The Issue The issue presented for decision in this proceeding is whether a future land use map (“FLUM”) amendment, adopted by Hillsborough County on October 27, 1994, as part of its Comprehensive Plan update for the planning time frame through 2015 (variously referred to as the “Comprehensive Plan” or "CPU-2015"), that changed the future land use category on a 253 acre parcel1 in Northwest Hillsborough County ("the Geraci Parcel") from Regional Commercial ("RC") to Community Mixed Use-12 ("CMU-12") complies with the requirements of Chapter 163, Part II, Florida Statutes, as defined in Section 163.3184(1)(b), Florida Statutes.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: PARTIES Petitioners Nick and Peter Geraci are the fee simple owners of a parcel of land comprising approximately 450 acres located on the northeast corner of the intersection of North Dale Mabry Highway and Van Dyke Road, two hundred fifty-three (253) acres of which are at issue in this proceeding. Advance Leasing is a Florida corporation that was a contract vendee for a portion of the Geracis’ property intended for development as a “super regional” or “regional scale” mall, and was the applicant in the amended applications for DRI approval of that mall. Hillsborough County’s motion to dismiss Advance Leasing as a party for failure to establish standing as an affected person under Section 163.3184(1)(a), Florida Statutes, was granted at the final hearing. Advance Leasing failed to establish that it was an entity that either owned or operated a business within Hillsborough County or owned property in Hillsborough County as of October 27, 1994. Respondent DCA is the state land planning agency, with responsibility to review plan amendments under Chapter 163, Part II, Florida Statutes, pursuant to Sections 163.3184, 163.3187 and 163.3189, Florida Statutes, and to determine compliance with the relevant provisions. Respondent Hillsborough County is a local government with responsibility to prepare and adopt a Comprehensive Plan and any required amendments thereto pursuant to Sections 163.3167, 163.3171 and 163.3174, Florida Statutes. The Hillsborough County Board of County Commissioners makes the final, legislative decision on all Comprehensive Plan amendments in Hillsborough County. Hillsborough County Charter Section 9.09 specifies that a single local planning agency, created by special law, "shall have responsibility for Comprehensive Planning and related activities[.]" The Hillsborough County Local Government Comprehensive Planning Act, as amended by Chapter 97-351, Laws of Florida, designates the Hillsborough County City-County Planning Commission ("Planning Commission”) as Hillsborough County's local planning agency. The Planning Commission is charged with preparing Comprehensive Plans and making recommendations to the public bodies for Hillsborough County and the incorporated municipalities within Hillsborough County. The role of the Planning Commission is advisory and its recommendations are not binding upon Hillsborough County. Intervenors Sierra Club and Dr. Richard and Bonnie Hoffman have established their standing to participate in this proceeding as "affected persons" pursuant to Section 163.3184(1)(a), Florida Statutes. Sierra Club represents numerous members who reside in Hillsborough County, and also operates a business within the boundaries of Hillsborough County by way of its local affiliate. The Hoffmans own property within Hillsborough County. Both Sierra Club and the Hoffmans participated in the local government proceedings in accordance with Section 163.3184(1)(a), Florida Statutes.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that the Administration Commission enter a final order finding the portion of CPU-2015 challenged by the Petition to be in compliance. DONE AND ENTERED this 14th day of October, 1998, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON 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 Filed with the Clerk of the Division of Administrative Hearings this 14th day of October, 1998.
The Issue The general issue for determination in this case is whether Amendment 00-D1 to Sumter County’s comprehensive plan (the “Plan Amendment”) is "in compliance" with the Local Government Comprehensive Planning and Land Development Act, Sections 163.3161 through 163.3217, Florida Statutes. (All statutory references are to the 2000 codification of the Florida Statutes.) The initial Petition to Request Administrative Hearing (Petition) alleged numerous reasons why the Plan Amendment should be found not "in compliance." But from the time of the initial Petition--through the Joint Prehearing Stipulation, opening statement at final hearing, and Proposed Recommended Order (PRO)--Petitioners reduced the number of reasons why they contend that the Plan Amendment is not "in compliance" to the following: simultaneous conversion of Future Land Use (FLU) from Agricultural to PUD allegedly inconsistent with parts of the County's Plan's; alleged lack of demonstrated need for land use allocations contrary to Section 163.3177 and Florida Administrative Code Rules Chapter 9J-5 (all rule citations are to the Florida Administrative Code); conversion of FLU from Agricultural to PUD allegedly inconsistent with the Plan's Policy 4.6.1.1 (the so-called "90% rule"); and alleged failure to discourage urban sprawl contrary to Rule 9J-5.0006(6). These are the only compliance issues that still have to be addressed in this proceeding. In addition, Intervenor contends that Sumter Citizens Against Irresponsible Development (SCAID) does not have standing.
Findings Of Fact Intervenor, the Villages of Lake-Sumter, Inc., owns land in the northeast part of Sumter County on which Intervenor plans to construct a mixed-use development of regional impact (DRI) known as the Villages of Sumter. The proposed DRI will encompass approximately 4,679 acres and is anticipated to contain: 11,097 residential dwelling units; 1,250,000 square feet of commercial area; 250,000 square feet of office area; 157,000 square feet of institutional area; 120,000 square feet of hotel (300 rooms); 100,000 square feet convention center; 23,500 square feet of movie theater (8 screens); 512 acres of golf courses (126 holes); 8 marina slips; 602 acres of wildlife management and Kestrel foraging areas; 162 acres of lakes, 162 acres of roads, 31 acres of parks and buffers; and 227 acres of stormwater and open space. The proposed DRI will feature neighborhood and town centers and will extensively utilize clustering, open spaces, and buffering as part of its design. It is anticipated that the Villages of Sumter DRI will have an internal vehicle capture rate of over 60%--i.e., over 60% of vehicle trips starting in the DRI will not go outside the DRI. The DRI will provide water, sanitary sewer, stormwater management, aquifer recharge areas, and other governmental services as part of its development. Eighty percent of the residents in the Villages of Sumter DRI will have to be occupied by persons 55 of age or older, and no one under 19 will be permitted to reside within this DRI. When Intervenor filed its Application for Development Approval (ADA) for the Villages of Sumter DRI, Intervenor also requested the subject Plan Amendment to accommodate the DRI, including a change in the Future Land Use Element (FLUE) and FLUM from Agricultural use to UEA and PUD. The ADA itself served as a major part of the data and analysis supporting the Plan Amendment. (Another major part of the data and analysis was the Evaluation and Appraisal Report (EAR) prepared by the County in 1995.) The western part of the northern boundary of the Plan Amendment parcel (i.e., the Villages of Sumter DRI) will be the western part of the southern boundary of a related DRI developed by Intervenor known as the Tri-County Villages. From there, the Tri-County Villages DRI extends north to the southern border of Marion County and east to the western border of Lake County. (Towards the east, the northern boundary of the DRI drops just a little south of the southern border of Marion County.) Tri- County Villages is a large mixed-use DRI. It includes residential, commercial, recreational, and open space land uses. Prior to the Tri-County Villages DRI, Intervenor or its predecessor also developed other related mixed-use DRIs to the east in Lake County. SCAID was formed in 1993 or 1994 to oppose the Tri- County Villages DRI and 1994 comprehensive plan amendments adopted to accommodate the Tri-County Villages DRI. SCAID, T. Daniel Farnsworth, and James E. Boyd filed a petition initiating Sumter Citizens Against Irresponsible Development, T. D. Farnsworth, and James E. Boyd vs. Department of Community Affairs and Sumter County, DOAH Case No. 94-6974GM, to oppose DCA's determination that the County's 1994 amendments were "in compliance." SCAID, Farnsworth, and Weir are collaterally estopped to deny facts established in DOAH Case No. 94-6974GM (SCAID I). (Latham and Roop are not estopped.) See Conclusions of Law 63-64, infra. In any event, all Petitioners agreed to official recognition of the Final Order entered in DOAH Case No. 94-6974GM. Among the facts established by adoption of the Recommended Order by the Final Order in SCAID I was the history of the earlier DRIs, the Tri-County Villages DRI, and the comprehensive plan amendments required by the Tri-County Villages DRI: [¶4] [I]ntervenor [Villages] is the owner and developer of the Tri- County Villages development located in unincorporated Sumter County. Development which predated the existing Tri-County Villages development commenced in approximately 1968 with Orange Blossom Garden North (OBGN). OBGN was an approximately 1,000-acre project owned and operated by Orange Blossom Hills, Inc. as a mobile home retirement community located mostly in the Town of Lady Lake, Florida. That community lies in the northwestern corner of Lake County, which adjoins the northeastern corner of Sumter County. Because the development of OBGN commenced prior to July of 1973, it is vested for purposes of development of regional impact (DRI) review pursuant to Section 380.06(20), Florida Statutes. [¶5] In 1987, Orange Blossom Hills, Inc. submitted an Application for Development Approval (ADA) with the Town of Lady Lake which requested authorization to develop Orange Blossom Gardens South (OBGS). The OBGS development was an approximately 595-acre extension of the vested OBGN retirement community and was determined by the DCA and Town of Lady Lake to be a DRI. On January 18, 1988, the Town of Lady Lake approved the proposed OBGS development. [¶6] In 1989, Orange Blossom Hills, Inc. submitted to the Town of Lady Lake and the County an ADA requesting a substantial deviation from the OBGS DRI. The substantial deviation request sought authorization to develop Orange Blossom Gardens West (OBGW). OBGW was planned as an approximately 1,700-acre extension to the OBGS DRI. The Town of Lady Lake approved the substantial deviation request through the issuance of an Amended Development Order on May 7, 1990. The County approved the development within its jurisdiction on May 29, 1990. [¶7] In September 1993, intervenor, as successor to Orange Blossom Hills, Inc., submitted an ADA to the County which requested a substantial deviation from the OBGS and OBGW DRI's. By submitting this latest development, intervenor sought to add approximately 1,960 acres to the existing OBGS and OBGW DRI's and modify the development already approved by adding a total of 6,250 residential units and 910,000 square feet of commercial square footage. The overall development was renamed Tri-County Villages. The development order approving the substantial deviation for Tri-County Villages was adopted by the County on September 20, 1994. [¶8] On September 20, 1994, or prior to approval of the Tri-County Villages development substantial deviation, but in conjunction with it, the County adopted plan amendment 94D1 by Ordinance No. 94-6. On November 10, 1994, the DCA determined the amendment to be in compliance. That amendment amended the plan's Future Land Use Map (FLUM) to revise the land use designations on approximately 1,960 acres of land. Specifically, the plan amendment designated as Planned Unit Development (PUD) all areas of the approved OBGW DRI and the additional 1,960 acres referred to in Exhibit 1 of 94D1 as parcels 5 and 8. Prior to the amendment, parcels 5 and 8 had been designated predominantly as agricultural, with small pockets of rural residential. [¶9] The plan amendment also revised the FLUM by extending the urban expansion area to include all of parcels 5 and 8. Prior to the amendment, only a small section of parcel 8 was included in the urban expansion area. [¶10] The plan amendment further included several textual revisions to the Future Land Use Element (FLUE), including a revision to FLUE Policy 1.5.7 concerning the ratio of commercial square footage to residential units and the addition of FLUE Objective 1.14 and Policies 1.14.1 - 1.14.6, which essentially incorporated the concept of sector planning into the plan. [¶11] Finally, the plan amendment revised Policy 2.1.5 of the Sanitary Sewer Element which, subject to submission of appropriate data and analysis, and Department of Environmental Protection approval, reduced the established level of service for sanitary sewer throughout the Tri-County Villages development. SCAID I, 17 F.A.L.R. 4527, 4531-32 (Dept. Community Affairs Aug. 1995). (The Recommended Order may also be found on WESTLAW at 1995 WL 1052949.) At its inception, the Tri-County Villages DRI was projected to build-out in approximately 2015. When the Tri- County Villages DRI first began construction in late 1992, the developer pulled 24 building permits. In 1993, the County issued 406 residential building permits, 365 of which were pulled for the Tri-County Villages DRI. In 1997, the developer pulled 1,052 building permits for the Tri-County Villages DRI. To date, approximately 13,000 homes have been built in the Tri- County Villages DRI. Based upon present projections, the Tri- County Villages DRI is anticipated to be substantially built-out in 2003-04, 12 years ahead of its initially projected build-out date of 2015. Presently, there are numerous cultural and recreational activities, shopping options, medical and governmental services available to residents within the Tri-County Villages DRI. While still designated as a UEA and PUD on the County's FLUM, the Tri-County Villages DRI in fact is a self-contained urban area, especially in the context of Sumter County. Sumter County is mostly rural. According to the 1995 EAR, the County's permanent (non-seasonal) population was projected to be: 38,961 for 1998; 56,000 for 2005; and 64,200 for 2010. The unincorporated portion of the County contains 334,903 acres, approximately 99,436 acres of which are state- owned conservation lands, and approximately 202,000 acres of which are agricultural lands. There are five municipalities in the County--Wildwood, Bushnell (also the County seat), Center Hill, Coleman and Webster. None are as urbanized as the Tri- County Villages DRI. Simultaneous Conversion Objective 7.1.2 of the County's comprehensive plan provides in pertinent part: Upon adoption of this plan, Sumter County shall . . . provide for a compatible and coordinated land use pattern which establishes agriculture as the primary use outside of the urban expansion area boundary and insures retention of agricultural activities, preserves natural resources and discourages urban sprawl. In pertinent part, the County Plan's Policy 7.1.1.2(e) provides that the County's land development regulations governing PUDs should be based on and consistent with the following standards for densities and intensities: Within the Urban Expansion Area, a base density of up to 8 residential units per gross acre in residential areas and 6 units per gross acre in commercial areas are allowed. . . . . Outside of an Urban Expansion Area, a base density of up to 4 residential units per gross acre in residential, commercial and agricultural areas are allowed. Policy 7.1.5.1 allows PUDs "in the following land use districts and at the following densities/intensities of use": 8 dwellings per gross acre in "Residential Areas Inside UEA"; 6 dwellings per gross acre in "Commercial Areas Inside UEA"; and 4 dwellings per gross acre in "Res./Comm. Uses Outside UEA." Petitioners contend that the foregoing objective and policies somehow combine to preclude the simultaneous conversion of Agricultural FLU to UEA and PUD; they appear to contend that these policies necessitated an intermediate conversion to UEA. (Protection of agricultural lands was raised in a more general sense, but this precise issue was not raised prior to final hearing.) But Petitioners argument not only is not persuasive, it is not even easily understood. It is at least fairly debatable that the objective and policies do not combine to preclude simultaneous conversion of Agricultural FLU to UEA and PUD. Even without prior notice of this precise issue, one of the County's expert witnesses in land planning persuasively testified that the cited objective and policies do not combine to preclude simultaneous conversion of Agricultural FLU to UEA and PUD. Even Petitioners' expert land planner ultimately agreed that there is nothing in the Florida Statutes or Florida Administrative Code Rules Chapter 9J-5 to prevent conversion of agricultural uses to more urban uses. Demonstrated Need As reflected in previous Findings of Fact, the subject Plan Amendment is for a highly mixed-use PUD. Of the many mixed uses involved, Petitioners focus on the allocation of land for residential use in their challenge to the demonstration of need for the Plan Amendment. In this context, demonstrated need refers to the existence of adequate data and analysis to demonstrate the need for additional allocation of residential dwelling units on the FLUM. Petitioners assert that the methodology utilized by the County to project need is flawed. Determination of the need for a certain allocation of residential densities starts with a projection of population on the planning horizon (2020). In doing so, all available data and analysis must be considered. (Petitioners also assert that Policy 7.1.2.5(b)1. of the County's comprehensive plan requires such an analysis "utilizing professionally accepted methods," but that policy speaks to additional densities and allocations of land use for developments proposed in agricultural areas, while the Plan Amendment in this case converts the agricultural land to UEA and PUD.) For the purpose of analyzing whether there is a demonstrated need for this Plan Amendment, the County's planner, Roberta Rogers, relied upon need projections made in conjunction with the preparation of the County's EAR. The EAR, prepared in 1999, included a projection of the County's population for the 2020 planning horizon. The EAR projected that the permanent population of unincorporated Sumter County, by the year 2020, will be 79,475. (The total County permanent population is projected to be 94,205.) One of the purposes of an EAR is to provide data and analysis for comprehensive plan amendments. In preparing the population projections reflected in the EAR, Rogers began her analysis by referring to the projections for Sumter County formulated by the Bureau of Economic and Business Research ("BEBR"), as reported in 1996. The 1996 BEBR Report actually reflected projections made in 1995. BEBR publishes yearly reports that state both the estimated current and the projected future populations for each Florida county. The population projections reflected in BEBR Reports are based upon historical trends of 10-15 years' duration. Because the development in the Tri-County Villages DRI is a relatively recent phenomenon, Rogers believed that reliance upon the BEBR projections alone would have resulted in a significant under-projection of the County's future population. As a consequence, Rogers added an annual rate of growth of 1000 building permits per year through 2005 and 500 permits per year through the remaining portion of the planning period for the Tri-County Villages and the Villages of Sumter. Her approach was a conservative approach, since the actual number of building permits issued for the Tri-County Villages DRI in the past two years has significantly exceeded 1000 per year. Rogers conferred with BEBR, prior to completing her analysis, and was assured that her approach was appropriate. Such an adjustment for the Villages is particularly appropriate since the Villages cater to a very specific segment of the population, i.e., persons 55 and above. Over the twenty- year planning horizon relevant to the Plan Amendment, the population of persons in Florida aged 55 and above will increase dramatically as the "baby boomer" population ages. The demand for residential housing for these senior citizens will show a similar dramatic increase. Henry Iler, the Petitioners' land planning expert, took the contrary position, opining that no additional growth factor should be added to the 1996 BEBR projections. However, Dr. Henry Fishkind, an expert in demography who was involved in the original development of the BEBR population projection methodologies, directly contradicted Iler's opinion, concluding instead that Ms. Rogers' methodology was appropriate. As Dr. Fishkind stated that [Sumter] county has experienced a dramatic structural change to its population growth and development because of the Villages, and that has altered the characteristics of its population growth. In light of that, the use of past trends, which is what the bureau [BEBR] does, is simply extrapolate past trends, would not be appropriate, for it would not have taken into account that major structural change. Ms. Rogers identified the structural change, she measured its amount, and then she added on to the bureau's projections, which were extrapolations of the past trends. That's a very appropriate adjustment, and it's the kind of adjustment that econometricians and economists make on a regular basis. DCA's analysis concurred that the high absorption rates in the Tri-County Villages DRI had to be taken into account. To have ignored the explosion of growth in the Tri- County Villages DRI, particularly in view of the generally accepted expectation that the population to be served by the Tri-County Villages and by the Villages of Sumter will experience tremendous growth, would have resulted in an inaccurate population forecast. Even Iler had to concede that he was aware of building permit data being used to project population figures. It is simply not his preferred methodology to use such information. Thus, Rogers' projection of the County's total population for the year 2020 appropriately incorporated all available and relevant data and was formulated using an accepted methodology. While not part of their PRO, Petitioners previously attacked the County's population projections by questioning the continued success of the Villages to attract out-of-state retirees. Primarily through Weir's testimony, they attempted to raise the specter of a reduction of sales and Intervenor's subsequent financial ruin. But there was no credible evidence to support Petitioners' prophecy of doom. On the evidence presented in this case, it would be more rational from a planning standpoint to expect the Villages to continue to be a marketing and financial success. Having reasonably projected future population, it was then incumbent upon the County to determine how many dwelling units would be needed to accommodate anticipated housing needs. This determination was made by Gail Easley, an independent planner retained by the County to assist Rogers in preparation of the EAR. Easley performed this calculation for the County. Easley used 2.46 as the average number of persons per dwelling unit in the County, a figure taken from the BEBR reports (not from 1990 census information, as Iler incorrectly surmised.) There was no evidence that a number other than 2.46 was appropriate. It would not be appropriate for the number of dwelling units needed in the future to be calculated simply by the division of the anticipated population by the average household size. Rather, it is appropriate to apply a "market factor" (or multiplier) in order to ensure that there is a choice of types of housing and to accommodate lands that are not actually useable for residential construction. Even Petitioner's expert, Henry Iler, agreed that the use of a market factor was appropriate in order to ensure sufficient housing supply and to avoid an increase in housing prices. Easley furnished Rogers with the market factor for the EAR. The market factor chosen by Easley was 1.5, a factor she viewed as conservative and as appropriate for a jurisdiction that is beginning to urbanize. In more rural counties, a higher market factor, such as 2.0, should be used. While Iler implied that a lower marker factor would be more suitable, the record clearly established that the market factor used by Easley fell within the range of reasonable choices. (In SCAID I, the ALJ expressly found, in paragraph 31 of the Recommended Order, that the 1.87 market factor used by the County on that occasion was reasonable and actually low compared to factors used for other comprehensive plans that had been found to be "in compliance." As reflected by this Finding of Fact, facts and circumstances bearing on the choice of a market factor for Sumter County have not changed significantly to date. Cf. Conclusion of Law 64, infra.) Applying the 1.5 market factor to the projected population and average household size, the County determined that 62,274 dwelling units will have to be accommodated during the twenty-year planning horizon. (This includes 48,461 units in permanent housing, 9,113 in seasonal housing, and 4,700 in transient housing.) The County then allocated those dwelling units in various land use categories. Much of Petitioners' PRO on this point was devoted to criticizing parts of the evidence in support of the demonstration of need. They state the obvious that Easley did not perform a demonstration of needs analysis for the Plan Amendment in the EAR, but that was not the purpose of the EAR; nonetheless, the EAR contained valuable data and analysis for use in the demonstration of need analysis for the Plan Amendment. Petitioners also questioned DCA's reliance on the DRI ADA in conducting its demonstration of need analysis, based on the timing of the ADA and Plan Amendment submissions and decisions; but it is not clear what it was about the timing that supposedly detracted from DCA's demonstration of need analysis, and nothing about the timing made it inappropriate for DCA to rely on the data and analysis in the ADA. Petitioners criticized Rogers' reference to up-to-date building permit information that was not offered in evidence; but this information only further supported Rogers' demonstration of need analysis. Petitioners asserted that one of Intervenor's witnesses may have overstated residential sales in the Tri- County Villages DRI (1,750 sales a year versus evidence of 1,431 building permits for 1999); but the witness's statement was not used in any of the demonstration of need analyses. Finally, Petitioners attacked one of Intervenor's witnesses for an alleged "conflict of interest, a lack of professional integrity and an indication of bias"; but the basis for this allegation supposedly was evidence that the witness worked for the County while also working for Intervenor or its predecessor for a few years in the late 1980's, not enough to seriously undermine the credibility of the witness's testimony in this case (which in any event had little or nothing to do with the demonstration of need analyses.) It is at least fairly debatable that the County's demonstration of need was based on relevant and appropriate data, and professionally acceptable methodologies and analyses. Likewise, it at least fairly debatable that the County's projections regarding housing needs, the growth in the retirement population, and the absorption rates achieved in the existing Tri-County Villages DRI adequately support the allocation of 11,000 dwelling units permitted by the Plan Amendment. So-called "90% Rule" The County's Plan Policy 4.6.1.1 provides: The County shall maintain approximately 90% of its land area in land uses such as agricultural (including timberland, mining and vacant), conservation, and open (recreation, open space etc.) land uses for this planning period. (Emphasis added.) This policy is found in the Utilities Element of the County's comprehensive plan under a goal to protect and maintain the functions of the natural groundwater aquifer recharge areas in the County and under an objective to protect the quantity of aquifer recharge. Although couched as an approximation, the policy has been referred to as the "90% rule." Based on the evidence presented in this case, it is at least fairly debatable that the subject Plan Amendment is not inconsistent with Policy 4.6.1.1. The primary debate had to do with the proper treatment of certain "open space" provided in the Tri-County Villages DRI and the Villages of Sumter DRI-- 1,032 acres in the former and 2,135 acres in the latter. This "open space" consists of golf courses, preserves, wetlands, parks/buffers, and some stormwater/open spaces. Petitioners' expert refused to count any of this acreage for purposes of the so-called "90% rule" because, while the FLUE and FLUM have Agricultural, Conservation, and Recreation land use categories, there is no category designated "Open Space." (Meanwhile, there is an entire element of the plan entitled "Recreation and Open Space.") The witnesses for the County and DCA counted those 3,167 acres. They reasoned persuasively that the policy's express mention of "open space" (as opposed to a specific land use category designated "Open Space") supports their position. They also argued persuasively for the logic of including "open space," which serves the objective of the policy to "protect quantity aquifer recharge quantity," even if there is no specific land use category designated "Open Space." Counting the 3,167 acres of "open space" in the two DRIs, the percentage calculated under Policy 4.6.1.1 exceeds 90% for existing land uses. Omitting that land, as well as another 500 acres that should have been counted, Petitioners' expert calculated 88.96%. Petitioners' expert also calculated a lower percentage (85.34%) by using land uses he projected for the end of the planning period. However, Petitioners' expert conceded that it was not clear that Policy 4.6.1.1 should be interpreted in that manner. If so interpreted, it would be possible for all plan amendments reducing agricultural, conservation, and open FLUs to be prohibited even if existing land uses in those categories did not fall below "approximately 90%" for another 20 years. It is at least fairly debatable whether such a result is logical, or whether it is more logical to wait until existing land uses in those categories did not fall below "approximately 90%" before prohibiting further FLUE and FLUM amendments. Urban Sprawl Petitioners contend that the Plan Amendment fails to discourage urban sprawl. They attempted to prove seven urban sprawl indicators. But their evidence was far from sufficient to establish any beyond fair debate. Petitioners did not prove that the Plan Amendment promotes, allows or designates for development substantial areas of the jurisdiction to develop as low intensity, low density, or single-use development or uses in excess of demonstrated need. To the contrary, while gross residential density may be relatively low (2.4-2.6 units per gross acre), the Plan Amendment PUD provides for highly mixed-use development, not single-use development, and densities in residential areas within the PUD are significantly higher (up to 5.6 units per acre), especially for Sumter County. Petitioners also did not prove that the Plan Amendment promotes, allows or designates significant amounts of urban development to occur in rural areas at substantial distances from existing urban areas while leaping over undeveloped lands which are available and suitable for development, or that the Plan Amendment promotes, allows or designates urban development in radial, strip, isolated or ribbon patterns generally emanating from existing urban developments. To the contrary, the evidence was that part of the northern boundary of the Plan Amendment parcel coincides with the western part of the southern boundary of the Tri-County Villages DRI, and the Villages of Sumter PUD will be an extension of the Tri-County Villages DRI, which already has all the characteristics of an existing urban area. The reason why the eastern part of the northern boundary of the Plan Amendment parcel does not coincide with the southern boundary of the Tri-County Villages DRI is the existence of land in between which is already in use and not available to become part of the Plan Amendment PUD. Development will not be in a radial or ribbon pattern like (usually) commercial development along main roadways; nor will development be isolated. Petitioners did not prove that the Plan Amendment fails to protect adjacent agricultural areas and activities, including silviculture, and including active agricultural and silvicultural activities as well as passive agricultural activities, and dormant, unique and prime farmlands and soils. Obviously, conversion of agricultural land eliminates such land from agricultural use. But the Plan Amendment protects adjacent agricultural land by phasing development starting from existing urban areas in the Tri-County Villages DRI by mixing in open and recreational uses throughout the Villages of Sumter PUD and by providing some additional buffer between the periphery of the PUD and adjacent agricultural lands. Petitioners did not prove that the Plan Amendment fails to maximize the use of existing public facilities and services. Indeed, Petitioners' land use planning expert admitted at the hearing that he "didn’t have the time or expertise, really, to try to evaluate this particular question." To the contrary, the evidence was that the Plan Amendment PUD will include water, sanitary sewer, stormwater management, aquifer recharge areas, and other governmental services as part of its development. In addition, impact to schools will be minimal or non-existent due to the character of the PUD as a retirement community. Petitioners did not prove that the Plan Amendment fails to provide a clear separation between rural and urban uses. To the contrary, the evidence was that clustering, open spaces and buffering in the Villages of Sumter PUD will provide a clear enough separation between rural and urban uses. Petitioners did not prove that the Plan Amendment discourages or inhibits in-fill development or the redevelopment of existing neighborhoods and communities. Specifically, Petitioners argued that in-fill in the City of Wildwood will be discouraged. But the evidence was to the contrary. Not only would development of the kind envisioned in the Plan Amendment PUD be unlikely to occur in Wildwood, sufficient land is not available for such a development there. Actually, the Plan Amendment might encourage in-fill in Wildwood, where service providers for the Villages of Sumter might be expected to reside. SCAID SCAID was formed in 1993 or 1994 by a small group of Sumter County citizens for the purposes of preserving the "rural lifestyle" of Sumter County, preventing urban sprawl, and ensuring "that development will not be a burden to the taxpayers" of the County. SCAID has about 80 members, who are not required to pay dues. The majority of SCAID's members live in Sumter County, including all of the individual Petitioners in this case. SCAID is not incorporated but has by-laws drafted in 1995 or 1996. The by-laws provide for election of officers for one-year terms, but SCAID has not had an election of officers since 1994. Petitioner, T. Daniel Farnsworth, is and always has been SCAID's president. The evidence was that, when former SCAID member James Boyd resigned, Petitioner Linda Latham was appointed to replace him as secretary. SCAID has held just two meetings since its inception. Approximately 15-20 persons attended each meeting. Most communication with members is by regular and internet mail. Financial contributions are solicited from time to time for litigation efforts initiated by SCAID. Farnsworth, on behalf of SCAID, submitted comments on the Plan Amendment to the County between the transmittal hearing and the adoption hearing. Farnsworth and Weir also testified on behalf of Petitioners at final hearing. The other individual Petitioners did not.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that, under Section 163.3184(9)(b), the Department of Community Affairs enter a final order that Sumter County's Amendment 00-D1 is "in compliance." DONE AND ENTERED this 20th day of February, 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 Hearings this 20th day of February, 2001. COPIES FURNISHED: Martha Harrell Chumbler, Esquire Nancy G. Linnan, Esquire Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A. Post Office Box 190 Tallahassee, Florida 32302-0190 Jane M. Gordon, Esquire Jonas & LaSorte Mellon United National Bank Tower Palm Beach Lakes Boulevard, Suite 1000 West Palm Beach, Florida 33401-2204 Terry T. Neal, Esquire Post Office Box 490327 Leesburg, Florida 34749-0327 Colin M. Roopnarine, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Steven M. Seibert, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 100 Tallahassee, Florida 32399-2100 Cari L. Roth, General Council Department of Community Affairs 2555 Shumard Oak Boulevard Suite 325 Tallahassee, Florida 32399-2100
The Issue Whether the Escambia County comprehensive plan amendments adopted by Ordinance Nos. 2020-14, 2020-15, and 2020-16 adopted on June 4, 2020, are "in compliance," as that term is used in section 163.3184(1)(b), Florida Statutes.
