07-005061GM Apa Emerson At Indrio, Llc vs. St. Lucie County And Department Of Community Affairs Status: Closed Recommended Order on Tuesday, May 13, 2008.

Summary: Petitioner failed to prove beyond fair debate that remedial amendments were inconsistent with planning criteria.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

APA EMERSON @ INDRIO, LLC, )

)

Petitioner, )

)

vs. ) Case No. 07-5061GM

)

ST. LUCIE COUNTY and DEPARTMENT )

OF COMMUNITY AFFAIRS, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, this matter was heard before the

Division of Administrative Hearings (DOAH), by its duly-

designated Administrative Law Judge, J. Lawrence Johnston, on

February 19 and 20, 2008, in Fort Pierce, Florida.

APPEARANCES

For Petitioner APA Emerson @ Indrio, LLC:

Glenn N. Smith, Esquire

Robyn Lynn Libow, Esquire

Ruden, McClosky, Smith,

Schuster & Russell, P.A.

Post Office Box 1900

Fort Lauderdale, Florida 33302-1900

For Respondent St. Lucie County:

Daniel S. McIntyre, Esquire

St. Lucie County Attorney

Third Floor Administrative Annex

2300 Virginia Avenue

Fort Pierce, Florida 34952-5632

H. Michael Madsen, Esquire

Vickers, Madsen & Goldman, LLP

1705 Metropolitan Boulevard, Suite 101

Tallahassee, Florida 32308-3765

Andrew J. Baumann, Esquire

Lewis, Longman and Walker, P.A.

1700 Palm Beach Lakes Boulevard

Suite 1000

West Palm Beach, Florida 33401-2006

For Respondent, Department of Community Affairs:

Richard E. Shine, Esquire

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399-2100

STATEMENT OF THE ISSUE

This issue is whether Remedial Amendments, adopted as

Ordinance 07-037, to the previously-adopted Towns, Villages, and

Countryside (TVC) Amendments to St. Lucie County's Comprehensive

Plan (Ordinance 06-019) are "in compliance" within the meaning

of Section 163.3184(1)(b), Florida Statutes.

PRELIMINARY STATEMENT

On May 16, 2006, St. Lucie County (County) adopted

Ordinance 06-019, which amended its Comprehensive Plan (Plan) to

create a new "Towns, Villages and Countryside" (TVC) Future Land

Use Element (FLUE) designation for nearly 28 square miles of

rural land in northern St. Lucie County.

On July 17, 2006, the Department of Community Affairs

(Department) issued its Statement of Intent to find portions of

the TVC Amendment "not in compliance" with Part II, Chapter 163,

Florida Statutes. The Statement of Intent was referred to DOAH

and assigned Case No. 06-2834GM. A group of landowners (the

Brown Petitioners) also filed a Petition for Formal

Administrative Hearing within 21 days of the Department's

publication of its Statement of Intent. That Petition was

referred to DOAH and assigned Case No. 06-2845GM.

The Department and the County subsequently reached a

settlement. On June 5, 2007, the County, by Ordinance No. 07-

037, adopted Remedial Amendments directed to the deficiencies

alleged in the Statement of Intent.

On July 19, 2007, the Department published a Cumulative

Notice of Intent to find the TVC Amendments and the Remedial

Amendments "in compliance" with Part II, Chapter 163, Florida

Statutes. The parties were realigned on August 13, 2007, and a

final hearing was scheduled to commence on February 12, 2008.

On August 6, 2007, APA Emerson @ Indrio, LLC (APA Emerson),

filed a Petition for Administrative Hearing challenging both the

Remedial Amendments and the TVC Amendments. The County moved to

dismiss APA Emerson's Petition on the grounds that it was

untimely as to the TVC Amendments and attempted to "reach back"

and challenge the TVC Amendments rather than the Remedial

Amendments. The Department granted the County's motion with

leave to amend.

APA Emerson filed an Amended Petition on October 5, 2007.

The Amended Petition was referred to DOAH, assigned Case No. 07-

5061GM, and consolidated with Case Nos. 06-2834GM and 06-2845GM.

The County renewed its objection to APA Emerson's Amended

Petition by filing a motion to strike or alternatively a motion

in limine.

In early January 2008, the County, the Department and the

Brown Petitioners reached a settlement in Case Nos. 06-2834GM

and 06-2845GM. On February 1, 2008, a Corrected Order on

Pending Motions was entered. As a result, Case Nos. 06-2834GM

and 06-2845GM were severed from Case No. 07-5061GM (and were

later resolved by adoption of Remedial Amendments that were not

challenged). In addition, portions of APA Emerson's Amended

Petition that sought to "reach back" and challenge the TVC

Amendments, and which did not otherwise pertain to the Remedial

Amendments, were stricken.

The final hearing was held February 19 and 20, 2008, in

Fort Pierce, Florida. At the final hearing, APA Emerson called:

Marcela Camblor, an expert in land planning; Jose Martinez;

Michael Houston; and David Mulholland, P.E., an expert in

traffic engineering. The County called Marcela Camblor. The

Department did not call a witness. The parties jointly moved

the County's Exhibits 1-14 and 18 into evidence, and they were

received as Joint Exhibits 1-14 and 18. County Exhibits 23, 24,

and 27 also were received in evidence. APA Emerson's Exhibits

5, 54, and 164 were offered and received. The Department

offered no exhibits.

The Transcript of the hearing (two volumes) was filed with

DOAH on March 6, 2008. Proposed recommended orders (PROs) were

filed by the parties on April 4, 2008, and have been considered

in the preparation of this Recommended Order.

Several other matters also were raised at or after the time

for filing PROs.

On April 4, 2008, APA Emerson filed a Motion for Official

Recognition of several Objections, Comments, and Recommendations

(ORC) reports issued by the Department in other cases; official

recognition of those documents was opposed by the Respondents

and was denied.

On April 9, 2008, the Respondents moved to strike portions

of APA Emerson's PRO raising internal inconsistency on the

ground that APA Emerson waived those issues during the final

hearing. APA Emerson opposed the motion to strike, and the

motion is denied.

Finally, on April 18, 2008, APA Emerson filed a motion to

strike portions of the PRO filed by the Respondents. The

Respondents filed a Response on May 9, 2008, which was the

deadline under Florida Administrative Code Rule 28-106.204(1).

The motion to strike mostly re-argues issues addressed in APA

Emerson's PRO (except for adding a reference to Emerson Road in

its attack on paragraph 57 of Respondents' PRO, which was not

raised in either the cross-examination of Mr. Mulholland or in

APA Emerson's PRO). For those reasons, the issues are

appropriately addressed in this Recommended Order, and APA

Emerson's motion to strike is denied.

FINDINGS OF FACT

1. APA Emerson owns approximately 26 acres of land located

at the northwest corner of Indrio Road and Emerson Avenue,

within the area to be designated TVC future land use. The

property presented has a future land use designation of

"Commercial" and a "CG" (Commercial General) zoning designation,

and is located just inside the western edge of the Urban Service

Boundary (USB).

Development of the TVC Amendments

(i) The North St. Lucie County Study Area

2. The TVC Amendments emerged from a study of a 60-square-

mile area of northern St. Lucie County known as the North St.

