th Avenue and south of the Miami River. The Property is located within an area designated by the City for urban infill. The UIP specifically designates the Property (within the middle river) as an urban infill site, which means that the Property is considered “ripe” for redevelopment. (The Property’s urban infill designation post- dates the 1992 Miami River Master Plan.) Urban infill is also part of the “Eastward Ho” planning concept, which encourages urban infill growth where there is sufficient infrastructure to support it. (The “Eastward Ho” program was created by the Department to encourage a philosophy of development that the City has embraced, although it is not a part of the Comprehensive Plan.) Urban infill is encouraged in order to prevent further westward urban sprawl, which results in over-development in the suburbs, impacting the roadways and the environment. Urban sprawl may occur when land is developed at a very low density, i.e., by using significant parcels of land for a limited number of activities, which, in turn, may yield an inefficient use of land and infrastructure. It was not proven that the Plan Amendment is urban sprawl or will lead to the proliferation of urban sprawl. Also, Petitioners did not prove that there is an over-allocation of residential land uses in the City. See Sierra Club, infra, Final Order at 9-10. Eastward Ho promotes the return of residents to the City and encourages residential, commercial, and retail redevelopment in the City. Properties that are especially appropriate for urban infill are those that are vacant, underdeveloped, underutilized and/or blighted and are located near public facilities, major employment areas, and transportation. Such properties are considered ideal for mixed-use development of residential and commercial uses, which promote efficient use of public facilities. Land designated as Industrial may be used in a manner that promotes the increased employment opportunities goal of the urban infill concept, but, by definition, it is not likely to be used in a manner that would meet other goals of urban infill such as the promotion of mixed-use projects that also include residential development and promote efficient use of public facilities. The Property’s location is suitable for urban infill because it is near public transportation, it benefits from natural amenities afforded by being on the Miami River, and it is located in an area that the City is trying to revitalize. Furthermore, the Property is not currently used for marine industrial purposes; indeed, it has long been vacant. The Plan Amendment was also subjected to a concurrency management analysis, the purpose of which was to determine whether existing public facilities are sufficient to support the levels of additional development permitted under the Restricted Commercial land use designation sought by RAD. See City’s Exhibit 2. The result of the concurrency management analysis (which included consideration of the potential demands on the City’s roadways, potable water supplies, sanitary sewer transmission systems, storm sewer capacity, and solid waste capacity) was a determination that potential development of the Property under the Restricted Commercial designation would not cause a breach of the LOS standards applicable to the City’s facilities and resources. The City’s analysis of the Plan Amendment also included consideration of the MRC letter of recommendation, City planning staff’s general knowledge of the UIP, the Miami River Master Plan,12 and a housing shortage in the City identified by a quasi-City agency known as the Downtown Development Authority. The Applicant prepared an economic impact analysis, which was in existence at the time the City considered the Plan Amendment.13 Leaving a piece of property vacant in hopes that in the future it can be used with its current land use designation is not supported by good planning principles. Petitioners’ expert, Mr. Luft, stated that a high- density residential land use is not necessarily incompatible with marine industrial uses-“[t]hey can co-exist,” depending on how the project is developed. But, Mr. Luft opined that the Plan Amendment is inappropriate and inconsistent with the Port of Miami River goals, objectives, and policies referred to herein, because approving a potential high-density residential land use next to an industrial use, creates uncertainty as to how the marine industry will be protected, necessarily creating an “incompatible environment.” Nevertheless, Mr. Luft also testified that Restricted Commercial is one of a number of reasonable land use designations to consider for the Property. He also agreed that the middle river could support a mixed-use development of residential and commercial that could serve the needs of the neighborhood. Further, Mr. Luft concurred that the City should consider what is beneficial for the City as a whole. Internal consistency Background In general, Petitioners allege that the Plan Amendment is inconsistent with Section 163.3177(6)(a), Florida Statutes, because no goals, objectives, or policies of the Comprehensive Plan supplement the Plan Amendment and that the Plan Amendment is inconsistent with several provisions of the Comprehensive Plan discussed below. Petition at 7. The FLUM “is a planning instrument designed to guide the future development and distribution of land uses within the city in a manner that is consistent with the goals, objectives and policies of the Miami Comprehensive Neighborhood Plan (MCNP). The [FLUM] is a generalized map that does not depict areas less than 2 acres.” There are numerous goals, objectives, and policies within the Comprehensive Plan that supplement the Restricted Commercial land use designation sought by RAD. See, e.g., Joint Exhibit 1, Goal LU-1, Objective LU-1.3, Goal LU-3, and supporting Policies. Petitioners did not prove that the Plan Amendment is inconsistent with the goals, objectives, and policies in the Comprehensive Plan cited by Petitioners. Port of Miami River Element Petitioners contend that the Plan Amendment is inconsistent with Objective PA-3.1, Policy PA-3.1.1, Policy PA 3.1.2, Policy PA-3.1.3, Objective PA-3.3, Policy PA-3.3.1, and Policy LU-1.3.1, because the Plan Amendment “allows the encroachment of the High Density Multifamily Residential land use into a heretofore Industrial land use reserved for the Port of Miami marine related industries.” Petition at 8. Petitioners further allege that the Plan Amendment does not comply with Section 163.3177(2), Florida Statutes,14 because the Plan Amendment is inconsistent with the Comprehensive Plan goals, objectives, and policies which are aimed at retaining the current land use designation of Industrial on those properties along the Miami River intended for marine industrial use. Petition at 7. “Port of Miami River” is a defined term, which includes approximately 14 privately-owned shipping companies that were in existence at the time that the Comprehensive Plan was adopted.15 All of the goals, objectives, and policies use the defined term Port of Miami River. Thus, these goals, objectives, and policies apply solely to that defined term. The Port of Miami River definition refers to “companies” because those companies needed to be legally defined as a port in connection with U.S. Coast Guard regulations. Nevertheless, the Port of Miami River is not a publicly run port. (Mr. Olmedillo and Ms. Slazyk opined that the Port of Miami River is not a land use element, i.e., there is no land use designation in the FLUM referring to Port of Miami River.) At the time that the Comprehensive Plan was adopted, a private shipping company did not own the Property, nor was it used for marine industrial purposes. Instead, it appears that the Miami News occupied the Property. Based on an examination of the Certificates of Use maintained in the City’s public records and other evidence of record relative to the Property, it does not appear that the Property has ever been owned by any of the shipping companies operating on the Miami River at the time of the City’s adoption of the Comprehensive Plan. Objective PA-3.1 and Policies PA-3.1.1, PA-3.1.2, and PA-3.1.3 in the Port of Miami River Element of the Comprehensive Plan require the City to take certain actions through its “land development regulations” (LDRs). LDRs are zoning ordinances, which implement the Comprehensive Plan. See Joint Exhibit 1, “Interpretation of the Future Land Use Plan Map.” With respect to Objective PA-3.3, no persuasive evidence was presented regarding the City’s Port of Miami River planning activities or the Plan Amendment’s alleged inconsistency with the City’s obligation to coordinate its Port of Miami River planning activities with other agencies. Regarding Policy PA-3.3.1, Petitioners offered no persuasive evidence on the subject of the City’s Intergovernmental Coordination Policies with respect to the Port of Miami River and how the Plan Amendment is inconsistent with the City’s obligation to use its Intergovernmental Coordination Policies as the instrument by which it “support[s] the functions of the Port of Miami River.” Petitioners did not prove that the Plan Amendment is inconsistent with these Comprehensive Plan provisions. Land Use Element Petitioners allege that the Plan Amendment is inconsistent with goals, objectives, and policies of the land use element of the Comprehensive Plan, specifically Goal LU-1, Objective LU-1, Objective LU-1.1, Policy LU 1.1.3, Objective LU- 1.5, Objective LU-1.6, and Goal LU-2, because the Plan Amendment “puts existing residential neighborhoods at risk by introducing an incompatible land use.” Petition at 8. Although the City’s review of any application for a comprehensive plan amendment involves consideration of the Comprehensive Plan as a whole, the land use element of the Comprehensive Plan is of primary concern in the instant case because it sets forth the goals, objectives, and policies that directly concern land use. As stated in the P&Z Department’s analysis, the Plan Amendment is consistent with Goal LU-1, and consistency with Goal LU-1 necessarily includes consistency with the objectives and policies that further that goal. The key part of Goal LU-1 that is relevant to the Plan Amendment is maintaining a land use pattern that protects and enhances the quality of life in the City’s residential neighborhoods. The Plan Amendment is not incompatible with and is likely to maintain the land use pattern in the adjacent mixed-use residential neighborhood of East Little Havana and is likely to afford East Little Havana residents access to needed retail and service uses not currently available on the vacant Property and provide East Little Havana residents some relief from their existing older, overcrowded housing. The Plan Amendment is consistent with the land use pattern of the area and is also complementary to the nearby land uses. Approximately 15 percent of the boundaries of the Property are industrial land uses, while the remaining 85 percent include a variety of other land use designations. The Plan Amendment will likely have a positive impact on the area due to the riverwalk and mix of uses that are likely to bring economic revitalization to the area. Petitioners allege in their Petition that the Plan Amendment is inconsistent with “Objective LU-1.” “Objective LU- 1,” however, does not exist. Objective LU-1.1 is concerned with the need for LDRs to foster “a high quality of life in all areas,” with particular regard to the provision of public facilities. The concurrency management analysis performed with regard to the Plan Amendment indicated that the levels of service would not fall below the minimum required levels. With respect to Policy LU-1.1.3, Petitioners did not prove that the Plan Amendment is likely to destabilize the existing land uses and will result in the encroachment of an incompatible land use. Moreover, Policy LU-1.1.3 is a recitation of the protections provided by the City’s zoning ordinance, and is therefore irrelevant to the issues in this case. Policy LU-1.3.1 mandates that the City “provide incentives for commercial redevelopment and new construction” in certain designated areas including the River Corridor. Petitioners did not offer persuasive evidence as to the relevance of this policy. In any event, it is likely that approval of the Plan Amendment, which is likely to facilitate development of a long vacant property, will encourage commercial redevelopment and construction. Ms. Slazyk stated that the East Little Havana neighborhood in which the Property is located is a “Target Area” designated to receive funding for the purpose of revitalization, affordable housing and economic development. Petitioners offered no persuasive evidence that demonstrated that the Plan Amendment is inconsistent with Objective LU-1.5. The Property is designated as a contaminated Brownfield Site and the goals of the Comprehensive Plan include “clean[ing] up” Brownfields. (A Brownfield site has some levels of contamination that make redevelopment difficult without the expenditure of potentially large sums of money for environmental cleanup.) The Plan Amendment will allow a land use designation that could allow the development of a mixed-use project (subject to separate approval) that will include a view corridor of the river and a publicly accessible river walk via a 20-foot-wide greenbelt on each side of the Property. See Pre-Hearing Stipulation at 11. Moreover, Objective LU-1.5 sets forth requirements for LDRs, and is therefore irrelevant to the issues in this case. Objective LU-1.6 provides that the City will regulate property development to insure consistency with the Comprehensive Plan. This proceeding is not concerned with the consistency of the Development Project with the Comprehensive Plan. Therefore, Objective LU-1.6 is irrelevant to this proceeding. However, even if approval of the Plan Amendment is considered to be a regulation of the development of property, such approval is consistent with the Comprehensive Plan because it furthers the Comprehensive Plan’s goals, objectives, and policies. One policy in particular with which the Plan Amendment complies is Policy LU-1.1.11, which designates the City as an Urban Infill Area and states that “[p]riority will be given to infill development on vacant parcels.” The Plan Amendment will allow the Property, which has been vacant for more than 10 years, to be developed as urban infill. Petitioners did not present persuasive evidence proving the relevancy of Goal LU-2, i.e., that the Property contains historic, architectural, or archaeological resources. See Finding of Fact 82. Petitioners did not prove that the Plan Amendment is inconsistent with these Comprehensive Plan provisions. Housing Element Petitioners further contend that the Plan Amendment is inconsistent with Goal LU-2, Goal HO-2, Objective HO-2.1, and Policy HO-2.1.4 on the basis that “it places high density residential development in an area known as the ‘middle river’ far from the area on the Miami River generally accepted as ‘city center.’” Petition at 8. Petitioners have presented no persuasive evidence proving that these housing element goals, objective, and policy restrict high-density development to the “city center.” See Endnotes 10 and 11. Persuasive evidence established that the Plan Amendment is in compliance with the housing element of the Comprehensive Plan. With respect to Goal LU-2, Petitioners did not prove that the Property contains any of “Miami’s historic, architectural and archaeological resources,” which is the subject matter of Goal LU-2. See Joint Exhibit 3, tab l. Petitioners did not prove that the Plan Amendment is inconsistent with these Comprehensive Plan provisions.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued concluding that the Plan Amendment adopted by City of Miami in Ordinance No. 12492 is “in compliance” as defined in Section 163.3184(1)(b), Florida Statutes. DONE AND ENTERED this 3rd day of September, 2004, 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 September, 2004.