Findings Of Fact The following Findings of Fact are based on the stipulations of the parties and the evidence adduced at the final hearing. Parties Petitioners are "affected persons" as defined in section 163.3184(1)(a) who own property in the County and timely submitted comments or objections to the County with regard to the subject plan amendments. The County is a non-charter county and a political subdivision of the State of Florida. The County's principal offices are located at 221 Palafox Place, Pensacola, Florida 32502. The County is a local government that is subject to the requirements of chapter 163. Intervenors are the owners of property located at 2025 West Kingsfield Road, Cantonment, Florida 32533. The Westmark Property was the subject of Ordinance No. 2020-14. The instant administrative proceeding was a challenge to all three Ordinances adopted by the County on June 4, 2020. The Arnold Property was the subject of Ordinance No. 2020-15. The Jolly Property was the subject of Ordinance No. 2020-16. Background A sector plan is the process in which the local government engages in long-term planning for an area of at least 5,000 acres. See §§ 163.3164(42) and 163.3245(1), Fla. Stat. It involves two levels of planning: a) a long-term master plan, and b) a Detailed Specific Area Plan (DSAP), which implements the master plan. A DSAP is created for an area that is at least 1,000 acres and identifies the distribution, extent, and location of future uses and public facilities. See § 163.3245(3), Fla. Stat. While the DSAP is created by a local development order that is not subject to state compliance review, an amendment to an adopted sector plan is a plan amendment reviewed under the state coordinated review process. See § 163.3184(2)(c), Fla. Stat. The County's OSP was one of five original sector plans adopted as part of a pilot program in the State of Florida. The County's OSP is unique from the other sector plans throughout the state because of its large number of property owners. The other four pilot sector plans contain one or two owners of large parcels. Those one or two property owners specifically requested to have a sector plan. In the County there are 1,792 parcels located in the OSP. On June 3, 2010, the County adopted its Comp Plan and the Mid-West OSP through Ordinance No. 2010-16. Ordinance No. 2010-16 was challenged by the state land planning agency, the former Department of Community Affairs (DCA). Ordinance No. 2011-3 was adopted by the County as a stipulated remedial ordinance in response to the DCA challenge. Ordinance No. 2011-3 was determined to be in compliance with part II of chapter 163. The time for a challenge to Ordinance 2011-3 has expired. The OSP DSAP was adopted by County Ordinance No. 2011-29 in September 2011, and the DSAPs attached to the ordinance were adopted as well. Ordinance No. 2011-29 established two DSAPs: Muscogee DSAP and Jacks Branch DSAP. The time for a challenge to Ordinance 2011-29 has expired. Chapter 7 of the County's Comp Plan contains the FLU Element that established future land use patterns as described by the FLU Element's goals, objectives, and policies. The policies include FLU categories with general descriptions of allowable uses and development standards. FLU Element categories include Agricultural, Rural Community, and MU-S. Chapter 16 of the County's Comp Plan contains the OSP overlay that established a long-term master plan for buildout of the area covered by the OSP. The OSP sets forth FLU goals, objectives, and policies that generally describe types of land uses, regionally significant public facilities, and regionally significant natural resources. The policies include FLU categories related to the OSP area general principles that contain general descriptions of allowable uses and development standards. OSP FLU categories include Town Center, Village Center, Traditional/Urban Neighborhood, and Conservation Neighborhood. Until a DSAP is adopted, the property within the OSP maintains the underlying FLU Element designation. The right to opt-out or withdraw from the long-term master plan with local government approval was created by the Florida Legislature when section 163.3245 was amended during the 2011 legislative session. See § 163.3245(8), Fla. Stat. This can be accomplished only with the approval of the local government by plan amendment adopted and subjected to state compliance review under section 163.3184. Id. On April 16, 2015, the County repealed and replaced its entire LDC and instituted a county-wide rezoning to accomplish a consolidation of zoning districts by Ordinance No. 2015-12. On March 16, 2017, the County amended its LDC through Ordinance No. 2017-14, establishing criteria for evaluation of any request by a property owner wishing to opt-out of the Mid-West OSP. Ordinance No. 2017-14 was not challenged. Once a parcel is removed from the County's OSP, the underlying County zoning becomes effective, but a new FLU category must be assigned to the property by a plan amendment. Ordinance Nos. 2020-14, 2020-15, and 2020-16 were considered favorably by the County Planning Board on March 3, 2020. The three Ordinances were considered and approved by the County Commission on March 5, 2020, and June 4, 2020. Notice of all public hearings was published in a newspaper of general circulation. The comprehensive plan amendments at issue were made available to the public. Members of the public could speak at the public hearings. The Subject Properties The subject properties are located on the southeastern perimeter boundary of the Mid-West OSP, within the Muscogee DSAP. The current underlying zoning for each parcel is Low Density Residential (LDR), with a maximum residential development allowance of four dwelling units per acre (du/ac). The existing land use derived from the DSAP Final Land Use Plan identifies that the parcels are within the Conservation Neighborhood District, with a maximum residential development allowance of three du/ac. In the County there are 1,792 parcels located in the Mid-West OSP. The County's staff calculated that the total developable acreage in the entire Mid-West OSP is 8,611.80 acres. The total developable acreage of the Muscogee DSAP in the Conservation Neighborhood District is 1,289.90 acres. The Westmark Property has a single-family residence on site and the approximate acreage for the parcel is 84.10 +/- acres. The parcel's 84.10 +/- acres represents 0.97% of the existing developable acreage in the Mid-West OSP. Removal of this acreage would result in a decrease of 6.52% of available developable acres in the Muscogee DSAP in the Conservation Neighborhood District. Petitioners contend that the Conservation Neighborhoods were selected for that designation because they are environmentally sensitive lowlands prone to flooding. However, an analysis of the Final Land Use Map in the DSAP reveals that the Conservation Neighborhoods are mostly high and dry like the Westmark Property. The most environmentally sensitive lands with substantial wetlands and lowlands are found in and around Town Centers and Regional Employment Districts. Town Centers and Regional Employment Districts have the highest density and intensity uses in the Mid-West OSP. These and other high-density uses are exempt from the open space set asides imposed on properties in the Conservation Neighborhoods. Respondents' expert, Mr. Metcalf, testified that there was a one percent chance of a flood occurring on small pockets of the Westmark Property. This was determined using the Federal Emergency Management Agency (FEMA) flood zones that are incorporated in the County's regulations. In addition, the County's regulations allow for corrective measures such as mitigation and fill, so the flood zone areas would not preclude development of any affected property. The Arnold Property has a single-family residence on site and the approximate acreage of the parcel is 4.04 +/- acres. The parcel's 4.04 +/- acres represents 0.04% of the existing developable acreage in the Mid-West OSP. Removal of this 4.04 +/- acres would result in a decrease of 0.31% in available developable acres in the Muscogee DSAP under the Conservation Neighborhood District. The Jolly Property has two single-family residences on site and is comprised of two adjacent parcels having a total approximate acreage of 5.99 +/- acres. The parcels' 5.99 +/- acres represents 0.07% of the existing developable acreage in the Mid-West OSP. Removal of these 5.99 +/- acres would result in a decrease of 0.46% of available developable acres in the Muscogee DSAP under the Conservation Neighborhood District. Application Review In 2015, when the County received its first request to opt out of the Mid-West OSP, County staff contacted the state land planning agency, the current Department of Economic Opportunity (DEO), for advice on how to process such a request. DEO informed County staff that there was no prior data that they could provide to the County. There was no sample application or process that any other jurisdiction had created because the County was the first jurisdiction to process an opt-out request. Because this was only the second time opt-out applications had been filed with the County, the County relied upon a series of meetings previously held with DEO for the purpose of seeking guidance on how to proceed. The County was instructed by DEO that the opt-out application and FLU assignment should be processed in the same manner as a FLU map (FLUM) comprehensive plan amendment and then reviewed under the state coordinated review process. DEO had also suggested criteria that should be considered when processing such an application. Those criteria were adopted as LDC section 2-7.4. After the three opt-out applications were filed, the County began the process of determining whether the applications satisfied the opt-out criteria in LDC section 2-7.4 and the relevant Comp Plan requirements. At the hearing, it became clear that some of the criteria adopted by LDC section 2- 7.4 were above and beyond the state compliance review necessary for plan amendments under section 163.3184. Petitioners asserted that the LDC criteria and a strict scrutiny standard should govern review of the opt-out applications in this proceeding. However, that approach would be contrary to the state compliance review set forth in section 163.3184, including the fairly debatable standard mandated by section 163.3184(5)(c). At the hearing, Mr. Metcalf testified that he prepared a 15-page expert written report based on information a professional planner would consider reliable. The report is titled "Westmark Comprehensive Plan Amendment Compliance Evaluation" and was accepted into evidence. Mr. Metcalf's expert testimony and report, along with the County's staff report, were the most credible evidence presented at the hearing to support the Westmark Property opt-out application. As more fully discussed below, the preponderance of the evidence established that the Westmark Property, Arnold Property, and Jolly Property opt-out application met all applicable statutory requirements for approval of the FLUM change from Conservation Neighborhood to MU-S. The requested opt-outs were debated extensively during a series of public hearings that began in March 2020. Members of the public were allowed to speak for or against the proposed opt outs. On June 4, 2020, the County voted to amend its Comp Plan by: (a) allowing the parcels to withdraw from the Mid-West OSP; (b) removing the Mid-West OSP overlay on the parcels; and (c) amending the FLUM by assigning the properties the MU-S FLU designation. The Ordinances were transmitted to DEO for review under the state coordinated review process. DEO determined that each Ordinance met the requirements of chapter 163, for compliance purposes. Besides DEO's review, the Department of Transportation (DOT) and the Department of Education reviewed the Ordinances for impacts on transportation and school concurrency, respectively. The Florida Fish and Wildlife Conservation Commission also reviewed the Ordinances. No comments, recommendations, or objections were sent to the County by any of these reviewing agencies. Internal Consistency When the effect of a plan amendment creates clear conflict with other provisions of the existing Comp Plan, the plan amendment is said to create internal inconsistencies within the Comp Plan in contravention of section 163.3177(2). Petitioners argued that the opt-out applications are internally inconsistent with the policies in Chapter 16 of the Comp Plan. Petitioners' convoluted argument cannot be accepted because the sector plan statute allows property owners to withdraw their parcels from the OSP area. Thus, those parcels would no longer be subject to the policies of Chapter 16 of the Comp Plan. Mr. Metcalf's opinion was that an internal inconsistency could occur only if the plan amendment is so disruptive that it completely undermined the County's ability to implement the OSP in a manner consistent with the Comp Plan policies. Petitioners failed to demonstrate any internal inconsistencies that would completely undermine the County's ability to implement the OSP. Because of its limited scope, Mr. Metcalf persuasively testified that withdrawing the three properties from the OSP area would not prevent the County and the OSP from carrying out its objectives and remaining internally consistent with all of its policies. In addition, the three opt-outs did not create remnant areas or fragment the DSAP. A "remnant" or "fragment" would result when removal of a parcel leaves behind one or more OSP parcels that did not have any connectivity or access to the remainder of the OSP parcels within the DSAP. The MU-S FLU category is compatible with adjacent, existing, and planned FLU. As shown by the maps included with the opt-out applications' amendment packages, many MU-S neighborhoods abut properties designated as Conservation Neighborhood within the OSP area. Many of these MU-S neighborhoods are also zoned LDR. Thus, the three opt-out plan amendments are comparable to the existing land use and zoning pattern in the area. The County's experts testified that when no specific development project was proposed for the three properties, all elements of the Comp Plan were reviewed for consistency with the proposed FLU category of MU-S. That review included elements such as infrastructure, mobility, and conservation. The MU-S designation for the three opt-out properties was consistent with all applicable elements of the Comp Plan. Petitioners did not prove beyond fair debate that the three opt-out plan amendments were internally inconsistent or would create conflict within the County's Comp Plan. It is fairly debatable that the three opt-out plan amendments were internally inconsistent with relevant provisions in the Comp Plan. Relevant and Appropriate Data and Analysis "To be based on data means to react to it in an appropriate way and to the extent necessary indicated by the data available on that particular subject at the time of adoption of the plan or plan amendment at issue." § 163.3177(1)(f), Fla. Stat. Data supporting an amendment must be taken from professionally accepted sources. See § 163.3177(1)(f)2., Fla. Stat. However, local governments are not required to collect original data. Id. Surveys, studies, and data regarding the area form the bases for FLU plan amendments. See § 163.3177(6)(a)2., Fla. Stat. During the application process for each of the opt-out applications, the County staff reviewed the extensive data that was collected and used to support adoption of the Mid-West OSP and the DSAPs. The data reviewed and analyzed by the County staff addressed natural resources, wetlands, historically significant sites, and impacts to the environment. The data also addressed the availability of potable water, sanitary sewer, and all other public facilities. Specifically, County staff confirmed the location of the parcels and determined who the providers would be in order to analyze the specific level of service standards applicable to the parcels. The County's experts testified that since no specific development projects were proposed for the three properties, it was reasonable to analyze the impacts of the FLUM change to MU-S within the constraints of the maximum standards for the underlying LDR zoning. Although Mr. Metcalf's independent analysis and opinion was based on reviewing the maximum standards for the MU-S FLU category, he agreed that the County's approach was sensible and realistic in the context of these three opt-out applications. His analysis demonstrated that there would be sufficient infrastructure and service capacity available either way. The evidence demonstrated that there was adequate data and analysis taken from professionally accepted sources, and gathered through professionally accepted methodologies, to support the three opt-out plan amendments. Petitioners did not prove beyond fair debate that the three opt-out plan amendments were not based on relevant and appropriate data and an analysis by the County, as required by sections 163.3177(1)(f) and 163.3177(6)(a)2. FLUM Amendment Analysis Specific analyses are relevant for these FLUM amendments. See § 163.3177(6)(a)8., Fla. Stat. The availability of water supplies, public facilities, and services. The Westmark Property, Arnold Property, and Jolly Property are currently dependent upon on-site septic systems like other surrounding properties in the neighborhood. Septic systems are limited to a maximum of four du/ac per acre by state health department regulation. At present, this would comport with the four du/ac maximum density allowed by LDR zoning. Emerald Coast Utilities Authority (ECUA) operates a 12-inch force main sewer line at the intersection of Highway 97 and West Kingsfield Road, three quarters of a mile from the Westmark Property. Mr. Metcalf evaluated the permitted capacity for ECUA's interconnected wastewater treatment facilities and concluded there would be sufficient capacity available to service the Westmark Property if developed to the FLU MU-S maximum density of 25 du/ac. With regard to potable water, the subject properties are located in the Farm Hill Utilities, Inc. (FHU), service area, which has a 20-year consumptive use permit (CUP), valid through 2033. Notably, the CUP application was based on the Bureau of Economic and Business Research high population projection series for this area. The CUP authorizes an average daily withdrawal of 0.68 million gallons per day (MGD) for three active wells. The 2019 average daily withdrawal for the three wells totaled 0.49 MGD as reported in the 2019 annual report submitted to the Northwest Florida Water Management District (NWFWMD). The NWFWMD 2018 Water Assessment Report forecasts demand through 2030 of 0.618 MGD. The largest of the subject properties, the 84.10 +/- acre Westmark Property, would generate a demand for 0.078 MGD at the maximum zoning density based on the adopted level-of- service standard set forth in Infrastructure (INF) Policy 4.1.7 of the Comp Plan. As such, sufficient capacity is currently available and is projected to be available through 2030 to serve even the 84.10 +/- acre property if developed based on the zoning density. Mr. Metcalf concluded that if FHU was unable to provide MU-S FLU category maximum density service, ECUA could and would provide the service. The ECUA service area is adjacent to FHU's service area. ECUA could simply extend to the west to service the Westmark Property in a maximum density development scenario. ECUA operates as an enterprise fund, meaning it would charge users as it expands the system. So, to the extent that the current or any future owner of the Westmark Property wanted to develop to 25 du/ac, they would be required to pay for that expansion. The County has no public stormwater treatment facilities in the area to serve the subject properties. Stormwater retention and treatment would be accomplished by a required on-site system capable of handling the maximum 25 du/ac or mixed-use development scenarios as well as the LDR zoning scenario. The opt-out plan amendments would not affect stormwater management. To the extent stormwater ultimately discharges to an Outstanding Florida Water such as the Perdido River, higher levels of stormwater management are required, and additional measures would protect sensitive wetlands. With respect to solid waste disposal, the Perdido Landfill is used to accommodate the municipal solid waste disposal needs of the County. The County's six pounds per capita per day level of service standard is based on population projections for calculating demand, which has already been established by the County independent of the Comp Plan. If future development projects were to be proposed for the three subject properties, the current buildout for the Perdido Landfill has solid waste disposal capacity until the year 2045. The County does not require a recreational level of service standard. The County has made a policy decision not to implement concurrency requirements for recreation. Petitioners argued that the open space requirement of 50% under the Conservation Neighborhood land use is an important level of protection that would be lost if the subject properties are allowed to withdraw from the OSP. The Conservation Neighborhood open space requirements do not include any direction as to where the open space must be located and preserved on a site. Permitted uses of the open space allowed by section 3.03 of the DSAP include recreation that allows accessory buildings and improvements such as golf courses, tennis and basketball courts, athletic fields, clubhouses with swimming pools, and other such improved recreational facilities, plus up to one-half of the open space can be used for enhanced stormwater retention ponds, provided they are designated as subdivision amenities. Mr. Metcalf determined that the allowable uses of open space in the OSP Conservation Neighborhood designation generally comport with the open space uses as defined in Chapter 3 of the Comp Plan. The Petitioners' own expert, Mr. Albrecht, did not dispute that the Recreation and Open Space Element contained in Chapter 13 of the Comp Plan applies to private developments and would be applicable to these properties if they are allowed to withdraw from the OSP. Although the County has not adopted school concurrency, or school impact fees, Mr. Metcalf testified that a reasonable estimate for long-term planning purposes may be derived from existing census and school enrollment data. Mr. Metcalf estimated the potential number of elementary, middle, and high school students if the Westmark Property was developed at the maximum density with mid-story, multifamily units. He also conducted an estimate using the same methodology if it was developed at the maximum zoning density. The school district budgets for growth and capital over five and ten- year periods utilizing its own data and analysis including enrollment growth of individual schools that fluctuate partly because the County has freedom of choice for enrollments. In Mr. Metcalf's expert opinion, the County school district's 2019-2020 Five Year Work Program confirmed that sufficient capacity was available within the school district to serve the Westmark Property, whether developed at the maximum zoning density or the maximum MU-S FLU density. Notwithstanding the fact that school concurrency has been removed from both the state statute and the County's Comp Plan, Mr. Jones testified that the County reviews what public schools are in the vicinity of a proposed project to determine if there is capacity or if the school board needs to be advised regarding further development of the public school system. The County's expert, Ms. Lindsay, confirmed that granting these opt-out requests would have no immediate impact on public school facilities. She also testified that the County would review potential impacts on public school facilities during any site plan review of a proposed project. Despite the fact that the County has no level of service standard or concurrency for transportation, Mr. Metcalf explained that the statutory FLUM amendment evaluation requires an analysis and a demonstration of adequate planning to coordinate land use and transportation. However, there was no binding development standard that had to be achieved in order to demonstrate availability of adequate capacity. Notwithstanding the fact that transportation concurrency has been removed from both the state statute and the County's Comp Plan, the County would be reviewing the traffic capacity and the ability of the roads adjoining any proposed project to handle any new traffic generated by the project. The County's transportation expert, Ms. Malone, confirmed that such a review would entail a trip generation study to determine the potential for an increase in number of trips and number of pedestrians. The review would also entail an analysis of whether an intersection or turn lane would be necessary for any proposed development. The County has an active project to realign and extend West Kingsfield Road from Highway 97 west to the first 90-degree curve, as well as construct a new two-lane roadway further west to connect to the eventual Beulah Interchange Connector Project. The County is currently nearing 60% design and is in the right-of-way phase. The construction phase will follow the design and right-of-way phases once the necessary funding has been identified. The new extension roadway will run east to west through the Westmark Property. During her review of the opt-out proposals, Ms. Malone determined that this portion of West Kingsfield Road is functioning within its allowable capacity. Ms. Malone found no reason to believe that approving these opt-outs would have any immediate impact on the capacity of the existing transportation infrastructure. Mr. Metcalf conducted a worst-case scenario analysis of the impact on West Kingsfield Road by assuming a maximum development potential for the Westmark Property. He analyzed three different development scenarios. One development scenario was based on the maximum density at 25 du/ac allowed by the MU-S FLU category. The second development scenario was based on the trip generation resulting from the MU-S density if the property was developed for either residential or commercial purposes. The third development scenario was based on the trip generation resulting from the LDR zoning at four du/ac. For each of the three scenarios, Mr. Metcalf compared the amount of daily trip generation to the capacity of West Kingsfield Road as it has been planned, and then he calculated