Lucie County Study Area. The area principally extends from the

C-25 Canal at the southern boundary to the Indian River County

line at the northern boundary, and from the Intracoastal

Waterway on the east to the general area of the Florida Turnpike

and somewhat west of Interstate 95 (I-95) on the west. The TVC

Amendments themselves cover a 28-square-mile portion of the

Study Area, extending from the C-25 Canal north to the County

Line and roughly from Kings Highway (SR 713) west to the Florida

Turnpike.

3. The area covered by the TVC Amendments is rural in

character. Most of the area is outside of the USB and is in

active agricultural production. Most residents in the area

moved there because of its rural character, and many had moved

away from sprawling development patterns in other southeast

Florida counties. Under the present comprehensive plan,

however, most of the TVC Area outside the USB, and a portion

inside the USB, can be developed for residential use at one unit

per acre, which would perpetuate the sprawling development

pattern that prevails elsewhere in St. Lucie County and South

Florida.

4. The roads within the TVC area are rural, two-lane

roads, many of which are unpaved. Much of the area is not

served by public roads. Indrio Road is presently the principal

east-west roadway through the TVC area and has the only

interchange with I-95. Indrio Road is a two-lane rural highway

east of I-95. East of Emerson Avenue, a number of single-family

residences front along Indrio as does a historic schoolhouse.

East of Kings Highway, Indrio is lined with a historic tree

canopy. As Indrio proceeds eastward toward U.S. Highway 1, much

of the area to its south is undeveloped land that lies to the

north of the St. Lucie County Airport, but none of the airport-

related uses connects with or relies upon Indrio Road. Indrio

does not currently connect to the barrier island, and no

connection is planned. The lack of such a connection reduces

the pressure on Indrio Road as an east-west travel route.

5. Kings Highway, Koblegard Road, and Johnston Road

presently are the principal north-south roads through the area.

Kings Highway proceeds northeast from the TVC area and is used

to access U.S. Highway 1 and more urbanized areas along the

coast. Because it takes such an easterly jog, it is not

actually the principal connector between Indian River and St.

Lucie Counties. Rather, Johnston and Koblegard presently

fulfill that role. However, neither of those roads extends

completely through the TVC area in a paved condition,

necessitating the use of Indrio Road to switch between these

north-south connections. Much of the present traffic on Indrio

Road is actually north-south traffic that uses Indrio as a

connector to move from one north-south route to another, due to

the presently undeveloped nature of the area and its roadway

network. Presently, Kings Highway is heavily used by truck

traffic to move from the industrial and agricultural areas in

the north to the I-95 and Turnpike interchanges at Okeechobee

Road (SR-70).

ii. Impetus for the TVC Citizens' Master Plan

6. The TVC planning effort grew out of a series of

controversial development approvals in northern St. Lucie

County. Prior to 2004, two large, gated residential

subdivisions were approved in the area. One project, called

Portifino Shores, had commenced construction, but certificates

of occupancy could not be issued for the newly-constructed homes

because no water utilities were available to service the

development.

7. These developments caused citizens of the area to

become involved in public meetings of the Planning and Zoning

Board and the Board of County Commissioners. Citizens began to

complain about similar, single-use residential developments

being proposed, and began to express a growing concern about

urban sprawl in an area that had, until then, retained a

relatively rural character featuring large areas of open space

and agricultural operations.

8. In February 2004, a seven-day planning charrette was

held to gather public input regarding how the area should

develop over the long-term. The charrette was organized by an

appointed Charrette Steering Committee composed of area

residents, property owners' representatives, landowners, and

business owners from the area, supported by the Treasure Coast

Regional Planning Council ("TCRPC"), working under a contract

with the County. More than 350 members of the public

participated. While the public was not opposed to development

occurring in the area, the principal thrust of public sentiment

was to avoid single-use, automobile-dependent, urban forms of

development and to preserve open spaceansportation impacts

of sprawling development were an important topic of discussion,

with the City of Port St. Lucie often mentioned as an example of

the type of development the citizens wished to avoid. To the

extent possible, the citizens wished to avoid large, multi-lane,

high-speed roadways in the area and instead maintain a rural,

pedestrian-friendly character to the roadways.

9. The TCRPC and the citizens were supported in this

planning effort by expert consultants in surface water

management, citrus farming, ecology, residential market

analysis, retail market analysis, employment projections, urban

design and code drafting, architecture, financial feasibility,

and transportation engineering. The work of these experts

ultimately constituted much of the data and analysis submitted

to the Department in support of the TVC Amendments and the

Remedial Amendments.

iii. The Citizens' Master Plan

10. A Citizens' Master Plan was the product of the

planning charrette. Several planning concepts form the basis

for this Master Plan and ultimately were implemented in the TVC

Amendments.

11. The overall theme of the Master Plan was "striking a

balance," or, in other words, accommodating the potential of the

area for urban development, but at the same time retaining rural

character within the area and avoiding the negative impacts of

sprawling development. Several planning strategies were used to

achieve this balance.

12. The fundamental concept of the Master Plan is to

promote a more compact form of urban development with a range of

housing types from large-lot single-family to apartments, at an

overall residential density that is higher than typical in

single-use, single-family sprawl. At the same time, large areas

of open space are retained in a coordinated, interconnected

system that incorporates a central, "backbone" storm water

management system as well as agricultural areas and public

recreation areas, golf courses, and greenways. Development

under these concepts could potentially preserve over 50 percent

of the land as open space, while the coordinated flow-way system

would improve water quality in receiving water bodies and

provide an amenity for adjacent urbanized areas.

13. Future development envisioned by the Master Plan would

occur in a coordinated system of "villages" and "towns" defined

by "transects" that establish a core, center, general

neighborhood, an edge of each settlement, bounded by open areas

termed "countryside." Residential and non-residential uses are

integrated in each town and village. Required minimum densities

for residential areas, together with transect-based design

principles, result in a suitably integrated mix of housing types

with public, institutional, and commercial uses located

appropriately throughout the area.

14. The Master Plan contemplates incentives for this more

sustainable pattern of development through density bonuses,

transferable development rights (TDRs), and provision of urban

services outside the USB (which otherwise would be retained in

its current location) for development in the TVC area that

qualifies in accordance with the Master Plan's principles.

15. The integration of the transportation system into this

more sustainable form of development was central to the planning

effort. Roadway design principles envisioned a fully-

interconnected, dense system of parallel streets, rather than

continued reliance on a few major arterial roadways in a sparse,

hierarchical network. The dense, interconnected network

provides alternative routes for traffic, allows traffic to

disperse, and creates friendlier small neighborhood and rural

roads that are inviting for cars, bicyclists, and pedestrians.

Design standards for roadways would facilitate these goals and

include pedestrian and bicycle facilities on all roadways.

16. While the conventional approach to increasing road

capacity is simply to add lanes to existing roads, planning and

transportation data indicate that this is not usually the most

efficient solution. Rather, the most efficient means of

increasing capacity usually is to construct alternate parallel

roads. Accordingly, a conventional roadway network relying upon

a few large arterial roads to connect otherwise isolated pods of

single-use development ( i.e. , a residential neighborhood or a

shopping center) was expressly rejected by the participating

citizens. The dense, interconnected roadway system is proposed

not only within each town or village, but also is planned on a

larger scale for the entire TVC area.