The Issue The issue is whether Polk County's small scale development amendment (CPA2003S-02) adopted by Ordinance No. 03-03 on January 22, 2003, as later amended by Ordinance No. 03-19 on March 15, 2003, is in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background Berry is the owner of a tract of land located on the southwest corner of the intersection of Eagle Lake Loop Road (County Road 540-A) and Pollard Road in Section 16, Township 29, Range 26 in the eastern part of unincorporated Polk County, Florida. The property lies south of the City of Winter Haven, east-southeast of the City of Eagle Lake, less than a mile south of Lake Eloise (on which Cypress Gardens is located), and west of U.S. Highway 27. Because Berry owns property within the County, and submitted oral and written comments to the County prior to the adoption of the challenged amendment, it has standing to participate in this action. On July 19, 2002, Berry filed an application with the County Planning Department seeking to change the land use on 9.99 acres (or just below the threshold of 10.0 acres for a small scale amendment) from RL-1 to Neighborhood Activity Center (NAC) to include approximately 4.95 acres of various neighborhood specialty shops such as a grocery store, drug store, convenience store, and dry cleaners, with the remaining acreage used as a mini-warehouse self-storage facility. In September 2002, Berry amended its application by seeking to change 3.93 acres from RL-1 to CC and 6.06 acres from RL-1 to BPC-1. The application was assigned Case File No. CPA2003S- 02. Under the County's review process, the application is first reviewed by the County Development Review Committee (Committee), then by the County Planning Commission (CPC), which either accepts or rejects the Committee's recommendation, and finally by the Board of County Commissioners (Board), which either adopts the amendment, adopts the amendment as amended by the Board, or rejects the amendment. After conducting a preliminary review of the application, on September 16, 2002, the Committee conducted a public hearing and voted to recommend approval. The matter was then transmitted to the CPC, which conducted a meeting on October 9, 2002, and recommended that the Board approve the amendment. On January 22, 2003, by a 3-2 vote, the Board adopted CPA2003S-02 changing the designation on the FLUM of the County Comprehensive Plan (Plan) as proposed by Berry. This was confirmed by the County's adoption of Ordinance No. 03-03. On February 21, 2003, Petitioners filed their Petition challenging the Berry amendment. The matter was again placed on the Board's agenda on March 19, 2003, after the County discovered that Ordinance No. 03-03 had inadvertently changed the land use on the entire parcel to CC rather a mix of CC and BPC-1. In addition, there were minor errors in the legal description of both the 3.93 and 6.06-acre parcels. Accordingly, Ordinance No. 03-19 was enacted to correct those errors. A second Petition for Formal Administrative Proceedings (with essentially the same allegations, but also adding an allegation that the same property had been improperly subject to two small scale amendments within a 12- month period) was filed by Petitioners on March 19, 2003, challenging the action taken in Ordinance No. 03-19. At the outset of the final hearing, Petitioners voluntarily dismissed two allegations contained in their Petition. In their Proposed Recommended Order, Petitioners have further narrowed the issues by addressing only the following allegations: that the property which is the subject of this proceeding exceeds 10.0 acres in size and therefore cannot qualify as a small scale amendment; and that the amendment violates Future Land Use Element (FLUE) Policies 2.102-A1, 2.113-B-3, 2.113-B-4, 2.110-C3, and 2.113-B-1 and is thus internally inconsistent with the Plan. These issues will be discussed separately below. All other allegations contained in the second Petition and the parties' Pre-Hearing Stipulation are deemed to have been withdrawn or abandoned. Because the change in the FLUM was filed and approved as a small scale plan amendment under Section 163.3187(1)(c), Florida Statutes (2003),1 a compliance review of the amendment was not made by the Department of Community Affairs (DCA). See § 163.3187(3)(a), Fla. Stat. Standing of Petitioners Durham is a realtor/developer who owns property within 250 feet of Berry's property and resides at 10 Lake Eloise Lane, Southeast, Winter Haven, Florida. He made oral and written comments to the County prior to the adoption of the amendment. As such, he qualifies as an affected person under Section 163.3184(1)(a), Florida Statutes, and has standing to bring this action. CPPI began as an association in November 2002 and was later incorporated in February 2003. Presently, it has around 100 members, all of whom reside in the County. According to its chairperson, its purpose is to "help educate and inform residents of Polk County . . . towards growth matters that may affect their daily lives." The organization "encourages donations" from its members; it was scheduled to have conducted its first annual meeting on January 10, 2004; and members prepared and circulated petitions opposing the amendment to residents of the area in December 2002 and January 2003. At least one member of CPPI made written and oral comments on its behalf to the County prior to the adoption of the amendment in March 2003. There is no evidence, however, that CPPI (as opposed to its individual members) owns property or owns or operates a business within the County. Therefore, it lacks standing to file a petition. The land and surrounding uses Berry owns a triangle-shaped parcel of land (the parent parcel) totaling around 14 acres which fronts on Eagle Lake Loop Road (a 24-foot wide urban collector road) to the north, Pollard Road (a local road) to the east, and a CSX railroad track, with right-of-way, on its western side. (Pollard Road dead ends at Eagle Lake Loop Road, and another collector road, Eloise Loop Road, continues to the north from the intersection). Pollard Road provides access to eight nearby single-family homes, which lie south of the Berry property and front on Pollard Road, and eventually terminates at the City of Winter Haven's Sewage Treatment Plant (an institutional use), which lies slightly more than a mile south of the site. To the west of the site directly across the railroad tracks and fronting on Eagle Lake Loop Road is additional property owned by Berry and on which were once located the original Berry corporate offices. The Berry office buildings are now used, at least partially, by other tenants. Although the land across the railroad tracks is classified as Residential Suburban (RS), the property can be used for offices since the buildings were constructed, and office use began, prior to the adoption of the Plan. Directly across Pollard Road to the east is a vacant 10-acre tract of land owned by the Baptist Ridge Association, which intends to construct a church on the property. Berry's property is now classified as RL-1, a land use classification which "is characterized by single-family dwelling units, duplex units, and small-scale multi-family units." Since at least the 1950s, however, or long before the County adopted its Plan, the property has been used primarily for agriculture purposes (citrus groves); therefore, Berry is grandfathered to continue this non-conforming use on its property. Presently, the entire tract of land is undeveloped and largely covered by an orange grove, which Berry describes as "past maturation and is declining." Citrus trucks and trailers have been parked on the extreme northwestern corner of the parent parcel and are used in conjunction with the citrus operation. Except for the former Berry offices, a nearby beauty salon operating out of a house, and a convenience store about three-quarters of a mile away, which all began operation before the Plan was adopted and are grandfathered as non- conforming uses, and the City of Winter Haven's large tract of institutional land to the south, all of the property within slightly less than a one-mile radius of the Berry property is classified in various residential land use categories with only residential uses. The Amendment As noted above, Berry has owned the subject property for many years. In 1987, Berry (then under the name of Jack M. Berry, Sr.) made application with the County for a zoning change on the property from Rural Conservation (RC) to Commercial (C-3) to allow typical commercial uses. The application was ultimately denied by the County on the ground, among others, that the zoning district being proposed was inconsistent with the Plan, "given the residential development pattern in the area." At least partly on the theory that the area has changed substantially in the last 15 years, Berry has filed (and the County has approved) an application seeking to change the land use on the property to commercial uses. Berry has carved out of the parent parcel two smaller parcels totaling 9.99 acres in size and seeks to change the land use on the northern parcel (3.93 acres) to CC and the land use on the southern parcel (6.06 acres) to BPC-1. The remaining land in the parent parcel, which consists of a 0.43-acre triangle-shaped parcel on the northwestern corner of the parent parcel and now used by citrus trucks, and a vacant 2.74-acre triangle-shaped parcel on the southern end, will remain R-1. (However, all parties agree that if the amendment is approved, these remaining parcels will be unsuitable for residential development.) In addition, strips of land ranging from 22 to 28 feet in width which front on Eagle Lake Loop Road and Pollard Road will be dedicated to the County for right-of-way and have not been included in the 9.99-acre amendment. Presumably, the proposed change is being done in this manner so that the total acreage is less than 10.0 acres, which qualifies the application to be processed as a small scale development amendment rather than a regular plan amendment and subject to DCA review and approval. If the change is approved, the northern part of the parcel (3.93 acres) will be changed to CC to develop convenience commercial uses. Under the Plan, the most typical tenant in this category is a convenience store, while other typical tenants include laundry, dry cleaning, barber, restaurant, gas station, and office uses. The southern (and larger) portion of the tract will be changed to BPC-1. The most typical tenant in this category is "[o]ne or more light- assembly plants, or warehouse facilities," which include a mini-warehouse storage facility. Other typical tenants described in the Plan are offices, distribution centers, research and development firms, and high-density residential, with proper buffering. (Berry says it intends to build a mini-warehouse facility on the southern parcel; however, any of the above described uses could be placed on the property if the change is approved.) Petitioners' Objections In broad terms, Petitioners have contended that the small scale amendment actually involves a use of more than 10 acres since the strips of land being dedicated as right-of-way to the County must be counted as a part of the land being amended. They also contend that the plan amendment violates five FLUE policies and is therefore internally inconsistent with the Plan. A small scale development amendment can only be adopted if "[t]he proposed amendment involves a use of 10 acres or fewer." See § 163.3187(1)(c)1., Fla. Stat. The parties have agreed that the legal description of the parcel subject to the change includes only 9.99 acres, or less than the 10-acre threshold. However, prior to the development of the site, Berry intends to dedicate to the County two strips of land, one fronting on Eagle Lake Loop Road (28 feet wide), and the other on Pollard Road (22 feet wide), for future right-of-way for some public purpose. Petitioners contend that the right-of-way constitutes essential infrastructure for the development and must be included as a part of the amendment. If this land is added to the amendment, the total acreage would obviously exceed 10.0 acres. The dedicated land is not "essential infrastructure" needed for the development activities on the land, since two roadways (Eagle Lake Loop Road and Pollard Road) already exist on the northern and eastern boundaries of the property, and they are sufficient in size to provide ingress to, and egress from, the property. Instead, the County will "bank" the land in the event some form of right-of-way activity is needed in the future. It is noted that Eagle Lake Loop Road was recently widened to 24 feet, and it is not anticipated that a further widening will occur for a number of years. There is nothing in the Plan which requires an applicant for an amendment to include all of its property in a proposed amendment, or prevents an applicant from leaving a residual piece of property out of the application. Therefore, Berry was not required to include in the amendment the right- of-way or the two smaller residual pieces of property that will remain R-1. Finally, assuming arguendo that Petitioners' contention is correct, that is, that an applicant must include right-of-way land dedicated to the local government in the total acreage calculation, Berry could still lawfully comply with the 10-acre threshold by simply reducing the other acreage being changed to CC or BPC by the amount of land being dedicated to the local government for right-of-way. Therefore, it is found that Berry has not improperly excluded from the amendment land necessary for essential infrastructure so as to violate Section 163.3187(1)(c)1., Florida Statutes, as alleged by Petitioners. Policy 2.102-A1 requires compatibility between adjacent uses. More specifically, it provides that: Land shall be developed so that adjacent uses are compatible with each other, pursuant to the requirements of other Policies in this Future Land Use Element, so that one or more of the following provisions are accomplished: there have been provisions made which buffer incompatible uses from dissimilar uses; incompatible uses are made to be more compatible to each other through limiting the intensity and scale of the more intense use; uses are transitioned through a gradual scaling of different land use activities through the use of innovative development techniques such as a Planned Unit Development. Therefore, as the Plan is now written, so long as Berry develops the land in a manner which accomplishes at least one of the three "provisions" in paragraphs a - c of the policy, so as to make the adjacent uses compatible, the proposed land use change is permissible. As noted above, except for a few non-conforming uses adjacent to, or near the property, virtually all of the area around the Berry property is designated for residential use. The area to the north and northeast is developed with up-scale (with some homes ranging to as high as $1 million in value), low density, large lot, single-family residential subdivisions, including Harbour Estates, Cedar Cove, Cypress Cove, Gaines Cove, and Valhalla. To the east of the site are more subdivisions, including Eloise Place, Skidmore, Cypress Point, Lake Eloise Estates, Eloise Pointe Estates, a mobile home park, and Little Lake Estates. The lands to the south are primarily agriculture and in active citrus groves, with eight single-family homes on Pollard Road. Finally, a church will be built on the property directly across the street from the Berry property at the southeast corner of the intersection of Eagle Lake Loop Road and Pollard Road. The County Planning Director agrees that a convenience store (which is an authorized use on CC land), standing alone, is incompatible with adjacent single-family residences. Given this acknowledgement, and the fact that a non-binding, proposed site plan submitted by Berry with its application does not provide for any buffering between the commercial uses and the residential areas, Petitioners contend that none of the conditions required for compatibility in paragraphs a through c have been met, and thus the policy has been violated. The County has made clear, however, that when a final site plan is submitted, there must be "provisions [in the site plan] . . . which buffer incompatible uses from dissimilar uses," as required by the policy. Assuming that this is done at the site plan stage, at least one of the three provisions will be accomplished, thereby satisfying the compatibility requirement. This being so, the plan amendment does not violate the policy and in this respect is not internally inconsistent with the Plan. Petitioners next contend that the amendment is inconsistent with Policy 2.110-C3, which contains locational criteria for CC property. One such criterion requires that "Convenience Centers shall be located at the intersections of arterial and/or collector roads." Because the property is at a T-shaped intersection (as opposed to a traditional cross intersection with four directions for traffic to move off the site), Petitioners assert that the property is not located at an "intersection" within the meaning of the policy. Eagle Lake Loop Road, on which the northern boundary of the property fronts, is designated as an urban collector road. That road forms an intersection with Pollard Road (a local road) and Eloise Loop Road (also an urban collector road), which meets Eagle Lake Loop Road from the north at the intersection, and then makes a 90 degree turn to the east. (When Eagle Lake Loop Road continues to the east beyond the intersection, it turns into Eloise Loop Road, and later into Thompson Nursery Road, until it eventually intersects with U.S. Highway 17.) There is no dispute that the two collector roads (Eagle Loop Lake Road and Eloise Loop Road) form a T intersection, rather than a traditional cross intersection. For many years, however, the County has considered a T intersection and a cross intersection to be the same in terms of satisfying Plan requirements. Indeed, at the present time, at least four other CC designated properties within the County are located at T intersections. The County's interpretation of the policy is consistent with sound planning principles, is reasonable and logical, and is more persuasive than the contrary view offered by Petitioners. Accordingly, it is found that the amendment does not conflict with Policy 2.110- C3. Petitioners also contend that the amendment is inconsistent with Policy 2.113-B-3, which provides that "Business-Park Centers shall be located with consideration being given to regional transportation issues, and should be located at the intersections of arterial roads, and preferably on a fixed-route mass-transit line." (Emphasis added.) The use of the word "should" (rather than "shall") is intended to state a preference, but not an absolute requirement, that BPC lands be located at the intersections of arterial roads. According to the County's Planning Director, this is because "most cases that come [before the County] don't meet the ideal situation" of satisfying every requirement, and the County has used this permissive language to give itself some degree of flexibility in handling cases that do not meet every Plan requirement. Therefore, even though it is preferable that BPC land be located at the intersection of arterial roads, this requirement is not mandatory, and the County has the flexibility to approve a BPC land use change at property not sited at the intersection of arterial roads. In contrast to the permissive language described above, Policy 2.113-B-4 provides that development within a Business-Park Center shall conform to certain development criteria, including one that Business-Park Centers shall have frontage on, or direct access to, an arterial roadway, or a frontage road or service drive which directly serves an arterial roadway. Business-Park Centers shall incorporate the use of frontage roads or shared ingress/egress facilities wherever practical. In this case, the closest arterial roadway to Berry's property is State Road 17 to the west, which is four miles away, while State Road 60, another arterial roadway, is approximately six miles to the south. These arterial roads must be accessed, at least at the beginning of the trip, by Eagle Lake Loop Road, a two-lane, 24-foot wide urban collector that runs through predominately residential neighborhoods with some homes having fences within a foot or two from the road. The County interprets the requirement that BPC land have "direct access to an arterial road" to be satisfied if the property fronts on a collector road, which then provides access to an arterial road. Under the County's interpretation, the requirement is met since Eagle Lake Loop Road provides access (albeit 4 to 6 miles away) to State Roads 17 and 60. The County says it has consistently interpreted this provision in this manner for at least ten years, and has approved other applications for changes to BPC when those parcels were located on urban collector roads. (The distance between these other BPC parcels and the arterial roads is not of record, however.) While Policy 2.113-B-1 provides that Business-Park Centers are "not intended to accommodate major commercial or other high-traffic producing facilities," they "are intended to promote employment opportunities within the region by allowing for the establishment of office parks, research and development parks, areas for light-industrial facilities, distribution centers, and mixed-use employment parks." The same policy provides that they must have a usable area of 10 acres or more, have a service-area radius of 20 miles or more, be supported by a population of 150,000 or more people, and have a gross leasable area of 500,000 to 2,000,000 square feet. Given this description of their purpose and characteristics, and the wide range of commercial activities that are allowed on Business-Park Center lands, it is not surprising that Policy 2.113-B-3 provides that BPC lands should be located "at the intersections of arterial roads, and preferably on a fixed-route mass-transit line," while Policy 2.113-B-4 requires that they "have direct frontage on, or direct access to, an arterial roadway, or a frontage road or service drive which directly serves on an arterial roadway." When reading these provisions as a whole, it is unreasonable to conclude, as the County does, that "direct access" contemplates a drive of over 4 miles, partly on a narrow two- lane road, in order to reach an arterial road. Accordingly, on this issue, Petitioners' evidence is the most persuasive, and it is found that the plan amendment conflicts with Policy 2.113-B-4 and in this respect is internally inconsistent with the Plan. Policy 2.110-C3 sets forth the following location criteria for Convenience Centers: LOCATION CRITERIA Convenience Centers shall be located at the intersections of arterial and/or collector roads. There shall be the following traveling distance, on public roads, between the center of Convenience Center and the center of any other Convenience Center, or other higher- level Activity Center, Linear Commercial Corridor, or Commercial Enclave providing for the same convenience shopping needs: One (1) mile within the UDA and UGA Two (2) miles within the SDA and UEA This required separation may be reduced if: The higher-level Activity Center, Linear Commercial Corridor or Commercial Enclave within the required distance separation is over 80 percent developed; or the proposed Convenience Center market- area radius, minimum population support is over 5,000 people. Petitioners contend that this policy has been violated in two respects: the Berry property is not located at the intersection of arterial roads; and there is an existing convenience center located within 0.8 mile of the Barry property, and Berry cannot qualify for a reduction in the required separation, as described in paragraphs a and b. For the reasons stated in Findings of Fact 30-32, it is found that the Berry property is located at the intersection of two collector roads (Eagle Lake Loop Road and Eloise Loop Road) and that a T intersection satisfies the requirements of the policy. As to the second contention, the Berry property is located within an UGA (Urban Growth Area), and an existing convenience store is located at the intersection of Rifle Range Road and Eagle Lake Loop Road, or less than a mile west of Berry's property. The land use on the property on which the store sits was recently changed (in December 2003) to BPC, which does not allow a convenience store. However, the store is a non-conforming use, having been located at that site before the Plan was adopted. The locational requirement in Policy 2.110-C-3 that CC lands within the UGA be located at least a mile apart is not the least bit vague or ambiguous: CC designated lands (and not individual convenience stores, as Petitioners suggest) must be separated by at least a mile, unless one of the two criteria for reducing this separation is met. Because there is no CC land within a one-mile radius of the Berry land, the policy has not been violated. Policy 2.113-B-1 sets forth the following relevant characteristic for Business-Park Centers: General characteristics of Business-Park Centers are: Usable Area 10 acres or more There is no dispute that the useable area for the BPC land is only 6.06 acres, or approximately 60 percent of the required acreage. Petitioners contend that the amendment violates the foregoing policy because the useable area on Barry's property is much less than "10 acres or more." While the former County Planning Director conceded that the 10-acre usable area requirement is "mandatory," he justified the amendment on the ground that the 6.06 acres "approximates" 10 acres, and thus satisfies the policy. In the same vein, the current County Planning Director asserted that if Berry was proposing a stand-alone BPC, it would have been required to have 10 usable acres. In this case, though, he pointed out that the Berry property will be used for a nonresidential mixed use (BPC and CC) totaling almost 10 acres, and therefore Berry has satisfied the requirement. The Planning Director admitted, however, that nothing in the Plan specifically allows this type of exception. He justified the County's action on the theory that the Plan "doesn't anticipate every situation that comes in," and "interpretations have to be made of the comprehensive plan and how it's applied." The requirement that Business-Park Centers have a usable area of 10 or more acres is clear and unambiguous, was characterized as being "mandatory," and is not subject to any exceptions in the Plan. This being so, the County's interpretation is found to be unreasonable and contrary to the plain language in the policy, and in this respect the plan amendment is internally inconsistent with the Plan.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order determining that the small scale development amendment (CPA2003S-02) adopted by Polk County by Ordinance No. 03-03, as amended by Ordinance No. 03-19, is not in compliance. DONE AND ENTERED this 24th day of February, 2004, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 2004.