the resulting level of service. He confirmed that West Kingsfield Road would operate at an acceptable level of service in all scenarios. Petitioners did not prove beyond fair debate that the three opt-out FLUM plan amendments were not based on an analysis of the availability of facilities and services, as required under section 163.3177(6)(a)8. The character of undeveloped land. The County considered the suitability of the proposed FLU MU-S category in light of the existing character of the three opt-out properties including the soils, the topography, the natural resources, and the historic resources. The County staff reviewed the extensive data that was collected and used to support adoption of the Mid-West OSP and the DSAPs. The data reviewed and analyzed by the County staff addressed natural resources, wetlands, historically significant sites, and impacts to the environment. There was no dispute that relevant elements of the Comp Plan would continue to apply to these three properties if they are withdrawn from the OSP. Those elements include the Conservation Element that contains policies addressing wetland protection, wildlife habitat protection, and protection of listed species. Also, the Recreation and Open Space Element contained in Chapter 13 of the Comp Plan applies to private developments and would be applicable to these properties if they are withdrawn from the OSP. There was no dispute that allowing these properties to withdraw from the OSP would have no immediate impact on the wildlife, ecology, or biology of the County. Petitioners contended that the Conservation Neighborhoods were selected for that designation because they are environmentally sensitive lowlands prone to flooding. However, an analysis of the Final Land Use Map in the Muscogee DSAP revealed that the Conservation Neighborhoods are mostly high and dry, like the Westmark Property. The most environmentally sensitive lands with substantial wetlands and lowlands are found in and around Town Centers and Regional Employment Districts. Town Centers and Regional Employment Districts have the highest density and intensity uses in the Mid-West OSP. These and other high-density uses are exempt from the open space set asides imposed on properties in the Conservation Neighborhoods. Petitioners did not prove beyond fair debate that the proposed FLU MU-S category was not suitable in light of the existing character of the three opt-out properties including the soils, the topography, the natural resources, and the historic resources. Meaningful and Predictable Standards Section 163.3177(1) provides that a comprehensive plan "shall establish meaningful and predictable standards for the use and development of land and provide meaningful guidelines for the content of more detailed land development and use regulations." Petitioners argued that the opt-out plan amendments are inconsistent with section 163.3177(1) because they fail to establish meaningful and predictable standards for removal of property from the DSAP and renders the OSP meaningless. The more persuasive evidence established that withdrawing the three properties from the OSP area would not prevent the County and the OSP from carrying out its objectives and remaining internally consistent with all of its policies. In addition, the three opt-outs did not create remnant areas or fragment the DSAP. The County's experts testified that all elements of the Comp Plan were reviewed for consistency with the proposed FLU category of MU-S. That review included elements such as infrastructure, mobility, and conservation. The MU-S designation for the three opt-out properties was consistent with all applicable elements of the Comp Plan. Petitioners did not prove beyond fair debate that the three opt-out plan amendments rendered the OSP meaningless and the Comp Plan lacking meaningful and predictable standards for the use and development of land. It is fairly debatable that the three opt-out plan amendments fail to establish meaningful and predictable standards for the use and development of land.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity enter a final order finding Ordinance Nos. 2020-14, 2020-15, and 2020-16, adopted on June 4, 2020, by Escambia County, to be "in compliance," as defined by section 163.3184(1)(b). DONE AND ENTERED this 7th day of May, 2021, in Tallahassee, Leon County, Florida. S FRANCINE M. FFOLKES 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 7th day of May, 2021. COPIES FURNISHED: Theresa Blackwell 9535 Tower Ridge Road Pensacola, Florida 32526 Jacqueline A. Rogers Neal Road/Knollwood Neighborhood 1420 Ridge Way Cantonment, Florida 32533-7991 Charles V. Peppler, Esquire Office of the Escambia County Attorney 221 Palafox Place, Suite 430 Pensacola, Florida 32502 Sally B. Fox, Esquire Emmanuel, Sheppard & Condon, P.A. 30 South Spring Street Pensacola, Florida 32502 Tom Thomas, General Counsel Department of Economic Opportunity Caldwell Building, Mail Station 110 107 East Madison Street Tallahassee, Florida 32399-4128 Kia M. Johnson, Esquire Office of the Escambia County Attorney 221 Palafox Place, Suite 430 Pensacola, Florida 32502-5837 William Beech 1956 West Kingsfield Road Cantonment, Florida 32533 Frank E. Westmark Elizabeth J. Westmark Post Office Box 575 Cantonment, Florida 32533 Janay Lovett, Agency Clerk Department of Economic Opportunity Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128 Dane Eagle, Executive Director Department of Economic Opportunity Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128
Findings Of Fact Based upon the record evidence, the following Findings of Fact are made: The City of Oakland Park and Its Roadways The City of Oakland Park is an incorporated municipality located in Broward County, Florida. It is situated in the geographic center of the County. A six-lane divided expressway, I-95, runs north/south through the middle of the City. Among the major east/west thoroughfares in the City is Oakland Park Boulevard. It is a six-lane divided roadway that is functionally classified by the Florida Department of Transportation as an urban principal arterial. The roadway is lined almost exclusively with commercial development. I-95 can be accessed at Oakland Park Boulevard. The Stroks' Property and Its Surroundings Mr. and Mrs. Strok own 20.709 acres of contiguous land in the City. The land is among the few remaining undeveloped properties in the City. The Stroks' property abuts Oakland Park Boulevard to the south. Its southernmost point is a relatively short distance to the west of the Oakland Park Boulevard/I-95 interchange. At present, Oakland Park Boulevard provides the only vehicular access to the Stroks' property. Commercial development lies immediately to the east and to the west of that portion of the Stroks' property fronting on Oakland Park Boulevard. Further north on the property's western boundary is a residential neighborhood of single family homes. Single family homes also lie to the east of the Stroks' property north of Oakland Park Boulevard, but they are separated from the property by a canal. Oakland Park Boulevard, in the vicinity of the Stroks' property (Segment 366), is heavily travelled. Currently, it is operating well over its capacity and therefore, according to standards utilized by the Florida Department of Transportation, is providing a Level of Service (LOS) of "F." There are no formal plans at the moment to expend public funds on capital improvements that would increase the capacity of Oakland Park Boulevard. Whether the Stroks' property is ultimately used primarily for commercial purposes or for single family residential purposes, the development of the property will increase the traffic volume on this segment of Oakland Park Boulevard, as well as other roadway segments in the County that are now operating over capacity, but are not programmed for any capital improvements. As a general rule, however, commercial development generates more traffic than single family residential development. The City's 1989 Comprehensive Plan Future Land Use Map The City adopted its 1989 comprehensive plan on April 5, 1989. Adopted as part of the plan was a Future Land Use Map (FLUM), which was based upon appropriate surveys, studies and data concerning the area. Over Petitioners' objections, all but a small portion of the Stroks' property was designated for commercial use on the FLUM. 1/ Under the City's two prior comprehensive plans, the Stroks' entire property was designated for commercial use. "Commercial uses" are defined in Chapter IV, Section 1.32 of the City's 1989 comprehensive plan as "activities within land areas which are predominantly connected with the sale, rental and distribution of products, or performance of services." Furthermore, Chapter IV, Section 3.02(C) of the plan provides as follows with respect to lands designated for commercial use on the FLUM: Each parcel of land within an area designated in a commercial land use category by the City's land Use Plan Map must be zoned in a zoning district which permits any one or more of the following uses, but no other uses: Retail uses. Office and business uses. Wholesale, storage, light fabricating and warehouses uses, if deemed appropriate by the City. Hotels, motels and similar lodging. Recreation and open space, cemeteries, and commercial recreation uses. Community facilities and utilities. a. Special Residential Facility Category (2) development . . . . b. Special Residential Facility Category (3) development . . . . Non-residential agriculture uses. Residential uses are permitted in the same structure as a commercial use provided that the local government entity applies flexibility and reserve units to the parcel and: The residential floor area does not exceed 50% of the total floor area of the building; or The first floor is totally confined to commercial uses. Recreational vehicle park sites at a maximum density of ten (10) sites per gross acre if permanent location of recreational vehicles on the site is permitted by the City land development regulations, or twenty (20) sites per gross acre if such permanent location is prohibited by the local land development regulations, subject to allocation by the City government entity of available flexibility or reserve units. Transportation and communication facilities. The decision to designate in the City's 1989 comprehensive plan almost all of the Stroks' property for commercial use was not made without consideration of the adverse impact commercial development would have on traffic in the vicinity of the Stroks' property. Although it was recognized that such development would add more traffic to the already congested roadways in the area than would single family residential development, the prevailing view was that the additional traffic that would be generated by commercial development, as compared to that which would be generated by single family residential development, would be relatively insignificant. The designation of the major portion of the Stroks' property for commercial use is not inherently incompatible with the designations assigned other parcels of property in the surrounding area. The Stroks' property was designated for commercial use under Broward County's 1989 comprehensive plan. The Broward County Charter mandates that the land use plans of the County's incorporated municipalities be in substantial conformity with the County's land use plan. Goals, Objectives and Policies The City's 1989 comprehensive plan also includes various goals, objectives and policies. Those of particular significance to the instant case provide in pertinent part as follows: Goal 1- Protect and enhance the single family residential, multiple-family residential, non-residential and natural resource areas of Oakland Park. Objective 1.1- By November 1989, or when required by legislative mandate, revise the development code to assure that all new development . . . avoids traffic problems now impacting the City . . . . Policy 1.1.5- By November 1989, or when required by legislative mandate, the development code shall be amended to specify that no development permit shall be issued unless assurance is given that the public facilities necessitated by the project (in order to meet level of service standards specified in the Traffic Circulation, Recreation and Infrastructure policies) will be in place concurrent with the impacts of the development. A concurrency management system shall be included that specifies the latest DCA and City criteria for what constitutes "assurance" in addition to budgeted projects or signed development agreements. Goal 2- To develop an overall transportation circulation system which will provide for the transportation needs of all sectors of the community in a safe, efficient, cost effective and aesthetically pleasing manner. Objective 2.1- Provide for a safe, convenient and efficient motorized and non-motorized transportation system. Policy 2.1.1- Monitor annual traffic accident frequencies by location. Policy 2.2.2- Improve selective enforcement at high accident locations. Policy 2.1.4- Within one year of Plan submission, or when required by legislative mandate, provide safe and convenient on-site traffic flow through development review procedures. Policy 2.1.7- Reduce the amount of through traffic on local streets and collectors through the implementation, within three years of plan adoption, of a Local Area Traffic Management Program (LATMP) . . . . Policy 2.1.11- Improve the efficiency of traffic flow on existing roadways by implementing the policies of Objective 2.1. Objective 2.2- After November 1989, or when required by legislative mandate, coordinate the traffic circulation system with existing and future land uses as shown on the Future Land Use Map. Policy 2.2.1- After November 1989, or when required by legislative mandate, provide a Development Management System that will allow development to occur in concurrence with the Future Land Use Map and in concert with development of the traffic circulation system. Provide daily and peak hour LOS "D" on all arterial and collector roadways where existing plus committed traffic allows, and maintain traffic conditions on all other roadways segments. Provide daily and peak hour LOS "C" on all local roadways. LOS shall be based on the 1985 Highway Capacity Manual and the FDOT Generalized Daily and Peak Hour Level of Service Maximum Volumes. Other methods may be utilized but are subject to technical review and acceptance by the City. Policy 2.2.2- Within 120 days of plan adoption, adopt a list of local roadway segments where traffic operations are at LOS "C" or better. This list may be based on the February 21,1989 run of the Broward County TRIPS model, which includes traffic generated by committed development or other sources as appropriate. Policy 2.2.3- After 1989, or when required by legislative mandate, the City will only issue development permits for projects impacting links identified from Policy 2.2.1, under the following circumstances: There is an approved Action Plan accompanying the traffic impacts of the proposed development, where an Action Plan refers to any combination of accepted transit, ride- sharing, transportation systems management methods, etc. methods of traffic impact mitigation. The necessary improvements to provide LOS "C" are under construction, under contract for construction or the City Council determines they will be under contract during the same fiscal year. The necessary improvements to provide LOS "C" are included in an enforceable development agreement. Policy 2.2.4- Within 120 days of plan adoption, adopt a list of arterial and collector roadway segments where traffic operations are at LOS "D" or better. This list shall be based on the February 21, 1989 run of the Broward County TRIPS model, which includes traffic generated by committed development. Policy 2.2.5- After November 1989, or when required by legislative mandate, the City will issue development permits for projects impacting links identified from Policy 2.2.1, under the following circumstances: There is an approved Action Plan accompanying the traffic impacts of the proposed development, where an Action Plan refers to any combination of accepted transit, ride- sharing, transportation systems management methods, etc. methods of traffic impact mitigation. The necessary improvements to provide LOS "D" are under construction, under contract for construction or the City Council determines they will be under contract during the same fiscal year. The necessary improvements to provide LOS "D" are included in an enforceable development agreement. Policy 2.2.6- Within 120 days of plan adoption, adopt a list of arterial and collector roadway segments where traffic operations are worse than LOS "D" and there is a scheduled improvement in the City 2010 Traffic Circulation Plan. Traffic operations shall be based on the February 21, 1989 run of the Broward County TRIPS model, which includes traffic generated by committed development. These links will be identified as "Planned Improvement Facilities" and the LOS will be "Maintained" within 10% of identified existing plus committed conditions, where traffic conditions are measured by volume to capacity ratios. Policy 2.2.7- After November 1989, or when required by legislative mandate, the City will only issue development permits for projects impacting links identified from Policy 2.2.3, under the following circumstances: The proposed impacts will "Maintain," within 10% of existing plus committed traffic conditions and the scheduled 2010 improvement will be able to operate at LOS "D" once constructed. There is an approved Action Plan accompanying the traffic impacts of the proposed development, where an Action Plan refers to any combination of accepted transit, ride- sharing, transportation systems management methods, etc. methods of traffic impact mitigation. The necessary improvements to provide LOS "D" are under construction, under contract for construction or the City Council determines they will be under contract during the same fiscal year. The necessary improvements to provide LOS "D" are included in an enforceable development agreement. Policy 2.2.8- Within 120 days of plan adoption, adopt a list of arterial and collector roadway segments where traffic operations are worse than LOS "D" and there is no scheduled improvement in the City 2010 Traffic Circulation Plan. 2/ Traffic operations shall be based on the February 21, 1989 run of the Broward County TRIPS model, which includes traffic generated by committed development. These links will be identified as "Constrained Facilities" and the LOS will be "Maintained" within 10% of identified existing plus committed conditions, where traffic conditions are measured by volume to capacity ratios. Policy 2.2.9- After November 1989, or when required by legislative mandate, the City will only issue development permits for projects impacting links identified from Policy 2.2.5, under the following circumstances: The proposed impacts will "Maintain," within 10% of existing plus committed traffic conditions. There is an approved Action Plan accompanying the traffic impacts of the proposed development, where an Action Plan refers to any combination of accepted transit, ride- sharing, transportation systems management methods, etc. methods of traffic impact mitigation. Policy 2.2.10- The City will annually update existing traffic counts and review updated Broward County Trips assignments. Based on the update the City may reclassify any roadway segment within the City. The City may also reclassify a roadway segment if development from outside the City has effected traffic conditions within the City. Policy 2.2.11- Subsequent to plan adoption, modify the land development regulations such that after 1989, or when required by legislative mandate, require trip generation studies from all proposed development within the City and traffic impact studies for developments generating more than 10% of adjacent roadway capacity and allow development contingent upon the provision of LOS Standards. Objective 2.4- Provide for the protection of existing and future rights of way from building encroachment. Policy 2.4.2- Modify land development regulations to ensure consistency with the Broward County Trafficways Plan right-of-way requirements during development review activities. Goal 9- To ensure the orderly and efficient provision of all public services and facilities necessary to serve existing and future local population needs. Objective 9.2- By November 1989, or when required by legislative mandate, provide that development or redevelopment proposals are approved consistent with existing service availability or coincident with the programmed provision of additional services at the adopted level of service standards and meets existing and future facility needs. Policy 9.2.1- Within one year of Plan submission, or when required by legislative mandate, revise development procedures to review development proposals cognizant of the City's adopted level of service standards, existing levels of service and where appropriate, the timeframe for implementation of additional facility improvements. Policy 9.2.2- After 1989, or when required by legislative mandate, condition the approval of proposed development or redevelopment projects on the basis of project related needs being concurrently available at the adopted level of service standards specified in Policy 9.2.4. Policy 9.2.3- After November 1989, or when required by legislative mandate, allow for phasing of development related infrastructure improvements concurrently with project impacts on public facilities. Policy 9.2.4- The Level of Service (LOS) for capital facilities shall be: * * * for Arterials and Collectors- LOS "D" or "Maintain" for Local Roadways- LOS "C" ADT, PSDT and PKHR Objective 9.3- By November 1989, or when required by legislative mandate, provide that private developers participate on a proportionate share basis in any facility improvement costs necessary to maintain LOS standards. Policy 9.3.2- Establish a preference for the actual construction of adjacent site road improvements in lieu of impact fee payments. Policy 9.3.3- By November 1989, or when required by legislative mandate, establish in the land development regulations a process for assessing new development on a pro rata share of the costs necessary to finance public facility improvements in order to maintain the adopted level of service standards specified in Policy 9.2.4. Development Review Requirements Chapter IV, Section 4 of the City's 1989 comprehensive plan prescribes development review requirements. It provides in pertinent part as follows: Following the effective date of the Land Use Plan, the City shall not grant a permit for a proposed development unless the City has determined that public facilities are adequate to serve the needs of the proposed development or unless the developer agrees in writing that no certificate of occupancy shall be issued for the proposed development until public facilities are adequate to serve its needs. Public facilities may be determined to be adequate to serve the needs of a proposed development when the following conditions are met. Traffic circulation . . . public facilities and services will be available to meet established level of service standards, consistent with Chapter 163.3203(g) Florida Statutes and the concurrence management policies included within this Plan. Local streets and roads will provide safe, adequate access between buildings within the proposed development and the trafficways identified on the Broward County Trafficways Plan prior to occupancy. Capital Improvements Implementation Chapter VII of the plan deals with the subject of capital improvements implementation. It contains a section which addresses the matter of level of service standards. This section provides in pertinent part as follows: The minimum criteria for Comprehensive Plans requires that Level of Service Standards for the City of Oakland Park be included for public facilities described in the plan. The Level of Service Standards for the City of Oakland Park are provided in the following Table 2. Subsequent to the adoption of this Comprehensive Plan, all future development approvals will be conditioned upon the provision of services at the local level of service standards. Table 2 sets forth the following level of service standards for roadways: Principal Arterials- LOS "D" or "Maintain" Minor Arterials- LOS "D" or "Maintain" Collectors- LOS "C"- AADT, 3/ PSDT 4/ PKHR 5/ Submission and Approval of the Stroks' Plat On June 6, 1989, the Stroks submitted to the County Commission for its approval a final plat of their property. The plat reflected the Stroks' plan to have 15 single family dwelling units, 180,000 square feet of office space and 36,000 square feet of commercial space constructed on the property. County staff analyzed the plat to ascertain the impact that the proposed development would have on traffic. In performing their analysis, they relied on the County's TRIPS computer model. Broward County assesses impact fees against a developer where it is projected that a development will add traffic to road segments in the County that are over-capacity, but are planned for improvement. The TRIPS computer model is used to determine the amount of the assessment. County staff did a TRIPS run on the Stroks' plat on September 13, 1989 and determined that the development proposed in the plat would generate a total of 6,879 trips on road segments throughout the County, including over-capacity road segments that were not planned for improvement, as well as over-capacity road segments that were planned for improvement. 6/ The County Commission approved the Stroks' plat on September 19, 1989. A short time earlier, the City Council had also approved the plat. Petitioners' Motives Petitioners are all residents of the City of Oakland Park. In filing their petitions challenging the City's 1989 comprehensive plan, they were motivated only by a desire to improve the quality of life in their city. They had no ulterior motive. They filed the petitions because they felt that it was in the best interest of the City that they do so.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Community Affairs issue a final order finding that the City of Oakland Park's 1989 comprehensive plan is "in compliance," within the meaning of Section 163.3184(1)(b), Florida Statutes. DONE and ORDERED this 18th day of May, 1990, in Tallahassee, Florida. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of th Division of Administrative Hearings this 18th day of May, 1990.