17. The combination of the dense, integrated roadway

network and the development of commercial, institutional, and

public uses in close proximity to residential uses in each town

and village has a dramatic, positive impact on the

transportation system. Pedestrian and bicycle travel become

possible, and vehicle trips are both shorter and disbursed over

a larger number of roads rather than concentrated on a few

arterial roadways.

18. After the Citizens' Master Plan report was finalized

and presented to the Planning and Zoning Board and the Board of

County Commissioners, the TCRPC (acting under its contract with

the County and with the support of its team of contract experts)

undertook the process of preparing comprehensive plan amendments

to implement the Citizens' Master Plan.

The TVC Amendments (Joint Exhibit 3)

(i) Implementation of Citizens' Master Plan

19. The County adopted the TVC Amendments on May 16, 2006,

as Ordinance No. 06-019. Sometimes referred to as a Sub-element

of the FLUE, and sometimes referred to as a separate Element of

the Plan, the TVC Amendments actually created a new FLUE

Objective 3.1.1 and associated policies for the use of Special

Area Plans for undeveloped areas, to "ensure that new

development in existing agriculture areas is predictable and

responds to the vision of the citizens of St. Lucie County."

Such Special Area Plans, of which the North St. Lucie County

Special Area Plan is the first, "shall be created with a high

degree of citizen involvement and shall be submitted as part of

the data and analysis required to amend the Future Land Use

Map." Special Area Plans are required to have 14 specified

features, including analysis of "existing transportation issues

including the potential impact of new development,"

identification of "the appropriate location and amount of new

retail . . . [and] new commercial uses," and "a maximum

allowable development program" to "serve as a basis for setting

and evaluating levels of service."

20. The TVC Amendments created a TVC Sub-Element to the

Land-Use Element and provided a strategy of incentive-based

options designed to encourage the sustainable pattern of future

development envisioned by the Citizens' Master Plan. In keeping

with the objectives identified in the Citizens' Master Plan,

policies in the TVC Amendments implemented the denser,

traditional neighborhood pattern with integrated non-residential

uses (Objectives 3.1.4 and 3.1.8 and associated policies); the

dense, integrated roadway network (Objective 3.1.9 and

associated policies; Policy 3.1.4.2.7); the "backbone" storm

water flow-way system (Objective 3.1.6 and associated policies);

and the permanent, coordinated open space areas (Objective 3.1.5

and associated policies). All of these objectives and policies

were promoted by incentives and potential density transfers

(Objective 3.1.7 and associated policies). In addition, Policy

3.1.5.7(1) specifically addressed maintaining the rural

character of Indrio Road between Johnston Road and Emerson

Avenue by requiring new developments "to position a substantial

amount of the Countryside component along the property line

adjoining the Indrio Road right of way." The 28-square-mile TVC

area was given the new "TVC" future land-use classification, and

the policies of the TVC Amendments were applied to "those

portions of the County where the TVC land use designation has

been adopted."

21. Incentives for property owners to develop in

accordance with the TVC policies included transferable

development rights (Policy 3.1.2.5; Objective 3.1.7 and

associated policies); density bonuses that encourage use of

TDRs, encourage denser development within the USB, and encourage

provision of public facility sites and workforce housing (Policy

3.1.7.7); provision of urban services to developments outside

the USB that conform to TVC policies, without expanding the USB

(Policy 3.1.2.3); and expedited review for projects that conform

to TVC policies (Policy 2.1.2.4).

22. Outside the USB, parcels greater than 500 acres in

size, if developed, were required to develop in accordance with

TVC policies. Parcels of less than 500 acres may develop to the

pre-existing residential density or may transfer development

rights to other parcels, but in all cases new development is

required to coordinate roadway systems and open space with

adjacent development. (Policies 3.1.2.6, 3.1.2.7). Existing

ownership patterns within the TVC area include large assemblages

of land. The County reasonably expects development in the TVC

area to occur both on a large scale, as "villages" and "towns,"

and on a smaller scale, as also allowed under TVC Plan policies.

23. The TVC transportation system follows the principles

developed in the Citizens' Master Plan. For the entire area,

and on a smaller scale within towns and villages, the system

will include an interconnected network of two-lane roadways

wherever possible (Policy 3.1.4.1.(7), Objective 3.1.9 and

related policies, Figure 3-15). The long-term transportation

plan for the area includes extending both Johnston Road and

Emerson Avenue as paved roads to the south of Indrio;

transforming Johnston into a four-lane roadway with gentle

curves to the south of Indrio where it presently has sharp

corners; and crossing Johnston and Emerson well to the south of

Indrio. Johnston Road will thus relieve Kings Highway as the

major north-south route for truck traffic, and Indrio Road will

be relieved from a portion of the east-west traffic that

presently uses Indrio to move from one north-south route to

another. This will also create additional intersections as

logical locations for commercial nodes and for relieving traffic

pressure at existing intersections such as Kings-Indrio.

(ii) Maximum Development Under the TVC Amendments

24. The TVC Amendments are intended to be largely

incentive-based. Accordingly, Policy 3.1.3.1(4) provides:

The TVC Element shall not limit the

underlying potential densities or

intensities, as established by the pre-

existing Future Land Use Element as of [date

of adoption of TVC Amendment]. New non-

residential uses allowed pursuant to the

pre-existing Future Land Use Element are

encouraged to follow the retail and

workplace strategies outlined in this

element and shall follow the TVC Land

Development Regulations. The potential

densities and intensities on the TDV Map may

be increased by the application of the

policies in the TVC Element.

25. Similarly, Policy 3.1.2.5 creates a Transferable

Development Value ("TDV") Map to establish the potential uses,

densities, and intensities for properties within the TVC area

under the pre-existing FLUE. The TDV Map is designed to set

pre-existing land uses for determining the amount of TDRs that

can be reallocated into new "town" and "village" developments.

While the policy speaks of pre-existing "densities and

intensities" in this regard, the policies governing TDRs

(Objective 3.1.7 and subsidiary policies) provide only for

transfer of residential density; industrial or commercial

intensities previously allowed under the pre-existing land-use

map are not transferable from one site to another.

26. While Policies 3.1.3.1 and 3.1.2.5 make it clear that

the TVC Element is not intended to limit or reduce pre-existing

density and intensity on any specific property within the TVC

area, Policy 3.1.1.2 implements the requirement in Policy

3.1.1.1 for a "maximum allowable development program" by placing

overall caps on the maximum allowable total development within

the TVC area. Table 3-1, entitled "Maximum Allowable

Development Program," specifies the maximum allowable

development allowed for the entire TVC area: 37,500 residential

units, 5,000,000 square feet of commercial/retail uses, and 464

acres of industrial uses. The concept of including such caps on

overall development was suggested by the Department during the

development of the TVC Amendments. The caps were included to

avoid the need to plan roads and other infrastructure to serve

levels of development that would not actually occur and, as

noted in Policy 3.1.1.1, to "serve as a basis for setting and

evaluating levels of service."

(iii) TVC General Retail Development Strategy

27. Within the overall cap of five million square feet,

the TVC Amendments address the placement and scale of individual

non-residential land uses in two sets of policies. Objective

3.1.8 and its associated policies create a General Retail

Development Plan addressing commercial/retail uses. Objective

3.1.10 and its associated policies address a workplace

employment strategy addressing commercial/office and industrial

uses.