The Issue The issues in this case are whether certain amendments to the Intergovernmental Coordination Element (ICE) of the Comprehensive Plan of the City of Stuart (City), adopted by Ordinance No. 1702-99, are "in compliance," as defined in and required by the "Local Government Comprehensive Planning and Land Development Regulation Act," Chapter 163, Part II, Florida Statutes.
Findings Of Fact Ordinance No. 1702-99 adopted by the City of Stuart, Florida, on April 10, 2000, amends the City's Comprehensive Plan by adding Policies A8.19 and A8.20. The purpose of Policies A8.19 and A8.20 was to comply with Section 163.3177(6)(h)1.a., Florida Statutes (2000). (All statutes cited in this Recommended Order are the Florida Statutes (2000). The parenthetical preamble to Policies A8.19 and A8.20 states: Policies A8.19 and A8.20 are based on extensive meetings with Martin County staff during the preparation of this revision to the ICE Element as well as negotiations that occurred over the course of the past year and a half in conjunction with Stuart's annexation of parcels and related plan amendments. It is proposed that these policies and steps will help to resolve and avoid intergovernmental disputes as well as contribute to meeting the new requirements of Chapter 163. Additional changes were made in response to comments from Martin County. Policy A8.19 provides: During the year 2000, the City will coordinate with Martin County to establish two Joint Planning Areas (JPAs). One JPA will establish an area where annexation is likely to occur during the planning period. Within this first JPA, joint planning shall occur on all relevant annexation issues identified by the City and county, including intergovernmental coordination; land use compatibility; natural resource protection; and provision of services, infrastructure and transportation facilities. The second JPA will be for general planning purposes. Infrastructure planning, recognition of service areas and mitigation of cross-jurisdictional impacts on infrastructure shall be addressed within the second JPA. Within two months after the effective date of this policy, the City will prepare and propose draft policies and areas for each of the JPAs. The City will request the active participation and input of County staff in this initial drafting phase. Joint Planning Areas must be incorporated into both the City and County comprehensive plans or through formal adoption of an official agreement between the City of Stuart and Martin County. Therefore, the City shall propose a special purpose, joint meeting(s) of the City and County LPAs to develop the specific policies and establish the specific areas for presentation to the respective governing boards for ultimate adoption into each comprehensive plan or by official agreement between the City of Stuart and Martin County after a public hearing. Policy A8.20 provides: During the year 2000, the City shall initiate discussions with Martin County to establish a joint procedure to facilitate future annexations into the City. This joint procedure will include: Provision of early notice to the county of the possibility of annexation. Use of joint plans prepared for the JPA's established under Policy A8.19 to the extent they apply to the particular annexation area. Provision of county review of the possible impacts of the potential annexation and intergovernmental assessment of mitigation options. Consideration of mitigation options by the City. It is possible that the City and County could establish the "joint procedure to facilitate future annexations" under Policy A8.20 through formal adoption of an official agreement between the City and Martin County, instead of amendment to their comprehensive plans (similar to the explicit procedure referred to in Policy A8.19.) In addition, Policy A8.20 does not explicitly limit the City and County to the items described in the policy for inclusion in the joint procedure; additional items could be added to the joint procedure. Prior to adoption of Policies A8.19 and A8.20, the City and County entered into interlocal agreements for joint infrastructure service areas. It cannot be ascertained at this time whether those joint infrastructure service areas will be within one of the two JPAs to be established under Policy A8.19. Another of the policies adopted through Ordinance No. 1702-99, namely Policy A7.2, provides: The City shall consider for annexation only those parcels of land which may be lawfully annexed pursuant to Chapter 171, Florida Statutes. Petitioner did not allege in its Petition for Formal Administrative Hearing that the phrase "area where annexations are likely to occur during the planning period" in Policy A8.19(1) was vague. Petitioner mentioned the issue in the Brief General Statement of [Its] Position in the parties' Prehearing Stipulation, but the issue was omitted from that document's joint statement of "the mixed issues of law and fact which remain to be litigated."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, and it is RECOMMENDED that, after further proceedings in accordance with Section 163.3184(9)(b), the Department of Community Affairs: Determine Policy A8.19 not "in compliance"; Determine Policy A8.20 not "in compliance" to the extent that it relies on Policy A8.19; and Submit this Recommended Order to the Administration Commission to take final action and, in accordance with Section 163.3184(11)(a), specify as remedial action that the City of Stuart amend Policy A8.19 to require joint planning policies for the JPAs to be adopted by incorporation in the comprehensive plans of the City and Martin County. DONE AND ENTERED this 11th day of January, 2001, in Tallahassee, Leon County, Florida. _____________________________ J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearing this 11th day of January, 2001. COPIES FURNISHED: Terrell K. Arline, Esquire Legal Director 1000 Friends of Florida 926 East Park Avenue Post Office Box 5948 Tallahassee, Florida 32301 Shaw P. Stiller, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Robert C. Apgar, Esquire Yeline Goin, Esquire 320 Johnston Street Tallahassee, Florida 32303 Steven M. Seibert, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 100 Tallahassee, Florida 32399-2100 Cari L. Roth, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325A Tallahassee, Florida 32399-2100
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.
Conclusions An Administrati ve 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.
The Issue Whether Lee County Comprehensive Plan Amendment CPA2015-00005, adopted by Ordinance No. 20-07 on June 17, 2020 (the “Plan Amendment”), is “in compliance,” as that term is defined in section 163.3184(1)(b), Florida Statutes (2019).1
Findings Of Fact The Parties and Standing Petitioner, William J. Semmer, owns and operates seven businesses on San Carlos Island in Lee County, and owns 25 properties on San Carlos Island, including his personal residence, as well as several rental properties and commercial establishments. Petitioner, Joanne E. Semmer, lives and owns her personal residence in San Carlos Island, and owns and operates a business—Ostego Bay Environmental—on San Carlos Island at 1130 Main Street, directly across Main Street from the property subject to the Plan Amendment (“subject property”). Both Petitioners submitted oral comments to the County concerning the Plan Amendment at the adoption hearing on the Plan Amendment. Lee County (“the County”) is a political subdivision of the State of Florida, with the duty to adopt and amend its Comprehensive Plan in compliance with the Community Planning Act (“the Act”). See § 163.3167(1), Fla. Stat. Intervenor, Southern Comfort Storage, LLC, owns property and operates a business within the County, and owns the subject property. Intervenor applied for the Plan Amendment that is the subject of this final hearing. San Carlos Island The subject property is located on San Carlos Island, a non-barrier island in the unincorporated area of the County between the cities of Fort Myers and Fort Myers Beach. The Matanzas Pass lies to the south, between the island and Ft. Myers Beach. The pass provides access to Estero Bay through a channel with depths between 11 and 14 feet. That portion of the Bay lying north of the island is shallower, with average depths of between four and six feet. The island is approximately one mile long, and is bisected by two main roadways: San Carlos Boulevard, a north/south arterial roadway on the western side of the island that connects via a bridge to Fort Myers Beach; and Main Street, a collector roadway running east/west bisecting the island north and south. Under the existing Comprehensive Plan Future Land Use Map (“FLUM”), San Carlos Island is dominated by Industrial, Urban Community, and Suburban land use designations, generally located as follows: Suburban (residential) on both the eastern and western ends of the island, as well as in the island center north of Main Street; Industrial concentrated in the center of the island, both north and south of Main Street; and Urban Community concentrated in a corridor along San Carlos Boulevard connecting to Fort Myers Beach. Other large land uses include conservation lands, both uplands and wetlands. Another category—Destination Resort Mixed Use Water Dependent (“DRMUWD”)—was added by a plan amendment in 2009, converting 28 acres of Industrial and Suburban to this new use for the Ebtide development, which includes a 450-unit hotel with 75,000 square feet of convention space; 271 multi-family residential units; 10,000 square feet of office; 85,000 square feet of retail, and a marina. This development is approximately one quarter mile from the subject property. San Carlos Island is designated within the Iona-McGregor Planning Community (“the planning community”) pursuant to the Comprehensive Plan. According to the Comprehensive Plan, “[t]his community primarily has lands designated as Central Urban, Urban Community, Suburban, and Outlying Suburban …. This community, due to its proximity to the area beaches, will continue to be a popular area for seasonal residents.” The island is one of three discernable sub-areas of the planning community. According to the Comprehensive Plan: The San Carlos Island area, which is nearly built out today, will continue to develop its infill areas while maintaining its marine oriented nature. Residents of the community will address current planning concerns in a comprehensive review of this area and future amendments to this plan will be made to address these concerns. This area is anticipated to grow substantially from today to 2030. Historically, the economy of the island was driven by the commercial shrimping and fishing industries. Many of the industrial uses on the island were associated with processing seafood, especially packing and freezing seafood for transport beyond the island; warehousing and storage of equipment; and boat repair yards. Advances in technology, including shipboard freezing, have reduced the need for dockside packing houses. In 1950, there were seven packing houses on the island. There are only two packing houses currently in operation on the island, both of which are located south of Main Street, where the boats have access to deep water ports. Increased imports of shrimp from other countries has also contributed to the decline of the shrimping industry on the island.2 The amount of shrimp harvested from waters near the island peaked in the mid-1990s at over 6,000,000 pounds, but had fallen to slightly more than 2,000,000 pounds by 2015. Petitioner, Joanne Semmer, attempted to contradict the evidence that the local shrimp harvest is in decline because the data introduced does not include anything subsequent to 2015. She maintains that the industry has stabilized since 2015. Ms. Semmer testified that “they’re having a bang-up year this year.” Ms. Semmer’s testimony was based on her discussions with commercial shrimp fleet owners and is entirely hearsay evidence upon which the undersigned cannot rely for finding that the shrimp industry has stabilized.3 One of the more recent changes in the shrimping industry is the move from 50-foot to 100-foot shrimp boats, which can carry larger amounts of shrimp, thereby reducing the number of trips needed to harvest the catch. Due to the deeper channel, the properties south of Main Street can better accommodate the larger deep-draft shrimp boats used in the modern shrimping industry. In the last 20 years, the significant development and redevelopment on the island has been commercial and recreational in character. 2 The ratio of local to foreign-sourced shrimp in the United States had decreased from roughly 1:1 in the late 1970s, to roughly 1:5.8 in 2002. 3 Furthermore, Ms. Semmer’s testimony that the shrimpers are having a “bang-up year” and “one of their best years ever,” does not provide numbers of pounds of shrimp to compare with the data introduced by Intervenor. Redevelopment south of Main Street has been characterized by commercial and mixed-use development, rather than industrial development on the waterfront. Two large recreational marinas have been developed which provide commercial fishing berths and boat rentals. They have supporting restaurants, wet slips, dry storage, and some commercial retail. Generally, the area south of Main Street is in transition from traditional industrial to more commercial and recreational uses. The industrial uses north of Main Street are less intense and conducted on mostly unimproved properties. The uses include open yards for storing equipment, repairing and maintaining equipment and boats, parking and turnaround of large trucks used to transport seafood beyond the island, and areas to offload seafood products and equipment from boats. Waterfronts Florida Partnership In 1997, the island was designated by the state as one of the first communities in its Waterfronts Florida Partnership (“Waterfronts Florida” or “the partnership”) program. A self-created committee, of which Ms. Semmer was a vital member, applied for the Waterfronts Florida designation “to help the community deal with the capacity of shrimping and fishing boats that docked there seasonally, as well as educate residents and visitors about the island’s working waterfront.” The portion of the island encompassing the Waterfronts Florida Designated Area includes only property south of Main Street, and stretches from its intersection with the San Carlos Boulevard bridge one half-mile along the Matanzas Pass. Through the partnership, the community developed a self-guided working waterfront tour called “A Healthy Bay = Healthy Seafood,” which takes participants along a short trail with kiosks that provide information about the bay, the habitat, and the fish that live in it. Although it is self- guided, a volunteer is available on certain days to provide a narrated tour. Ms. Semmer is the volunteer program manager and frequently guides the tour herself. Ms. Semmer is also the executive director of the Ostego Bay Foundation Marine Science Center, which is integral to the partnership. The center provides a marine science experience through interactive exhibits, aquariums, hands-on tanks, collections and displays, and holds educational camps. One of the projects of the Waterfronts Florida committee was development of a special area management plan (the “special area plan”) for the island, which was adopted in 1999. The special area plan included the following vision statement for the community: San Carlos Island is a people-oriented community with an important working waterfront that includes vibrant commercial seafood and other marine-based industries and recreational opportunities. These assets contribute to making San Carlos Island an attractive community for its permanent and seasonal residents as well as an interesting area for visiting tourists. The first goal of the special area plan is to “[c]ontinue to support and develop” the island’s commercial fishing and passenger vessel industry “while diversifying the economic base” of the island “to enhance recreational and tourism-related opportunities” and support businesses along San Carlos Boulevard and Main Street. Objectives to accomplish that goal include “[d]iversify[ing] the island’s economic base by enhancing tourism, retail, and recreation opportunities.” The special area plan also refers to the need to possibly revise the water- dependent land use policies “which have been identified as limiting development options along the west side of Main Street.”4 The special area plan calls for developing language that will “increase flexibility and mix of land use types” allowable on land currently zoned for water-dependent uses, which may include traditional commercial fishing village industry “such as restaurants and mixed use commercial/residential.” The Subject Property The subject property is 7.47 acres located north of, and abutting, Main Street. The property is a combination of eight adjoining lots, most of which are narrow and elongated, with a variety of existing zoning designations— marine industrial, light industrial, commercial, and mobile home. The property was most recently the site of the Compass Rose marina, which, in 2006, was approved, through special exception and a variance, for a 286-dry slip boat storage facility at a maximum of 65 feet in height, 29 wet slips, and an associated boat launch; commercial spaces for member gatherings, a restaurant, ship store, and mini-storage. The marina and attendant uses were subsequently destroyed, except for the storage facility, which is located on the westernmost portion of the subject property. The subject property has access to Estero Bay via a 75-foot man-made canal along its eastern boundary. However, from the canal, vessels must access the Bay via a shallow channel with average depths of four to six feet. Commercial fishing and shrimping vessels require over six feet of depth at mean low tide. Most of the subject property is designated Industrial on the FLUM, with a very small portion in Suburban. According to the Comprehensive Plan, the Industrial designation is “reserved mainly for industrial activities and selective land use mixtures … includ[ing] industrial, manufacturing, research, educational uses, and office complex (if specifically related to 4 This document refers to Main Street as