The Issue The issue in this case is whether Pasco Comprehensive Plan Amendments CPA 09-1(12), adopted by Ordinance 09-25, and CPA 09- 1(10), adopted by Ordinance 09-26, are “in compliance,” as defined by section 163.3184(1)(b), Florida Statutes.1
Findings Of Fact Petitioners, Angelo Iafrate Construction Company and Angelo’s Aggregate Materials, Ltd., own property and operate businesses in Pasco County. Petitioner, Stony Pointe Limited Partnership, owns property in Pasco County. Petitioners submitted oral or written comments, recommendations, or objections to Pasco County Ordinances 09-25 and 09-26 during the time period beginning with the transmittal hearing and ending with the adoption hearing. Pasco County Ordinance 09-25 amended the “Future Land Use Appendix, Section FLU A-6, The Official Future land Use Map, General Application, Paragraph 4.” Before the amendment, that part of the comprehensive plan provided that land use classifications on the Future Land Use Map (FLUM) were identified according to the predominant use or maximum level of intensity intended and that other uses, including “public and semipublic uses, may be permitted in any land use classification consistent with the applicable Goals, Objectives, and Policies of the Future Land Use Element.” As amended, that part of the comprehensive plan provided that other uses, including “minor public/semi public uses may be permitted in any land use classification consistent with the applicable Goals, Objectives, and Policies of the Comprehensive Plan.” The amendment also made it explicit that, while minor public/semi-public (P/SP) uses may be permitted in any land use classification, major P/SP uses require either the P/SP Future Land Use Designation or specific inclusion in the range of potential uses of another Future Land Use classification. Also, by insertion of the adjective “sanitary,” it specified that the landfills included in the general range of potential uses in the P/SP future land use category referred to sanitary landfills. Ordinance 09-25 amended the Glossary to define “Construction and Demolition Debris” and “P/SP Facilities.” It stated that P/SP Facilities “conducted entirely by the public sector shall be considered public; uses not entirely public shall be considered semi-public.” It also gave examples of major and minor P/SP facilities. Major P/SP facilities include: “Power plants, sanitary landfills, wastewater treatment plants larger than 4 mgd, and other similarly scaled uses.” Minor P/SP facilities include: “Roads, sidewalks, libraries, parks, street lights, lift stations, transfer stations, pumping stations, fire stations, police/sheriffs [sic] stations, electric substations, transportation corridors and other similarly scaled uses.” Ordinance 09-25 also states: “In circumstances where this Comprehensive Plan does not establish the major/minor status of a proposed facility, the Growth Management Administrator shall make that determination based on the size, scale, and impact of the proposed facility. Further delineation of major and minor may be provided in the Land Development Code.” Before those amendments, public facilities were defined as: “Publicly owned, operated, franchised, licensed, or regulated facilities which provide water, sewer, solid waste[,] drainage, schools, and transportation services to the residents and visitors of Pasco County.” P/SP facilities were defined as: “Land uses, such as schools, hospitals, and airports, in which government is a major participant and from which the public benefits.” The definition of “landfill” (“Those lands, public and private, which are used for the purpose of disposing sanitary solid waste.”) was deleted. A definition for “sanitary landfill” was added: “Any solid waste land disposal area for which a permit, other than a general permit, is required by s. 403.707 Florida Statutes, and which receives solid waste for disposal in or upon land. The term does not include a land- spreading site, an injection well, a surface impoundment, or a facility for the disposal of construction and demolition debris.” Ordinance 09-25 amended the “Solid Waste Sub-Element of the Public Facilities Element, Summary of Solid Waste Issues, Disposal.” The amendment added a statement that there are private solid waste disposal facilities throughout the County; added Policy SWT 4.1.3, stating that semi-public solid waste management facilities can be integrated into the solid waste management system to achieve the adopted LOS standard; deleted Policy SWT 4.4.5, which prohibited landfills in certain environmentally sensitive areas where they would not be consistent with other elements of the Comprehensive Plan; and amended Policy SWT 4.5.2, which limited the location of landfills, to limit the location of sanitary landfills by prohibiting them in those sensitive areas, consistent with other elements of the Comprehensive Plan. Pasco County Ordinance 09-26 added Future Land Use Objective 1.10.1 on Compatibility and Policies 1.10.1 through on compatibility review, compatibility through appropriate design, residential compatibility/transition, and industrial compatibility and performance measures. It also renamed the “Appropriate Transitional Land Uses” general guide table, which is now called the “Transitional Land Uses General Guide,” and made minor changes in the guide. Principal Effect of Amendments Before Ordinance 09-25, minor P/SP facilities were allowed in any land use classification “consistent with the applicable goals, objectives, and policies of the Future Land Use Element.” Ordinance 09-25 clarifies that such facilities also have to be consistent with applicable goals, objectives, and policies elsewhere in the comprehensive plan. Before Ordinance 09-25, minor P/SP facilities did not have to be mapped; after Ordinance 09-25, minor P/SP facilities do not have to be mapped. Before Ordinance 09-25, sanitary landfills had to be in the P/SP future land use category or another category that specifically allowed them; the County did not consider construction and demolition debris facilities to be landfills, and they did not have to be in the P/SP future land use category or in another category that specifically allowed them; they just had to be consistent with other elements of the comprehensive plan. Ordinance 09-25 clarifies this interpretation of the comprehensive plan. Density and intensity standards for P/SP have not changed as a result of Ordinance 09-25. Before Ordinance 09-25, they were “not applicable”; after Ordinance 09-25, they are “not applicable.” Before Ordinance 09-25, P/SP facilities did not have to be publically owned; rather, they were defined as “publicly owned, operated, franchised, licensed or regulated facilities.” This definition has been interpreted by the County as including private facilities that are franchised, licensed, or regulated. Ordinance 09-25 clarifies this interpretation. Intensity Standards Petitioners contend that Pasco County Ordinance 09-25 makes substantive changes to the Comprehensive Plan and does not include the intensity standards required for P/SP under Section 163.3177(6)(a) and Rule 9J-5.006(3)(c)(7). Even if the changes are considered to be substantive, it is appropriate not to have intensity standards for P/SP. Intensity applies to non-residential use, but logically should only apply to such uses that generate impacts and the need for public services. P/SP responds to impacts and the need for public services generated by other uses. It is logical and appropriate not to have intensity standards for P/SP. Meaningful and Predictable Standards Petitioners allege that Ordinance 09-25 does not establish meaningful and predictable standards and meaningful guidelines for land development regulations (LDRs) because: (1) it does not provide a clear distinction between major and minor P/SP facilities; (2) it does not provide adequate guidance to determine when the P/SP category applies to a particular use; (3) it does not provide meaningful and predictable standards for the growth management administrator; and (4) it does not provide meaningful and predictable standards for private owners. Petitioners’ specific concern is that the amendment does not make clear whether a construction and demolition debris facility will be determined to be major or minor. Before Ordinance 09-25, construction and demolition debris facilities were considered to be minor. Ordinance 09-25 does not require them to be major but leaves open the possibility that they could be considered major, depending on their size, scale, and impact. This determination will require the exercise of judgment. But the requirement that comprehensive plans provide meaningful and predictable standards and meaningful guidelines for LDRs does not prohibit the exercise of judgment. Petitioners contend that Ordinance 09-25 is deficient because its lists of examples of major and minor P/SP facilities are not exhaustive or explicit, and many factors must be taken into account to determine whether a particular facility would be major or minor. In addition, Petitioners point out that libraries, parks, and police stations are listed generally as examples of minor facilities, but those facilities could be considered to be major if regional and of sufficient size, scale, and impact. But those examples of minor facilities were intended to connote typical neighborhood-scale libraries, parks, and police stations. Although the amendment could have been written more clearly, Ordinance 09-25 as a whole gives the growth administrator sufficient guidance to make a judgment whether a particular construction and demolition debris facility is major or minor. The growth management administrator’s exercise of judgment is subject to review by the Board of County Commissioners (BOCC). Petitioners contend that this review procedure removes the standards and guidelines in Ordinance 09- But the BOCC must be guided by the same considerations as the growth management administrator. The procedure for review by the BOCC does not detract from the standards and guidelines that govern both. Petitioners contend that Ordinance 09-26 makes substantive changes to the Comprehensive Plan that do not provide predictable and meaningful standards and meaningful guidelines for LDRs because it does not: (1) provide standards related to the land use classifications to which it applies; (2) specify how the policies are to be integrated into LDRs; and (3) direct that it shall be implemented by the LDRs. The comprehensive plan has residential compatibility standards in Future Land Use Element (FLUE) policies 1.4.2, 1.4.3, and 1.4.4. These have been found to be in compliance. Ordinance 09-26 adds an objective and four policies on compatibility in general. Ordinance 09-26 provides predictable and meaningful standards and meaningful guidelines for LDRs. It is not necessary to name all the future land use classifications to which Ordinance 09-26 applies; it is not necessary to further specify how Ordinance 09-26 is to be integrated into LDRs; and it is not necessary to direct that Ordinance 09-26 shall be implemented by the LDRs. Data and Analysis Petitioner contend that Ordinance 09-25 is not supported by data and analysis demonstrating that solid waste LOS standards will be met and maintained, that there will be adequate land for solid waste facilities and other major P/SP facilities to support future land use needs, and that the County will be able to monitor compliance with the solid waste LOS standards. Ordinance 09-25 does not change the County’s solid waste capacity or its solid waste stream. The solid waste LOS standard in Pasco’s comprehensive plan is for solid waste requiring a sanitary landfill and for other solid waste other than construction and demolition debris. Ordinance 09-25 has no effect on the LOS standard because the amendment does not add to the solid waste stream or subtract from capacity. For the same reasons, it does not affect the County’s ability to monitor compliance. The comprehensive plan designates enough P/SP land to meet the County’s solid waste needs. If needed, more land is available to be added to the County’s solid waste disposal capacity. There also are other ways to handle excess solid waste beside adding P/SP land. Solid waste can be placed under contract to be hauled and disposed of outside the County. Under Ordinance 09-25, as before, minor construction and demolition debris facilities can be sited in any land use category. No additional data and analysis are required. Internal Consistency Petitioners contend that Ordinance 09-25 is internally inconsistent because it fails to coordinate land uses and public facilities, including utilities, and allows premature provision of central water and sanitary sewer, inconsistent with comprehensive plan policies: (1) related to capital improvements; (2) establishing LOS standards for transportation and public facilities; and (3) discouraging the premature provision of central water and sanitary sewer. As indicated, Ordinance 09-25 has no effect on the County’s ability to meet LOS standards. For that reason, it has no effect on the County’s plans for needed capital improvements or the provision of central water and sanitary sewer; and it is not inconsistent with any plan provision on those subjects.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DCA enter a final order finding the comprehensive plan amendments adopted by Pasco County Ordinances 09-25 and 09-26 to be in compliance. DONE AND ENTERED this 22nd day of December, 2010, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 2010.
The Issue The issue is whether a Sarasota County plan amendment adopted by Ordinance No. 2001-76 on July 10, 2002, is in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background The County's original Plan, known as Apoxsee,2 was adopted in 1981. In 1989, the County adopted a revised and updated version of that Plan. The current Plan was adopted in 1997 and is based on an Evaluation and Appraisal Report (EAR) approved by the County on February 20, 1996. After a lengthy process which began several years earlier, included input from all segments of the community, and involved thousands of hours of community service, on February 28, 2002, the County submitted to the Department a package of amendments comprised of an overlay system (with associated goals, objectives, and policies) based on fifty- year projections of growth. The amendments were in response to Future Land Use Policy 4.7 which mandated the preparation of a year 2050 plan for areas east of Interstate 75, which had served as an urban growth boundary in the County since the mid-1970s. Through the overlays, the amendments generally established areas in the County for the location of villages, hamlets, greenways, and conservation subdivisions. On May 10, 2002, the Department issued its Objections, Recommendations, and Comments (ORC). In response to the ORC, on July 10, 2002, the County enacted Ordinance No. 2001-76, which included various changes to the earlier amendment package and generally established six geographic overlay areas in the County, called Resource Management Areas (RMAs), with associated goals, objectives, and policies in the Future Land Use Chapter. The RMAs include an Urban/Suburban RMA, an Economic Development RMA, a Rural Heritage/Estate RMA, a Village/Estate/Open Space RMA, a Greenway RMA, and an Agriculture/Reserve RMA. The amendments are more commonly known as Sarasota 2050. The revised amendment package was transmitted to the Department on July 24, 2002. On September 5, 2002, the Department issued its Notice of Intent to find the amendments in compliance. On September 26, 2002, Manasota-88, Compton, and Ayech (and four large landowners who subsequently voluntarily dismissed their Petitions) filed their Petitions challenging the new amendments. In their Pre-Hearing Stipulation, Manasota-88 and Compton contend that the amendments are not in compliance for the following reasons: vagueness and uncertainties of policies; an inconsistent, absent or flawed population demand and urban capacity allocation methodology; inconsistent planning time frames; overallocation of urban capacity; urban sprawl; failure to coordinate future land uses with planned, adequate and financially feasible facilities and services; failure to protect wetlands, wildlife and other natural resources; failure to meet requirements for multimodal and area-wide concurrency standards; failure to provide affordable housing; land use incompatibility of land uses and conditions; indefinite mixed uses and standards; lack of intergovernmental coordination; and inadequate opportunities for public participation the Amendment is internally inconsistent within itself and with other provisions of the Sarasota County Comprehensive Plan, is not supported by appropriate data and analysis and is inconsistent with the State Comprehensive Plan and the Strategic Regional Policy [P]lan of the Southwest Regional Planning Council. In the Pre-Hearing Stipulation, Ayech has relied on the same grounds as Manasota-88 and Compton (except for the allegation that the amendments lack intergovernmental coordination). In addition, she has added an allegation that the amendments fail to adequately plan "for hurricane evacuation." The Parties The Department is the state planning agency responsible for review and approval of comprehensive plans and amendments. The County is a political subdivision responsible for adopting a comprehensive plan and amendments thereto. The County adopted the amendments being challenged here. At the commencement of the hearing, the parties stipulated that Petitioners either reside, own property, or own or operate a business within the County, and that they made comments, objections, or recommendations to the County prior to the adoption of the Amendment. These stipulated facts establish that Petitioners are affected persons within the meaning of Section 163.3184(1)(a), Florida Statutes, and have standing to initiate this action. Given the above stipulation, there was no testimony presented by Manasota-88 describing that organization's activities or purpose, or by Compton individually. As to Ayech, however, she is a resident of the County who lives on a 5-acre farm in the "Old Miakka" area east of Interstate 75, zoned OUE, which is designated as a rural classification under the Plan. The activities on her farm are regulated through County zoning ordinances. The Amendment Generally Under the current Plan, the County uses a number of growth management strategies including, but not limited to: an urban services area (USA) boundary; a minimum residential capacity "trigger" mechanism, that is, a minimum dwelling unit capacity of 133 percent of housing demand projected for a ten- year plan period following each EAR, to determine when the USA boundary may need to be moved; a future urban area; and concurrency requirements. Outside the USA, development is generally limited to no greater than one residential unit per five acres in rural designated areas or one unit per two acres in semi-rural areas. The current Plan also includes a Capital Improvement Element incorporating a five-year and a twenty-plus-year planning period. The five-year list of infrastructure projects is costed and prioritized. In the twenty-plus-year list, infrastructure projects are listed in alphabetical order by type of facility and are not costed or prioritized. The construction of infrastructure projects is implemented through an annual Capital Improvement Program (CIP), with projects generally being moved between the twenty-plus-year time frame and the five-year time frame and then into the CIP. All of the County's future urban capacity outside the USA and the majority of capacity remaining inside the USA are in the southern part of the County (south of Preymore Street extended, and south of Sarasota Square Mall). As the northern part of the County's urban capacity nears buildout, the County has experienced considerable market pressure to create more urban designated land in the northern part of the County and/or to convert undeveloped rural land into large lot, ranchette subdivisions. Because of the foregoing conditions, and the requirement in Future Land Use Policy 4.1.7 that it prepare a year 2050 plan for areas east of Interstate 75, the County began seeking ways to encourage what it considers to be a "more livable, sustainable form of development." This led to the adoption of Sarasota 2050. As noted above, Sarasota 2050 consists of six geographic overlay areas in the Future Land Use Map (FLUM), called RMAs, with associated goals, objectives, and policies. As described in the Plan, the purpose and objective of the Amendment is as follows: The Sarasota County Resource Management Area (RMA) Goal, Objectives and Policies are designed as a supplement to the Future Land Use Chapter of Apoxsee. The RMAs function as an overlay to the adopted Future Land Use Map and do not affect any rights of property owners to develop their property as permitted under the Comprehensive Plan, the Zoning Ordinance or the Land Development Regulations of Sarasota County or previously approved development orders; provided, however, that Policy TDR 2.2 shall apply to land located within the Rural/Heritage Estate, Village/ Open Space, Greenway and Agricultural Reserve RMAs where an increase in residential density is sought. To accomplish this purpose and objective, the RMAs and their associated policies are expressly designed to preserve and strengthen existing communities; provide for a variety of land uses and lifestyles to support diverse ages, incomes, and family sizes; preserve environmental systems; direct population growth away from floodplains; avoid urban sprawl; reduce automobile trips; create efficiency in planning and provision of infrastructure; provide County central utilities; conserve water and energy; allocate development costs appropriately; preserve rural character, including opportunities for agriculture; and balance jobs and housing. The Amendment creates an optional, alternative land use policy program in the Plan. To take advantage of the benefits and incentives of this alternative program, a property owner must be bound by the terms and conditions in the goal, objectives, and policies. Policy RMA1.1 explains it this way: The additional development opportunities afforded by the Sarasota 2050 Resource Management Area Goal, Objectives and Policies are provided on the condition that they are implemented and can be enforced as an entire package. For example, the densities and intensities of land use made available by the Sarasota 2050 Resource Management Area Goal, Objectives and Policies may not be approved for use outside the policy framework and implementing regulatory framework set forth herein. Policy RMA1.3 expresses the Amendment’s optional, alternative relationship to the existing Plan as follows: The Sarasota 2050 Resource Management Area Goal, Objectives and Policies shall not affect the existing rights of property owners to develop their property as permitted under the Comprehensive Plan, the Zoning Ordinance, the Land Development Regulations or previously approved development orders; provided, however, that TDR 2.2 [relating to transfer of development rights] shall apply to land located within the Rural Heritage/ Estate, Village/Open Space, Greenway and Agricultural Reserve RMAs where an increase in residential density is sought. If a property owner chooses to take advantage of the incentives provided by the Sarasota 2050 RMA, then to the extent that there may be a conflict between the Sarasota 2050 Resource Management Area Goal, Objectives and Policies and the other Goal[s], Objectives and Policies of APOXSEE, the Sarasota 2050 Resource Management Area Goal, Objectives and Policies shall take precedence. The other Goals, Objectives and Policies of APOXSEE including, but not limited to, those which relate to concurrency management and environmental protection shall continue to be effective after the adoption of these Resource Management Area Goal, Objectives and Policies. Therefore, if a landowner chooses to pursue the alternative development opportunities, he essentially forfeits his current development rights and accepts the terms and conditions of Sarasota 2050. The RMAs The RMAs were drawn in a series of overlays to the FLUM based on the unique characteristics of different areas of the County, and they result in apportioning the entire County into six RMAs. They are designed to identify, maintain, and enhance the diversity of urban and rural land uses in the unincorporated areas of the County. The Urban/Suburban RMA is an overlay of the USA and is comparable to the growth and development pattern defined by the Plan. Policies for this RMA call for neighborhood planning, providing resources for infrastructure, and encouraging development (or urban infill) in a portion of the Future USA identified in the Amendment as the Settlement Area. The Economic Development RMA consists of land inside the USA that is located along existing commercial corridors and at the interchanges of Interstate 75. In this RMA, the policies in the Amendment provide for facilitating economic development and redevelopment by preparing critical area plans, encouraging mixed uses, providing for multi-modal transportation opportunities, creating land development regulations to encourage economic development, and providing more innovative level of service standards that are in accordance with Chapter 163, Florida Statutes. The Greenway RMA consists of lands outside the USA that are of special environmental value or are important for environmental connectivity. Generally, the Greenway RMA is comprised of public lands, rivers and connected wetlands, existing preservation lands, ecologically valuable lands adjacent to the Myakka River system, named creeks and flow- ways and wetlands connected to such creeks and flow-ways, lands listed as environmentally sensitive under the County’s Environmentally Sensitive Lands Priority Protection Program (ESLPPP), and lands deemed to be of high ecological value. This RMA is accompanied by a map depicting the general location of the features sought to be protected. The Rural/Heritage Estate Resource Management RMA consists of lands outside the USA that are presently rural and very low density residential in character and development and are planned to remain in that form. In other words, the RMA's focus is on protecting the existing rural character of this area. To accomplish this objective, and to discourage inefficient use of land in the area, the Amendment contains policies that will create and implement neighborhood plans focusing on strategies and measures to preserve the historic rural character of the RMA. It also provides incentives to encourage the protection of agricultural uses and natural resources through measures such as the creation of land development regulations for a Conservation Subdivision form of use and development in the area. The Agricultural Reserve RMA is made up of the existing agricultural areas in the eastern and southeastern portions of the County. The Amendment contains policies that call for the amendment of the County’s Zoning and Land Development Regulations to support, preserve, protect, and encourage agricultural and ranching uses and activities in the area. Finally, the Village/Open Space RMA is the centerpiece of the RMA program. It consists of land outside the USA that is planned to be the location of mixed-use developments called Villages and Hamlets. The Village/Open Space RMA is primarily the area where the increment of growth and development associated with the longer, 2050 planning horizon will be accommodated. Villages and Hamlets are form-specific, using connected neighborhoods as basic structural units that form compact, mixed-use, master-planned communities. Neighborhoods provide for a broad range and variety of housing types to accommodate a wide range of family sizes and incomes. Neighborhoods are characterized by a fully connected system of streets and roads that encourage alternative means of transportation such as walking, bicycle, or transit. Permanently dedicated open space is also an important element of the neighborhood form. Neighborhoods are to be designed so that a majority of the housing units are within walking distance of a Neighborhood Center and are collectively served by Village Centers. Village Centers are characterized by being internally designed to the surrounding neighborhoods and provide mixed uses. They are designed specifically to serve the daily and weekly retail, office, civic, and governmental use and service needs of the residents of the Village. Densities and intensities in Village Centers are higher than in neighborhoods to achieve a critical mass capable of serving as the economic nucleus of the Village. Villages must be surrounded by large expanses of open space to protect the character of the rural landscape and to provide a noticeable separation between Villages and rural areas. Hamlets are intended to be designed as collections of rural homes and lots clustered together around crossroads that may include small-scale commercial developments with up to 20,000 square feet of space, as well as civic buildings or shared amenities. Each Hamlet is required to have a public/civic focal point, such as a public park. By clustering and focusing development and population in the Village and Hamlet forms, less land is needed to accommodate the projected population and more land is devoted to open space. The Village/Open Space RMA is an overlay and includes FLUM designations. According to the Amendment, the designations become effective if and when a development master plan for a Village or Hamlet is approved for the property. The Urban/Suburban, Agricultural Reserve, Rural Heritage/Estate, Greenway, and Economic Development RMAs are overlays only and do not include or affect FLUM designations. For these five RMAs, the FLUM designation controls land use, and any changes in use that could be made by using the overlay policies of the Amendment that are not consistent with the land's future land use designation would require a land use redesignation amendment to the Plan before such use could be allowed. Data and analysis in support of the amendment The County did an extensive collection and review of data in connection with the Amendment. In addition to its own data, data on wetlands, soils, habitats, water supplies, and drainage with the Southwest Florida Water Management District (District) and the Florida Fish and Wildlife Conservation Commission (FFWCC) were reviewed. Data from the BEBR were used in deriving population and housing demand forecasts for the 2050 planning period. Transportation system modeling was performed using data from the local Metropolitan Planning Agency (MPA). The MPA uses the Florida State Urban Transportation Model Structure (FSUTMS), which is commonly used throughout the State for transportation modeling and planning purposes. Expert technical assistance was also provided by various consulting firms, including the Urban Land Institute, Analytica, Zimmerman/Volk Associates, Inc., Urban Strategies, Inc., Duany-Plater-Zyberk, Glatting Jackson, Fishkind & Associates, Stansbury Resolutions by Design, and Kumpe & Associates. In addition, the Urban Land Institute prepared a comprehensive report on the benefits of moving towards new urbanist and smart growth forms east of Interstate 75 and a build-out 2050 planning horizon. Finally, topical reports were prepared on each of the RMAs, as well as on public participation, financial feasibility and fiscal neutrality, market analysis, and infrastructure analysis. In sum, the data gathered, analyzed, and used by the County were the best available data; the analyses were done in a professionally acceptable manner; and for reasons more fully explained below, the County reacted appropriately to such data. Petitioners' Objections Petitioners have raised a wide range of objections to the Amendment, including a lack of data and analyses to support many parts of the Amendment; flawed or professionally unacceptable population and housing projections; a lack of need; the encouragement of urban sprawl; a lack of coordination between the future land uses associated with the Amendment and the availability of capital facilities; a flawed transportation model; a lack of meaningful and predictable standards and guidelines; internal inconsistency; a failure to protect natural resources; a lack of economic feasibility and fiscal neutrality; and inadequate public participation and intergovernmental coordination. Use of a 50-year planning horizon Petitioners first contend that the Amendment is not in compliance because it has a fifty-year planning time frame rather than a five or ten-year time frame, and because it does not have the same time frame as the Plan itself. Section 163.3177(5)(a), Florida Statutes, provides that "[e]ach local government comprehensive plan must include at least two planning periods, one covering at least the first 5-year period occurring after the plan's adoption and one covering at least a 10-year period." See also Fla. Admin. Code R. 9J-5.005(4). However, nothing in the statute or rule prohibits a plan from containing more than two planning horizons, or for an amendment to add an additional fifty-year planning period. Therefore, the objection is without merit. Population and housing need projections For a fifty-year plan, the County had to undertake an independent analysis and projection of future population in the County. In doing so, the County extrapolated from BEBR medium range 2030 projections and calculated a need for 82,000 new homes over the 2050 period. Examining building permit trends over the prior ten years, the County calculated a high- end projection of 110,000 new homes. The County developed two sets of estimates since it is reasonable and appropriate to use more than one approach to produce a range of future projections. The County based its planning on the lower number, but also assessed water needs relative to the higher number. The data and sources used by the County in making the population and housing need projections are data and sources commonly used by local governments in making such projections. The County's expert demographer, Dr. Fishkind, independently evaluated the methodologies used by the County and pointed out that the projections came from the BEBR mid- range population projections for the County and that, over the years, these projections have been shown to be reliably accurate. The projections were then extended by linear extrapolation and converted to a housing demand in a series of steps which conformed with good planning practices. The projections were also double-checked by looking at the projected levels of building permits based on historical trends in the previous ten years' time. These two sets of calculations were fairly consistent given the lengthy time frame and the inherent difficulty in making long-range forecasts. Dr. Fishkind also found the extrapolation from 2030 to 2050 using a linear approach to be appropriate. This is because medium-term population projections are linear, and extrapolation under this approach is both reasonable and proper. Likewise, Dr. Fishkind concluded that comparing the projections to the projected level of building permits based on historical trends is also a reasonable and acceptable methodology and offers another perspective. Manasota-88's and Compton's expert demographer, Dr. Smith, disagreed that the County’s methodology was professionally acceptable and opined instead that the mid- range 2050 housing need was 76,800 units. He evidently accepted the BEBR mid-range extrapolation done by the County for the year-round resident population of the County through 2050, but disagreed on the number of people associated with the functional population of the County. To calculate the actual number of persons in the County and the number of homes necessary to accommodate those persons, it is necessary to add the persons who reside in the County year-round (the "resident population") to the number of people who live in the County for only a portion of the year (the "seasonal population"). See Fla. Admin. Code R. 9J- 5.005(2)(e)("The comprehensive plan shall be based on resident and seasonal population estimates and projections.") The BEBR projections are based on only the resident population. The County’s demographer assigned a 20 percent multiplier to the resident population to account for the seasonal population. This multiplier has been in the Plan for many years, and it has been used by the County (with the Department's approval) in calculating seasonal population for comprehensive planning purposes since at least 1982. Rather than use a 20 percent multiplier, Dr. Smith extrapolated the seasonal population trend between the 1990 census and the 2000 census and arrived at a different number for total county housing demand. Even so, based on the fifty- year time frame of the Amendment, the 2050 housing demand number estimated by Dr. Smith (76,800 units) is for all practical purposes identical to the number projected by the County (82,000). Indeed, Dr. Fishkind opined that there is no statistically significant difference between the County's and Dr. Smith's projections. Section 163.3177(6)(a), Florida Statutes, requires that "[t]he future land use plan shall be based upon surveys, studies, and data regarding the area, including the amount of land required to accommodate anticipated growth [and] the projected population of the area." The "need" issue is also a factor to be considered in an urban sprawl analysis. See Fla. Admin. Code R. 9J-5.006(5)(g)1. (urban sprawl may be present where a plan designates for development "uses in excess of demonstrated need"). There is no allocation ratio adopted by statute or rule by which all comprehensive plans are judged. The County's evidence established that the allocation ratio of housing supply to housing need associated with the best-case scenario, that is, a buildout of existing areas and the maximum possible number of units being approved in the Villages, was nearly 1:1. Adding the total number of remaining potential dwelling units in the County at the time of the Amendment, the total amount of potential supply for the 2050 period was 82,500 units. This ratio is more conservative than the ratios found in other comprehensive plans determined to be in compliance by the Department. In those plans, the ratios tend to be much greater than 1:1. Petitioners objected to the amount of allocation, but offered no independent allocation ratio that should have been followed. Instead, Manasota-88's and Compton's expert undertook an independent calculation of potential units which resulted in a number of units in excess of 100,000 for the next twenty years. However, the witness was not capable of recalling, defending, or explaining these calculations on cross-examination, and therefore they have been given very little weight. Moreover, the witness clearly did not factor the transfer of density units or the limitations associated with the transfer of such units required by the policies in the Amendment for assembling units in the Villages. Given these considerations, it is at least fairly debatable that Sarasota 2050 is based on relevant and appropriate population and housing need projections that were prepared in a professionally acceptable manner using professionally acceptable methodologies. Land use suitability Petitioners next contend that the identification of the RMAs is not based on adequate data and analyses of land use suitability. In this regard, Section 163.3177(6)(a), Florida Statutes, requires that future land use plans be based, in part, on surveys, studies, and data regarding "the character of undeveloped land." See also Fla. Admin. Code R. 9J-5.006(2), which sets forth the factors that are to be evaluated when formulating future land use designations. The Amendment was based upon a land use suitability analysis which considered soils, wetlands, vegetation, and archeological sites. There is appropriate data and analyses in the record related to such topics as "vegetation and wildlife," "wetlands," "soils," "floodplains," and "historical and archeological sites." The data were collected and analyzed in a professionally acceptable manner, and the identification of the RMAs reacts appropriately to that data and analyses. The County's evidence demonstrated that the locations chosen for the particular RMAs are appropriate both as to location and suitability for development. It is at least fairly debatable that the Amendment is supported by adequate data and analyses establishing land use suitability. Urban sprawl and need Petitioners further contend that the Amendment fails to discourage urban sprawl, as required by