28. Retail components are broken down into planning units

in a range of sizes described on Table 3-8: Local Store

(averaging 500-2,000 square feet); Convenience Center (averaging

3,000-80,000 square feet); Neighborhood Center (80,000-150,000

square feet); Village Center (150,000-400,000 square feet); and

Town Center (more than 200,000 square feet). This is the

terminology used by the International Council of Shopping

Centers.

29. As noted above, the TVC Element contemplates that new

development in the form of "villages" and "towns" will integrate

non-residential uses including retail. Policy 3.1.8.2.1.a

provides that new developments in the TVC area must provide at

least the minimum amount of retail outlined in Table 3-8 based

on the number of homes proposed. In this manner, the TVC

Amendment coordinates the residential and retail land uses to

further the goal of compact, mixed-use communities.

30. Policy 3.1.8.2.1.b and Figure 3-13 represent the

General Retail Development Plan for the TVC area. As noted in

Policy 3.1.8.2.1.b, Figure 3-13 depicts the desired (not

required) general locations for new retail establishments and

the preferred retail planning unit or type ( i.e. , Local Store,

Convenience Center, etc.).

31. The County's retail market expert and the

transportation engineer collaborated, with the support of TCRPC

planning experts, in developing the General Retail Development

Plan and the Future Street Network, so that the two would

function together.

32. The intersection of Emerson Avenue and Indrio Road is

identified as a location for a Neighborhood Center, but Policy

3.1.8.2.1.b.iii encourages this intersection to develop

alternatively as an office or mixed-use development. Taken

together, the entire Policy provides a preferred development

strategy which identifies the minimum amount of retail use (and

its preferred approximate location) to support the residential

units authorized under the TVC Amendments.

(iv) Sufficiency of Planned Transportation Infrastructure

33. In support of the TVC Amendments, the County's

consulting traffic engineers, GMB Consultants, Inc., and that

firm's partner, David Mulholland, conducted a long-term,

regional traffic analysis. The original analysis was replaced

by a revised analysis, dated April 24, 2006, and transmitted

with the County's response to the Department's ORC Report. That

modeling study contained both an evaluation of existing traffic

and existing roadway needs and a projection of future traffic

based upon planned development under the TVC Amendments and the

anticipated roadway needs to support the TVC area at full build-

out.

34. Evaluation of the existing transportation system was

conducted to determine existing infrastructure needs in the TVC

area, using both average daily traffic counts and peak-hour

traffic counts. Improvements were identified as needed if peak

seasonal traffic exceeded the allowable service volume for a

given roadway. This analysis utilized the 2004 traffic count

database maintained by the St. Lucie County Metropolitan

Planning Organization ("MPO"). Service volumes, which roughly

equate to the capacity for each type of road, were taken from

the Florida Department of Transportation 2002 Quality Level of

Service Handbook.

35. The performance of a roadway, and ultimately the

determination of whether any improvements are needed, is based

upon a comparison of the existing or projected traffic volume

against the road's capacity to handle traffic while maintaining

the level of service ("LOS") adopted in the County's Plan. This

volume-to-capacity analysis is expressed as a ratio of V/C. A

V/C ratio greater than 1.0 indicates a roadway volume which

exceeds the capacity of the road to operate at the adopted LOS.

A V/C of less than 1.0 indicates that the road has the capacity

to handle additional traffic.

36. The results of the existing condition study were

summarized on Table 1 of the April 24, 2006, Transportation

Study, which demonstrated that all roads within the TVC, as of

the date of the study, had existing capacity to accommodate

existing traffic.

37. Having analyzed existing conditions, the County's

consulting traffic engineer, David Mulholland, conducted a long-

term traffic projection to verify that a roadway system could be

developed in keeping with the planning objectives in the

Citizens' Master Plan, while meeting the roadway infrastructure

needs for the TVC area at full build-out.

38. Mr. Mulholland relied upon the direction of the

County's land use planners and retail and residential economists

to provide the applicable land use assumptions as to both

density/intensity and location, and the projected build-out

date, which was determined by the County's consultant to be

2050. The long-term study also analyzed traffic projections at

2030 as an interim, benchmark year.

39. For the purposes of the long-term transportation

study, the maximum development potential was assumed to be

37,500 residential units, 5,000,000 square feet of

commercial/retail use, and 464 acres of industrial use, which

were the express caps on total development within the TVC area

provided for in Policy 3.1.1.2 and Table 3-1 of the TVC

Amendment.

40. These maximum land uses were distributed throughout

the TVC area into Traffic Analysis Zones ("TAZs"), geographic

areas assigned a specified amount of expected land use ( i.e. ,

number of residential units and square footage of non-

residential use). Vehicle trips were then assigned based upon

accepted trip conversion tables that attribute a certain number

of trips to each residential unit and each square foot of

commercial or industrial use. The Neighborhood Center

commercial node shown at the intersection of Indrio Road and

Emerson Avenue was located in TAZs 157 and 163. TAZ 157, which

includes APA Emerson's property on the north side of Indrio, was

assigned 300,000 square feet of commercial development for this

modeling study. TAZ 163, which contains the portion of the

commercial node on the south side of the Emerson-Indrio

intersection, was assigned 700,000 square feet of commercial

development. The total of the ultimate commercial build-out at

this location, as modeled by Mr. Mulholland, was therefore at

least one million square feet.

41. Utilizing a professionally recognized, computerized

regional traffic model supported by the MPO and the TCRPC, known

as the Treasure Coast Regional Planning Model ("TCRPM"),

Mr. Mulholland then modeled two different scenarios. First, he

modeled the TVC future land uses and the existing roadway

network. This scenario helped identify areas where roadways

would likely fail adopted LOS standards without additional

improvements.

42. Based on this analysis, Mr. Mulholland designed a

future street network to accommodate the TVC land uses at full

build-out while accommodating transportation strategy outlined

in the Citizens' Master Plan. As noted in Mr. Mulholland's

report: "Through the design Charrette process, the direction

[was] to provide a well-balanced alternative transportation

network that would service the transportation demands versus the

traditional capacity improvements ( i.e. , widening to six lanes).

The emphasis of the plan was to provide an interconnected

network of two- and four-lane roadways that will service the

capacity needs created." Joint Exhibit 7, § 2.6). Whenever

possible, two-lane roadways were retained, in keeping with

citizens' desire to preserve the rural character of the area.

In particular, Indrio Road would remain a two-lane road east of

Emerson Avenue in order to preserve its existing rural

character, preserve the historic tree canopy along the road, and

avoid adversely impacting existing single-family residences and

the historic schoolhouse on Indrio.

43. Acceptable levels of service on Indrio and other roads

are preserved by planning for a series of alternate parallel

roads to handle future traffic demands as part of the planned

fine grid of interconnected two- and four-lane roads proposed

for the area.

44. Mr. Mulholland then ran the model utilizing a second

scenario--full build-out of the TVC area along with the proposed

future transportation system--in order to demonstrate that the

future transportation system could accommodate the maximum

allowable development as capped by Policy 3.1.1.2 and Table 3-1.