a roadway running north/south, rather than east/west. West of Main Street coincides with south of Main Street in the parlance of other documents describing Main Street as an east/west corridor. adjoining industrial uses)[.]” Retail, recreational, and service uses are allowed if they are limited to the sale of products “manufactured or directly related to that manufactured on the premises,” and are subject to acreage limitations. Residential uses are not allowed in the Industrial category. The subject property is also located within the San Carlos Island Water-Dependent overlay zone, the objective of which is to “protect marine- oriented land uses [on the island] from incompatible or pre-emptive land uses.” New development, and substantial redevelopment, within this overlay north of Main Street, is limited to marine industrial uses and recreational marinas. Surrounding Land Uses The subject property is surrounded by property in the Industrial category, with the exception of the property to its east. Lying across the 75- foot canal are three “fingers” of densely-developed residential property extending into Estero Bay which are designated Suburban. The developments are mostly mobile homes and manufactured housing, which, in large part, serve the workforce living on the island. The standard density in the Suburban land use category is six dwelling units per acre (“6 du/acre”). The Oak Street residential development lying directly across the canal is developed at a density of 7 du/acre, and is non-conforming. The Canal Point Mobile Home Park just east of Oak Street, encompasses two “fingers,” Nancy Lane and Emily Lane. Both “fingers” were developed at non-conforming densities of 9.6 du/acre and 11.6 du/acre, respectively. Continuing east along Main Street, Helen Lane and Oyster Bay are mobile home and manufactured housing communities developed at over 13 du/acre. Another residential development, Sportman’s Cove, lies north of the Industrial properties, directly on the Bay, and is developed at 13.1 du/acre. Industrial uses to the west include open storage, closed storage, warehousing, and distribution facilities. South of Main Street is a mix of more intense industrial uses with direct access to the Bay via Matanzas Pass’ deep water channels. A portion of the Industrial property directly north of the subject property is owned by Mr. Semmer. He conducts, or leases the property for, a variety of industrial uses. Mr. Semmer’s property is adjacent to the canal, and he contracts with some smaller shrimp boats and blue crab fishermen to dock and unload there. The property is often used for storage of equipment used by those industries, as well as an open yard for equipment repair. Mr. Semmer’s property was also used as a staging area during reconstruction of the Sanibel Causeway, providing a landing site for marine barges to load and unload large equipment needed for the reconstruction. The property was used to pour and set concrete forms used in the reconstruction process. Access to Mr. Semmer’s property from Main Street is via Ostego Drive, a platted street that runs through the eastern portion of the subject property, separating the upland property from that adjacent to the canal. During reconstruction of the Sanibel Causeway, large equipment trucks, and cement trucks accessed his property via this street. 2015 Plan Amendment Application and Concurrent Rezoning In 2015, Intervenor filed separate applications for the Plan Amendment and a concurrent rezoning of the subject property. The Plan Amendment sought to change the land use classification from Industrial and Suburban to Central Urban. In addition to residential uses, the Central Urban classification allows light industrial and commercial uses. The 2015 concurrent rezoning application sought planned development (“PD”) rezoning for a project consisting of 113 residential dwelling units (of which 38 would be affordable housing); a marina with 29 wet and 286 dry slips; and 30,000 square feet of commercial space, including a restaurant, 200 public parking spaces, and a civic/recreational space that would be available to the general public. The PD establishes a maximum structural height of 175 feet. In 2016, an adoption hearing for the Plan Amendment was scheduled before the County Commission, but action on it was deferred at the request of the Intervenor, who then submitted a new plan amendment application seeking to change the FLUM designation of the subject property to DRMUWD, along with text amendments to the DRMUWD classification. That plan amendment, as well as the concurrent rezoning, were denied by the County in 2019. The original Plan Amendment to Central Urban remained pending. On November 5, 2019, Intervenor filed a request for relief with the County pursuant to the Florida Land Use and Environmental Dispute Resolution Act (“FLUEDRA”), section 70.51, Florida Statutes; as well as a request for informal mediation pursuant to section 163.3181(4). These processes culminated in a mediated settlement agreement between the County and Intervenor whereby the County agreed to adopt the instant Plan Amendment, as well as the concurrent rezoning, for a project consisting of 75 residential dwelling units (reduced from the 113); a marina with 286 dry and 29 wet slips; and 30,000 square feet of commercial space, including a restaurant and waterfront civic/recreational space of 20,000 square feet (land area) that would be open to the general public. The maximum height for structures was reduced from 175 feet to 100 feet under the mediated settlement. The mediated settlement agreement also provided for conditions of development approval and property development regulations. The Plan Amendment The Plan Amendment changes the FLUM designation of the subject property from Industrial and Suburban to Central Urban, a classification which allows residential uses at a standard density range of 4-10 du/acre and up to 15 du/acre through the County’s “bonus density” program for affordable housing. 5 The Central Urban category allows development of residential, commercial, public and quasi-public, and limited light industrial land uses (e.g., wet slips, dry storage, marinas). The Comprehensive Plan encourages mixed-use future development in the Central Urban category. The maximum number of residential units that could be constructed on the subject property at the density of 15 du/acre is 113. The Comprehensive Plan does not govern intensity of non-residential uses. The evidence is insufficient to determine the maximum allowable buildout of the non-residential uses on the subject property. Challenges to the Plan Amendment Petitioners allege that the Plan Amendment: (1) creates internal inconsistencies with the existing Comprehensive Plan, in contravention of section 163.3177(2); (2) is not “based upon relevant and appropriate data and analysis,” as required by section 163.3177(1)(f); and (3) increases density in the Coastal High Hazard Area (“CHHA”), in violation of section 163.3178(8). Internal Inconsistencies Petitioners allege the Plan Amendment is internally inconsistent with a number of Goals, Objectives, and Policies (“GOPs”) of the Comprehensive Plan. The specific allegations can be grouped, generally, as arguments that (1) the Plan Amendment is incompatible with, or will have negative impacts on, surrounding uses; and (2) the Plan Amendment will negatively impact hurricane evacuation by increasing density in the CHHA. Compatibility Petitioners allege the maximum density and intensity of development allowed under the Plan Amendment is incompatible with surrounding industrial uses, specifically Mr. Semmer’s industrial property directly 5 Density may be increased to 20 du/acre utilizing an existing transfer of development rights ordinance which does not apply to San Carlos Island. adjacent to the north, and the residential uses to the west; and will be destructive to the character of the island. With regard to compatibility, Petitioners allege the Plan Amendment is inconsistent with the following specific GOPs: FLUE Objective 2.2: Development Timing. Direct growth to those portions of the future urban areas where adequate public facilities exist or are assured and where compact and contiguous development patterns can be created. FLUE Policy 2.2.1.: Rezonings and Development of Regional Impact proposals will be evaluated as to the availability and proximity of the road network; central sewer and water lines; community facilities and services such as schools, EMS, fire and police protection, and other public facilities; compatibility with surrounding land uses; and any other relevant facts affecting the public health, safety, and welfare. FLUE Objective 2.6: Redevelopment. Future redevelopment activities will be directed in appropriate areas, consistent with sound planning principles, the goals, objectives, and policies contained within this plan, and the desired community character. FLUE Policy 5.1.5: Protect existing and future residential areas from any encroachment of uses that are potentially destructive to the character and integrity of the residential environment. Requests for conventional rezonings will be denied in the event that the buffers provided in Chapter 10 of the Land Development Code are not adequate to address potentially incompatible uses in a satisfactory manner. If such uses are proposed in the form of a planned development or special exception and generally applicable development regulations are deemed to be inadequate, conditions will be attached to minimize or eliminate the potential impacts or, where no adequate conditions can be devised, the application will be denied altogether. FLUE Policy 6.1.1: All applications for commercial development will be reviewed and evaluated as to: Traffic and access impacts (rezonings and development orders); Landscaping and detailed site planning (development orders); Screening and buffering (planned development rezoning and development orders; Availability and adequacy of services and facilities (rezoning and development orders); Impact on adjacent land uses and surrounding neighborhoods (rezoning); Proximity to other similar centers (rezoning); Environmental considerations (rezoning and development orders). FLUE Policy 6.1.3: Commercial developments requiring rezoning and meeting Development of County Impact (DCI) thresholds must be developed as commercial planned developments designed to arrange land uses in an integrated and cohesive unit in order to: Provide visual harmony and screening; Reduce dependence on the automobile; Promote pedestrian movement within the development; Utilize joint parking, access and loading facilities; Avoid negative impacts on surrounding land uses and traffic circulation; Protect natural resources; and, Provide necessary services and facilities where they are inadequate to serve the proposed use. FLUE Policy 6.1.4: Commercial development will be approved only when compatible with adjacent existing and proposed land uses and with existing and programmed public services and facilities. FLUE Policy 6.1.6: The land development regulations will require that commercial development provide adequate and appropriate landscaping, open space, and buffering. Such development is encouraged to be architecturally designed so as to enhance the appearance of structures and parking areas and blend with the character of existing or planned surrounding land uses. FLUE Goal 32: San Carlos Island [Water- Dependent Overlay]. All development approvals on San Carlos Island must be consistent with the following objective and policy in addition to other provisions of this plan. Objective 32.2: To manage growth, development, and redevelopment on San Carlos Island. To maintain and enhance the area’s quality of life and public and private infrastructure. Housing Element (“HE”) Policy 135.9.5: New development adjacent to areas of established residential neighborhoods must be compatible with or improve the area’s existing character. HE Policy 135.9.6: Lee County will administer the planning, zoning, and development review process in such a manner that proposed land uses acceptably minimize adverse drainage, environmental, spatial, traffic, noise, and glare impacts, as specified in county development regulations, upon adjacent residential properties, while maximizing aesthetic qualities. The Plan Amendment is not a rezoning or a development order. It does not, in and of itself, approve any specific development on the subject property. It approves the property for a mix of residential, commercial, and light industrial uses, and provides a maximum density for the residential use. FLUE Policies 2.2.1, 6.1.1, 6.1.3, and 6.1.4, do not apply to the Plan Amendment because it is not an application for specific commercial development, a rezoning, or a development order.6 The Plan Amendment cannot be inconsistent with Policy 6.1.6 because the policy merely provides the requirements for the land development regulations. It does not impose any requirement on plan amendments. The bases for Petitioners’ argument that the Plan Amendment creates internal inconsistencies regarding compatibility is limited to FLUE Goal 32; FLUE Objectives 2.2, 2.6, 32.1,7 and 32.2; FLUE Policies 5.1.5 and 32.1.1;8 and HE Policies 135.9.5 and 135.9.6. The Comprehensive Plan does not define “compatibility.” The Act defines “compatibility” as “a condition in which land uses or conditions can coexist in relative proximity to each other in a stable fashion over time such that no use or condition is unduly negatively impacted directly or indirectly by another use or condition.” § 163.3164(9), Fla. Stat. 6 The Plan Amendment was considered concurrently with a PD rezoning which includes a more detailed development plan. To the extent that Petitioners allege the rezoning does not meet the requirements of policies 2.2.1, 6.1.1, 6.1.3, and 6.1.4, Petitioners’ remedy is a challenge to those development orders, pursuant to section 163.3215. (“Subsections (3) and (4) provide the exclusive methods for an aggrieved or adversely affected party to appeal and challenge the consistency of a development order with a comprehensive plan.”). 7 Objective 32.1 was not cited in Petitioners’ Amended Petition for Formal Administrative Hearing as a provision with which the Plan Amendment is alleged to be internally inconsistent. However, the issue was tried by consent as neither Respondent nor Intervenor objected to Petitioners’ evidence on this issue, and all parties introduced evidence related to this allegation. 8 Policy 32.1.1 was not cited in Petitioners’ Amended Petition for Formal Administrative Hearing as a provision with which the Plan Amendment is alleged to be internally inconsistent. However, the issue was tried by consent as neither Respondent nor Intervenor objected to Petitioners’ evidence on this issue, and all parties introduced evidence related to this allegation. Petitioners contend that the Plan Amendment is incompatible with the surrounding uses because it introduces high density residential, which could be built to a maximum height of 100 feet; and commercial and recreational uses, into an area of industrial uses, including open storage, boat and equipment repairs, and unloading and packing seafood. Petitioners’ expert planning witness, Joseph McHarris, opined that the anticipated residential development is exactly the type of pre-emptive development anticipated and discouraged by the San Carlos Island Water- Dependent Overlay Zone. Mr. McHarris testified that “dropping in central urban,” the highest density and intensity use category, “right on top of industrial and right next to a suburban neighborhood is not good planning.” Mr. McHarris opined that residents of the “high-end condominiums” proposed for the property will not enjoy the view overlooking industrial outdoor storage yards, unloading cargo vessels, or the sounds and smells that are attendant thereto. The residential use will pre-empt any expansion or redevelopment of the existing industrial for more intense industrial uses. In fact, Mr. McHarris testified that the uses are so incompatible, that he would expect the new residents to push for ceasing the existing operations on those properties. Mr. McHarris did not rely upon any empirical evidence for his conclusion that the introduction of residential uses would be detrimental to the existing low- intensity industrial uses to the north and west of the subject property. His testimony was grounded in what “he would expect” to happen. Intervenor’s planning expert, Dr. David Depew, opined that in both his professional and personal experience, he has observed new waterfront residential and mixed use to coexist nicely with waterfront industrial and commercial. He cited Florida communities such as Apalachicola, Destin, and Cedar Key, generally, as examples of areas where newer residences and condominiums have developed in proximity to historic waterfront industrial uses without unduly negative effects on the historic uses. Dr. Depew made general references to “professional and personal” experiences, but gave no more detailed evidence regarding the coexistence of residential and industrial in traditional industrial waterfronts. The County’s expert planning witness, Brandon Dunn, is the principal planner for the County. He has worked in the County Department of Community Development for at least 13 years, 11 of those in the planning section. Mr. Dunn is extremely familiar with, and has extensive experience applying and interpreting, the Comprehensive Plan. Mr. Dunn testified that the Plan Amendment represents a transitional use between the existing traditional industrial uses north and west of the subject property and the suburban use east of the subject property. Developing the subject property for a mix of uses, including residential, commercial, and water-dependent light industrial (i.e., marina, wet-slips, dry storage), provides a “step-down” from the single use industrial properties to the north and west, to the traditional suburban residential development to the east. Mr. Dunn’s testimony is accepted as reliable and persuasive. There is insufficient evidence to support a finding that the Plan Amendment introduces uses which are incompatible with the surrounding uses, as that term is defined in section 163.3164(9). The Plan Amendment is not inconsistent with Policy 5.1.5 because