Florida Administrative Code Rule 9J-5.006(5), and that it is not supported by an appropriate demonstration of need. Need is, of course, a component of the overall goal of planning to avoid urban sprawl. The emerging development pattern in the northeast area of the County tends toward large-lot development. Here, the RMA concept offers a mixture of uses and requires an overall residential density range of three to six units per net developable Village acre, whereas most of the same residential areas of the County presently appear to have residential densities of one unit per five acres or one unit per ten acres. If the Villages (and Hamlets) are developed according to Plan, they will be a more desirable and useful tool to fight this large-lot land use pattern of current development and constitute an effective anti-urban sprawl alternative. Petitioners also allege that the Amendment will allow urban sprawl for essentially three reasons: first, there is no "need" for the RMA plan; second, there are insufficient guarantees that any future Village or Hamlet will actually be built as a Village or similar new urbanist-type development; and third, the Amendment will result in accelerated and unchecked growth in the County. The more persuasive evidence showed that none of these concerns are justified, or that the concerns are beyond fair debate. The Amendment is crafted with a level of detail to ensure that a specific new urbanist form of development occurs on land designated as Village/Open Space land use. (The "new urbanistic form" of development is characterized by walkable neighborhoods that contain a diversity of housing for a range of ages and family sizes; provide civic, commercial, and office opportunities; and facilitate open space and conservation of natural environments.) The compact, mixed-use land use pattern of the Villages and Hamlets is regarded as Urban Villages, a development form designed and recognized as a tool to combat urban sprawl. "New town" is defined in Florida Administrative Code Rule 9J-5.003(80) as follows: "New town" means a new urban activity center and community designated on the future land use map and located within a rural area or at the rural-urban fringe, clearly functionally distinct or geographically separated from existing urban areas and other new towns. A new town shall be of sufficient size, population and land use composition to support a variety of economic and social activities consistent with an urban designation. New towns shall include basic economic activities; all major land use categories, with the possible exception of agricultural and industrial; and a centrally provided full range of public facilities and services. A new town shall be based on a master development plan, and shall be bordered by land use designations which provide a clear distinction between the new town and surrounding land uses. . The Village/Open Space RMA is consistent with and furthers the concept embodied in this definition, that is, the creation of an efficient urban level of mixed-use development. Urban Villages referenced in the Rule are also a category and development form expressly recognized to combat urban sprawl. The Village/Open Space RMA policies include the types of land uses allowed, the percentage distribution among the mix of uses, and the density or intensity of each use. Villages must include a mix of uses, as well as a range of housing types capable of accommodating a broad range of family sizes and incomes. The non-residential uses in the Village, such as commercial, office, public/civic, educational, and recreational uses, must be capable of providing for most of the daily and weekly retail, office, civic, and governmental needs of the residents, and must be phased concurrently with the residential development of the Village. The policies set the minimum and maximum size for any Village development. Other policies establish standards for the minimum open space outside the developed area in the Village. The minimum density of a Village is three dwelling units per acre, the maximum density is six dwelling units per acre, and the target density is five dwelling units per acre. An adequate mix of non-residential uses must be phased with each phase or subphase of development. The maximum amount of commercial space in Neighborhood Centers is 20,000 square feet. Village Centers can be no more than 100 acres, the maximum amount of commercial space is 300,000 square feet, and the minimum size is 50,000 square feet. The Town Center may have between 150,000 and 425,000 square feet of gross leasable space. Villages must have sufficient amounts of non-residential space to satisfy the daily and weekly needs of the residents for such uses. Percentage minimums and maximums for the land area associated with uses in Village Centers and the Town Center are also expressed in the policies. Hamlets have a maximum density of one dwelling unit per acre and a minimum density of .4 dwelling unit per acre. The maximum amount of commercial space allowed in a Hamlet is 10,000 square feet. The number of potential dwelling units in the Village/Open Space RMA is limited to the total number of acres of land in the Village/Open Space and Greenway RMAs that are capable of transferring development rights. Calculations in the data and analyses submitted to the Department, as well as testimony at the hearing, set this number at 47,000-47,500 units once lands designated for public acquisition under the County’s ESLPPP are properly subtracted. To take advantage of the Village option and the allowable densities associated with Villages, property owners in the Village/Open Space RMA must assemble units above those allowed by the Plan's FLUM designation by acquiring and transferring development rights from the open space, the associated greenbelt and Greenway, the Village Master Plan, and other properties outside the Village. The means and strategy by which transfer sending and receiving areas are identified and density credits are acquired are specified in the Amendment. There are three village areas (South, Central, and North) in the Village/Open Space RMA, and the amendment limits the number of Villages that may be approved in each of the areas. In the South and Central Village areas, a second village cannot be approved for fifteen years after the first village is approved. The amount of village development in the South Village must also be phased to the construction of an interchange at Interstate 75 and Central Sarasota Parkway. In the North Village area, only one village may be approved. In addition, to further limit the amount and rate of approvals and development of Villages, village rezonings and master plans cannot be approved if the approval would cause the potential dwelling unit capacity for urban residential development within the unincorporated county to exceed 150 percent of the forecasted housing demand for the subsequent twenty-year period. To evaluate the housing demand for the subsequent twenty-year period, among other things, Policy VOS2.1(a)2. sets forth the following items to be considered in determining housing demand: Housing demand shall be calculated by the County and shall consider the medium range population projections of the University of Florida’s Bureau of Economic and Business Research for Sarasota County, projected growth in the Municipalities and residential building permit activity in the Municipalities and unincorporated County. Petitioners contend that Policy VOS2.1 is an illegal population methodology. However, the County established that the Policy merely sets forth factors to be considered and does not express a specific methodology. The County’s position is consistent with the language in the policy. Petitioners also contend that the policy is vague and ambiguous because the outcome of the application of the factors is not ordained (since weights are not assigned to each factor), and because building permit activity is not a valid or proper factor to consider in making housing demand projections. The evidence establishes, however, that the factors are all proper criteria to consider in making housing projections, and that a fixed assignment of weights for each item would be inappropriate. In fact, even though Manasota- 88's and Compton's demographer stated that building permit activity is not an appropriate factor to consider, he has written articles that state just the opposite. The County also established that Sumter County (in central Florida) had examined and used building permit activity in projecting population in connection with their comprehensive plan, and had done so after consulting with BEBR and receiving confirmation that this factor was appropriate. That building permit activity demonstrated that population projections and housing demand were higher in Sumter County than BEBR was projecting at the time, and that Sumter County’s own projections were more accurate than BEBR's projections. Petitioners essentially claim that the County should only use BEBR's medium range projections in calculating future housing needs. However, the evidence does not support this contention. Future housing need is determined by dividing future population by average household size. Because BEBR's medium population projections for a county include all municipalities in the county, they must always be modified to reflect the unincorporated county. Moreover, BEBR's projections are the result of a methodology that first extrapolates for counties, but then adjusts upward or downward to match the state population projection. A projection based on this medium range projection, but adjusted by local data, local information, and local trends, is a more accurate indicator of population, and therefore housing need, than simply the BEBR county-wide medium range projection. At the same time, future conditions are fluid rather than static, and the clear objective of Policy VOS2.1 is to project housing demand as accurately as possible. Assigning fixed weights to each factor would not account for changing conditions and data at particular points in time and would be more likely to lead to inaccurate projections. As specified in Policy VOS2.1, the factors can properly serve as checks or balances on the accuracy of the projections. Given that the clear intent of Policy VOS2.1 is to limit housing capacity and supply, accurately determining the housing demand is the object of the policy, and it is evident that the factors should be flexibly applied rather than fixed as to value, weight, or significance. There is also persuasive evidence that the RMA amendments can be reasonably expected to improve the Plan by providing an anti-sprawl alternative. Florida Administrative Code Rule 9J-5.006(5)(k) directly addresses this situation in the following manner: If a local government has in place a comprehensive plan found in compliance, the Department shall not find a plan amendment to be not in compliance on the issue of discouraging urban sprawl solely because of preexisting indicators if the amendment does not exacerbate existing indicators of urban sprawl within the jurisdiction. (emphasis added) Petitioners did not offer persuasive evidence to refute the fact that the RMAs would improve the existing development pattern in the County. While Petitioners alleged that the Amendment allows for the proliferation of urban sprawl in the form of low-density residential development, the evidence shows, for example, that the County's current development pattern in the USA has an overall residential density between two and three units per acre. The Rural Heritage/Estate and Agricultural Reserve RMAs may maintain or reduce the existing density found in the Plan by the transfer of development rights. The three to six dwelling units per net developable residential acre required for Village development in the Village/Open Space RMA, coupled with the Amendment's specific policies directing the location of higher density residential uses, affordable housing, and non- residential uses, provide meaningful and predictable standards for the development of an anti-sprawl land use form. They also provide a density of focused development that diminishes, rather than exacerbates, the existing potential for sprawl found in the Plan. In reaching his opinions on urban sprawl, Manasota- 88's and Compton's expert indicated that he only assessed the question of sprawl in light of the thirteen primary indicators of sprawl identified in Florida Administrative Code Rule 9J- 5.006(5)(g). Unlike that limited analysis, the County's and the Department's witnesses considered the sprawl question under all of the provisions of Chapter 163, Florida Statutes, and Florida Administrative Code Chapter 9J-5 and concluded that the Amendment did not violate the urban sprawl prohibition. As they correctly observed, there are other portions of the law that are critically relevant to the analysis of sprawl in the context of this Amendment. Urban villages described in Florida Administrative Code Rule 9J- 5.003(80) are a category and development form expressly designed to combat urban sprawl. In addition, Florida Administrative Code Rule 9J-5.006(5)(l) recognizes urban villages and new towns as two "innovative and flexible" ways in which comprehensive plans may discourage the proliferation of urban sprawl. The more persuasive evidence establishes that the Village form contained in the Amendment will discourage urban sprawl. The types and mix of land uses in the amendment are consistent with Florida Administrative Code Chapter 9J-5 and will serve to discourage urban sprawl. Therefore, it is at least fairly debatable that the Amendment does not exacerbate existing indicators of urban sprawl within the County and serves to discourage the proliferation of urban sprawl. It is also beyond fair debate that the Amendment describes an innovative and flexible planning and development strategy that is expressly encouraged and recognized by Section 163.3177(11), Florida Statutes, and Florida Administrative Code Rule 9J-5.006(5)(l) as a means to avoid and prevent sprawl. Natural resource protection and wetlands impacts Petitioners next allege that the Amendment fails to protect natural resources, as required by Florida Administrative Code Rules 9J-5.006(3)(b)4. and 9J-5.013(2)(b) and (3)(a) and (b). At a minimum, by providing for a Greenway area, clustering of development, large open space requirements, wildlife crossings, floodplain preservation and protection, greenbelts and buffers, transfers of development rights placing higher value on natural resources, best management practices, and the encouragement of development in the RMA pattern, the RMA plan creates a level of natural resource protection greater than the County’s existing Plan. Though Petitioners disagreed with the extent and breadth of the protections afforded by the Amendment, they could only point to one area where protections may not be as significant as in the Plan: wetland impacts in Villages where the Village Center is involved. On this issue, Policy VOS1.5 provides that: The County recognizes that prevention of urban sprawl and the creation of compact, mixed-use development support an important public purpose. Therefore, the approval of a Master Development Plan for a Village may permit impacts to wetlands within the Village Center itself only when it is determined that the proposed wetland impact is unavoidable to achieve this public purpose and only the minimum wetland impact is proposed. Such approval does not eliminate the need to comply with the other wetland mitigation requirements of the Environmental Technical Manual of the Land Development Regulations, including the requirement for suitable mitigation. The Board of County Commissioners will review such proposals on a case-by-case basis as part of the Master Development Plan review process. Contrary to Petitioners' claims, the Policy does not encourage wetland destruction. Impacts to wetlands with appropriate mitigation are allowed under this policy only when the impact is "unavoidable" and "the minimum impact is proposed." The term "unavoidable impact" is not an ambiguous term in the area of wetland regulation. It is not unbridled in the context of the policy, nor is it ambiguous when properly viewed in the context of the overriding concern of the amendment to "preserve environmental systems." The term "unavoidable impact" is used and has application and meaning in other wetland regulatory programs, such as the federal Clean Water Act and the regulations implementing that law. Regulations based on "unavoidable impacts," both in this policy as well as in the state and federal regulations, can be applied in a lawfully meaningful way. Considering the policies regarding environmental systems, habitats, wildlife, and their protection, especially when read in conjunction with the protections required in the Plan, the Amendment as a whole reacts appropriately to the data and can be expected to afford protection of natural resources. The Greenway RMA was based on data and analyses that generated a series of environmental resource overlays, that when completed, comprised the Greenway RMA. The overlays layered public lands, rivers and connected wetlands, preservation lands, ecologically valuable lands associated with the Myakka River system, named creeks and flow-ways, wetlands connected to such creeks and flow-ways, lands listed as environmentally sensitive under the County’s ESLPPP, lands deemed to be of high ecological value, and appropriate connections. The evidence establishes that the staff and consultants reviewed and consulted a wide range of professionally appropriate resources in analyzing and designating the Greenway RMA. Manasota-88 and Compton also contend that the Greenway RMA is inadequate in the sense that the RMA does not include all appropriate areas of the County. This claim was based on testimony that the Greenway did not include certain areas west and south of Interstate 75 in the Urban/Suburban and Economic Development RMAs, as well as a few conservation habitats (preserve areas) set aside by Development of Regional Impacts or restricted by conservation easements. However, the preserve areas and conservation easement properties will be preserved and maintained in the same fashion as the Greenway, so for all practical purposes their non-inclusion in the Greenway is not significant. The area located south of Interstate 75 was found to be the Myakka State Forest, which is in the planning jurisdiction of the City of North Port. Manasota-88's and Compton's witness (an employee of the FFWCC) also advocated a slightly different greenway plan for fish and wildlife resources, which he considered to be a better alternative than the one selected by the County. The witness conceded, however, that his alternative was only one of several alternative plans that the County could properly consider. In this regard, the County’s Greenway RMA reacts to data on a number of factors, only one of which is fish and wildlife. One important factor disregarded by the witness was the influence of private property rights on the designation of areas as greenway. While the FFWCC does not factor the rights of property owners in its identification of greenways, it is certainly reasonable and prudent for the County to do so. This is because the County’s regulatory actions may be the subject of takings claims and damages, and its planning actions are expected to avoid such occurrences. See § 163.3161(9), Fla. Stat. Petitioners also alleged that the lack of specific inclusion of the term "A-E Flood Zone" in the Greenway designation criteria of Policy GS1.1 does not properly react to the data and analyses provided in the Greenway Final Support Document. (That policy enumerates the component parts of the Greenway RMA.) Any such omission is insignificant, however, because in the Greenway RMA areas, the A-E Flood Zone and the areas associated with the other criteria already in Policy GS1.1 are 90 percent coterminous. In addition, when an application for a master plan for a Village is filed, the master plan must specifically identify and protect flood plain areas. At the same time, through fine tuning, the development review process, the open space requirements, and the negotiation of the planned unit development master plan, the remaining 10 percent of the A-E Flood Zone will be protected like a greenway. Greenway crossings The Greenway RMA is designed in part to provide habitat and corridors for movement of wildlife. In the initial drafts of the Amendment, future road crossings of the Greenway were located to minimize the amount of Greenway traversed by roads. After further review by the County, and consultation with a FFWCC representative, the number of crossings was reduced to eleven. The road crossings in the Amendment are not great in length, nor do they bisect wide expanses of the Greenway. All of the proposed crossings traverse the Greenway in areas where the Greenway is relatively narrow. Of the eleven crossings in the Greenway, three crossings presently exist, and these crossings will gain greater protection for wildlife through the design requirements of Policy GS2.4 than they would under the current Plan. Petitioners also expressed concerns with the wording of Policy GS2.4 and contended that the policy was not specific enough with regard to how wildlife would be protected at the crossings. The policy provides that Crossings of the Greenway RMA by roads or utilities are discouraged. When necessary to ensure the health, safety and welfare of the citizenry, however, transportation corridors within the Greenway RMA shall be designed as limited access facilities that include multi-use trails and prohibit non- emergency stopping except at designated scenic viewpoints. Roadway and associated utility corridors shall be designed to have minimal adverse impacts to the environment, including provisions for wildlife crossings based on accepted standards and including consideration of appropriate speed limits. Accordingly, under the policy, wildlife crossings must be designed to facilitate minimal adverse impacts on wildlife, and such designs must be "based on accepted standards." While Petitioners contended that what is required by "accepted standards" is vague and ambiguous, the County established that this language, taken individually or in the context of the policies of the Amendment, is specific and clear enough to establish that a crossing must be properly and professionally designed for the target species that can be expected to cross the Greenway at the particular location. It was also appropriate to design the crossing at the time of the construction of the crossing to best react to the species that will be expected to cross. Although Petitioners disagreed that the policy was acceptable, their witness agreed that it is essential to know what species are inhabiting a particular area before one can design a wildlife crossing that will protect the wildlife using the crossing. He further acknowledged that he typically designs crossings for the largest traveling species that his data indicates will cross the roadway. In deciding where to locate roads, as well as how they should be designed, crossings for wildlife are not the only matter with which the local government must be concerned. Indeed, if it were, presumably there would likely be no roads, or certainly far fewer places where automobiles could travel. To reflect legitimate planning, and to reasonably react to the data gathered by the local government, the County’s road network should reflect recognition of the data and an effort to balance the need for roads with the impacts of them on wildlife. The Amendment achieves this purpose. In summary, Petitioners have failed to show beyond fair debate that the crossings of the Greenway do not react appropriately to the data and analyses, or that the policies of the crossings are so inadequate as to violate the statute or rule. Transportation planning Manasota-88 and Compton next contend that the data and analyses for the transportation planning omit trips, overstate the potential intensity and density of land uses, and understate trips captured in the Villages. The transportation plan was based on use of the FSUTMS, a model recommended by the State and widely used by transportation planners for trip generation and modeling for comprehensive plan purposes. In developing the transportation plan, the County relied upon resources from the Highway Capacity Manual, the Transportation Research Board, and the Institute of Transportation Engineers. It also reviewed the data and analyses based on the modeling performed in September 2001 in the Infrastructure Corridor Plan, an earlier transportation plan used by the County. To ensure that the 2001 model was still appropriate for the Amendment, the County conducted further review and analyses and determined that the modeling was reasonable for use in connection with the Amendment even though the intensity of development eventually provided for in the Villages was less than had been analyzed in the model. The evidence supports a finding that the data was the best available, and that they were evaluated in a professionally acceptable manner. The evidence further shows that the Amendment identifies transportation system needs, and that the Amendment provides for transportation capital facilities in a timely and financially feasible manner. Transportation network modeling was performed for the County both with and without the 2050 Amendment. Based on the modeling, a table of road improvements needed to support the Amendment was made a part of the Amendment as Table RMA-1. Because the modeling factored more residential and non- residential development than was ultimately authorized by the Amendment, the identification of the level of transportation impacts was conservative, as were the improvements that would be needed. Manasota-88 and Compton correctly point out that the improvements contained in the Amendment are not funded for construction. Even so, this is not a defect in the Amendment because the improvements are not needed unless property owners choose to avail themselves of the 2050 options; if they do, they will be required to build the improvements themselves under the fiscal neutrality provisions of the Amendment. Further, the County’s CIP process moves improvements from the five-to-fifteen year horizon to the five-year CIP as the need arises. Thus, as development proposals for Villages or Hamlets are received and approved in the areas east of I-75, specific improvements would be identified and provided for in the development order, or could be placed in the County’s appropriate CIPs, as needed. The improvements necessary under the Amendment can be accommodated in the County’s normal capital improvements planning, and the transportation system associated with the Amendment can be coordinated with development under the Amendment in a manner that will assure that the impacts of development on the transportation system are addressed. It is noted that the Amendment requires additional transportation impact and improvement analysis at the time of master plan submittal and prior to approval of that plan. Accordingly, the Amendment satisfies the requirements of Chapter 163, Florida Statutes, and Florida Administrative Code Chapter 9J-5 for transportation planning. The County used the best available data and reacted to that data in a professionally appropriate way and to the extent necessary as indicated by the data. As noted above, the transportation impacts and needs were conservatively projected, and the County was likely planning for more facilities than would be needed. It is beyond fair debate that the Amendment is supported by data and analyses. Utilities Manasota-88 and Compton also contend that the Amendment is not in compliance because the policies relating to capital facilities are not supported by data and analyses, and that there is a lack of available capital facilities to meet the demand. The County analyzed data on water supplies and demands and central wastewater facilities needs under the Amendment. The data on water supplies and demands were the best available data and included the District water supply plan as well as the County's water supply master plan. The data were analyzed in a professionally acceptable manner and the conclusions reached and incorporated into the Amendment are supported by the analyses. The utilities system for water and wastewater has been coordinated in the Amendment with the County’s CIP in a manner that will ensure that impacts on the utilities are addressed. The County established that there are more than adequate permittable sources of potable water to serve the needs associated with the Amendment, and that the needed capital facilities for water and wastewater can reasonably be provided through the policies of the Amendment. The evidence showed that the Amendment provides for capital facilities for utilities in a timely and financially feasible manner. The total water needs for the County through the year 2050 cannot be permitted at this time because the District, which is the permitting state agency, does not issue permits for periods greater than twenty years. Also, there must be a demonstrated demand for the resources within a 20- year time frame before a permit will issue. Nonetheless, the County is part of a multi-jurisdictional alliance that is planning for long-term water supplies and permitting well into the future. It has also merged its stormwater, utilities, and natural resources activities to integrate their goals, policies, and objectives for long-term water supply and conservation purposes. No specific CIP for water or wastewater supplies and facilities was adopted in the Amendment. The County currently has water and wastewater plans in its Capital Improvement Element that will accommodate growth and development under the land use policies of the Plan. From the list contained in the Capital Improvement Element an improvement schedule is developed, as well as a more specific five-year CIP. Only the latter, five-year program identifies funding and construction of projects, and the only projects identified in the Capital Improvement Element are projects that the County must fund and construct. Because of the optional nature of the Amendment, supplies and facilities needed for its implementation will only be capable of being defined if and when development under the Amendment is requested. At that time, the specific capital facility needs for the development can be assessed and provided for, and they can be made a part of the County’s normal capital facilities planning under the Plan's Capital Facilities Chapter and its related policies. Policy VOS 2.1 conditions approval of Village development on demonstrating the availability and permitability of water and other public facilities and services to serve the development. Further, the Amendment provides for timing and phasing of both Villages and development in Villages to assure that capital facilities planning, permitting, and construction are gradual and can be accommodated in the County's typical capital improvement plan programs. Most importantly, the fiscal neutrality policies of the Amendment assure that the County will not bear financial responsibility for the provision of water or the construction of water and wastewater capital facilities in the Village/Open Space RMA. Supplies and facilities are the responsibility of the developers of the Villages and Hamlets that will be served. Additionally, Policy VOS3.6 requires that all irrigation in the Village/Open Space RMA (which therefore would include Villages and Hamlets) cannot be by wells or potable water sources and shall be by non-potable water sources such as stormwater and reuse water. The supplies and improvements that will be associated with the optional development allowed by the Amendment have been coordinated with the Plan and can be accommodated in the County's normal capital improvement planning. Through the policies in the Amendment, the water and wastewater facility impacts of the Amendment are addressed. Indeed, due to the fiscal neutrality policies in the Amendment, the County now has a financial tool that will make it easier to fund and provide water and wastewater facilities than it currently has under the Plan. Finally, to ensure that capital facilities are properly programmed and planned, the Amendment also contains Policy VOS2.2, which provides in pertinent part: To ensure efficient planning for public infrastructure, the County shall annually monitor the actual growth within Sarasota County, including development within the Village/Open Space RMA, and adopt any necessary amendments to APOXSEE in conjunction with the update of the Capital Improvements Program. It is beyond fair debate that the capital facilities provisions within the Amendment are supported by adequate data and analyses, and that they are otherwise in compliance. Financial feasibility and fiscal neutrality The Capital Improvement Element identifies facilities for which a local government has financial responsibility, and for which adopted levels of service are required, which include roads, water, sewer, drainage, parks, and solid waste. Manasota-88 and Compton challenge the "financial feasibility" of the Amendment. As noted above, there is significant data and analyses of existing and future public facility needs. The data collection and analyses were conducted in a professionally acceptable manner. The evidence shows that as part of its analyses, the County conducted a cost-benefit analysis of the Village development and determined that Village and Hamlet development can be fiscally neutral and financially feasible. Dr. Fishkind also opined that, based upon his review of the Amendment, it is financially feasible as required by the Act. Policy VOS2.9 of the Amendment provides in part: Each Village and each Hamlet development within the Village/Open Space RMA shall provide adequate infrastructure that meets or exceeds the levels of service standards adopted by the County and be Fiscally Neutral or fiscally beneficial to Sarasota County Government, the School Board, and residents outside that development. The intent of Fiscal Neutrality is that the costs of additional local government services and infrastructure that are built or provided for the Villages or Hamlets shall be funded by properties within the approved Villages and Hamlets. Policies VOS2.1, VOS2.4, and VOS2.9 provide that facility capacity and fiscal neutrality must be demonstrated, and that a Fiscal Neutrality Plan and Procedure for Monitoring Fiscal Neutrality must be approved at the time of the master plan and again for each phase of development. In addition, under Policy VOS2.9, an applicant's fiscal neutrality analysis and plan must be reviewed and approved by independent economic advisors retained by the County. Monitoring of fiscal neutrality is also provided for in Policy VOS2.2. Finally, Policy VOS2.10 identifies community development districts as the preferred financing technique for infrastructure needs associated with Villages and Hamlets. The evidence establishes beyond fair debate that the policies in the Amendment will result in a system of regulations that will ensure that fiscal neutrality will be accomplished. Internal inconsistencies Manasota-88 and Compton further contend that there are inconsistencies between certain policies of the Amendment and other provisions in the Plan. If the policies do not conflict with other provisions of the Plan, they are considered to be coordinated, related, and consistent. Conflict between the Amendment and the Plan is avoided by inclusion of the following language in Policy RMA1.3: If a property owner chooses to take advantage of the incentives provided by the Sarasota 2050 RMA, then to the extent that there may be a conflict between the Sarasota 2050 Resource Management Area Goal, Objectives and Policies and the other Goal[s], Objectives and Policies of APOXSEE, the Sarasota 2050 Resource Management Area Goal, Objectives and Policies shall take precedence. The other Goals, Objectives and Policies of APOXSEE including, but not limited to, those which relate to concurrency management and environmental protection shall continue to be effective after the adoption of these Resource Management Area Goal, Objectives and Policies. As to this Policy, Manasota-88's and Compton's claim is really nothing more than a preference that the Plan policies should also have been amended at the same time to expressly state that where there was a conflict between themselves and the new Amendment policies, the new Amendment would apply. Such a stylistic difference does not amount to the Amendment's not being in compliance. Therefore, it is fairly debatable that the Amendment is internally consistent with other Plan provisions. Public participation and intergovernmental coordination Petitioners next contend that there was inadequate public participation during the adoption of the Amendment as well as a lack of coordination with other governmental bodies. Ayech also asserted that there were inadequate procedures adopted by the County which resulted in less than full participation by the public. However, public participation is not a proper consideration in an in-compliance determination. In addition, the County has adopted all required procedures to ensure public participation in the amendment process. The County had numerous meetings with the municipalities in the County, the Council of Governments (of which the County is a member), and meetings and correspondence by and between the respective professional staffs of those local governments. The County also met with the Hospital Board and the School Board. The evidence is overwhelming that the County provided an adequate level of intergovernmental coordination. Regional and state comprehensive plans Petitioners have alleged violations of the state and regional policy plans. On this issue, Michael D. McDaniel, State Initiatives Administrator for the Department, established that the Amendment was not in inconsistent with the State Comprehensive Plan. His testimony was not impeached or refuted. Petitioners' claim that the Amendment is not consistent with the regional policy plan is based only on a report prepared by the Southwest Florida Regional Planning Council (SWFRPC) at the Amendment’s transmittal stage. There was no evidence (by SWFRPC representatives or others) that the report raised actual inconsistencies with the SWFRPC regional policy plan, nor was any evidence presented that the SWFRPC has found the amendment, as adopted, to be inconsistent with its regional plan. There was no persuasive evidence that the Amendment is either in conflict with, or fails to take action in the direction of realizing goals or policies in, either the state or regional policy plan. Other objections Finally, all other objections raised by Petitioners and not specifically discussed herein have been considered and found to be without merit. County's Request for Attorney's Fees and Sanctions On April 5, 2004, the County filed a Motion for Attorneys Fees and Sanctions Pursuant to F.S. § 120.595 (Motion). The Motion is directed primarily against Ayech and contends that her "claims and evidence were without foundation or relevance," and that her "participation in the proceeding was 'primarily to harass or cause unnecessary delay, or for frivolous purpose.'" The Motion also alleges that Manasota-88 and Compton "participated in this proceeding with an intent to harass and delay the Amendment from taking effect." Replies in opposition to the Motion were filed by Petitioners on April 12, 2004. The record shows that Ayech aligned herself (in terms of issues identified in the Pre-Hearing Stipulation) with Manasota-88 and Compton. While her evidentiary presentation was remarkably short (in contrast to the other Petitioners and the County), virtually all of the issues identified in the parties' Pre-Hearing Stipulation were addressed in some fashion or another by one of Petitioners' witnesses, or through Petitioners' cross-examination of opposing witnesses. Even though every issue has been resolved in favor of Respondents (and therefore found to be either fairly debatable or beyond fair debate), the undersigned cannot find from the record that the issues were so irrelevant or without some evidentiary foundation as to fall to the level of constituting frivolous claims. Accordingly, it is found that Petitioners did not participate in this proceeding for an improper purpose.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining that the Sarasota County plan amendment adopted by Ordinance No. 2001-76 on July 10, 2002, is in compliance. DONE AND ENTERED this 14th day of May, 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 14th day of May, 2004.