Mr. Mulholland testified to his professional engineering opinion

that, based upon his long-term analysis, the roadway network

identified on Figure 3-15 will be adequate to support 37,500

residential units, 5,000,000 square feet of commercial/retail,

and 464 acres of industrial land uses and maintain adopted LOS

standards. Mr. Mulholland further testified that, while some of

the Tables contained in his April 24, 2006, Long-Term

Transportation Study were summaries of traffic conditions on the

more important roadways, his actual study included all the

roadways within the network, and all the existing and proposed

roadways for the TVC area are depicted on Figure 3-15.

45. The long-term transportation analysis resulted in the

development of the Future Street Network Map shown on Figure

3-15 of the TVC Amendments. The long-term transportation

analysis and Mr. Mulholland's testimony demonstrated that this

roadway system will preserve the required levels of service at

full build-out of the TVC Area.

Adoption of the TVC Remedial Amendments

46. On July 17, 2006, the Department issued its Statement

of Intent to find portions of the TVC Amendments "not in

compliance" with the pertinent provisions of Part II, Chapter

163, Florida Statutes. The Statement of Intent identified three

areas of noncompliance with respect to the TVC Amendments. Two

of these areas of noncompliance, with respect to potable water

and sanitary sewer (Paragraph I.A.1) and with respect to

workforce housing (Paragraph I.A.3) were dealt with by the

County's Remedial Amendments and are not at issue in this

proceeding.

47. With respect to transportation, Paragraph I.A.2. of

the Statement alleged:

The Plan Amendments include future land use

map amendments which would increase demand

on transportation facilities and services.

The Plan Amendments do not modify the

Capital Improvements Element to provide for

transportation facility enhancements to

accommodate the increased demand on

transportation facilities and services and

maintain adopted level of service standards.

To cure this asserted deficiency, the Statement of Intent

directed that the County should amend the Capital Improvements

Element to include "the transportation facility improvements

needed to support the amendment."

48. The Department and the County subsequently settled the

issues in the Statement of Intent, and on June 5, 2007, the

County adopted Ordinance No. 07-037, containing Remedial

Amendments directed to the deficiencies alleged in the Statement

of Intent. In support of the Remedial Amendments, the County

submitted additional data and analysis, which the Department

expressly accepted as adequate.

49. With respect to transportation issues, the Remedial

Amendments contained sections entitled, "Proposed Transportation

Amendments to TVC Element," and "Proposed Transportation

Amendments to Capital Improvement Element." Under the latter

heading, the Amendments created Table 11-13, which is a tabular

listing of the future roadways that already were shown, with

projected construction dates, on Figure 3-15 of the TVC

Amendments. Former Table 3-9, another listing of future roadway

improvements, was re-designated Table 11-11, which relocated it

from the FLUE to the Capital Improvements Element, but the

proposed future numbers of lanes on the roadways, including

Indrio Road, were not changed. Thus, the Capital Improvements

Element was amended to include the same roadway projects already

designed and included in the TVC Amendments at the time of their

adoption. The design of the roadway network was not altered in

the Remedial Amendments; in fact, Figure 3-15 was reproduced in

the Remedial Amendments and changed only by assigning names to

some of the previously unnamed future roadways. APA Emerson has

not challenged the financial feasibility of Table 11-13 or Table

11-11.

50. The Remedial Amendments also addressed transportation

concurrency by amending Policies 3.1.4.13 and 3.1.9.17.

Concurrency, as to specific properties such as APA Emerson's

property, is not an issue in this case or in any growth

management case; rather, APA Emerson's allegations assert that

the long-range planning for the future roadway network is

inadequate. The Remedial Amendments also provided that the MPO

transportation map had been amended to reflect Figure 3-15, the

TVC Future Street Network Map (Policy 3.1.9.19); that internal

capture rate and jobs-to-housing ratio would continue to be

monitored (Policies 3.1.9.20, 21, and 22); and that a master

transportation plan to direct funding and prioritize building

the roadways shown on the Future Street Network Map would be

established within two years (Policy 3.1.9.23). None of these

features of the Remedial Amendments are at issue in the present

proceeding.

51. A major focus of the Remedial Amendments with respect

to transportation was demonstrating five-year financial

feasibility to conform to the 2005 Growth Management Act

amendments contained in Chapter 2005-290, Laws of Florida (2005)

(Senate Bill 360), which was passed during the process leading

to the TVC Amendments. Thus, the County committed in Policy

3.1.9.16 to create a special taxing district, municipal services

taxing district, and/or a municipal services benefit unit to

fund capital improvements within the North St. Lucie County

Special Area Plan to the extent such improvements were not

adequately funded by other sources. Policies 11.1.1.29 and

11.1.1.30 addressed financial feasibility, and Tables 11-12 and

11-12A listed the roadway projects that would be required within

five years to maintain level of service standards within the TVC

Area, and funding sources for such projects.

52. Policy 3.1.1.2 and Table 3-1, capping the maximum

residential dwelling units (37,500), commercial and retail uses

(5,000,000 square feet) and industrial uses (464 acres), were

unaltered by the Remedial Amendments. Policies 3.1.2.5

(Transferable Development Value Map) and 3.1.3.1.4 (Potential

Densities and Intensities), both of which reiterate the intent

of the TVC Amendments not to limit the underlying densities and

intensities established by the pre-existing FLUE, were also

unchanged by the Remedial Amendments. Policies 3.1.8.1 through

3.1.8.3 and Figure 3-13, setting forth the plan for retail

development within the TVC area, also were unchanged.

53. It was clear from Mr. Mulholland's testimony that the

long-term analysis that modeled the Future Street Network plan,

Figure 3-15, was neither replicated nor altered in connection

with the Remedial Amendments. In fact, Mr. Mulholland used a

different traffic analysis model, know as "Art Plan," to focus

on particular links shown on Figure 3-15, and to identify any

short-term infrastructure needs. Mr. Mulholland testified that

no changes were made to the previously-designed transportation

network necessary for build-out of the TVC area.

54. To address the five-year financial feasibility issue,

Mr. Mulholland conducted a short-term traffic modeling analysis

to identify improvements necessary through the year 2011. The

final version of this study, dated April 5, 2007, was included

in the additional data and analysis submitted in support of the

Remedial Amendments.

55. The 2011 traffic study (JX 12) began with the existing

transportation network and existing traffic condition in year

one, and assumed an absorption rate of 375 new residential units

in 2008, 2009, 2010, and 2011, for a total of 1,500 units. The

study also assumed absorption of 80,000 square feet of new

commercial retail space during this planning period.

Mr. Mulholland did not generate these absorption figures, but he

believed they were based upon the maximum 37,500 residential

units and 5,000,000 square feet of commercial/retail space

capped by the Amendment. The absorption figures were provided

to him by planning and economic consultants.

56. As a result of the 2011 study, necessary improvements

to existing road infrastructure were identified in the first

five years and were listed, along with funding sources in the

Capital Improvements Element, on new Tables 11-12 and 11-12A.

57. The purpose of the study was not to design the

transportation network itself; that work was already completed

in connection with the previously-adopted TVC Amendments.

Rather, the ansportation Study was confined to

identifying those elements of the future transportation network

which would be needed in the first five years of the Plan so

that funding sources could be identified. Thus, the 2011

Transportation Study related to the County's demonstration of

financial feasibility, not to the adequacy of the network

itself.