it does not allow the encroachment of uses into residential areas which are destructive to the integrity and character of those areas. The entire island is only one mile in length, and residential and industrial, as well as commercial marine uses, exist throughout the island in relative proximity to each other. Petitioners introduced no evidence from which the undersigned can conclude that juxtaposition has been adverse to the residential development. New residential development at Ebtide is located in proximity to low-intensity industrial uses north of Main Street and no evidence was introduced to suggest that the new residential development has pre-empted the continuation or expansion of those established industrial uses. FLUE Objective 2.2 requires new growth to be directed to urban areas “where adequate public facilities exist or are assured and where compact and contiguous development patterns can be created.” Adequate public facilities (i.e., sewer, water, fire protection, emergency services, law enforcement, and schools) are sufficient to address the impacts of the Plan Amendment at maximum allowable density of use. One roadway segment impacted by the Plan Amendment is currently operating at Level of Service F, but is designated as “constrained,” and the Plan Amendment will not cause the “volume to capacity ratio” established in the Comprehensive Plan to be exceeded. In Mr. McHarris’s opinion, the Plan Amendment is inconsistent with Objective 2.2 because the uses allowed in Central Urban are not contiguous with the uses of any surrounding property. However, the properties east of the subject property, in the Suburban land use category, are developed for residential, a use which is allowed in Central Urban. Residential uses on the subject property will be contiguous with the adjacent Suburban development. Further, the Industrial category allows limited retail, recreational, and service uses; therefore, the change to the Central Urban designation, which allows commercial and light industrial development, does not introduce any radically-different uses than that allowed on the subject property, except for residential, under its current designation. HE Policy 135.9.5 requires that new development “adjacent to established residential neighborhoods” must be “compatible with or improve the area’s character.” The Plan Amendment is not inconsistent with this policy based on the findings above regarding compatibility of the Plan Amendment with surrounding residential uses. HE Policy 135.9.6 requires the County to “administer the planning, zoning and development review process” to ensure that proposed land uses “acceptably minimize adverse … traffic, noise, and glare impacts, as specified in county development regulations, upon adjacent residential properties[.]” Petitioners argue that this policy applies to the Plan Amendment, and that placement of residential uses adjacent to existing industrial uses will expose the residential uses to traffic, noise, and other adverse impacts, which cannot be “acceptably minimized.” Mr. McHarris testified that the unloading and transportation of seafood, as well as repair of boat and other equipment, with their attendant noises and smells, will be a nuisance to the residential uses allowed by the Plan Amendment, thus violating the requirement to minimize those effects on the residential properties. Petitioners did not establish that this policy applies during the plan amendment phase. While the policy includes the “planning process,” in addition to the zoning and development review process, the policy specifically refers to minimizing adverse impacts “as specified in the county land development regulations.” The land development regulations, rather than the Comprehensive Plan, contain the standards for setbacks, screening, buffers, and noise levels, in order to “acceptably minimize” those impacts to adjoining residential properties. The rezoning and site plan review of the development proposed to implement the Plan Amendment, rather than the Plan Amendment review process, are the appropriate processes in which to apply land development regulations for minimization of adverse impacts. Mr. McHarris opined that the Plan Amendment is contrary to Objective 2.6 because it is contrary to the desired “community character,” which he described as a “working waterfront.” Working waterfront is not a term that is used or defined in the Comprehensive Plan. To the extent that the reference is to the Waterfronts Florida designation in partnership with the state, the designation is strictly confined to that area south of Main Street. The desired community character is best reflected in the vision statement in the Comprehensive Plan for the Iona-McGregor Planning Community, of which the island is a designated sub-area. The Comprehensive Plan states, “The San Carlos Island area, which is nearly built out today, will continue to develop its infill areas while maintaining its marine-oriented nature.” The Comprehensive Plan provides that the overall planning community, given its proximity to the area beaches, “will continue to be a popular area for seasonal residents,” and that the entire planning community, is “anticipated to grow substantially from today through 2030.” Some of that growth was anticipated to be residential, as the planning community projected 17 acres of Central Urban for residential development through the year 2030. Plenty of acreage remains for residential development in the Central Urban category. The Plan defines infill as “the use of vacant land within a predominately developed area for further construction or development. These lands already have public services available but may require improvements to meet the current development standards.” The Plan Amendment is infill redevelopment of a former marina site, now utilized only for storage, where all public services are available. The community character is one of transition from historic industrial marine uses to waterfront commercial and mixed-use developments. The Plan Amendment allowing residential development is not inconsistent with that transitioning character. The Plan Amendment is not contrary to Objective 2.6 because it is infill development that is not inconsistent with the community character. Next, Petitioners allege the Plan Amendment is inconsistent with Goal 32, Objectives 32.1 and 32.2, and Policy 32.1.1, which relate to the San Carlos Island Water-Dependent Overlay Zone. Goal 32 provides that “[a]ll development approvals on San Carlos Island must be consistent with the following objective and policy[.]” Objective 32.1 provides that all development must be consistent with a series of policies “[t]o protect marine-oriented land uses” on the island “from incompatible or pre-emptive land uses.” Policy 32.1.1 provides: New development and substantial redevelopment within the Industrial … land use categor[y] … will only be permitted in accordance with the listed criteria. * * * North of Main Street – Within the water- dependent overlay zone which is defined as land within 150 feet of the shoreline: water-dependent marine industrial uses and recreational marinas. Landward of the overlay zone (150-foot line): marine-industrial uses, in addition to commercial or marine industrial uses which support the major industrial activities and recreational marinas. That portion of the subject property lying 150 feet landward of the canal is in the overlay zone. First, it must be noted that Goal 32 and its implementing objectives and policies apply to permitting of new development and redevelopment. Goal 32 sets requirements for “development approvals”; Objective 32.1 applies to “development”; and Policy 32.1.1 speaks to “permit[ing] new development and redevelopment.” Further, Policy 32.1.1 provides that the water dependent overlay zones “will be included in the Lee County zoning regulations[.]” The Plan Amendment is not an application for development permit. Enforcement of the water-dependent overlay zone restrictions will occur at the development order stage.9 9 Again, to the extent Petitioners contend the approved PD rezoning of subject property is inconsistent with these plan provisions, those issues are not properly before the undersigned in this proceeding. See § 163.3215, Fla. Stat. (“Subsections (3) and (4) provide the exclusive methods for an aggrieved or adversely affected party to appeal and challenge the consistency of a development order with a comprehensive plan.”). Furthermore, Policy 32.1.1. applies to development and redevelopment “within the Industrial land use category.” The Plan Amendment changes the designation of the subject property from Industrial and Suburban to Central Urban. Thus, it is at least arguable that the policy does not apply to the Plan Amendment. Even if these Comprehensive Plan provisions apply to the Plan Amendment, the evidence does not demonstrate that the Plan Amendment is inconsistent with them. The amendment to the Central Urban land use category will not exclude either “light industrial,” such as water-dependent marine industrial uses, or a recreational marina on the subject property. At first blush, it appears that Policy 32.1.1 would prohibit residential development landward of the overlay zone on the subject property. However, the Comprehensive Plan provides that these regulations will be incorporated into the zoning regulations and “may be the subject of deviation requests during the planned development process.” Hurricane Shelter and Evacuation Petitioners allege the Plan Amendment is internally inconsistent with the hurricane evacuation and shelter provisions of Community Facilities and Services Element (“CFSE”) Goal 73, Objective 73.1, and Policies 73.1.1 and 73.1.2. CFSE Goal 73 is a general goal for the County to provide adequate evacuation and sheltering safeguards for major storm events. Objective 73.1 directs the County to “[w]ork towards attaining” out-of-county evacuation times consistent with the Statewide Regional Evacuation Study. Notably, the objective specifies the ways in which the County will “work toward attaining” those evacuation time—by increasing shelter availability, improving evacuation routes, and increasing public awareness. The objective does not require the County to either prohibit or limit residential density to achieve that end. CFSE Policy 73.1.1 requires the County to do periodic updates of its emergency management plan and the long-range transportation plan, in cooperation with the Metropolitan Planning Organization, and to identify critical evacuation routes. Policy 73.1.2 addresses replacement bridges on evacuation routes. None of these provisions are implicated by or address the Plan Amendment at issue. Petitioners did not prove by a preponderance of the evidence that the Plan Amendment is internally inconsistent with FLUE Goal 32; FLUE Objectives 2.2, 2.6, 32.1, and 32.2; FLUE Policies 5.1.5 and 32.1.1; HE Policies 135.9.5 and 135.9.6; and CFSE Goal 73, Objective 73.1, and Policies 73.1.1 and 73.1.2. Data and Analysis Petitioners allege the Plan Amendment does not appropriately react to data available to the County at the time the Plan Amendment was adopted, namely historical data constituting the community vision for the island. Ms. Semmer testified that the Plan Amendment is not an appropriate reaction to the San Carlos Island Community Redevelopment Area (“CRA”) Plan, which she testified was “the outcome of a long history of community working together to plan for its future.” When asked to identify specific provisions of the CRA plan to which the Plan Amendment is not an appropriate reaction, Ms. Semmer identified the fact that the plan recognized the existence of 917 residential units. She testified that “we felt that we were built out at the time, and we were happy with that … And this project, adding another 75 units, it’s going to be difficult to accommodate the additional traffic and the people.” The CRA plan was adopted in May 1991 and provided the background, findings, and data to support the designation of the entire island as a CRA, pursuant to section 163.358. The CRA Plan makes findings that blighted conditions exist on the island which justify designation as a CRA. The CRA Plan defines the characteristics of the redevelopment area, provides an infrastructure needs assessment, and establishes goals for the redevelopment area, as well as specific subareas. The CRA Plan actually notes the existence of 995 dwelling units on the island, not 917, according to the 1980 census. The CRA Plan does not contain any prohibition on increasing the number of dwelling units on the island, or reflect an intent to prohibit new residential development.10 On the contrary, the CRA Plan contains data which is supportive of the Plan Amendment. For example, one of the findings of blight conditions is “faulty lot layout in relation to size, adequacy, accessibility, or usefulness.” The CRA Plan finds that many lots “do not comply with minimum lot size requirements” and “would have significant difficulty being developed under current regulations.” The Plan Amendment combines eight lots, redevelopment of which is constrained by their size and configuration (narrow, elongated lots) with zoning designations of marine industrial, light industrial, commercial, and mobile home. Under the Plan Amendment, the lots are aggregated for a single development. The CRA Plan identifies the area north of Main Street and east of San Carlos Boulevard (where the subject property is located) as “a mixture of single-family, mobile home parks, marinas, commercial retail and service clubs.” San Carlos Island CRA Plan, p. 23. The CRA Plan does not identify this mix of uses as incompatible or undesirable, nor does it express an intent to discontinue mixed uses in that area. The Plan Amendment proposes a land 10 In contrast, the plan reflects the community’s staunch opposition to development of a parking garage on the island: “It is basic that [the island] neither become a parking lot for Fort Myers Beach (Estero Island) nor for Lee County. This would preclude construction of a parking garage on [the island] or additional surface parking for benefit of other areas of Lee County … or which would be utilized as temporary parking with the people parking their vehicles then being transported to another area by any means.” San Carlos Island CRA Plan, p. 11. “The residents and property owners of San Carlos Island are united in their opposition to construction of a parking garage, unless it can be shown that such garage is of benefit to those residents and owners and is not just part of a plan to permit development in some other area of Lee County.” Id. at p. 26. use category that allows a mix of residential, commercial, marina, and light industrial, underscoring the consistency of the Plan Amendment with the historic development pattern. The CRA Plan further describes more particularly the uses in the area of the subject property as “an area of light industrial development consisting of rental storage area, a service club, a fish house, and a large marina.” Id. at 24. The Plan Amendment retains this essential mix of uses and allows these uses, along with residential, to be developed on the subject property. Petitioners identified a report from the San Carlos Island Community Design Workshop, held February 21 and 22, 1992, as an example of data to which the Plan Amendment does not appropriately react. The workshop was conducted solely to determine “the best uses for a piece of County-owned property,” 5.6-acres in size, fronting on the Matanzas Pass. The report, which is entirely hearsay, notes that the community participants “[d]efinitely [did] not want[] high rises or major public attractions, Disney-style.” The report has no relevance to the Plan Amendment, which is not part of the property being considered for redevelopment during the workshop. Next, Petitioners allege the Plan Amendment is not an appropriate reaction to the data and analysis reflected in the documents designating San Carlos Island within the Waterfronts Florida partnership. Ms. Semmer testified that the Plan Amendment is inconsistent with the Community Vision contained in that document, to wit: San Carlos Island is a people-oriented community with an important working waterfront that includes vibrant commercial seafood and other marine-based industries and recreational opportunities. These assets contribute in making San Carlos Island an attractive community for its permanent and seasonal residents as well as an interesting area for visiting tourists. The designated “working waterfront” under the Waterfronts Florida partnership is located entirely south of Main Street. Thus, the Plan Amendment, affecting property north of Main Street—outside of the designated area—cannot be inconsistent with the vision expressed therein. Ms. Semmer’s contention that the Plan Amendment will convert property from industrial “working waterfront” use, contrary to the Waterfronts Florida document, is not credible. Likewise, the San Carlos Island Special Area Management Plan, adopted in 1999 to implement the Waterfronts Florida designation, applies mainly to the one-half mile long area designated under the program. Finally, Ms. Semmer introduced a 1978 resolution of the Board of County Commissioners stating, “The Board hereby establishes a policy of granting no additional multi-family zoning on Estero Island or San Carlos Island.” Ms. Semmer testified that this resolution recognizes that the island was “built out, that we could not handle any additional density[.]” Thus, Ms. Semmer argues that the Plan Amendment is not an appropriate reaction to that data because it allows new residential uses on the subject property. The resolution addresses rezonings, and the Plan Amendment is not a rezoning. Rezoning of the property has been undertaken and is not an issue cognizable in this challenge to the Plan Amendment.11 Petitioners did not prove that the Plan Amendment fails to react appropriately to data available to the County at the time it was adopted. The Plan Amendment is based on, and appropriately reacts to, the development trends on the island from intense industrial fishing-related uses to more recreational and commercial uses, including more mixed use uses both north and south of Main Street. The Plan Amendment is supported by data on the availability