The Issue The issue is whether the plan amendments adopted by the City of Pompano Beach (City) by Ordinance Nos. 2011-24 and 2011- 25 on February 8, 2011, are in compliance.
Findings Of Fact The Parties Petitioner is a resident and owner of real property within the City. Through counsel, she submitted written and oral comments to the City during the transmittal and adoption hearings for the plan amendments. Petitioner is employed by the Seminole Tribe of Florida at its casino located in Coconut Creek, Broward County (County). PPI's claim that this challenge is rooted in gaming interests of the Seminole Tribe of Florida appears to be a valid assumption. The City is a municipal corporation in the County and is responsible for adopting and maintaining its Plan. It adopted the amendments pursuant to former section 163.32465, in effect at that time, which codified an adoption process known as the Alternative State Review Pilot Program (Pilot Program). Under the Pilot Program, the Department of Community Affairs (DCA)1 did not issue an Objections, Recommendation, or Comments report or a notice of intent regarding compliance or non- compliance of the plan amendments. The DCA and other reviewing agencies did, however, issue letters advising that they did not object to the final version of the adopted amendments. PPI owns property in the City and is the applicant for the amendments. PPI submitted comments in support of the amendments throughout the adoption process. The Amendment Process in Broward County Under the County Charter, land use changes to the City's Plan that are not more restrictive than the County Land Use Plan must be reviewed by the Planning Council to ensure that they are in "substantial conformity" with the County Land Use Plan. However, the Planning Council does not review the City's plan amendments for consistency with the City's Plan or chapter 163. After the County's review was completed, the DCA recommended that certain changes be made. The amendments were transmitted back to the City and were amended to conform to the DCA's recommendations. The amendments were then required to undergo the same review process a second time. Although a determination was made by the Planning Council that the initial amendments were in substantial conformity with the County Land Use Plan, the revised amendments cannot be recertified for consistency until this challenge has been concluded. If plan amendments are in substantial conformity with its Land Use Plan, the County must amend its Plan to incorporate the City's changes. Based upon a favorable recommendation by the Planning Council, on September 28, 2010, the County adopted companion amendments, although not identical to the City's revised amendments. Those amendments are the subject of a pending challenge by the same petitioner in Case No. 10-9939GM and have not yet become effective. A hearing in that case is now scheduled in September 2013. Until that challenge is resolved, the City amendments cannot become effective. The Property PPI owns approximately 230 acres of property within the City. The property is bounded on the north by Racetrack Road, by North Cypress Bend Drive to the south, by Powerline Road to the west, and the CSX railroad tracks to the east. The current land use designation on 160 acres is Commercial Recreation (CR), while the remaining 70 acres has a Regional Activity Center (RAC) designation. The 70 acres makes up the southern part of a pre-existing RAC known as the Arvida Pompano Park Regional Activity Center (Arvida RAC), whose boundaries are coextensive with a Development of Regional Impact approved in the 1980s, but which expired in 2004. Except for the 70 acres owned by PPI, the Arvida RAC is fully developed. The CR property lies just to the south of the Arvida RAC and forms the southern boundary of that development. The 160 acres is now occupied by the Pompano Park Harness Track, Isle of Capri Casino, surface parking lots, various commercial uses, horse stables, a training area, and other uses associated with the harness track and casino. The 160 acres is the only property in the City designated as CR. That designation allows an extremely wide range of permitted uses: outdoor and indoor recreation facilities such as active recreation complexes, marinas, stadiums, jai-alai frontons, bowling alleys, golf courses, and dog and horse racing facilities; accessory facilities, including outdoor and indoor recreation facilities that support the primary recreation facility; hotels, motels, time shares, and similar lodging ancillary to the primary commercial recreation uses; and other active and passive recreation uses. The site was once considered for a new baseball stadium for the Florida Marlins and a hockey arena for the Florida Panthers. The CR property can have more than one primary use. For example, besides the harness track, the casino is an "indoor recreation facility" and qualifies as a second primary use. If a hotel has resort and destination features that are open to the public, the amenities can become a primary use. Under the City's interpretation of CR land, a hotel containing a destination function with resort and recreation features is also a primary use. Ancillary facilities for each of these uses is also allowed. The City is already 95 percent built-out, and it considers PPI's property to be regionally significant, under developed, and ripe for redevelopment as a major attraction. For these reasons, it supports the designation of the property as a new RAC. PPI filed the application because it desires greater flexibility in planning for the future development of the property. If the amendments become effective, PPI intends to expand the existing casino and build a large resort hotel, various commercial and residential uses, and other amenities associated with those activities. The Amendments In December 2009, PPI submitted an application to the City to reduce the existing Arvida RAC by removing PPI's 70 acres south of Racetrack Road; eliminate the development intensity assigned to those 70 acres; and combine the 70 acres removed from the Arvida RAC with its 160 acres of CR property to create a new South RAC. PPI also proposed to transfer credit for the remaining undeveloped portion of the Arvida RAC to the new South RAC. After the local review process was completed, the plan amendments were transmitted to the DCA, which issued a letter of comment recommending that the amendments be revised to identify the maximum amount of development (i.e., square footage) that would be allowed in each non-residential use, including CR, commercial, and office. Based on the DCA's comments, the application was modified by PPI to include floor area ratios (FARs) for each non-residential use, and in October 2010 the revised amendments were approved by the City on first reading. The DCA reviewed the revised amendments and had no objections. In February 2011, the revised amendments were adopted on second reading. Petitioner then timely filed her challenge. The map amendment (Ordinance No. 2011-25) changes the land use designation on the CR property to RAC. It consolidates the 70-acre parcel with the 160-acre parcel to create a unified RAC designation. The amendment does not change the boundary or designation of uses within the existing Arvida RAC. The amended FLUM now shows only a single RAC, with different intensity and density standards assigned to the North and South RACs in the text amendment.2 The text amendment to the FLUE (Ordinance No. 2011-24) affects a total of 399 acres of land, which covers both the existing Arvida RAC and the 160 acres of CR property south of Racetrack Road. It amends the listed uses for the Arvida RAC and names the uses for the new South RAC. The amendments permit a mixed use complex on PPI's property with a combination of 135 acres of CR (rather than 160 acres), 27 acres of commercial uses, 26 acres of office uses, and 43 acres of residential usage, consisting of 1,050 mid-rise apartments and 250 garden apartments, or a total of 1,300 residential units. The only new use introduced by either amendment is the 1,300 residential units. The maximum intensity on the CR property is not defined in the text of the Plan. However, FLUE policy 01.07.20 allows development on the 160 acres to a maximum intensity of 105 feet in height with 50 percent floor area coverage. This equates to an effective FAR of 5.0. All parties agree that a 5.0 FAR is unrealistic, and PPI never considered using that level of development. For this reason, the text amendment reduces the CR intensity to 0.31, which represents a far more reasonable and realistic development limitation. The amendment limits the maximum development within the South RAC to the following maximum FARs: 0.31 for commercial recreation use; 0.84 for office use; and 0.65 for commercial use. To the extent any portion of the 160 acres is re-designated as commercial or office, the amendment limits the maximum potential development on that acreage. Petitioner's Objections Petitioner's objections, broadly defined, are that the amendments are not in compliance because (a) they are not based on relevant and appropriate data and analysis regarding transportation impacts; (b) they are internally inconsistent with four policies in the FLUE, one objective and two policies in the Transportation Element (TE), one policy in the Capital Improvement Element (CIE), and three policies in the Housing Element (HE); and (c) they are not supported by appropriate data and analysis regarding affordable housing. Data and Analysis -- Transportation Section 163.3177(1)(f) requires that plan amendments be based on "relevant and appropriate data and analysis by the local government that may include, but not be limited to, surveys, studies, community goals and vision, and other data available at the time of adoption of the comprehensive plan or plan amendment." In addition, "the future land use plan and plan amendments shall be based upon surveys, studies, and data regarding the area, as applicable, including: . . . [t]he availability of water supplies, public facilities and services." § 163.3177(6)(a)2.d., Fla. Stat. FLUM amendments must be based on an "analysis of the availability of facilities and services." § 163.3177(6)(a)8.a., Fla. Stat. Finally, "[w]here data is relevant to several elements, consistent data shall be used." § 163.3177(2), Fla. Stat. Relying on the foregoing statutory requirements, Petitioner contends that the data and analysis regarding transportation impacts are inconsistent with the data and analysis supporting the TE and CIE; the various data and analysis supporting the amendments are not accurate and professionally acceptable because they underestimate impacts to transportation facilities by overstating the maximum development intensity of the property under the existing CR land use designation and do not identify the true impact of the amendments; and the City did not react appropriately to the data and analysis demonstrating serious impacts to already failing roadways in the area. In broad terms, a traffic impact analysis identifies the potential traffic impacts of the plan amendments on the transportation system. In their analyses, the parties used very different assumptions as to the maximum development intensity under the existing land use designations on the PPI property. Each analysis compares the traffic generated at the maximum intensity permitted under the existing land uses to the traffic generated by the maximum density/intensity under the plan amendments. The City does not require that a particular methodology or set of assumptions be used in performing an analysis. This is because the methodologies and assumptions used in a traffic impact study may differ, and they are grounded in part on the expert's sound judgment, experience, and discretion. PPI submitted two traffic impact analyses, one in March 2010 and the second in October 2010. Because the City disagreed with PPI's pre-amendment assumptions in the first analysis and assumed a smaller development under the existing land uses, it recommended that an independent traffic engineer be hired to conduct a second analysis and verify the transportation impacts. Due to a lack of resources, the City does not conduct its own traffic analysis; instead, it typically defers to the traffic analysis conducted by the Planning Council or, in some cases, it may hire its own consultant. PPI's second analysis assumed a different mix of pre- amendment CR uses. Also, it used the County Metropolitan Planning Organization's (MPO's) latest model (the Florida Standard Urban Transportation Model Structure, a/k/a FSUTMS) for traffic distribution, which was not available until after the first analysis had been completed. The second analysis assumed that under existing land uses the 160 acres could be developed with a 15,000 seat racetrack (instead of a 5,625 seat facility); a 125,000 square- foot casino; a 400,000 square-foot amusement center; a 2,333 room hotel; 350,000 square feet of accessory retail; and a new 100,000 square-foot theme park. The analysis sought to represent the existing condition of the property as reflecting a reasonable amount of development which could actually be built on the property. While these assumed uses dramatically expand the existing development on the parcel, each is permitted under the CR category, and the intensities are substantially lower than those allowed under the FLUE limitations. The assumed pre-amendment development was compared with an assumed post-development condition of a 11,591 seat racetrack; a 96,561 square-foot casino; a 309,091 square-foot amusement center; a 1,750 room hotel; 270,455 square feet of accessory retail; and a 77,273 square-foot theme park. Thus, PPI's post-amendment assumptions represented a reduction in the pre-development conditions. The October study concluded that the plan amendments would generate 6,578 net new daily trips and 568 net new total afternoon peak-hour trips (i.e., trips during rush hour). It further concluded that a number of roadway segments would continue to operate at unacceptable Level of Service (LOS) F in the future no matter whether the amendments were approved or not. Notably, only State and County roadways were impacted, and those impacts have been further evaluated by the Planning Council through its own traffic impact study. To mitigate these impacts, the revised study identified various improvements or modifications to the three affected segments, Racetrack Road east of Powerline Road, Racetrack Road east of Southwest 23rd Avenue, and Powerline Road north of McNab Road. These modifications were accepted as adequate mitigation by the City. Although Petitioner questioned whether the proposed mitigation could be enforced without being incorporated into the Plan, the City takes the position that PPI's representations are enforceable. If additional mitigation is required, PPI has agreed that this can be provided during the permit stage. After receiving PPI's second impact analysis, the City noted that it was "more detailed" than the City's abbreviated analysis performed after PPI's first study; it agreed with PPI's use of FARs for each land use category (as recommended by the DCA) to determine the maximum development that could occur; it agreed that the accepted analysis "shows a lower net increase in the demand for public facilities and services than the City's analysis"; and it concluded that "the project can meet all applicable concurrency requirements." By then, the City was also aware that the County had adopted PPI's companion amendments, and the Planning Council, with the MPO's technical assistance, had made its own evaluation of traffic impacts before amending its own Plan. The Planning Council used a different methodology to analyze traffic impacts for CR land use amendments. Unlike PPI, the Planning Council's analysis did not assume the maximum development potential in either the before or after condition. Rather, it converted the acreage of uses in the before and after conditions by assuming a development potential of 10,000 square feet per acre for all non-residential uses, which equals a 0.23 FAR. It also assumed that the only new use would be the addition of 1,300 new residential units. The Planning Council analysis concluded that the amendments would add 305 afternoon peak-hour trips to the regional roadway network, or fewer than that found in PPI's study. The County further concluded that the net increase in trips would not significantly impact the two major roadways in the area, Powerline Road and Atlantic Boulevard, and that they would continue to operate at LOS F even if the amendments were not approved. Under current Planning Council review standards, any impact that is less than three percent of the capacity of a roadway is considered insignificant. There were no impacts that exceeded this threshold. The Planning Council's traffic impact analysis and supporting data are a part of the data and analysis supporting the City's amendments. Petitioner contends that PPI's second traffic study is flawed in several respects. One concern is that the assumptions made by PPI in determining the pre- and post-amendment conditions on its property "significantly overestimate the development in the pre-approval condition," and therefore "grossly underestimate the net increase in traffic." Using different assumptions, Petitioner's expert prepared his own traffic impact analysis which substantially reduces the pre- amendment maximum development on the property. In all, Petitioner's expert prepared 11 different scenarios, some showing no impacts at all, but he eventually decided to use the tenth version, which is probably the most favorable to his position. The permitted uses under the City's CR category are extremely broad and mimic the permitted uses under the "very, very broad" CR category in the County's Plan. Petitioner's expert opined that because the CR land use is so "ill-defined," the "best indicator" of what could be built in the before condition "appeared to be the plat." A plat is a development permit approved by, and recorded with, the County. It normally reflects what a property owner intends to build on his property at the time the plat is approved or in the very near future. The County then uses the plat to determine the amount of impact fees to be paid by the owner. Because it can be amended at any time, usually when a land use amendment is being processed or when more development is contemplated, a plat is not used to determine the maximum potential development capacity on a parcel. Notably, PPI could easily file an application for approval of a new plat on the CR land showing exactly what it assumed in pre-amendment conditions. The existing plats themselves were not made a part of the record. By using recorded plats for his entire analysis, including the CR land, which he admitted was "a little unusual," Petitioner's expert significantly reduced the amount of development in a pre-amendment condition, increased the difference between pre- and post-amendment traffic, and created more post-amendment traffic impacts on the road network. However, this assumption is contrary to the plats' intended use, it does not represent a parcel's true development potential, and at best it produces results that are no more reasonable than the results presented by PPI. The City's Future Conditions Analysis (FCA) makes up a part of the narrative portion of the TE and forecasts future travel demands, land use growth, and traffic operations within the City. The FCA was "developed to be consistent with the MPO travel demand process and incorporates the [MPO's] analysis, findings and recommendations as appropriate for the City." Jt. Ex. 1, TE, p. 60. Petitioner contends that PPI failed to coordinate with the MPO data and analysis (specifically the LOS standards and traffic volumes), incorporated by reference into the TE, when it prepared its pre-amendment conditions. Thus, she argues that the amendments are inconsistent with the data and analysis supporting the TE (and by implication the CIE), and it results in far more traffic in the existing condition than the MPO model assumes. See § 163.3177(2), Fla. Stat. The Planning Council traffic impact study is a part of the data and analysis supporting the City amendments. In performing their pre-amendment analyses, both the Planning Council and MPO reviewed the same MPO "analysis, findings, and recommendations" that are incorporated by reference into the City's Plan. Notably, the Planning Council's analysis concluded that the additional traffic generated by the difference between the assumed pre- and post-amendment conditions would not cause significant impacts on the regional transportation network. Testimony presented by the City and PPI established that all relevant portions of the City Plan were reviewed for consistency, and unless a provision was found to have some significance, no reference to that provision was made in the traffic impact analysis, application, or staff report. Even if PPI's traffic impact study does not overtly state that PPI coordinated with the MPO data and analysis before making its pre-amendment assumptions, the Planning Council data and analysis are sufficient to show that the required review and coordination were made. The City reacted appropriately to the data. Petitioner's expert also leveled criticisms regarding the following aspects of PPI's traffic impact study: the level of internal trip capture; by-pass capture; and pedestrian access internal to the site, i.e., walking to a site. Petitioner did not prove that the assumptions supporting those aspects of the study were unreasonable. Petitioner has failed to establish beyond fair debate that the plan amendments are not supported by relevant and appropriate data and analysis regarding transportation impacts, or that they are inconsistent with other data and analysis supporting the Plan. Affordable Housing Petitioner contends that affordable housing was not addressed by PPI or the City, and PPI failed to provide any data and analysis with regard to various affordable housing requirements in the City's Plan. Given these omissions, she contends that the City did not react appropriately by approving the amendments. The application contains a section relating to affordable housing. While PPI referred to HE policies 05.03.02, 05.08.02, and 05.08.05 and County Land Use Plan policy 1.07.07, no explanation was given as to how the amendments conform to these provisions. Policy 1.07.07 provides a number of ways to meet the affordable housing policies, methods, or programs to achieve and/or maintain a sufficient supply of affordable housing. One option is that when a plan amendment adds more than 100 residential dwelling units, an applicant must agree to either provide 15 percent of the proposed residential units in the project for affordable housing or make a contribution of $750.00 per residential unit, to be paid to the local government when building permits are issued. To comply with this requirement, an applicant must provide the County a declaration of restrictive covenants. As explained at hearing, rather than undertaking a detailed analysis of its HE policies when reviewing land use amendments, the City routinely follows the dictates of policy 1.07.07 and allows an applicant to "buy out" its affordable housing obligation. It then uses the money for one of the City's housing programs, either to subsidize the demand side, or the existing supply of affordable housing. The City already has an ample supply of affordable housing, and it prefers that developers buy out their obligations since the cash can be used more effectively to achieve HE goals, objectives, and policies. This process was followed here, and the City allowed PPI to "buy-out [its obligation] at $750.00 x 100 percent of the units." In doing so, it relied on PPI's declaration of restricted covenants provided to the County, the fact that an in-lieu fee would best meet its affordable housing needs, and its expectation that the money would then be used to support one of its housing programs. This information (data) was available to the City and was in existence at the time the amendments were adopted, it was presented at final hearing, and it is sufficient to support the amendments. See § 163.3177(1)(f), Fla. Stat. Petitioner failed to establish beyond fair debate that the plan amendments are not supported by adequate data and analysis regarding affordable housing or that the City did not react appropriately to that data. Internal Inconsistency Section 163.3177(2) requires that the "elements of the comprehensive plan shall be consistent." Petitioner contends that the amendments are inconsistent with four FLUE policies; one TE objective and two TE policies; one CIE policy; and three HE policies. Petitioner also argues that the amendments are inconsistent with FLUE section 3.02K, which establishes criteria that must be met in order for a property to qualify for a RAC designation. Among other criteria, FLUE subsection 3.02K.4 requires that a RAC "provide direct access to existing or proposed airports, ports, and rail mass transportation facilities." It is undisputed that the property is bounded on its east side by the CSX railroad tracks. The South Florida Regional Transportation Authority (RTA) uses those tracks to operate a rail mass transportation facility known as Tri-Rail between Palm Beach and Dade Counties. Through its Board of Directors, the RTA has established station stops at various points on its route; there is, however, no station stop adjacent to PPI's property. Because the property sits adjacent to the railroad tracks, it is eligible to be considered for a station stop. At any time, but logically after this challenge is concluded and development begins, PPI and the City can submit a formal joint proposal for a station stop. Also, PPI can offer inducements to the RTA, such as dedicating land for a station stop and assisting in its funding. In addition, the RTA currently provides a shuttle service, which can easily transport PPI patrons to the station stop. These considerations support a finding that the property has "direct access" to the Tri-Rail, as contemplated by the FLUE. Petitioner contends, however, that in order to have direct access, PPI must have a binding commitment from the RTA to build a station stop before the amendment is approved. This narrow interpretation has been rejected as not being as or more reasonable than the City's interpretation of its Plan. Petitioner next contends that the amendments are internally inconsistent with HE policies 05.01.05, 05.03.02, and 05.08.01. In general terms, the first policy requires that the City promote affordable housing; the second requires that the City support public and private sector efforts to create and preserve affordable housing for very-low, low, and moderate- income groups in areas designated for residential land use for future and current residents; and the third policy requires the City to "consider the ability of the proposal to provide affordable housing" and allows restrictive covenants to be used as a tool to meet those needs. PPI's execution of a restrictive covenant to buy out its obligation for affordable housing, and the City's use of those funds to provide affordable housing in the manner as it sees fit, are sufficient to achieve consistency with the requirements that the City promote and support affordable housing, and that it allow restrictive covenants to be used as a tool to meet those needs. Petitioner also contends that the amendments are internally inconsistent with CIE policy 13.03.02, which requires that the City provide infrastructure necessary to maintain the LOS standards concurrent with the impact of development. The traffic impact analyses performed by PPI and the Planning Council demonstrate that the amendments will not significantly impact the regional transportation network. To the extent any adverse impacts may occur, PPI has agreed to mitigate those impacts. Petitioner contends that the amendments conflict with TE objective 02.02.00 and policies 02.02.05 and 02.07.02. The objective requires that the City coordinate the transportation system with the uses shown on the FLUM to ensure that adequate transportation services are provided. The first policy requires that the City continue supporting a system that allows development to occur in concurrence with the FLUM and consistent with the established LOS standards. The second policy requires that the City review future land use amendments in concert with maintenance of the adopted LOS standards. For the reasons previously found, the plan amendments are not internally inconsistent with the objective or policies. Finally, Petitioner contends that the amendments are internally inconsistent with FLUE policies 01.01.01, 01.01.02, 01.01.03, and 01.01.05. These policies require that the City adopt and maintain services based on LOS standards; review all proposals for development using the adopted LOS standards; phase development concurrent with the availability of infrastructure; and review proposals for new development to identify the cumulative impacts of the development on public services and facilities. For the reasons previously stated, the plan amendments do not conflict with these policies. Petitioner failed to prove beyond fair debate that the plan amendments are internally inconsistent with objectives or policies in the FLUE, HE, CIE, and TE.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity enter a Final Order determining that the Plan Amendments adopted by Ordinance Nos. 2011-24 and 2011-25 are in compliance. DONE AND ENTERED this 19th day of June, 2013, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of June, 2013.