APA Emerson's Challenge

58. The Corrected Order on Pending Motions entered on

February 1, 2008, struck several issues from APA Emerson's

Amended Petition because they were not timely. The remaining

issues included those set out in paragraphs 52, 53, 55, and 56

of its Amended Petition: paragraph 52 alleged a failure by the

County to adequately plan for a roadway network to support

development on lands designated TVC, inconsistent with Sections

163.3177(6)(a) and (6)(b), Florida Statutes, and Rules 9J-

by the County to adequately analyze maximum development,

inconsistent with Sections 163.3177(6)(a) and (8), Florida

55 alleged a failure by the County to adequately coordinate land

uses with the transportation system, inconsistent with Sections

163.3177(6)(a) and (6)(b), Florida Statutes, and Rules 9J-

5.006(3)(b)1. and 9J-5.019(4)(b)2.; and paragraph 56 alleged a

failure of the Future Traffic Circulation Map to depict all

roadways, including collector and arterial roads, which will be

needed to accommodate development on lands designated TVC,

inconsistent with Rule 9J-5.019(5)(a).

59. In an attempt to prove its case on those issues, APA

Emerson asserted that the transportation system had to plan for

the maximum theoretical build-out of the TVC area--which APA

Emerson said was either in excess of 41 million square feet

(arrived at by applying the floor area ratios under the pre-

existing future land use map and plan provisions within the TVC

area) or, alternatively, approximately 17 million square feet

(using a planning "rule of thumb" of 10,000 square feet of

commercial use per acre).

60. In essence, APA Emerson's assertions are just another

variation of its untimely challenge to the TVC Amendments, and

not a timely challenge to the Remedial Amendments. APA Emerson

asserts essentially that the transportation system in the

County's Plan will not meet the needs of growth contemplated in

the FLUE. But both the FLUE and transportation system planned

to meet it are established in the TVC Amendments and unchanged

by the Remedial Amendments. The Remedial Amendments do not

change either part of the equation.

61. Even if timely raised, the challenge fails to

appropriately consider the implications of the "maximum

allowable development program" in TVC Policy 3.1.1.2, which sets

new "theoretical maximums" in the TVC area (namely, 37,500

residential units, 5,000,000 square feet of commercial use, and

464 acres of industrial use). The TVC Amendments plan to meet

the transportation needs of the new "theoretical maximum" build-

out of the TVC area. (Possibly valid questions related to the

implementation of the growth caps are not timely.)

62. Even without the new growth caps, the so-called

"theoretical maximums" asserted by APA Emerson include

hypothetical development of substantial areas with pre-existing

mixed-use ("MXD") land-use classification on the unrealistic and

inappropriate assumption that such areas would be developed

entirely for commercial use with no residential use.

63. The 41 million plus square feet of retail space that

results from APA Emerson's so-called "theoretical maximums"

represent the equivalent of 20 or more regional shopping malls,

at an average of 1 to 2 million square feet per regional mall.

The "rule-of-thumb" measure would result in the equivalent of

almost ten such malls. Meanwhile, there already are existing

regional malls in relatively close proximity to the north and

south of the TVC area, the influence areas of which overlap in

the TVC area. This makes it unlikely that one regional mall,

much less 20, or even ten, would ever be built in the TVC area.

64. The County's retail market expert projected that

retail development totaling approximately one million square

feet would be adequate to serve the retail needs for the 37,500

dwelling units allowable within the TVC area, including retail

needs of the larger, regional area for "highway commercial" or

"big box" retail that is likely to locate in the TVC area in the

future. The remaining four million square feet of commercial

use was projected to be adequate for future office uses in the

area based on the expert's jobs-housing ratio analysis. APA

Emerson did not prove beyond fair debate that 5 million square

feet of commercial use was inadequate or inappropriate to assume

for planning transportation and other public facilities.

65. APA Emerson asserted that the County had an obligation

to conduct a property-by-property analysis to determine

development constraints such as wetlands and stormwater

management requirements in order to determine the maximum

"feasible" commercial development. But such an assessment would

require the collection of data that was not available to the

County at the time of the TVC Amendments or the Remedial

Amendments. Besides, the market demand projections undertaken

by the County's expert consultants were as or more important to

gauge likely future commercial development. To the extent that

APA Emerson was implying that the County should have surveyed

all property owners in the TVC area to attempt to ascertain the

likely intensity of future commercial development, this also

would have required the collection of data that was not

available to the County at the time of the TVC Amendments or the

Remedial Amendments.

66. Using a similar approach as for the TVC area as a

whole, APA Emerson also asserted that the transportation system

planned for build-out of the TVC area failed to take into

account either the theoretical maximum or the "rule-of-thumb"

commercial development of certain land holdings, such as APA

Emerson's property. Specifically, it pointed to the theoretical

maximum build-out of APA Emerson's 26 acres at over 500,000

square feet of commercial use, or "rule-of-thumb" build-out of

260,000 square feet of commercial. But those theoretical

maximums and "rule-of-thumb" calculations do not prove beyond

fair debate that the transportation system planned to

accommodate what actually will occur on APA Emerson's property

was not appropriately based on data and analysis.

67. The only contrary data and analysis as to what might

actually occur on APA Emerson's property was the testimony of

Mr. Martinez that APA Emerson would initially plan for

approximately 200,000 square feet of commercial on the property

as soon as necessary approvals could be obtained to meet near-

term market demand and would hope to be able to increase the

intensity of its commercial use to meet future market demand.

Mr. Martinez' testimony was new data not available to the County

at the time of the Remedial Amendments, much less the TVC

Amendments. In any event, his testimony was insufficient to

prove beyond fair debate that the absorption rates, the existing

traffic conditions, or the other assumptions used by

Mr. Mulholland in his ansportation Study were incorrect

or inappropriate. If the 80,000 square foot absorption figure

used in Mr. Mulholland's 2011 study underestimated actual

demand, this would be dealt with under the policies in the

Remedial Amendments, which appropriately address short-term

concurrency issue issues.

68. Using the same kind of approach, APA Emerson also

asserted that the transportation system planned for build-out of

the TVC area failed to take into account either the theoretical

maximum or the "rule-of-thumb" commercial development of certain

parts of the TVC area. Specifically, it pointed to the

commercial nodes where Indrio Road intersects Emerson Avenue and

Kings Highway and compared the "theoretical maximum" and the

"rule-of-thumb" commercial development at those locations to the

TAZ allocations used in the County's data and analysis. Those

assertions likewise failed to prove beyond fair debate that the

TAZ allocations were inappropriate for transportation planning

purposes or that the Remedial Amendments (or the TVC Amendments)

were not appropriately based on data and analysis.

69. APA Emerson also cited evidence that Wal-Mart was

considering development of a store at Indrio Road and Kings

Highway but was encouraged by the County to consider another

location more appropriate for "warehouse retail" store because

the road network planned for the Indrio/Kings intersection

"would be insufficient to achieve concurrency." However,

concurrency is not a long-term planning issue and was not raised

as an issue as to the Remedial Amendments. In any event, it was

not proven beyond fair debate that the Remedial Amendments are

somehow not based appropriately on data and analysis because of

Wal-Mart's inability to achieve concurrency at that location.