of public utilities to service the property—a condition necessary for infill development. The Plan Amendment will allow for a transition 11 Moreover, Petitioners did not prove that this resolution is still valid. between the industrial uses to the north and west of the subject property and the suburban uses to the east. State Requirements for Development in the CHHA Finally, Petitioners allege that the Plan Amendment increases residential density in the CHHA and does not meet the state requirements for such development set forth in section 163.3178(8). Section 163.3178 defines the CHHA as the “area below the elevation of the category 1 storm surge line as established by a Sea, Lake, and Overland Surges for Hurricanes (SLOSH) computerized storm surge model.” § 163.3178(2)(h), Fla. Stat. The statute requires each local government comprehensive plan to designate the CHHA within its jurisdiction and “the criteria for mitigation for a comprehensive plan amendment in a [CHHA] as defined in subsection (8).” Id. Section 163.3178(8) reads, as follows: (8)(a) A proposed comprehensive plan amendment shall be found in compliance with state coastal high-hazard provisions if: The adopted level of service for out-of-county hurricane evacuation is maintained for a category 5 storm event as measured on the Saffir-Simpson scale; or A 12-hour evacuation time to shelter is maintained for a category 5 storm event as measured on the Saffir-Simpson scale and shelter space reasonably expected to accommodate the residents of the development contemplated by a proposed comprehensive plan amendment is available; or Appropriate mitigation is provided that will satisfy subparagraph 1. or subparagraph 2. Appropriate mitigation shall include, without limitation, payment of money, contribution of land, and construction of hurricane shelters and transportation facilities. Required mitigation may not exceed the amount required for a developer to accommodate impacts reasonably attributable to development. A local government and a developer shall enter into a binding agreement to memorialize the mitigation plan. It is undisputed that the subject property, and indeed most of the island, is located in the CHHA. The Plan Amendment allows residential density on the subject property, thereby increasing residential density in the CHHA.12 The County has adopted a 16-hour out-of-county evacuation time for a category 5 storm event (Level E storm surge).13 Based on the 2017 Update to the Southwest Florida Regional Evacuation Study (“Regional Evacuation Study”), the base scenario (i.e., the analysis used for growth management purposes) out-of-county clearance time for Lee County is actually 84.5 hours for a category 5 storm.14 Because the County’s adopted level of service (“LOS”) for out-of- county evacuation in a Level 5 hurricane has not been attained, it certainly will not be maintained under a scenario which includes development allowed by the Plan Amendment. The Plan Amendment does not meet the requirements of section 163.3178(8)(a)1. to be deemed compliant with state CHHA standards. The Regional Evacuation Study projects Lee County’s 2020 evacuation time-to-shelter for a Category 5 storm (Level E storm surge) as 96 hours, an increase of 11.5 hours from the 2017 projection. 12 No evidence was introduced to support a finding that the County has made a commensurate reduction in residential density in the CHHA. 13 The County had initially adopted an 18-hour out-of-county hurricane evacuation time; however, in 2006, the Florida Legislature set a default 16-hour evacuation standard for certain local governments. See ch. 2006-68, § 2, Laws of Fla. 14 That number has increased to 96 hours for 2020. Because the County has not attained the state-mandated 12-hour evacuation time-to-shelter, the County cannot maintain that metric under the Plan Amendment.15 Dr. Depew testified that, based on his research, a Category 5 hurricane shelter is located approximately 28 miles from the subject property, which is an approximate 44-minute drive. In his opinion, then, the Plan Amendment “maintains the 12-hour evacuation time to shelter” as required by section 163.3178(8)(a)2. Dr. Depew’s testimony was uncontradicted, but is not credible. Evacuation time-to-shelter is defined in the Regional Evacuation Study as “the time necessary to safely evacuate vulnerable residents and visitors to a ‘point of safety’ with in the county based on a specific hazard (i.e., Category 5 hurricane), behavioral assumptions and evacuation scenario.” Clearance time-to-shelter is “[c]alculated from the point in time when the evacuation order is given to the point in time when the last vehicle reaches a ‘point of safety’ within the county.” Clearance time does mean, as suggested by Dr. Depew, merely the drive time between a particular residential development and an existing qualifying shelter on a normal traffic day. That testimony is inadequate for the undersigned to find that the Plan Amendment meets the state CHHA requirement under section 163.3178(8)(a)2. Assuming, arguendo, that Dr. Depew’s testimony was credible and reliable, it would not be sufficient alone to establish that the Plan Amendment meets the standards of paragraph 2. The application of section 163.3178(8)(a)2. does not end with an analysis of evacuation time-to-shelter. The statute also requires that shelter space “reasonably expected to 15 The County has not adopted an LOS for “evacuation time-to-shelter”; instead, the County has adopted an LOS for shelter capacity: “in-county and on-site shelter for 10% of the population at risk in the Hurricane Vulnerability Zone under a Category 5 storm hazard scenario.” accommodate the residents of the development contemplated by” the Plan Amendment be “available.” The Regional Evacuation Study analyzes public shelter capacity and projects public shelter demand for each county in the region. For Lee County, the capacity of all shelters is 42,659 (for both the 2017 and 2020 base scenarios). The projected 2020 public shelter demand for a category 5 hurricane (Level E storm surge risk) is 47,018. That is an increase of 13,799 from the 2017 projection of 33,219. The data does not support a finding that the County has available shelter space to accommodate any new residents, yet alone those evacuating from development at the density allowed by the Plan Amendment. Dr. Depew attempted to undermine the reliability of the shelter demand projections, testifying that “there’s a very high error margin in these projections. In some instances, it’s as high as 50 percent from the anticipated demand[.]”16 Dr. Depew did not identify any documentation of the margin-of- error in the study, or offer any more reliable data from which the County (or the undersigned) could pull more accurate projections. On cross-examination, when asked to look at a specific operational demand projection, Dr. Depew was unable to identify whether it was “one of the ones with the 50 percent error margin.” Dr. Depew also criticized use of the base scenario because it “anticipates a hundred percent evacuation,” while the operational scenario anticipates something “closer to reality.” This attempt to persuade the undersigned that the base scenario shelter demand numbers are either unreliable, or inappropriate to use for purposes of evaluating the Plan Amendment, was likewise unpersuasive. The Evacuation Study Report defines the public shelter demand scenarios as follows: 16 The Regional Evacuation Study was introduced by Intervenor, for whom Dr. Depew was testifying. The Base Scenarios – which are used for planning and growth management purposes assume that 100% of the population-at-risk evacuates plus a (smaller) percentage of non- vulnerable population (shadow evacuation). The Operational Scenarios used in operations use the planning assumptions determined by the behavioral analysis which are assumed to be a more realistic set of assumptions. Although they do not reflect 100% evacuation of vulnerable residents, there is a significant percentage of shadow evacuation especially in major storm events. According to the study, the base scenarios are specifically designed for use in planning and growth management decisions, such as the one made by the County when it adopted this Plan Amendment. The Plan Amendment does not meet state CHHA standards by way of section 163.3178(8)(a)2. Finally, the statute provides that a plan amendment may be deemed to meet state CHHA standards via mitigation. The developer may mitigate hurricane evacuation impacts of development in the CHHA by payment of money, contribution of land, or construction of hurricane shelters or transportation facilities. Intervenor has committed, through the mediated settlement agreement, to mitigation in the form of either construction of an on-site shelter to withstand category 5 hurricane winds and storm surge, or a fee-in- lieu thereof pursuant to the County’s requirements. The settlement agreement contains detailed specifications for shelter construction should the County choose that option. The settlement also requires the developer to submit a post-storm recovery plan for review and approval by Lee County Emergency Management. The settlement provides that “[p]rior to any redevelopment of the site … an agreement must be executed between the county and the property owners” to require the mitigation. Petitioners argue that this commitment is not sufficient to meet the statutory mitigation requirements because the developer has not yet executed a written mitigation agreement with the County to provide any specific mitigation construction or payment. They criticize the process for “put[ting] off the mitigation plan until redevelopment of the site.” The statute requires that the “local government and a developer shall enter into a binding agreement to memorialize the mitigation plan,” but does not address the timing of the binding agreement relative to the adoption of the Plan Amendment. The Comprehensive Plan, at CME Policy 101.1.4, contains provisions very similar to section 163.3178(8) for plan amendments that increase density in the CHHA. With regard to mitigation, Policy 101.1.4 requires the applicant to “enter into a development agreement to memorialize the mitigation plan prior to adoption of the plan amendment.” Petitioners have not challenged the Plan Amendment as inconsistent with Policy 101.1.4, but rather with the statutory provision. In contrast to the policy, the plain language of the statute does not require the mitigation agreement to be executed prior to adoption of the Plan Amendment. Finally, section 163.3178(8) allows for “[a]ppropriate mitigation [] provided that will satisfy subparagraph 1. or subparagraph 2.” By referencing the subparagraphs requiring maintenance of out-of-county evacuation time and 12-hour evacuation time to shelter, the statute requires mitigation to the extent necessary to meet, in this case, the 16-hour out-of-county evacuation clearance time or the 12-hour time-to-shelter standard. However, the statute also limits the developer’s mitigation to “the amount required for a developer to accommodate impacts reasonably attributable to development.” The statute does not require the developer to build shelters, make transportation improvements, contribute land, or make payments to reduce the county’s existing deficit to achieve out-of-county evacuation clearance time or address the County’s overall shelter space deficit. The statute clearly limits the developer’s contribution to that required to address the impacts “reasonably attributable to the [specific] development.” Intervenor argues that providing the mitigation to offset hurricane evacuation or sheltering impacts associated with the particular development is sufficient to meet the statutory requirement. However, to allow a developer to construct residential density in the CHHA and mitigate only the hurricane evacuation or time-to-shelter impacts associated with that particular development, when the adopted out-of-county hurricane evacuation clearance time has not been achieved, is contrary to the statutory requirement. The same is true for allowing shelter construction to mitigate only the impacts of the particular development when the adopted time-to-shelter has not been achieved or a shelter deficit exists. If the undersigned were to accept the County’s and Intervenor’s proffered interpretation of subparagraph 3., that would render meaningless the first sentence, which references to subparagraphs 1. and 2. and requires the mitigation to “satisfy” subparagraphs 1. and 2. Those subparagraphs directly address “maintaining” the adopted out-of-county and time-to-shelter clearance times. Under the proffered reading of section 163.3178(8)(a)3., any developer could satisfy the state requirements for CHHA construction by mitigating the impacts of the specific development on a local government’s hurricane evacuation clearance time regardless of whether the adopted out- of-county clearance time is met. That interpretation is unworkable and is rejected. Alternatively, Intervenor maintains that the Plan Amendment meets the state requirements for increased density in the CHHA under section 163.3178(8)(a)3. Because: (1) the Comprehensive Plan anticipates additional residential development in the Iona/McGregor planning community, which is within the CHHA; and (2) the impact of the Plan Amendment on both the out-of-county hurricane evacuation time and time-to-shelter is “de minimis.” To the first point, according to Table 1(b) of the Comprehensive Plan, the County has allocated a total of 375 acres of residential development in the Central Urban category within the planning community through the year 2030. Mr. Dunn testified that the County has approved residential development of 360 acres, leaving a balance of 15 acres available for residential development. His conclusion is that the County anticipated additional residential density in the CHHA because almost the entire planning community is located in the CHHA. Mr. Dunn’s conclusions appear valid based on the data and analysis in the Comprehensive Plan. However, the logic is circular. The County’s decision to locate more residential development within the CHHA is not dispositive of the question of whether that decision meets the state requirements for residential density in the CHHA.17 That determination is the subject of the instant de novo proceeding. To prove their second point, the County and Intervenor introduced into evidence a memorandum prepared by Daniel Trescott, a professional planner with the firm of Trescott Planning Solutions, Inc., analyzing the impact of the Plan Amendment at its maximum residential buildout (113 total dwelling units) on the County’s out-of-county evacuation clearance time and time-to-shelter (“the Trescott memo”). The relevant findings of the Trescott memo are as follows: (1) development of 113 dwelling units results in an additional 124 vehicles to evacuate and the need for an additional 48 shelter beds; (2) the Plan Amendment will increase out-of-county evacuation time by 1.2 minutes; and 17 Moreover, the Plan Amendment represents a decision to locate more Central Urban within the CHHA which was not reflected on the FLUM when the 2030 “residential by future land use category” allocations were made, as reflected in Table 1(b). The table reflects the overall acreage to be developed for residential use of the total acreage in the Central Urban category at that time. (3) the estimated clearance time-to-shelter would increase one-fifth of 1.2 minutes based on a projection that 21 percent of project residents would evacuate to a public shelter rather than out-of-county. The Trescott memo concludes, “This small increase will not cause the out-of-county evacuation time to increase incrementally above 84 hours,”18 and that the impact on clearance time-to-shelter would be “even more de minimis.” The Regional Evacuation Study calculates hurricane evacuation impacts in 30-minute increments. Based on that model, the impact from development allowed under the Plan Amendment will not result in an incremental increase in either out-of-county hurricane evacuation clearance time or time-to-shelter. Section 163.3178(8)(a)3. does not contain an exception for “de minimis” impacts. Furthermore, the statutory standard is not based on the Regional Hurricane Evacuation projected times for out-of-county and time-to- shelter in a Category 5 hurricane (both of which are projected at 96 hours for 2020), but on the adopted LOS for out-of-county evacuation clearance time of 16 hours, and the statutory time-to-shelter time of 12 hours. The alternative argument by the County and Intervenor that the Plan Amendment meets the state standard for increased residential density in the CHHA is rejected.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order determining that the Comprehensive Plan Amendment adopted by Ordinance 20-07 on June 17, 2020, is not “in compliance,” as that term is defined in section 163.3184(1)(b). DONE AND ENTERED this 4th day of March, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Ralf Gunars Brookes, Esquire Ralf Brookes Attorney Suite 107 1217 East Cape Coral Parkway Cape Coral, Florida 33904 Mark A. Trank, Esquire Lee County Attorney's Office 2115 Second Street, 6th Floor Post Office Box 398 Fort Myers, Florida 33902-0398 Amanda Swindle, Assistant County Attorney Lee County Attorney's Office 6th Floor 2115 Second Street Fort Myers, Florida 33901 Barbara Leighty, Clerk Transportation and Economic Development Policy Unit Room 1802, The Capitol Tallahassee, Florida 32399-0001 S SUZANNE VAN WYK Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 2021. Mark Jacob Lee County Attorney's Office 2115 2nd Street Fort Myers, Florida 33901-3012 Richard Barton Akin, Esquire Henderson, Franklin, Starnes & Holt, P.A. Post Office Box 280 Fort Myers, Florida 33902 Russell P. Schropp, Esquire Henderson, Franklin, Starnes and Holt, P.A. 1715 Monroe Street Post Office Box 280 Fort Myers, Florida 33902 Joshua E. Pratt, Esquire Administration Commission Governor’s Legal Office The Capitol, Room 209 Tallahassee, Florida 32399-0001
The Issue The issue in this case is whether the subject plan amendment, which changes the future land use designations of parcels owned by each of the Petitioners, is not in compliance for the reasons set forth in the petitions.