Findings Of Fact The Department as the State Land Planning Agency is charged with the responsibility of reviewing the Comprehensive Plans submitted by local governments. Following such review conducted pursuant to Chapter 163, Part II, Florida Statutes, the Department is to determine whether the plan submitted is "in compliance" or "not in compliance" with applicable statutes and rules employed in the review process. McIntosh is a local government which adopted its Comprehensive Plan pursuant to Chapter 163, Part II, Florida Statutes. The McIntosh Comprehensive Plan was adopted was received by the Department on July 24, 1992. On September 4, 1992, the Department published Notice of Intent to find the Comprehensive Plan "in compliance" with applicable statutes and rules. McIntosh is a town of approximately 450 acres in size, which had a residential population in 1990 of 411 and was projected to increase population by the year 2000 to 418 people. Single family residential and agricultural land uses are the predominant land uses in the community. Petitioner Harris owns property within the incorporated limits of McIntosh. He owns and operates Sportsman Cove, a business located on Orange Lake. Portions of Orange Lake are found within the corporate limits of McIntosh where Harris conducts his business. Harris owns blocks 35 and 36 and portions of blocks 37, 53 and 54 within the corporate limits. His business involves 49 licensed mobile home sites and a number of "RV" sites located on approximately 4.648 acres along the shore of Orange Lake. He also operates a fish camp there. When the Comprehensive Plan was being prepared Harris submitted written and oral comments, objections and recommendations pertaining to the plan. He is a person affected by the adopted Comprehensive Plan. Colwell owns property in the incorporated limits of McIntosh. She owns and operates the McIntosh Fish Camp which has 8 mobile home sites and 5 "RV" sites along the shore line of Orange Lake within the town limits. Colwell submitted written and oral comments, objections and recommendations during the process of review and adoption of the Comprehensive Plan. Colwell is a person affected by the adopted Comprehensive Plan. The fish camp operations and "RV" sites of Harris and Colwell are classified in the Comprehensive Plan as lakefront commercial. The Stott's own property in the incorporated limits of McIntosh. That ownership includes blocks 1, 2, 13, 14 and 15 constituted of 13.6 acres, a portion of which is located on the shore of Orange Lake. In 1986 part of their property was used as a restaurant for about a year. The Stott's engaged in a bait business for approximately a year beyond that point. In the past prior to the plan adoption, there had been a fish camp located at blocks 1 and 15 with cabins and camper sites. These blocks are located adjacent to Orange Lake and are classified lake front residential in the Comprehensive Plan. At the time of hearing the property was not being operated as a fish camp. In the past lots 2, 13 and 14 had been used by the Stott's for unspecified light industry. The Stotts submitted written and oral comments, objections and recommendations during the plan review and adoption process. The Stotts are persons affected by the adoption of the Comprehensive Plan. The notice that was provided on September 4, 1992 concerning the intent to find the Comprehensive Plan "in compliance" made mention that the adopted plan would be available for public inspection Monday through Friday, with the exception of legal holidays. The location contemplated for inspection was the McIntosh Town Hall, Clerk's Office, at 5975 Avenue G, McIntosh, Florida. A problem arose concerning the opportunity to inspect the adopted Comprehensive Plan. The problem was occasioned by an illness to the Town Clerk. This influenced petitioners' ability to review the adopted plan and to timely submit their challenges to the decision to find the Plan in compliance. Under the circumstances a slight delay in conforming to the 21 day requirement for filing the petitions in challenge to the Comprehensive Plan is acceptable. With some inconvenience to Petitioners, persons other than the Town Clerk offered assistance in making the adopted plan available for inspection. Nonetheless, petitioners were afforded sufficient opportunity to apprise themselves concerning the contents of the adopted plan when considered in the context of their participation in the overall process for adopting the McIntosh Comprehensive Plan. The complications experienced in reviewing the adopted Comprehensive Plan did not compromise the ability of these petitioners to advance their claims in a setting in which other procedural requirements for plan adoption, review and approval have been met. The inconvenience experienced by the petitioners in reviewing the adopted plan do not evidence a quality of prejudice that should form the basis for deciding that the plan is not in compliance with applicable statutes and rules. When the Town Council adopted the plan and established Policy 2.1.4.5 it intended to use the word "abandonment" where the written text found within the adopted plan at Page 2-23 uses the word "suspension." This mistake is evidenced by the minutes of the meeting for adoption where a motion was made to change the word "suspension" to "abandonment." In the course of the hearing the attorney for McIntosh stipulated that this was an error and that the written text would be changed to reflect the proper wording. With that change Policy 2.1.4.5 would read: Provisions in the Land Development Regulations shall discourage the continuance of existing inconsistent land uses within designated land uses. These provisions shall limit the expansion of inconsistent land usage and, upon a 90 days abandonment of the incompatible land use, require reversion to designated land uses. Petitioner Harris is not satisfied that the Figure 2-6, Page 2-11, which is a map of the wetlands within the incorporated town limits, in the Comprehensive Plan, is accurate. He claims that a lobe, which is an RV site on his property known as site 9C is not within the wetlands as shown on that map. He also takes issue with the designation in Figure 2-9, page 2-17, of the future land map which shows this lobe of property as conservation/open space. He perceives this property at site 9C to be uplands. By virtue of his own activities in May 1991 in which he arranged to have a survey performed on his property in the incorporated limits of McIntosh, Harris asserts that site 9C was not found to be wetlands then and is not wetlands now. When McIntosh designated the wetlands in the community through the use of the wetlands map and identified conservation/open space in the future land use map it was acting in accordance with legal requirements incumbent upon it in adopting the Comprehensive Plan. The specific designations of wetlands and conservation/open space areas are based upon appropriate data and analysis. The data was taken from a professionally accepted existing source and was the best available data. The work that was done in preparing the wetland mapping requirements was done by the same consulting firm which Harris had employed in May 1991, that is to say Environmental Service and Permitting, Inc. In preparing the wetlands survey for McIntosh the private consulting firm used ground-truthing, as well as a review of wetland mapping data sources to delineate the wetlands. The data consulted included the U.S.D.A. Soil Conservation Service Soil Survey of Marion County, U.S.G.S. Quadrangle maps for the Town of McIntosh, as well as a review of the McIntosh Land Planning Agency Drainage Map. Although Harris takes issue with the clarity of some of the maps depicting the lobe of property for his site 9C, the adopted plan is acceptable as it describes wetlands and conservation/open space to include his site 9C. Objective 7.1.1 at Page 7.4 establishes wetland setbacks within the town where it states: The Town of McIntosh shall protect the natural drainage features within and adjacent to the Town limits, by the establishment of the wetland setbacks, and compliance with State Water Quality standards, to be a part of the Land Development Regulation. In furtherance of this Objective, Policy 7.1.1.1 is set out at page 7- 4 where it states: Setbacks shall be established from the limit of wetlands landward to buildings, septic tanks and land coverage. The following setbacks shall be a part of the Land Development Regulations. Buildings shall be set back at a minimum of 75 feet. Septic tanks and drain fields shall be set back at a minimum of 200 feet. Impervious areas shall be set back at a minimum of 50 feet. Drainage Retention Areas shall be set back 25 feet. These set backs were arrived at by the Town Council having heard from the petitioners. In the face of remarks by the petitioners made in the adoption process the council reduced the set backs. While no specific data and analysis was offered to support the set backs, they are within limits which would be recommended by the Department to protect the wetlands resources. According to the Department, from a planning viewpoint, the mere existence of wetlands is sufficient to promote protections through the use of set backs. The set backs found within this Comprehensive Plan are appropriate. Moreover, the set backs associated with the protections of wetlands have the additional benefit of protecting Orange Lake, a Class III Outstanding Florida Water Body, entitled to special water quality protection. Protection of that water body is the responsibility of McIntosh in its comprehensive planning, together with other local governments and environmental regulators. Future land use classifications in the Comprehensive Plan are set out at Page 2-14. Property which abuts Lake Orange is classified as lake front residential and lake front commercial. Lake front residential is defined as: [T]his category allows a maximum of 2 units per acre. Dwelling units includes: single family houses and mobile homes. Maximum coverage of 35% and maximum building height of 35 feet. Lake front commercial is defined as: this category allows fish camps, marinas, and recreational vehicle parks. Maximum coverage of 50% and a maximum building height of 35 feet." These classifications and densities protect natural resources to include the wetlands and Orange Lake and are appropriate. Petitioners Harris and Colwell may take advantage of the lake front commercial for their fish camp operations and "RV" sites. Stott is not entitled to take advantage of the lake front commercial classification in that her property did not include a fish camp and recreational vehicle operations at the time the plan was adopted. Petitioners have failed to show to the exclusion of fair debate that the adopted Comprehensive Plan is not "in compliance" with applicable statutes and rules concerning the issues raised in the challenges to the determination to find the Comprehensive Plan "in compliance."
Recommendation Based upon the consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That a Final Order be entered which finds the Town of McIntosh Comprehensive Plan to be "in compliance" and dismisses the petitions. DONE and ENTERED this 30th day of March, 1993, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 1993. APPENDIX The following discussion is given concerning the proposed facts of the parties: Harris' Facts: This paragraph is not relevant in that it was not alleged in the petition. This paragraph in its various parts concerning available low and moderate income housing and the densities is rejected in its suggestion that the Comprehensive Plan is not acceptable. This paragraph is rejected in its suggestion that the seasonal population for dwelling units affiliated with fish camp operations should cause a reconsideration of the classifications and densities for land use. This paragraph is ejected in its legal conclusion. 5-8 These paragraphs are not relevant in that these issues were not set out in the petition. 9, 10 To the extent that paragraphs 9 and 10 describe concerns about the treatment in the Comprehensive Plan of wetlands and comment critically on wetlands protections, the proposed findings of facts are rejected. Colwell's Facts: The unnumbered facts proposed are subordinate to facts found, with the exception that the changes in Orange Lake described even if true do not persuade that the wetlands protection of Orange Lake contemplated by the Comprehensive Plan is inappropriate. Stott's Facts: 1-2 Paragraphs 1 and 2 are subordinate to facts found. 3-5 Constitute legal argument. 6 It is acknowledged that the Orange Lake is used for fishing. 7-11 To the extent that paragraphs 7 through 11 suggest inappropriate identification and protection of the wetlands through the adopted Comprehensive Plan, the proposed facts are rejected. McIntosh's Facts: A-E, A-C, A-E Are subordinate to facts found with exception that the word "increase" in fact should be "decrease" when describing residential density. Department's Facts: 1, 2 Subordinate to facts found. Subordinate to facts found with exception that the reference to the property being within "unincorporated" limits should read "incorporated" limits. - 6 Subordinate to facts found. Subordinate to facts found with exception to the suggestion that the petitioners had to contact city council members to obtain a copy of the adopted plan in the absence of the clerk. - 20 Subordinate to facts found. Not necessary to the resolution of the dispute. - 26 Subordinate to facts found. COPIES FURNISHED: R. Jerry Harris P. O. Box 107 McIntosh, FL 32664 Anna Colwell P. O. Box 135 McIntosh, FL 32664 Thomas C. Stott Marie Stott P. O. Box 551 McIntosh, FL 32664 David Wilcox, Esquire 425 Pleasant Grove Road Inverness, FL 32652 Linda Loomis Shelley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 Michael P. Donaldson, Esquire Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100
The Issue The issue to be determined in this case is whether the amendment of the Town of Eatonville Comprehensive Plan adopted through Ordinance 2014-2 (“Plan Amendment”) is “in compliance” as that term is defined in section 163.3184(1)(b), Florida Statutes (2014).
Findings Of Fact The Parties Respondent Town of Eatonville is a municipality in Orange County with a comprehensive plan which it amends from time to time pursuant to chapter 163, Florida Statutes. Intervenor Lake Weston, LLC, is a Florida limited liability company whose sole member is Clayton Investments, Ltd. It owns approximately 49 acres of land along Lake Weston on West Kennedy Boulevard in Eatonville (“the Property”), which is the subject of the Plan Amendment. Petitioners Sharon Leichering, Lori Erlacher, George Perantoni, Valerie Perantoni, and Doreen Maroth own or reside in unincorporated Orange County near Lake Weston. The record does not establish whether Dale Dunn lives or owns property in the area. Petitioner Kingswood Manor Association, Inc., is a non- profit corporation whose members are residents of Kingswood Manor, a residential subdivision near the Property. Petitioner Friends of Lake Weston and Adjacent Canals, Inc., is a non-profit corporation whose objective is to protect these waters. Standing Petitioners Sharon Leichering and George Perantoni submitted comments to the Eatonville Town Council on their own behalves and on behalf of the Kingswood Manor Association and Friends of Lake Weston, respectively, regarding the Plan Amendment. Petitioner Valerie Perantoni is the wife of Petitioner George Perantoni. She did not submit comments regarding the Plan Amendment to the Town Council. Petitioner Dale Dunn did not appear at the final hearing. There is no evidence Mr. Dunn submitted oral or written comments to the Town Council regarding the Plan Amendment. Petitioner Doreen Maroth did not appear at the final hearing for medical reasons. Ms. Maroth submitted oral comments to the Town Council regarding the Plan Amendment. Respondent and Intervenor contend there is no evidence that Lori Erlacher appeared and gave comments to the Town Council, but the Town Clerk testified that Petitioner Leichering was granted an extension of time “to speak for others” and Petitioner Leichering testified that the “others” were Lori Erlacher and Carla McMullen. The Plan Amendment The Property is zoned “Industrial” in the Town’s Land Development Code, but is designated “Commercial” on the Future Land Use Map in the Comprehensive Plan. The Town adopted the Plan Amendment to make the zoning and future land use designations consistent with each other. The Plan Amendment attempts to resolve the inconsistency by designating the Property as the “Lake Weston Subarea” within the Commercial land use category. The designation would appear on the Future Land Use Map and a new policy is made applicable to the Subarea, allowing both industrial and commercial uses: 1.6.10. Lake Weston Subarea Policy. Notwithstanding the provisions of Policy 1.6.9, within the Lake Weston Subarea Policy boundaries as shown on the Future Land Use Map, light industrial uses may be allowed in addition to commercial uses. The specific permitted uses and development standards shall be established by the Lake Weston Overlay District, which shall be adopted as a zoning overlay district in the Land Development Code; however, the wetlands adjacent to Lake Weston within the Lake Weston Subarea Policy boundaries are hereby designated as a Class I Conservation Area pursuant to Section 13-5.3 of the Town of Eatonville Land Development Code and shall be subject to the applicable provisions of Section 13-5 of the Land Development Code. The intent of this subarea policy and related Lake Weston Overlay District is to allow a range of commercial and industrial uses on the subject property with appropriate development standards, protect environmental resources, mitigate negative impacts and promote compatibility with surrounding properties. Subject to requirements of this subarea policy and of the Lake Weston Overlay district, the current industrial zoning of the property is hereby deemed consistent with the Commercial Future Land Use designation of the area within the boundaries of this subarea policy. Data and Analysis Petitioners contend the Plan Amendment is not supported by relevant and appropriate data and analysis. Relatively little data and analysis were needed to address the inconsistency between the Land Development Code and the Comprehensive Plan or to address the protection of Lake Weston and adjacent land uses. The need to protect environmental resources, to mitigate negative impacts of development, and to promote compatibility with surrounding land uses was based on general principles of land planning, the report of a planning consultant, as well as public comment from Petitioners and others. A wetland map, survey, and delineation were submitted to the Town. The effect of the Class I Conservation Area designation is described in the Land Development Code. The availability of public infrastructure and services was not questioned by Petitioners. The preponderance of the evidence shows the Plan Amendment is based on relevant and appropriate data and analysis. Meaningful Standards Petitioners contend the Plan Amendment does not establish meaningful and predictable standards for the future use of the Property. It is common for comprehensive plans to assign a general land use category to a parcel, such as Residential, Commercial, or Industrial, and then to list the types of uses allowed in that category. The Plan amendment does not alter the Comprehensive Plan’s current listing of Commercial and Industrial uses. The Plan Amendment designates the wetlands adjacent to Lake Weston as a Class I Conservation Area subject to the provisions of the Eatonville Wetlands Ordinance in the Land Development Code. This designation means the littoral zone of the lake and associated wetlands would be placed under a conservation easement. This is meaningful guidance related to the future use of the Property. The Plan Amendment directs the Land Development Code to be amended to create a Lake Weston Overlay District with the expressed intent to “protect environmental resources, mitigate negative impacts and promote compatibility with surrounding properties.” This direction in the Plan Amendment is guidance for the content of more detailed land development and use regulations. Contemporaneous with the adoption of the Plan Amendment, the Eatonville Land Development Code was amended to establish the Lake Weston Overlay District, which has the same boundaries as the Property. The Land Development Code describes in greater detail the allowed uses and development standards applicable to the Property. The preponderance of the evidence shows the Plan Amendment establishes meaningful and predictable standards. Internal Consistency Petitioners contend the Plan Amendment is inconsistent with the relatively recent Wekiva Amendments to the Comprehensive Plan, but Petitioners failed to show how the Plan Amendment is inconsistent with any provision of the Wekiva Amendments. Petitioners contend the Plan Amendment is inconsistent with objectives and policies of the Comprehensive Plan that require development to be compatible with adjacent residential uses. Compatibility is largely a matter of the distribution of land uses within a parcel and measures used to create natural and artificial buffers. These are matters usually addressed when a landowner applies for site development approval. Protection is provided in the Plan Amendment for Lake Weston and its wetlands. Petitioners did not show there are other factors that make it impossible to make light industrial uses on the Property compatible with adjacent residential uses. The preponderance of the evidence shows the Plan Amendment is consistent with other provisions of the Comprehensive Plan. Urban Sprawl Petitioners contend the Plan Amendment promotes urban sprawl based on the potential for more impervious surfaces and less open space. However, this potential does not automatically mean the Plan Amendment promotes urban sprawl. Section 163.3177(6)(a)9. sets forth thirteen factors to be considered in determining whether a plan amendment discourages the proliferation of urban sprawl, such as failing to maximize the use of existing public facilities. The Plan Amendment does not “trigger” any of the listed factors. The preponderance of the evidence shows the Plan does not promote the proliferation of urban sprawl.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity enter a final order determining that the Plan Amendment adopted by Eatonville Ordinance No. 2014-02 is in compliance. DONE AND ENTERED this 3rd day of June, 2015, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of June, 2015. COPIES FURNISHED: George Anthony Perantoni Friends of Lake Weston and Adjacent Canals, Inc. 5800 Shasta Drive Orlando, Florida (eServed) 32810 Dale Dunn 5726 Shasta Drive Orlando, Florida 32810 Lori A. Erlacher 1620 Mosher Drive Orlando, Florida 32810 (eServed) Sharon R. Leichering Kingswood Manor Association, Inc. 5623 Stull Avenue Orlando, Florida 32810 (eServed) Doreen Lynne Maroth 5736 Satel Drive Orlando, Florida 32810 (eServed) Valerie Lolita Perantoni 5800 Shasta Drive Orlando, Florida 32810 (eServed) Debbie Franklin, City Clerk Town of Eatonville, Florida 307 East Kennedy Boulevard Eatonville, Florida 32751 Joseph Morrell, Esquire Town of Eatonville 1310 West Colonial Drive, Suite 28 Orlando, Florida 32804 (eServed) William Clay Henderson, Esquire Holland and Knight, LLP 200 South Orange Avenue, Suite 2600 Orlando, Florida 32801 (eServed) Robert N. Sechen, General Counsel Department of Economic Opportunity Mail Stop Code 110, Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed) Jesse Panuccio, Executive Director Department of Economic Opportunity Mail Stop Code 110, Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed) Katie Zimmer, Agency Clerk Department of Economic Opportunity Mail Stop Code 110, Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed)
The Issue The issue in this case is whether the Comprehensive Plan adopted by Jefferson County is not "in compliance" as such is defined at Section 163.3184(1)(b), Florida Statutes, as alleged in the Petition for Administrative Hearing to Review the Comprehensive Plan Adopted by Jefferson County, filed by the Petitioners in this case.