70. APA Emerson also criticized the County for planning

"barely sufficient roadway infrastructure to accommodate even

just the 5 million square feet of commercial development" and

for not leaving a "margin of error." PRO, paragraph 44. But

APA Emerson presented no evidence that "barely sufficient" is

insufficient or that planning for transportation planning errors

is required or appropriate planning. It certainly did not prove

beyond fair debate that the County's Remedial Amendments (or TVC

Amendments) were not appropriately based on data and analysis or

were otherwise fatally defective for that reason.

71. APA Emerson took issue in paragraphs 62-63 of its PRO

with two alleged differences in the transportation plan between

the TVC Amendments and the Remedial Amendments. One was that

Table 3-9 of the TVC Amendments identified the widening of

Johnston Road by 2030 extending as far south as "W Angle Road,"

while Table 11-11 in the Remedial Amendments identified those

improvements as extending as far south as "Immokalee Road." But

there was no evidence as to the significance of that difference,

other than the statement of Mr. Mulholland on cross-examination:

"They are slightly different." The other alleged difference

actually was not a difference at all. Both Table 3-9 of the TVC

Amendments and Table 11-11 in the Remedial Amendments state that

they are improvements planned to occur by 2030, notwithstanding

a footnote to Table 11-11 that the improvements were "[b]ased on

maximum build-out identified in Table 3-1 of the TVC Element."

APA Emerson certainly did not prove beyond fair debate that the

Remedial Amendments were not appropriately based on data and

analysis or were otherwise fatally defective for those reasons.

72. Another fault APA Emerson found with the data and

analysis supporting the Remedial Amendments in paragraph 66 of

its PRO was that Mr. Mulholland's 2006 transportation planning

analysis was based on 2004 traffic counts, but Mr. Mulholland

testified on cross-examination that "it's common practice to

routinely update your traffic counts." Regardless of "common

practice," there was no evidence whether updated traffic counts

were available at the time of adoption of the Remedial

Amendments or whether updated traffic counts, if they existed,

would not have supported Mr. Mulholland's analysis. APA Emerson

certainly did not prove beyond fair debate that the County's

Remedial Amendments were not appropriately based on data and

analysis or were otherwise fatally defective for alleged failure

to use updated traffic counts.

73. APA Emerson also attacked Mr. Mulholland's

transportation planning analysis in paragraph 69 of its PRO

based on Mr. Mulholland's testimony on cross-examination that a

roadway-by-roadway analysis would be required to determine

whether the capacity of a specific roadway would be doubled by

widening or whether a new parallel road was required. But there

was no evidence as to the relevance or necessity of such

determinations. APA Emerson certainly did not prove beyond fair

debate that the County's Remedial Amendments were not

appropriately based on data and analysis or were otherwise

fatally defective because Mr. Mulholland did not make those

determinations.

74. APA Emerson asserted in paragraph 73 of its PRO that

the data and analysis also were somehow deficient because

Mr. Mulholland's "analysis of what volumes and capacities would

be on the proposed new roads (as opposed to the improved

existing roads) once the Future Street Network Plan was

implemented . . . was not included in the data and analysis

supporting the Remedial Amendments." Actually, Mr. Mulholland's

testimony was that there was technical analysis of those

matters. The technical analysis was not "submitted to DCA" but

the modeling derived from the technical analysis was submitted.

There was no evidence that there was any requirement to submit

the technical analysis to the Department. In any event, APA

Emerson certainly did not prove beyond fair debate that the

County's Remedial Amendments were not appropriately based on

data and analysis or were otherwise fatally defective for

alleged failure to submit the technical analysis to the

Department.

75. The allegations remaining after the Corrected Order on

Pending Motions entered on February 1, 2008, also included

allegations that the Remedial Amendments were internally

inconsistent with the TVC Amendments and other parts of the

Comprehensive Plan. APA Emerson presented no evidence of the

alleged internal consistencies other than the Comprehensive Plan

provisions themselves. Without any other evidence, APA Emerson

did not prove any alleged internal inconsistency beyond fair

debate.

76. Paragraphs 74-79 of APA Emerson's PRO reflect that, as

with the vast majority of APA Emerson's challenge, much if not

all of the alleged internal inconsistency relies on the

assertion that the County's long-term transportation plan is

insufficient to meet the needs of its future land use. All of

those contentions already have been addressed. No internal

inconsistency was proven.

CONCLUSIONS OF LAW

77. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of these

proceedings. §§ 120.569, 120.57(1), and 163.3184, Fla. Stat.

Issues and Burden of Proof

78. The ultimate issue in these proceedings is whether the

Remedial Amendments are "in compliance" as that term is defined

in Section 163.3184(1)(b), Florida Statutes. Since the

Department issued a Cumulative Notice of Intent to find the

Remedial Amendments to be "in compliance," the provision

relating to burden of proof in Section 163.3184(9)(a), Florida

Statutes, governs and provides that the Remedial Amendments

"shall be determined to be in compliance if the local

government's determination of compliance is fairly debatable."

See § 163.3184(16)(f), Fla. Stat. This language shifts the

burden of proof to APA Emerson to establish noncompliance. See

Current v. Town of Jupiter and Department of Community Affairs ,

DOAH Case No. 03-0718GM (DOAH Oct. 24, 2003; DCA Apr. 8, 2004).

79. While most administrative proceedings conducted under

Chapter 120 are de novo , the Florida Legislature has treated

administrative review of comprehensive plan amendments

differently. See Brown, et al. v. Department of Community

Affairs, et al. , DOAH Case No. 06-0881GM (DOAH Dec. 5, 2006; DCA

Apr. 3, 2007). Under Sections 163.3184(9)(a) and (16), Florida

Statutes, APA Emerson bears the burden of demonstrating "beyond

fair debate" that the Remedial Amendments are not "in

compliance."

80. The term "fairly debatable" is not defined in Chapter

163 or in Rule 9J-5. However, the Florida Supreme Court has

held the term to be synonymous with the common law "fairly

debatable" standard used to review decisions of local

governments acting in their legislative capacity. Martin County

v. Yusem , 690 So. 2d 1288, 1295 (Fla. 1997). The "fairly

debatable" standard of review is a highly deferential standard

requiring approval of the local government's comprehensive

planning decision, "if reasonable persons could differ as to its

propriety," id. , or if, "for any reason it is open to dispute or

controversy on grounds that make sense or point to a logical

deduction that in no way involves its constitutional validity."

City of Miami Beach v. Lachman , 71 So. 2d 148, 152 (Fla. 1953).

Timeliness of APA Emerson's Assertions

81. Initially, it is clear from the record that the

allegedly inadequate roadway network was planned, designed, and

analyzed as part of the TVC Amendments and was not altered in

any significant respect by the Remedial Amendments. The

proposed roadway network is identical before and after the

Remedial Amendments, as shown by Figure 3-15 in the original TVC

Amendments and Figure 3-15 in the Remedial Amendments. The

long-term transportation modeling done in support of the future

roadway network was not amended or re-submitted in connection

with the Remedial Amendments. The cap of 5 million square feet

on commercial development remained unchanged by the Remedial

Amendments.

82. The focus of the Remedial Amendments was to adopt

Table 11-13 in the Capital Improvements Element, which is a

tabular representation of the future roadway network already

depicted on Figure 3-15, and to comply with Senate Bill 360 by

addressing five-year financial feasibility of the roadway

improvements necessary in that shorter time-frame. These

efforts were different from the long-term regional traffic

analysis that was performed to support the TVC Amendments.