Findings Of Fact The Parties Each Petitioner submitted oral or written objections during the review and adoption proceedings culminating in the adoption of the plan amendment at issue. Petitioner Wilson owns about 2.5 acres on the north 1/ side of State Route 524 and east side of Westminster Drive. The Wilson parcel, which is vacant, contains about 300 feet of frontage on State Route 524 and about 250 feet on Westminster Drive. Petitioner Tompkins owns about 3.5 acres on the north side of State Route 524 and west side of Westminster Drive. The Tompkins parcel, which is vacant, contains about 600 feet of frontage on State Route 524 and about 250 feet on Westminster Drive. The Wilson and Tompkins parcels lie between State Route 524 and Cocoa North, which is a large residential subdivision. The existing land uses near the area, which is a growth center in Cocoa, are largely low density residential, and there remains considerable vacant land. There are no commercial uses within the Cocoa North subdivision. The only access to Cocoa North is by way of State Route 524, using Westminster Drive or one of two other roads. The nearest convenience store is about two-thirds of a mile east of Westminster Drive on State Route 524. An I-95 interchange lies about 1.8 miles to the west of Westminster Drive on State Route 524. The nearest property to the west designated Commercial is at the northwest corner of the Tenzel property, which is discussed below. The Commercial parcel on the Tenzel property is about one and one-quarter miles from Westminster Drive. Petitioner Messiah Church owns about 2.3 acres on the east side of U.S. Route 1 about 300 feet north of Michigan Avenue. Petitioner Fountain owns about 0.72 acre on the east side of U.S. 1 about 1200 feet north of the Messiah Church's property. The Messiah Church parcel contains a church. The Fountain parcel is vacant. The Messiah Church and Fountain parcels lie between U.S. Route 1 and a wide strip of existing low density residential uses bordered on the east by the Indian River. The narrower strip containing the Messiah Church and Fountain parcels is located in an underutilized area characterized by a mix of existing commercial uses. For example, a flea market occupies the west side of U.S. Route 1 across from the Messiah Church parcel. Respondent Department of Community Affairs (DCA) is the state land planning agency charged with the responsibility of reviewing plans under Chapter 163, Part II, Florida Statutes. Respondent the City of Cocoa (Cocoa) is a local government required to adopt a revised comprehensive plan under Sections 163.3164(12) and 163.3167, Florida Statutes. History of Cocoa Comprehensive Plan Cocoa adopted its comprehensive plan and transmitted it to DCA on October 4, 1988. DCA issued a notice of intent to find the plan in compliance. A petition was filed challenging the determination of compliance and requesting a hearing under Section 163.3184(9), Florida Statutes. Following an administrative hearing, an order recommended that DCA forward the case to the Administration Commission for entry of a final order determining the plan not to be in compliance. The parties then negotiated a settlement agreement. Pursuant to the agreement, the Administration Commission entered a final order and later an amended final order determining the plan not to be in compliance and identifying the remedial amendments necessary to attain compliance. The designations challenged by Petitioners are part of a set of plan amendments consisting of the remedial amendments ordered by the Administration Commission, amendments required to settle a federal court action in which Cocoa was a defendant, and amendments having nothing to do with either legal proceeding. The challenged designations fall in the last category. The Future Land Use Map (FLUM) in the original plan adopted in 1988 designated as Commercial a strip of land containing the Wilson and Tompkins parcels. The entire strip runs 2700 feet along State Route 524, which is a two lane undivided minor arterial, and extends about 250 feet deep. The Wilson and Tompkins parcels constitute about 40% of the strip and are located at its extreme western end. State Route 524 operates at a level of service C and is projected to remain at this level of service though 1997. The FLUM designated as High Density Residential a strip of land containing the Messiah Church and Fountain parcels. The entire strip, which is generally quite shallow, runs about 3400 feet along U.S. Route 1, which is a four lane divided principal arterial. The Messiah Church and Fountain parcels constitute about 20% of the strip and are located in its northern half. U.S. Route 1 is operating at level of service D and is projected to be operating at level of service E by 1992 and level of service F by 1997. Transmittal and Adoption Process On October 30, 1989, the Planning and Zoning Board, which acts as the local land planning agency (LPA), conducted a public meeting at which it discussed at length new public participation procedures that it was considering adopting. Specific provisions were prepared following the meeting, circulated at the next LPA meeting on November 13, discussed, revised somewhat, and finally adopted. On November 21, 1989, the LPA met to discuss remedial amendments necessary to comply with the requirements of the Amended Final Order of the Administration Commission. Pursuant to a contract with Cocoa, the East Central Florida Regional Planning Council (Regional Planning Council) had prepared a draft set of amendments for review by the LPA. At the beginning of the November 21 meeting, the city attorney stated that the purpose of the meeting was to obtain information and comments from the public. He explained that he and city staff recommended that the LPA defer any formal action on the proposed amendments until their next scheduled meeting on November 27. A representative of the Regional Planning Council was in attendance to assist in the discussion. The proposed amendments drafted by the Regional Planning Council did not change the designations of the parcels owned by any of the Petitioners. In fact, according to the minutes, none of the four parcels nor either of the two strips containing the parcels was even mentioned at the November 21 meeting. Following a very short meeting on November 27 to discuss remedial amendments, the LPA next met on November 30. By this time, the Regional Planning Council had prepared a "final draft" of proposed remedial amendments. Following discussion, the LPA voted to recommend the proposed amendments to City Council. Toward the end of the meeting, the Vice Chairman moved that the strip containing the Messiah Church and Fountain parcels be designated Low Density Residential. The motion passed. At a regular meeting on November 28, the City Council adopted Resolution 89-37, which provides for public participation procedures in connection with the comprehensive planning process. The ordinance calls for advertising of transmittal and adoption hearings in accordance with applicable law, the encouragement of oral or written public comment, and responses from the City Council or its designee. At a special meeting on December 5, the City Council considered the proposed amendments that had been recommended by the LPA. At this meeting, the City Council voted to change the designations for both strips, including all of Petitioners' parcels to Low Density Residential. The vote on the strip containing the Messiah Church and Fountain parcels was unanimous. The vote on the strip containing the Wilson and Tompkins parcels was four to one. Neither DCA nor Cocoa staff originally suggested the new designations for Petitioners' parcels. The new designations were not prompted by any changes to the original data and analysis. It does not appear that the Regional Planning Council, which also assisted in the preparation of the original plan, proposed that the parcels originally be designated Commercial, but it does not appear that the Regional Planning Council made the suggestion for a change in designation. At a special meeting on December 11, the City Council considered the proposed amendments, including the new designations for Petitioners' parcels, as well as the amendments to settle the pending state and federal litigation. No one appeared on behalf of any of the Petitioners to object to the proposed designations. However, in response to the objections of an owner of other property on the south side of State Route 524, whose property was also proposed for redesignation as Low Density Residential, representatives of Cocoa explained that the redesignation on both sides of State Route 524 was based on Cocoa's recent experience with DCA on unrelated plan amendments involving what is known as the Tenzel property. The city attorney indicated that staff was concerned that the objections lodged by DCA to the plan amendments involving the Tenzel property, which Cocoa was at the same time annexing, could possibly be made against the Commercial designation along both sides of State Route 524. The city manager also mentioned his concern that the plan be internally consistent. The Tenzel property consists of 157 acres on the south side of State Route 524 about one mile west of Westminster Drive. Cocoa transmitted the proposed Tenzel amendments to DCA on March 13, 1989. The proposed amendments designated 60 acres, including its entire State Route 524 frontage, Commercial and the remainder Industrial. Cocoa was planning to annex the Tenzel property, which was at the time of the transmittal in unincorporated Brevard County. In its Objections, Recommendations, and Comments (ORC) dated July 6, 1989, DCA objected that, among other things, the proposed designation was inconsistent with Future Land Use Element (FLUE) Policy 1.2, which is to discourage new linear commercial development. Instead, DCA recommended that new commercial uses should be clustered. DCA also complained that the designation was not supported by data and analysis and the portion of the FLUM covering the Tenzel property did not depict natural resources. On September 6, 1989, Cocoa annexed the Tenzel property and amended its plan. The adopted plan amendments designated only 10 acres Commercial and the remaining 147 acres Residential. 2/ The property designated Commercial was limited to only about half of the available frontage and was restricted to the northwest corner, which is farthest from the Tompkins and Wilson parcels and closest to the I-95 interchange at State Route 524 to the west. The adoption package contained considerable data and analysis concerning the newly annexed property. DCA issued its notice of intent to find the plan amendment in compliance on October 25, 1989. Notwithstanding the Tenzel-related concerns expressed at the December 11 hearing of the City Council, an owner of about 2.5 acres of land on Westminster Drive near State Route 524 objected to the redesignation of his land from Commercial to Low Density Residential. He argued that the land was unsuitable for residential uses due to traffic and other factors. In response, the city manager stressed the possibility of conflict with the plan if strip commercial were "proposed." 3/ With one member changing his vote as to the strip containing the Wilson and Tompkins parcels, the City Council voted three to two to transmit to DCA the proposed amendments, including the new Low Density Residential designations for the two strips containing the four parcels of Petitioners. The sole issue concerning the advertisements for the transmittal hearings of December 5 and 11 is their failure to identify the Wilson and Tompkins parcels as the subject of proposed land use changes. The advertisement for the December 11 hearing states in bold, capital letters at the top: "Notice of Change of Land Use and Comprehensive Plan." Following a brief paragraph announcing the time and place, the first item to be discussed is: "Proposal to change the use of land within the areas shown on the map below." Immediately below this sentence is a map of the entire city. Beside the map in one block is the statement: "Landuse changes to the future landuse map." A second block below the first states: "Black shaded areas to low density residential." The shading covers the High Density Residential strip including the parcels owned by the Messiah Church and Fountain, but omits the Commercial strip including the parcels owned by Wilson and Tompkins. The map for the December 11 hearing was published on December 4. The change of designation for the Wilson and Tompkins parcels was first proposed at the City Council hearing the following day. By letter dated March 22, 1990, DCA transmitted its ORC on the proposed plan amendments. The ORC informed Cocoa that DCA had no objections, recommendations, or comments on the transmitted amendments. Following receipt of the ORC, the LPA met on May 2, 1990, to review staff's response. During the meeting, the LPA discussed the Wilson parcel with her attorney, who objected that the Commercial designation would render the property useless due to its shallow depth. The attorney pointed out that a residential designation was impractical at that location; to the east, on the north side of State Road 524, townhouses had remained unsold for a long time. A motion not to change the Commercial designation on the Wilson and Tompkins parcels, while changing the designation for the rest of the strip to Low Density Residential, was seconded and discussed. It failed by a vote of four to three. At this point, the city attorney suggested that condominiums already in the area would be incompatible with Low Density Residential. The discussion acknowledged the protests of surrounding homeowners to the Commercial designation. A motion, seconded, to designate the entire strip north of State Route 524 as High Density Residential failed by a four to three vote. This vote was immediately followed by a motion, seconded, to designate the entire strip north of State Route 524 as Medium Density Residential. This motion passed by a five to two vote. The same attorney also represented the Messiah Church at the LPA meeting. He stated that the church intended to sell the property and the new designation was disadvantageous to a sale. In the ensuing discussion, it was noted that central sewer had yet to reach this site. A motion, seconded, was made to designate the Messiah Church parcel High Density Residential. The motion failed by a five to two vote. A motion, seconded, to designate the entire strip along the east side of U.S. Route 1 Low Density Residential passed unanimously. At the conclusion of the meeting, the LPA voted to adopt the amendments, subject to changes made at the meeting, and send the package to the City Council. The City Council meeting of May 8 was announced by a large display newspaper advertisement, which was published on April 27. The advertisement contained a map shaded to indicate that the designation of the two strips in question was proposed to be changed to Low Density Residential. During the meeting, the city attorney discussed the redesignation of the strip along State Route 524 from Low Density Residential, as it was shown in the transmittal amendments, to Medium Density Residential, as had been recommended by the LPA at its May 2 meeting. An attorney representing Wilson and Tompkins argued in favor of the Commercial designation given the property in the original plan. The city manager responded that the property was reexamined as a result of Cocoa's recent experience with DCA on the Tenzel plan amendments. Trying to avoid the appearance of strip commercial zoning, staff favored the proposed recommendation. The city attorney likewise warned the City Council to consider as a matter of policy the concern of DCA to avoid urban sprawl and strip commercialism. Nearby residents were almost uniformly in favor of a residential designation. Wilson complained that she purchased the property after being told by Cocoa that she could use it for commercial purposes. She also argued that 15 units per acre would allow 30 homes, which would add to the congestion in the area. After everyone had a chance to speak, a motion, seconded, called for designating the Wilson and Tompkins parcels as Commercial with the remainder of the strip designated Medium Density Residential. The motion failed three votes to two. A motion, seconded, to accept the recommendation of the LPA passed three to two. After other parcels were discussed, the city attorney raised the redesignation as Low Density Residential of the High Density Residential strip along the east side of U.S. Route 1. The attorney representing Messiah Church asked that the City Council consider the church property separately because it was for sale and worth more in its present designation as High Density Residential. He argued that buffering provisions of the plan would be violated by a Low Density Residential designation. Concerning his property, Fountain agreed with the attorney's reasoning and informed the City Council that no home had been built along U. S. Route 1 from Sharpes to south Rockledge for over 30 years. Following discussion, during which the Mayor noted that the Regional Planning Council had recommended that the property be designated Low Density Residential, a motion, seconded, to leave the strip High Density Residential failed three votes to two. A motion, seconded, to approve the recommendation of the LPA passed by the same margin. At the conclusion of the meeting, the City Council approved on first reading the ordinance adopting the plan amendments. Following another display newspaper advertisement indicating proposed land use changes for the two strips, the City Council again met on May 22, 1990. A minister of the Messiah Church praised the City Council for its recent decisions and announced that the church had decided that to meet the needs of the community it would minister to persons whose needs were presently unmet, like transients, mentally retarded persons, handicapped persons, and residents of halfway houses. Church officials had decided that such a ministry could be carried out from the present location with the proposed designation, which nonetheless remained an example of bad planning in their opinion. Addressing the strip north of State Route 524, the attorney representing Wilson and Tompkins objected to the absence of representatives from the Regional Planning Council despite the fact that they had been responsible for drafting the plan amendments. The city attorney advised that the Regional Planning Council had originally recommended that these parcels be designated Low Density Residential, but the City Council, as it was then constituted, decided to change the designation to Commercial in the original plan. The city manager again justified the decision as to the Wilson and Tompkins parcels based on DCA's objections to the transmittal amendments for the Tenzel property. After discussion on the State Route 524 strip concluded, the attorney for Messiah Church objected to the proposed redesignation from High Density to Low Density Residential. Again protesting the absence of the Regional Planning Council planners, he asked for an explanation of this action. The city manager responded that staff's concerns involved compatibility with existing uses and recommendations of citizens in the area. The city attorney added that the central sewer lines ended south of the Messiah Church parcel. Various persons spoke on both sides of the issue. After discussion of other plan issues, the City Council adopted Ordinance 15-90, which includes the plan amendments that, among other things, redesignate the Commercial strip containing the Wilson and Tompkins parcels to Medium Density Residential and the High Density Residential strip containing the Messiah Church and Fountain parcels to Low Density Residential. The failure of the published map to depict the four parcels or the two strips undoubtedly accounts for the absence of the Petitioners from the second transmittal hearing. However, the arguments of similarly situated landowners were presented at the hearing. Moreover, five months passed between the transmittal and adoption hearings. Nothing in the record suggests than any Petitioner could have accomplished more in a few days before the second transmittal hearing that he, she, or it accomplished in the several months that passed before