Findings Of Fact Robert B. Rackleff and Jo Ellyn Rackleff own property in Jefferson County. The Rackleff's represent the "Friends of Lloyd, Inc.", an organization opposed to a proposed siting of petroleum product terminal facilities near Lloyd, a town within Jefferson County. The Department of Community Affairs (DCA) is the state land planning agency and administers the requirements of the "Local Government Comprehensive Planning and Land Development Regulation Act", Chapter 163, Part II, Florida Statutes. On or about July 19, 1991, The Board of County Commissioners of Jefferson County adopted a comprehensive plan (plan). The plan was reviewed by the DCA and determined to be "in compliance". 2/ Jefferson County, population 12,243, is located in the northern part of Florida, bordered by the Aucilla River and Madison and Taylor Counties to the east, the Gulf of Mexico to the south, Leon and Wakulla Counties to the west, and the State of Georgia to the north. Jefferson County contains a land area of approximately 392,192 acres. The bulk of the county's residents live in or near Monticello (the county seat), Lloyd, Wacissa, Lamont, Drifton, Capps, Aucilla, Waukeenah, Dills, Thomas City, and Nash. Major transportation routes through Jefferson County include Interstate 10 running east-west through the county just south of Monticello, U.S. Highway 90 lying north of and parallel to I-10 and running through the center of Monticello, U.S. Highway 27 lying south of I-10 and running east-west through the county, and U.S. Highway 98 lying south of U.S. 27 and also running east- west. U.S. Highway 19 enters north Jefferson County at the Georgia border and runs south until it merges with U.S. 27. State Roads 257 and 59 also run north- south. Both State Roads 257 and 59 intersect with I-10, as does U.S. Highway 90. The plan designates land parcels surrounding the I-10/U.S. 90 and I- 10/S.R. 59 interchanges and land parcels on the north side of the I-10/S.R. 257 interchange as "Mixed Use Interchange Business". Future Land Use Element Objective 1, Policy 1-3, of the plan defines the "Mixed Use Interchange Business" designation as follows: A mixed use category located at an interchange with I-10, with a variety of primarily commercial businesses. Because there are but three such interchanges in Jefferson County, the amount of land is necessarily limited; uses in the category are, therefore, limited to those activities requiring locations with high vehicular traffic and easy access to I-10. Appropriate uses include (1) tourist oriented facilities, such as restaurants, automotive service stations, truck stops, motels, campgrounds, and the like; (2) region serving retail complexes or office centers; (3) commerce parks; (4) facilities for the storage and distribution of foods and products including wholesale activity; (5) light manufacture of goods for distribution to other locations; and (6) truck stops. Intensity of use, as measured by impervious land coverage shall not exceed 80%. More intense truck transport and highway oriented activities, and regional distribution centers may also be allowable, subject to special exception approval by the Board of County Commissioners in order to ensure the closest possible scrutiny of such uses. Activities subject to such special exception approval include: uses exceeding 50,000 square feet impervious land coverage; uses with a total land area of five or more acres; uses which have storage capacity for more than 500,000 gallons of petroleum product; or uses on environmentally sensitive lands as defined in the Conservation Element. Performance standards shall be included in the land development regulations for special exceptions to insure that on-site and off-site impacts are adequately planned for and monitored. Impacts include trip generation, transportation access, drainage, water quality, visual appearance, avoidance of environmentally sensitive lands and mitigation of impacts, noise, signage, and air quality. Information to support the application shall be provided by the applicant at the applicant's expense. Activities subject to special exception in this district shall only be required to obtain special exception approval for plan land use changes, and shall not be required at the time of application or receipt of a building permit. (emphasis supplied) Local governments are required to adopt and enforce, within one year following submission of the comprehensive plan for review by the state land planning agency, land development regulations (LDR's) which are consistent with and implement the adopted comprehensive plan. Section 163.3202(1), Florida Statutes. According to the data in the plan, the interchange at I-10/S.R. 59 exists over a potential area of high groundwater recharge. The county's groundwater system includes the upper and lower Floridan Aquifer. Support documents to the Jefferson County plan note that aquifer recharge occurs through sinkholes near Lake Miccosukee, along the Aucilla River, and through the northeast area of the county. Water contamination can occur through drainage from septic tanks, leaking underground storage tanks, hazardous waste, and contaminated stormwater runoff. The Petitioners generally assert that the plan is not in compliance because the possible siting of a petroleum product facility over the potential area of high groundwater recharge fails to adequately protect water quality and the Floridan Aquifer. Under the "mixed use interchange business" designation, land uses permitted through a special exception process receive specific scrutiny by the Jefferson County Board of County Commissioners. Uses including storage capacity for more than 500,000 gallons of petroleum product or which lie on environmentally sensitive lands as defined in the Conservation Element are required to undergo the "special exception" process. Special exception uses are governed by the performance standards which will be included in the county's land development regulations. Such regulations must insure that on-site and off-site impacts, including water quality, avoidance of environmentally sensitive lands and mitigation of impacts, trip generation, transportation access, drainage, visual appearance, noise, signage, and air quality are adequately planned for and monitored. Section 163.3177, Florida Statutes, identifies the elements of a local government comprehensive plan. Some elements identified in this section may be included in the plan at the local government's option; others are required. 3/ FUTURE LAND USE ELEMENT Section 163.3177(6)(a), Florida Statutes, requires the inclusion of a Future Land Use Element, which "may designate areas for future planned development use involving combinations of types of uses for which special regulations may be necessary to ensure development in accord with the principles and standards of the comprehensive plan and this act". Rule 9J-5.006(3)(c)(6), Florida Administrative Code, states that a Future Land Use Element must contain one or more policies addressing the implementation of protection of potable water wellfields and environmentally sensitive land. The Jefferson County Comprehensive Plan Future Land Use Element includes the information required by the statute and rules. Jefferson County's Future Land Use Element Policy 1-5 states: Existing, revised, and/or new land development regulations shall ensure protection of environmentally sensitive lands. Such lands include areas designed 4/ as Conservation on the Future Land Use Map, and may include other isolated areas identified on a site-by-site basis shall be included in the land development regulations. All development is subject to site plan review which is the primary means of ensuring protection. Also refer to specific objectives and policies of the Conservation Element. Future Land Use Element Policy 1-6 provides: The LDR's 5/ shall require protection of all future potable water well fields developed in the County with a design capacity of 100,000 gallons per day or greater through development of locational criteria including a minimum 200 ft. prohibited development zone around the well's perimeter and consideration of distance from hazardous waste storage or generation (including petroleum storage tanks). (This is the same as the G-1 rule from DER.) Future Land Use Element Objective 3 provides: Throughout the planning period, the County shall require that the natural and historic resources of the County be protected from the negative impacts of development activities, and shall require that future land uses are coordinated with the appropriate topography and soil conditions. This objective shall be accomplished using Policies 3-1 through 3-3 Future Land Use Element Policy 3-1 provides: Encourage development and allow growth only in areas without steep slopes. Future Land Use Element Policy 3-2 provides: Drainage improvement plans will be submitted as part of the site plan and/or subdivision review process. Standards will be included in the land development regulations for drainage improvements during development. Future Land Use Element Policy 3-3 provides: Existing regulations in the Jefferson County Development Code shall be continued; the regulations are designed to ensure protection from flood damage, protection of the aquifer, protection of lands adjacent to lakes, streams, and within wetlands. Regulations will be revised for consistency with the objectives and policies of the Jefferson County Comprehensive Plan. CONSERVATION ELEMENT Section 163.3177(6)(d), Florida Statutes, requires the plan to include a Conservation Element for the conservation, use, and protection of natural resources in the area, including water, water recharge areas, and waterwells. Rule 9J-5.013(2)(c)(1), Florida Administrative Code, states that a Conservation Element shall contain policies addressing the implementation activities for the protection of water quality by restriction of activities known to adversely affect the quality and quantity of identified water sources including existing cones of influence, water recharge areas, and waterwells. Rule 9J- 5.013(2)(c)(6), Florida Administrative Code, states that a Conservation Element shall contain policies addressing the implementation activities for the protection and conservation of the natural functions of existing soils, fisheries, wildlife habitats, rivers, bays, lakes, floodplains, harbors, wetlands including estuarine marshes, freshwater beaches and shores, and marine habitats. Rule 9J-5.013(2)(c)(9), Florida Administrative Code, states that a Conservation Element shall contain policies addressing the implementation activities for the designation of environmentally sensitive lands for protection based upon locally determined criteria which further the goals and objectives of the Conservation Element. Rule 9J-5.013(2)(c)(10), Florida Administrative Code, states that a Conservation Element shall contain policies addressing the implementation activities for the management of hazardous wastes to protect natural resources. The Jefferson County Comprehensive Plan Conservation Element includes the information required by the statute and rules. Conservation Element Objective 2 provides: In order to protect water quality, the County shall protect all its surface waters and ground waters from the intrusion of pollutants throughout the planning period This shall be accomplished through: continued implementation and enforcement of the Jefferson County Land Development Code, which requires a site plan review process for all development; correction of drainage deficiencies by 1992, and by the creation of a stormwater drainage plan for Lake Miccosukee and the Aucilla River (north of US27/19) as soon as funding is available. Upon completion of the drainage plan, the County will amend the comprehensive plan for consistency with the recommendations of the drainage plan. Conservation Element Policy 2-1 provides: Throughout the planning period, the County shall require that all new development provide stormwater management systems designed so that post development rates of runoff do not exceed pre-development rates, and to provide treatment of stormwater prior to surface water discharge, consistent with Chapter 17-25, F.A.C. This shall be accomplished using the site plan review process, mandatory for all development, adopted as part of the land development regulations by the statutory deadline. Conservation Element Policy 2-2 provides: The County shall coordinate with the Department of Environmental Regulation, Bureau of Waste Management to ensure that the existing underground leaking tanks are remediated by the owner expediently, and in a manner which does not further threaten ground water quality. Conservation Element Policy 2-3 provides: The County shall adopt a wellfield protection ordinance (for protection of cones of influence and waterwells) by the statutory deadline, a hazardous waste management ordinance by 1991, and a shoreline/waterfront protection ordinance by 1992 to ensure protection of ground and surface water. Conservation Element Policy 2-4 requires the county to consult with the DER and the water management districts to ensure that water withdrawal within two named sites will not increase groundwater contamination from said sites. Conservation Element Policy 2-7 provides: The County shall coordinate with the Suwanee river and Northwest Florida Water Management Districts in the protection of prime recharge areas, once such areas have been designated by the Districts. Conservation Element Policy 2-8 provides: The land development regulations shall limit impervious surfaces, and require onsite retention of stormwater runoff in the County's high recharge areas. Conservation Element Objective 3 provides: Throughout the planning period, the County shall protect all areas that fall within the 100-year floodplain. The County shall use the Flood Insurance Rate map and the site plan review process for all development, as the tools for implementation. Conservation Element Policy 3-1 provides: The County shall continue to enforce the existing floodplain ordinance restricting development if (sic) floodprone areas. The ordinance shall continue to prohibit the following within the 100 year floodplain: fill; structures (other than on stilts); common water supplies or sewage treatment facilities; and roads, except as infrequent intervals as necessary to provide access to private or public property. Permitted uses in the 100 year floodplain shall include agriculture; silviculture; residential structures, only where fill is not required and the first floor elevation is at least one foot above the 100 year flood, and, only at very low densities; recreation (such as hiking trails); native vegetation and wildlife habitat. The ordinance shall continue to protect the functions of floodprone areas through its requirement that flood areas are to be treated as positive visual open space, wildlife habitat, and as water recharge and discharge resources. Conservation Element Policy 3-2 provides: The floodplain ordinance shall protect the water quality and wildlife habitat values of shorelines and riverine floodplains by establishment of a contiguous vegetative buffer along the Wacissa and Aucilla Rivers, of at least 50 foot in width, measured from the wetlands jurisdictional line, within which permanent structures will be prohibited, and clearing of native vegetation (other than areas designated for silvicultural use) shall be limited to only to (sic) provide reasonable access to the shoreline. Shoreline buffers shall be established for Lake Miccosukee. Conservation Element Objective 4 provides: Throughout the planning period, the County shall conserve the water supply and protect the quantity and quality of current water source and any new water sources. This objective shall be accomplished using Policies 4-1 through 4-4. Conservation Element Policy 4-1 provides: The County shall enforce water conservation during times of drought by enacting an ordinance which prohibits irrigation between 10:00 AM to 6:00 PM, and shall keep the public informed of these restrictions through newspaper notices and posted notices. Conservation Element Policy 4-2 provides: The County shall continue to adhere to any emergency water conservation measures imposed by the Northwest Florida and Suwanee River Water Management Districts. Conservation Element Policy 4-3 provides that all new construction and all remodeling activities utilize fixtures conforming to a specified schedule of maximum water usage. Conservation Element Policy 4-4 provides: The County shall enact policies that allow septic tanks only in areas where public sewer is unavailable and only upon issuance of a Jefferson County Health Department permit. Conservation Element Policy 4-5 provides that the county will promote and encourage agricultural land owners to incorporate specified water conserving farming methods. Conservation Element Policy 4-6 provides: Future water demand for nonpotable water uses should be met through the use of water of the lowest acceptable quality for the purpose intended. To this end, the County may require that developers requiring large amounts of water for use other than drinking water utilize reclaimed water from stormwater systems and treated wastewater. Conservation Element Policy 5-1 provides: By the statutory deadline for adoption of land development regulations, the County shall adopt regulations for the preservation and conservation of those areas which are known habitats for threatened and endangered species, and species of special concern, and those areas characterized by wetlands. By 1995, the County shall develop and complete a program to identify, protect and enhance those specific areas which contain unique vegetative communities, springs, caves, sinkholes, ravines, or are suitable for, habitats for threatened and endangered species, and species of special concern, and those areas characterized by wetlands. Conservation Element Policy 5-7 provides: In order to carry out Policy 5-1, the County shall: establish a citizens or other committee to initiate the vegetation and wildlife habitat identification program, based upon the initial data provided by the Comprehensive Plan, and coordination with US Fish and Wildlife and the Florida Game and Freshwater Fish Commission. use innovative techniques in the land development regulations for preservation of such areas, such as: designation and regulations of conservation areas; site plan review; on-site density transfers to allow clustering of allowable units to protect environmentally sensitive portions of a site; and, overlay zoning whereby density calculations and developable land expectations area (sic) based on net developable acreage after excluding the environmentally sensitive portions. Conservation Element Policy 5-8 provides: The County shall promote the designation and protection of natural reservations designated within the County, through cooperation with the federal government regarding St. Mark's National Wildlife Refuge and the Aucilla Wildlife Management Area, the State's CARL program, the Water Management District's Save Our Rivers and SWIM Program, and designation of such areas on the Future Land Use Map as conservation. Conservation Element Policy 5-10 provides: Natural resources, such as wetlands, water bodies, springs, sinkholes, caves, and habitat of endangered, threatened and species of special concern are valuable resources which need protection, and are therefore designated as environmentally sensitive lands. These lands which are threatened by urban development, as well as any lands identified during the County's vegetation and wildlife habitat program to be of critical habitat for designated species, shall be protected from encroachment through the land development regulations, adopted by the statutory deadline. The Regulations shall establish performanc standards for development in such environmen- tally sensitive areas. Any environmentally sensitive lands designated for Silviculture shall be required to us (sic) the US Forest Service Best Management Practices, and are subject to the requirements of Policy 5-11. Policy 5-11 prohibits development of land designated as "Agriculture I" on the Future Land Use Map. To develop such land requires amendment of the comprehensive plan, preceded by an inventory of all wetlands and other environmentally sensitive lands as well as documentation that the proposed use will not negatively impact the environmentally sensitive lands. Conservation Element Policy 5-6 provides conservation-related criteria for permitting commercial mining activities in the county, however, there are currently no commercial mining activities in Jefferson County. Conservation Element Policy 5-13 requires that the county continue its efforts in reducing erosion in coordination with the Soil Conservation Service, and continue to notify farmers of the opportunities available towards reducing erosion. Conservation Element Policy 5-14 requires that silvicultural lands be managed to reduce erosion. Conservation Element Policy 5-15 requires that best management practices be utilized for soil conservation. Conservation Element Objective 6 provides: Throughout the planning period, the County shall prohibit the disposal of hazardous wastes into the public sewer system, canals and ditches, wetlands, stormwater facilities, unlined landfills and other unsafe areas. The hazardous wastes which are prohibited will be listed in the County's revised land development regulations. The County shall ensure that all hazardous waste is properly handled, generated or stored during the site plan review process, required for all development. Conservation Element Policy 6-1 provides: Through intergovernmental coordination and public education programs, beginning within six months after plan adoption, the County shall encourage that residents participate with the City of Monticello in promoting and participating in hazardous waste amnesty days. Conservation Element Policy 6-2 provides: In order to protect natural resources and public sewer systems, the County shall prohibit the unsafe disposal of hazardous wastes by enacting and enforcing an ordinance by the statutory deadline for adoption of the land development regulations. The ordinance shall prohibit disposal into canals, ditches, wetlands, stormwater facilities, unlined landfills and other safe areas, as well as require that any land use proposing to store, generate, or handle hazardous waste; develop an emergency response plan addressing accidents; ensure that DER standards for transfer and storage of hazardous waste are implemented; and, ensure that the site will not degrade quality of ground or surface water or other natural resources. INFRASTRUCTURE ELEMENT Section 163.3177(6)(c), Florida Statutes, requires that the plan include a general sanitary sewer, solid waste, drainage, potable water, and natural groundwater aquifer recharge element (commonly identified as the "Infrastructure Element") as follows: A general sanitary sewer, solid waste, drainage, potable water, and natural groundwater aquifer recharge element correlated to principles and guidelines for future land use, indicating ways to provide for future potable water, drainage, sanitary sewer, solid waste, and aquifer recharge protection requirements for the area. The element may be a detailed engineering plan including a topographic map depicting areas of prime groundwater recharge. The element shall describe the problems and needs and the general facilities that will be required for solution of the problems and needs. The element shall also include a topographic map depicting any areas adopted by a regional water management district as prime groundwater recharge areas for the Floridan or Biscayne aquifers, pursuant to s. 373.0395. These areas shall be given special consideration when the local government is engaged in zoning or considering future land use for said designated areas. For areas served by septic tanks, soil surveys shall be provided which indicate the suitability of soils for septic tanks. (emphasis supplied) Section 373.0395, Florida Statutes, provides: Each water management district shall develop a ground water basin resource availability inventory covering those areas deemed appropriate by the governing board. This inventory shall include, but not be limited to, the following: A hydrogeologic study to define the ground water basin and its associated recharge areas. Site specific areas in the basin deemed prone to contamination or overdraft resulting from current or projected development. Prime ground water recharge areas. Criteria to establish minimum seasonal surface and ground water levels. Areas suitable for future water resource development within the ground water basin. Existing sources of wastewater discharge suitable for reuse as well as the feasibility of integrating coastal wellfields. Potential quantities of water available for consumptive uses. Upon completion, a copy of the ground water basin availability inventory shall be submitted to each affected municipality, county, and regional planning agency. This inventory shall be reviewed by the affected municipalities, counties, and regional planning agencies for consistency with the local government comprehensive plan and shall be considered in future revisions of such plan. It is the intent of the Legislature that future growth and development planning reflect the limitations of the available ground water or other available water supplies. (emphasis suplied) Although Jefferson County's groundwater system includes the upper and lower Floridan Aquifer, the regional water management districts have not completed their studies and have not designated areas of Jefferson County as prime groundwater recharge areas for the Floridan or Biscayne aquifers, pursuant to Section 373.0395. Accordingly, the plan does not designate areas of prime groundwater recharge. Plan maps indicate where the potential for high recharge exists. As stated in the "needs assessment" at page 57 of the support documents to the Conservation Element: [A]t the present time insufficient information is available to allow the county to institute a site specific comprehensive aquifer recharge protection program. This problem should be remedied with the completion of the GWBRAI groundwater basin study for Jefferson County by the NWFWMD (Northwest Florida Water Management District) and the SRWMD (Suwanee River Water Management District). Until this GWBRAI becomes available, the county should adopt interim measures to promote protection of aquifer recharge functions, based on the known characteristics of development within the County, and general knowledge of aquifer recharge principles. The interchange at I-10/S.R. 59 exists over a potential area of high groundwater recharge. Pursuant to the special exception requirements set forth in the "mixed use business interchange" designation, the area shall receive special consideration in zoning or considering future land use for the area. Until prime groundwater recharge areas are designated, in order to promote protection of aquifer recharge functions, land use decisions will be based on the known characteristics of development within the County, and general knowledge of aquifer recharge principles. Rule 9J-5.011(2)(c)(3), Florida Administrative Code, states that an Infrastructure Element shall contain policies addressing the implementation activities for establishing and utilizing potable water conservation strategies and techniques. Rule 9J-5.011(2)(c)(4), Florida Administrative Code, states that an Infrastructure Element shall contain policies addressing the implementation activities for regulating land use and development to protect the functions of natural drainage features and natural groundwater aquifer recharge areas. The Jefferson County Comprehensive Plan Infrastructure Element includes the information required by the statute and rules. Jefferson County's Infrastructure Element Goal 4 is to conserve and preserve the values and functions of the County's natural groundwater aquifer recharge areas. Infrastructure Element Goal 4, Objective 1 provides: The County shall conserve and protect the values and functions of natural groundwater aquifer recharge areas from adverse impacts through adoption of land development regulations by the statutory deadline and coordination with federal, state, and local agencies throughout the planning period. Infrastructure Element Goal 4, Policy 1-1 provides: The County shall seek assistance from the Northwest Florida and Suwanee River Water Management Districts in the management of prime aquifer recharge areas, once such information is made available. The comprehensive plan shall be amended at that time as necessary to protect prime aquifer recharge areas. Infrastructure Element Goal 4, Policy 1-2 provides: The land development regulations shall limit impervious surface ratios for new development and shall require management of stormwater to ensure post development run-off does not exceed predevelopment run-off rates. Infrastructure Element Goal 4, Policy 1-3 provides: The County shall allow the re-use of treated effluent and stormwater for irrigation, and shall encourage such re-use during the site plan review process. Infrastructure Element Goal 4, Policy 1-8 provides for closure of the current landfill upon completion of the replacement landfill, such closure to be handled in accordance with DER requirements. Infrastructure Element Goal 2, Policy 2-1 sets forth limits on the use of new on-site wastewater treatment systems in new development and provides that such existing on-site systems may remain in service until central service is available. INTERGOVERNMENTAL COORDINATION Petitioners allege that the Intergovernmental Coordination Element contained within the plan is not in compliance, in that it allegedly fails to provide a mechanism for coordinating protection of the Floridan Aquifer and water quality in Leon and Jefferson Counties. Petitioners further allege that the plan contains no coordination of common issues such as fire protection and protection of drinking water. The goals, objectives, and policies of the Intergovernmental Coordination Element appropriately provide for formalized coordination of land use decisions with surrounding counties in order to protect water quality and quantity. The Intergovernmental Coordination Element does not specifically address fire protection. However, the evidence fails to establish that currently available fire protection is inadequate, or that, if additional protection is required, the county is unable to provide such services. INTERNAL INCONSISTENCY Section 163.3177(2), Florida Statutes, provides: Coordination of the several elements of the local comprehensive plan shall be a major objective of the planning process. The several elements of the comprehensive plan shall be consistent.... Rule 9J-5.005(5)(a), Florida Administrative Code, provides: The required elements and any optional elements shall be consistent with each other. All elements of a particular comprehensive plan shall follow the same general format. Where data are relevant to several elements, the same data shall be used, including population estimates and projections. Petitioners allege that the plan's Future Land Use Element, which includes the "mixed use interchange business" designation, is inconsistent with the policies and goals of the Conservation Element, which includes the policies related to water quality protection. The evidence fails to support the assertion that the plan is internally inconsistent. The "mixed use interchange business" designation, including the enhanced scrutiny of the special exception provisions for specified and more intensive uses, is not inconsistent with the provisions of the plan related to protection of groundwater and aquifer recharge areas. Further, the evidence does not establish that the plan is inconsistent with Chapter 187, Florida Statutes, the state's comprehensive plan. Petitioners asserted that the plan did not contain the best available information in existence at the time the plan was adopted. Section 163.3177(10)(e), Florida Statutes, provides: It is the Legislature's intent that support data or summaries thereof shall not be subject to the compliance review process, but the Legislature intends that goals and policies be clearly based on appropriate data....Chapter 9J-5, F.A.C., shall not be construed to require original data collection by local governments.... The county did not, and is not required to, produce original data in order to prepare and adopt a comprehensive plan. Petitioners suggest that the DCA erred in not considering Department of Environmental Regulation data identifying petroleum storage facilities which experienced leaks or spills reported to the DER. However, the evidence offered by Petitioners at hearing did not support the suggestion that such data was more appropriately considered than the data set forth in the county's plan. The inference suggested by Petitioner's evidence is that some petroleum storage facilities pose a threat to groundwater supplies due to leaking tanks and operational errors. However, the evidence does not indicate whether such facilities were designed to the prevent such occurrences, the types of safeguards installed, the types of maintenance required at such facilities (and whether it was performed), or whether, and the extent to which, the reported leaks or spills resulted in ground or surface water contamination. The Petitioners further assert that the plan's data related to aquifer recharge is unacceptable because it is not site specific. The general aquifer recharge map in the plan is based upon U.S. Geological Survey data, and a U.S. Bureau of Geology map. The plan also includes wetlands maps based on U.S. government information and a National Wetlands Conservatory survey. Due to the failure of the water management districts to complete the study of the county's prime aquifer recharge areas, reliable site specific information is not yet available. The plan maps adequately indicate the areas where the potential for high groundwater recharge may exist.
Recommendation Based on the foregoing, it is hereby recommended that the Department of Community Affairs enter a Final Order dismissing the Petition of Friends of Lloyd, Inc., Robert B. Rackleff and Jo Ellyn Rackleff and finding the Jefferson County Comprehensive Plan to be "in compliance" as defined at Section 163.3184(1)(b), Florida Statutes. RECOMMENDED this 31st day of July, 1991, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 31st day of July, 1991.