83. APA Emerson has not asserted, either in its Amended

Petition or in its proof at hearing, that the proposed

transportation network is not financially feasible. APA Emerson

put on no evidence to suggest that the five-year study of

financially feasible transportation improvements was flawed,

inadequate, or inappropriate.

84. Much of APA Emerson's case focused on the alleged

failure to plan roadway improvements to serve commercial

development well in excess of the "maximum allowable" 5 million

square feet under Policy 3.1.1.2. To that extent, for the

reasons expressed in the Corrected Order on Pending Motions,

entered February 1, 2008, APA Emerson's attempts to attack the

County's planning for a long-term future roadway network, and

the data and analysis that support that planning, is untimely.

APA Emerson is attempting to "reach back" and challenge aspects

of the previously-adopted TVC Amendments that it did not

challenge within the statutory time limitations for such

challenges. Rossignol v. Islamorada, Village of Islands and

Dept. of Community Affairs , DOAH Case No. 01-2409GM, 2001 Fla.

ENV LEXIS 274 (DCA Dec. 6, 2001); 2001 Fla. Div. Adm. Hear.

LEXIS 3139 (DOAH Nov. 16, 2001).

Internal Consistency

85. The Remedial Amendments can be found to be internally

inconsistent only if it were proven beyond fair debate that they

are "in conflict with" the TVC Amendments or other provisions of

the Comprehensive Plan. See Sheridan, et al. v. Lee County, et

al. , DOAH Case No. 90-7791GM, RO ¶¶ 242-244 (DOAH Jan. 27, 1992;

Admin. Comm'n Feb. 10, 1994). To extent that the internal

inconsistency issues were timely, APA Emerson failed to meet its

burden of proof.

Adequacy of Data and Analysis

86. In support of its contention that the County did not

adequately plan the roadway network to accommodate projected

development, APA Emerson cited Section 163.3177(6)(a)-(b) and

a).

All of these provisions relate to the requirement that

comprehensive plans and plan amendments be supported by adequate

data and analysis. To the extent that the data and analysis

issues were timely, APA Emerson did not prove beyond fair debate

that the Remedial Amendments are inconsistent with any of those

provisions.

87. APA Emerson contends that the data and analysis do not

support the Remedial Amendments essentially because the County

has not planned a transportation system capable of serving well

in excess of the 5 million square feet of "maximum allowable"

commercial development under Policy 3.1.1.2, which also is the

amount of commercial growth that is realistic based on the data

and analysis. It is inappropriate to plan for public facilities

based growth projections well in excess of the maximum allowable

and what is realistic to expect to occur in the future. See

Dept. of Community Affairs v. Lee County , DOAH Case No. 95-

0098GM, ACC-96-002, (DOAH RO Jan. 31, 1996; Admin. Comm'n FO

Jul. 25, 1996)( public facilities must be planned based on

realistic projections, while land use allocations must be based

on FLUE theoretical maximums).

88. In addition, transportation planning is not driven

solely by traffic modeling; other planning considerations are

relevant. See , e.g. , Dept. of Community Affairs v. City of Ft.

Myers , Case No. 89-2159 (DOAH RO Jan. 7, 1992); Zemel v. Lee

County , DOAH Case No. 90-7793GM, DCA93-154-FOF-CP (DOAH RO

Dec. 16, 1992; DCA FO June 22, 1993). Besides being supported

by the traffic modeling, the long-term transportation network

planned by the County furthered the desire to maintain a rural,

pedestrian-friendly character of roads in the area and to meet

transportation needs with a dense network of smaller roadways

rather than a sparse, hierarchical network that depends on a few

large, multi-lane roads.

89. In paragraph 116 of its PRO, APA Emerson cites the

Zemel case for the proposition that "data supporting assumptions

underlying comprehensive plan amendments must be in existence at

the time of adoption of those amendments." APA Emerson then

contends that "the data supporting the assumptions of the

Remedial Amendments, including the TVC roadway plan and the

Traffic Study, was [sic] not in existence at the time of the

adoption of the Remedial Amendments."

90. It is not clear exactly what APA Emerson is arguing

here. It is clear under the Zemel case that the County was not

required to react to data not in existence at the time of

adoption of the Remedial Amendments. If APA Emerson is

asserting that the Remedial Amendments require the support of

data not in existence at the time of adoption in order to be "in

compliance," it is possible that APA Emerson's reference is to

an allegation that the County "failed to collect data and

conduct analyses to support the assumptions made in the Remedial

Amendments." PRO, at paragraph 67. If so, it is clear that the

County was not required to collect original data. See Rule 9J-

5.005(2)(b). It also was not proven beyond fair debate that the

County failed to use the most up-to-date data ( i.e. , traffic

counts), or that the failure to use them made any significant

difference. As to analyses, APA Emerson did not prove beyond

fair debate that the County's analyses were inadequate.

91. APA Emerson also contends that the County's data and

analysis were inadequate because the County did not submit to

the Department the technical analysis supporting the

transportation modeling that was submitted in support of the

long-term transportation plan in the TVC Amendments. Besides

being untimely to the extent that the challenge is directed to

the TVC Amendments, there is no requirement that all data and

analysis must be submitted to the Department. In fact, under

the Zemel case, new analyses can be considered as support for a

plan amendment up to the time of the final hearing.

92. In support of its contention that failure to submit

the technical analyses to the Department was a fatal defect, APA

Emerson cites to the case of Sheridan, et al. v. Lee County, et

al. , supra , at RO ¶ 263. But in that case, it appears that the

local government was unable to produce for consideration at the

final hearing evidence of baseline existing land use data and

analysis that was necessary to resolve factual issues regarding

the adequacy of the data and analysis supporting the plan

amendments. As stated in the Recommended Order in that case:

"Without reasonable certainty as to the starting point in terms

of existing land uses, the 2010 overlay is meaningless." Id. at

RO ¶ 267. There was no evidence in this case that the County

was unable to produce data and analysis that was necessary to

resolve an important factual issue, or that the Remedial

Amendments are meaningless.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Community Affairs enter

a final order denying APA Emerson's Amended Petition and finding

the Remedial Amendments to be "in compliance."

DONE AND ENTERED this 13th day of May, 2008, 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

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 13th day of May, 2008.

COPIES FURNISHED:

Thomas Pelham, Secretary

Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 100

Tallahassee, Florida 32399-2100

Shaw P. Stiller, General Counsel

Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 325

Tallahassee, Florida 32399-2160

Glenn N. Smith, Esquire

Ruden, McClosky, Smith,

Schuster & Russell, P.A.

Post Office Box 1900

Fort Lauderdale, Florida 33302-1900

Daniel S. McIntyre, Esquire

St. Lucie County

Third Floor Administrative Annex

2300 Virginia Avenue

Fort Pierce, Florida 34952-5632

Andrew J. Baumann, Esquire

Lewis, Longman and Walker, P.A.

1700 Palm Beach Lakes Boulevard, Suite 1000

West Palm Beach, Florida 33401-2006

H. Michael Madsen, Esquire

Vickers, Madsen & Goldman, LLP

1705 Metropolitan Boulevard, Suite 101

Tallahassee, Florida 32308-3765

Richard E. Shine, Esquire

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399-2100

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.