the adoption hearings. All Petitioners complain that the inadequacy of explanations received at the hearing for the redesignations deprived them of effective public participation. Generally, they received responses to their demands for explanations. Several reasons emerge from the record for the redesignation of Petitioners' parcels. As to the Wilson and Tompkins parcels, Cocoa staff officials expressed concerned about the appearance of strip commercial designations. This explanation is difficult to justify objectively because the Commercial designations probably could not have been challenged by DCA in the subject plan amendments. DCA's objections to the transmittal plan amendments on the Tenzel property were not relevant to the Commercial designations given these four parcels, especially if taken in isolation from the strips of which they were a part. It is of course possible that, given Cocoa's recent experience in federal and state review of its land use planning efforts, beleaguered staff and local officials chose to exercise an abundance of caution. As to the Messiah Church and Fountain parcels, Cocoa staff and officials expressed concern about the unavailability of central sewer. However, the concern, at least as voiced personally by the Mayor at the May 8 City Council hearing, was not so much for the protection of natural resources as for the protection of nearby homeowners from the expense of tying in to central sewer lines if they were extended through the High Density Residential strip. Transcript of May 8 hearing, pages 48-49. The Mayor's concern points to the most compelling explanation for the new designations for all four parcels. Each designation was driven by political pressure from residents, which, to some extent in this case at least, may be characterized in the more appealing terms of concerns about surrounding land use compatibility. The forces of neighborhood preservation confronted the forces of development and, in this encounter, the former prevailed by a bare majority of the City Council. The evidence fails to establish to the exclusion of fair debate that the above-described facts are not consistent with the applicable public participation criteria. Data and Analysis in Support of Designations Cocoa did not submit new data or analysis when it submitted the adopted plan amendments. However, data and analysis transmitted with the original plan, as well as the Tenzel amendments, bear on the new designations. More pertinent to the Wilson and Tompkins parcels, the data and analysis note: Neighborhood commercial uses of low density and intensity should be located within neighborhoods or central to several residential clusters. Such a locational strategy would produce the beneficial effects of reducing the time and distance to neighborhood commercial, making trips quicker, easier, and more economical. Background Analysis, FLUE, page 1-26. At the same time, the data and analysis predict significant traffic impacts on State Route 524 as the impact of new residential developments is felt. Background Analysis, Traffic Circulation Element, page 2-16. On the other hand, another locational recommendation in the data and analysis is for the central business district, which is south of all four parcels, to serve as "the community focal point providing a mixture of retail and services." Background Analysis, FLUE, page 1-26. Projecting a population increase of nearly 4000 persons from 1986 to 2000, the data and analysis report that there is generally enough land available for residential needs. Background Analysis, Housing Element, p. 3-15. The analysis concludes that County will need about 309 acres for residential development through 2000. Background Analysis, FLUE, page 1-26. Additional data and analysis accompanying the Tenzel plan amendments lower this amount to 130.6 acres, at least as to single family residential. Tenzel Data and Analysis, Part II. However, a corresponding increase in projected population probably should have accompanied the Tenzel plan amendments because they involved an annexation. Although the data and analysis provide little useful information concerning the amount of acreage designated, rather than zoned, residential, there is no evidence on which to base a conclusion that changing the designations of the State Route 524 strip from Commercial to Medium Density Residential and the U.S. Route 1 strip from High Density Residential to Low Density Residential defy the data and analysis regarding the need for residential land. The data and analysis project that 385 acres will need to be devoted to commercial uses by 2000. Background Analysis, FLUE, page 1-26. In 1987, about 276 acres were in commercial use. Table 1-2, Background Analysis, FLUE, page 1-6. Although the data and analysis do not indicate the number of vacant or developed acres designated Commercial under the plan, Tables 1-3 and 1-4 indicate that about 800 acres are zoned commercial. Background Analysis, FLUE, page 1-7 and 1-11. The acreage zoned commercial and acreage designated Commercial are probably about the same. Table 1-4 indicates that 170 acres zoned commercial are vacant and suitable for development. If Cocoa requires another 100+ acres for commercial uses in addition to the 276 acres already in commercial use, the designation of 800+ acres as Commercial is ample to meet this need. Thus, the removal of a Commercial designation from the 15-acre strip, of which the Wilson and Tompkins parcels are a part, does not defy the data and analysis. The fairest conclusion that can be drawn from the data and analysis is that Cocoa suffers no deficiency, in terms of projected needs in the year 2000, in land designated Commercial or in either of the relevant residential categories. Pertinent to the Messiah Church and Fountain parcels, the data and analysis indicate that the City's wastewater treatment facility was to be expanded in November, 1988. Background Analysis, Capital Improvements Element, page 9-11. The project was completed, and the wastewater facility has a considerable reserve capacity. Presently, the Messiah Church and Fountain parcels, and the surrounding area, are served by septic tanks. The data and analysis indicate, however, that the City is committed to a program of gradually extending central sewer services to areas within the city not currently served. Background Analysis, Wastewater Element, page 3-5. More recently, the Tenzel analysis states: "A policy of phasing out septic tanks has been in place in order to protect the environment." Tenzel data and analysis, Section IV, Wastewater. A rough estimate of the cost to extend sewer lines the necessary one- quarter mile to the area of the Messiah Church parcel is $500,000. Although it might be more feasible for the developer of a High Density Residential project to provide the funds to extend sewer lines, the feasibility is not clear given a project on a 2.3 acre parcel in an underutilized part of town. In any event, Cocoa has demonstrated a commitment to expanding the central sewer system, require connections, and finance the expansion by special assessments. The data and analysis would support either designation. The evidence thus does not establish to the exclusion of fair debate that the designations are not supported by the data and analysis. Consistency of Designations with Criteria of Land Use Suitability Analysis, Encouraging Redevelopment of Blighted Areas, and Discouraging Urban Sprawl For the four parcels, the land use suitability analysis accompanying the original plan supports the designations adopted in the plan amendments. This issue has been considered above with respect to the issue involving supporting data and analysis. Given the changes in designations from Commercial and High Density Residential to Medium and Low Density Residential, respectively, no additional land use analysis was required for the reasons set forth in the Conclusions of Law corresponding to the preceding section. The evidence fails to establish to the exclusion of fair debate that the designations are not supported by a land use suitability analysis. For the reasons set forth in the Conclusions of Law corresponding to this section, no findings are necessary to address the issue of the consistency of the plan amendment with the criteria of Chapter 163, Part II, and Chapter 9J- 5 concerning redevelopment of blighted areas and urban sprawl. Findings concerning urban sprawl in the context of internal consistency are in the following section. Although not alleged as a basis for a finding of internal inconsistency, the issue of redevelopment of blighted areas has been considered in the following section as well, for the reasons set forth in the corresponding Conclusions of Law. Consistency of Designations with Plan Provisions Encouraging Redevelopment of Blighted Areas and Discouraging Urban Sprawl FLUE Objective 1.1 is to adopt land development regulations to "discourage the proliferation of urban sprawl." Goal 1 of the Public Facilities Element is to provide public facilities in a manner that "protects investments in existing facilities and promotes orderly, compact urban growth, and discourages urban sprawl." Similarly, Public Facilities Element Objective 4.1.2 is to coordinate the provision of public facilities with the FLUE "to discourage urban sprawl and maximize the use of existing facilities." Other provisions relied upon by Petitioners to show internal inconsistency are Public Facilities Objective 4.2.5 and FLUE Policy 1.1.2 Residential Areas--General Paragraphs 1-2 and 5-6. Public Facilities Objective 4.2.5 is to adopt land development regulations that prohibit the installation of additional septic tanks within the incorporated city limits will be discouraged except when it is determined that the use of a septic tank system is the most efficient, cost effective and environmentally compatible alternative. [sic] FLUE Policy 1.1.2 Residential Areas--General Paragraphs 1-2 and 5-6 provide that land development regulations shall be based upon the following locational criteria: Provisions of new residential uses shall be adequately balanced with the availability of residential support services including community facilities, shopping, schools, parks and open space, and transportation services. The City will encourage infill development in areas of existing viable housing, provide for redevelopment in blighted areas or areas in transition, and encourage new housing development in appropriate areas where community services exist or are programmed to occur. Residential areas shall be buffered from major transportation arteries and from incompatible non-residential uses. Residential areas should be served by sidewalks and, where practical, bikeways with convenient access to recreation, shopping, and schools. FLUE Policy 1.1.2 Commercial Areas Paragraph 2 4/ provides: New commercial uses shall be discouraged from linear commercial development and shall be encouraged to develop in clusters, with coordinated parking facilities, and with frontage roads where practical. Resulting in most cases from ineffective or no land use planning, urban sprawl is the extension of urban-type development into rural, agricultural, or other undeveloped or sparsely developed lands in a haphazard development pattern in which land uses are not functionally related to each other. Common patterns of the premature land development characteristic of urban sprawl are the ribbon pattern, leapfrog pattern, and concentric circle pattern. In the ribbon pattern, development not functionally or proximately related to other non-urban development in the area extends in ribbons or strips along certain roads and away from urban development. In the leapfrog pattern, development not functionally or proximately related to other non-urban development in the area leaps from urban development so as to leave significant amounts of rural, agricultural, or other undeveloped or sparsely developed land between the existing urban development and the scattered leapfrog development. The concentric circle pattern is similar except that the development not functionally or proximately related to other non-urban development in the area assumes the pattern of concentric circles, such as along rural roads bypassing an urban area, and is characteristically more exclusively low-density residential. Urban sprawl typically interferes with one or more of four general objectives of effective land use planning: 1) promotion of the efficient use of land in the development of new, and maintenance of existing, viable mixed-use communities; 2) protection of natural resources in rural, agricultural, or other undeveloped or sparsely developed areas; 3) protection of agricultural lands and uses in rural, agricultural, or other undeveloped or sparsely developed areas; and 4) promotion of the efficient provision to both urban and non-urban areas of public facilities and services, such as water, sewer, roads, schools, police, fire, drainage, and other infrastructure, whether provided by public or private entities. The long strip of Commercial along State Route 524 suggests the presence of commercial sprawl along a thoroughfare. By removing the Commercial designation, Cocoa eliminates this type of sprawl. On the other hand, with respect to the Wilson and Tompkins parcels, Cocoa North resembles another example of sprawl. The introduction of compatible neighborhood commercial uses would tend to mix the uses with an immediate impact of relieving some traffic on State Route 524, as residents could make small purchases at, say, a convenience store located at State Route 524 and Westminster Drive. However, the solution adopted by Cocoa for the Wilson and Tompkins parcels, although possibly not the only one available under the circumstances, is consistent with the provisions of the plan to discourage urban sprawl. When compared to the prospect of the entire strip remaining designated Commercial, Cocoa's solution represents an improvement in terms of urban containment. The reduction of density for the strip east of U.S. Route 1 has few evident sprawl implications. To the extent this action may focus more dense residential development in the central business district or elsewhere where central sewer is already provided, the new designation serves the objectives to discourage urban sprawl. In any event, the new designation is not inconsistent with the sprawl provisions of the plan. The puzzling septic tank policy is probably intended to read that septic tanks are prohibited except when the use of a septic tank is the most efficient, cost effective, and environmentally compatible solution. The new designation for the strip east of U.S. Route 1 is not inconsistent with this policy. Consequently, the evidence fails to establish to the exclusion of fair debate that the designations are inconsistent with the provisions in the plan to discourage urban sprawl. FLUE Objective 1.3 is to eliminate "[e]xisting conditions of slum and blight . . . by the year of 2000." FLUE 1.1.2 Redevelopment Area Paragraph 1 designates the Redevelopment Area, which is depicted by map and excludes the two strips containing Petitioners' parcels, as an area of slum or blight pursuant to Chapter 163, Part II, Florida Statutes. Paragraph 3 adds that the City shall redevelop the central business district, which is within the Redevelopment Area, as a viable business district consistent with surrounding historic resources, residential neighborhoods, and natural resources. There is no evidence of blight as to the Wilson and Tompkins parcels, notwithstanding the marketing problems experienced in connection with the nearby townhouses. Concerning the Messiah Church and Fountain parcels, a haphazard collection of largely commercial uses, such as a flea market, have accumulated over the years along U.S. Route 1 in the vicinity of the two parcels. The immediate area appears not to be economically vibrant, but no evidence establishes that the area is blighted. Further, no evidence suggests that the area's economic fortunes would be enhanced if the strip were designated High Density Residential, notwithstanding the Messiah Church's intended use of the parcel if it is not given a High Density Residential designation. The evidence fails to establish to the exclusion of fair debate that the designations are inconsistent with plan provisions to encourage the redevelopment of blighted areas. Consistency of Designations with Regional and State Plans Regional Plan Policy 51.12 states: The "infilling" of existing urban areas and the renovation of blighted areas shall be encouraged in areas where existing wastewater transmission and treatment capacity are available for allocation, or funding has been committed for the provision of sufficient capacity. Emphasis should be placed on encouraging development activities within the urban service area boundaries as identified in local government comprehensive plans. Techniques of encouragement include but are not limited to: Provision of public or private facilities and services in strict accordance with adopted growth management objectives and policies . . Providing incentives for restoration or rehabilitation of blighted areas with existing sewer service through various actions such as but not limited to rezoning to other uses or higher densities Strengthening and preserving existing residential areas through the planned provision of public services, zoning and other techniques. Regional Plan Policy 57.7 5/ specifies the "designation of . . . activity centers . . . as a means of planning appropriate and balanced land uses on a scale and at an intensity consistent with the availability of public facilities and services . . Regional Policy Plan 51.10 limits the use of septic tanks in areas where conditions are suitable for installation and effective operation, provided that central sewer system services are not available due to lack of available treatment capacity, accessible facilities, or other considerations . . .. The following minimum criteria and procedures shall be adhered to . . . where regional resources may be adversely affected: * * * 3. The decision to require phasing out of septic tank systems where centralized sewer systems are available should be based solely upon the availability of those centralized systems and not upon any other consideration of ground water hydrology and current performance levels of septic tanks. For the reasons already discussed, the evidence fails to establish to the exclusion of fair debate that the designations are not consistent with these provisions of the Regional Plan. Section 187.201(18)(a), Florida Statutes (the State Plan) is for Florida to "protect the substantial investments in public facilities that already exist and . plan for and finance new facilities . . . in a timely, orderly, and efficient manner." Goal 16 of the State Plan is to direct development "to those areas which have in place, or have agreements to provide, the land and water resources, fiscal abilities, and service capacity to accommodate growth in an environmentally acceptable manner." The first three policies under Goal 16 are: Promote state programs, investments, and development and redevelopment activities which encourage efficient development and occur in areas which will have the capacity to service new population and commerce. Develop a system of incentives and disincentives which encourages a separation of urban and rural land uses while protecting water supplies, resource development, and fish and wildlife habitats. Enhance the liveability and character of urban areas through the encouragement of an attractive and functional mix of living, working, shopping, and recreational activities. In addition to the above-cited provisions relied upon by Petitioners, Policy 3 of Goal 5 of the State Plan is to increase the supply of safe, affordable, sanitary housing for low- and moderate-income persons by, in part, "recycling older houses and redeveloping residential neighborhoods." For the reasons already discussed, the evidence fails to establish to the exclusion of fair debate that the designations are not consistent with these provisions of the Regional Plan.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Community Affairs enter a final order dismissing the petitions of the four Petitioners. ENTERED this 8 day of August, 1991, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8 day of August, 1991.
