08-004820GM Department Of Community Affairs vs. City Of Tampa Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Friday, January 7, 2011.

Summary: Plan amendment changing land use on two parcels adjacent to MacDill AFB is compatible with safety and noise standards.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF COMMUNITY )

AFFAIRS, )

)

Petitioner, )

)

and )

)

DEPARTMENT OF THE AIR FORCE, )

)

Intervenor, )

)

vs. ) Case No. 08-4820GM

)

CITY OF TAMPA, )

)

Respondent, )

)

and )

)

FLORIDA ROCK & TANK LINES, )

INC. )

)

Intervenor. )

_______________________________ )

RECOMMENDED ORDER

Pursuant to notice, this matter was heard before the

Division of Administrative Hearings by its assigned

Administrative Law Judge, Donald R. Alexander, on May 18-20,

2009, in Tampa, Florida.

APPEARANCES

For Petitioner: Matthew G. Davis, Esquire

David L. Jordan, Esquire

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahasssee, Florida 32399-3000

For Intervenor: Major George L. Burnett, Esquire

(Air Force) United States Air Force

Environmental Law & Litigation Section

112 Luke Avenue, Suite 343

Bolling Air Force Base, DC 20032-6400

John F. Rudy, III, Esquire

Assistant United States Attorney

400 North Tampa Street, Suite 3200

Tampa, Florida 33602-4798

For Respondent: Ernest Mueller, Esquire

L. Robin McKinney, Esquire

City Attorney's Office

315 East Kennedy Boulevard, Fifth Floor

Tampa, Florida 33602-5211

For Intervenor: Karen A. Brodeen, Esquire

(Florida Rock) Fowler White Boggs, P.A.

Post Office Box 11240

Tallahassee, Florida 32302-1240

Mark S. Bentley, Esquire

Mark Bentley, P.A.

201 North Franklin Street, Suite 1650

Tampa, Florida 33602-5167

STATEMENT OF THE ISSUE

The issue is whether Plan Amendment 07-08 adopted by the

City of Tampa (City) by Ordinance No. 2008-145 on August 21,

2008, is in compliance.

PRELIMINARY STATEMENT

City Ordinance No. 2008-145 adopted an amendment (PA07-08)

to the Future Land Use Map (FLUM) of the City's Comprehensive

Plan (Plan), which changes the land use category on a 25.51-acre

parcel from Light Industrial to Community Mixed Use-35. 1 The

parcel is located in close proximity to MacDill Air Force

Base (MacDill), a military installation as defined by

Section 163.3175(7)(b), Florida Statutes. 2 The amendment was

adopted under the Alternative Review Process Pilot Program

(Pilot Program), which is codified in Section 163.32465, Florida

Statutes.

On September 26, 2008, Petitioner, Department of Community

Affairs (Department), filed with the Division of Administrative

Hearings (DOAH) a Petition for Formal Administrative Hearing

(Petition) in which it contended the amendment is not in

compliance because the amendment is internally inconsistent with

other provisions within the Plan, Chapter 163, Florida Statutes,

Florida Administrative Code Rule Chapter 9J-5, the State

Comprehensive Plan, and the Strategic Regional Policy Plan; the

amendment is not supported by the best available, relevant, and

appropriate data and analyses; the amendment will result in

neighboring incompatible uses; and the City exceeded its

authority in adopting the amendment. (In its Proposed

Recommended Order, the Department states that it has voluntarily

dismissed contentions that the amendment is inconsistent with

the State Comprehensive Plan and that it raises potential

traffic impact issues.)

On October 20, 2008, Intervenor, Florida Rock & Tank Lines,

Inc. (Florida Rock), the applicant for the map change, was

authorized to intervene in support of the amendment. By Order

dated April 27, 2009, the United States Department of the Air

Force (Air Force) was authorized to intervene in opposition to

the plan amendment.

Various procedural and discovery disputes arose during the

course of the proceeding, and the disposition of those matters

is found in the Orders issued in this docket.

By Notice of Hearing dated November 17, 2008, a final

hearing was scheduled on March 24-27, 2009, in Tampa, Florida.

The parties' Joint Motion to Continue Hearing was granted, and

the case was rescheduled to May 18-20, 2009, at the same

location.

A Joint PreHearing Stipulation, as later supplemented, was

filed by the parties on May 15, 2009. At final hearing, the

Department presented the testimony of Chris A. Wiglesworth, a

Senior Planner and accepted as an expert. Also, it offered

Department Exhibits 1, 2, 4-7, 9-11, 14, and 15, which were

received in evidence. 3 The Air Force presented the testimony of

Burton R. Lester, Jr., an Air Installation Compatible Use Zone

(AICUZ) Program Manager and accepted as an expert; Lynn

Engleman, an AICUZ Program Manager and accepted as an expert;

Lieutenant Colonel Brian N. Smith, Commander, 91st Air Refueling

Squadron at MacDill; and Second Lieutenant Rebecca Heyse, Chief

of Public Affairs for the Sixth Air Mobility Wing at MacDill.

Also, it offered Air Force Exhibits a, b, d-g, g1, h, p, q, t,

and u, which were received in evidence. The City presented the

testimony of Randy Goers, City Urban Planning Coordinator and

accepted as an expert; Anthony Rodriguez, City Construction

Operation Manager and accepted as an expert; Nick D'Andrea, City

Construction Permit Manager; and the deposition testimony of

Anthony J. Garcia, a Principal Planner with the Hillsborough

County City/County Planning Commission (Planning Commission) and

accepted as an expert. Also, it offered City Exhibits 20, 27,

28, 32, 35, 37, and 39-43, which were received in evidence.

Florida Rock presented the testimony of James W. Stutzman, a

professional planner and president of Stutzman Consulting, Inc.,

and accepted as an expert. Also, it offered Florida Rock

Exhibits 2, 3, 5, 20, 24, 28-30, 32, 34, and 35, which were

received in evidence. Joint Exhibits 1 and 2 were received in

evidence. Finally, official recognition was taken of 14 CFR

Part 150, Appendix A, which is the Federal Aviation

Administration (FAA) land use compatibility table.

The Transcript of the hearing (five volumes) was filed on

July 6, 2009. Proposed Recommended Orders were filed by the

parties on August 7, 2009, and they have been considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following facts are

determined:

A. The Parties

1. The City is a municipality in Hillsborough County and

has adopted a Plan that it amends from time to time. Its

current Plan, as amended, was adopted in 1998 and has been

determined to be in compliance. Since 2007, the City has

participated in the Pilot Program for adoption of plan

amendments, a process described in Section 163.32465, Florida

Statutes. Under the Pilot Program, municipalities have "reduced

state oversight of local comprehensive planning," and plan

amendments may be enacted in "an alternative, expedited plan

amendment adoption and review process." Id. The amendment

being challenged here was adopted under the Pilot Program.

2. The Department is the state land planning agency and is

statutorily charged with the duty of reviewing plan amendments.

Pursuant to the Pilot Program, the City must send a plan

amendment transmittal package to the Department (and other

designated agencies and entities) for its preliminary review.

However, the Department does not issue an Objections,

Recommendations, and Comments Report or a notice of intent.

Instead, it "may provide comments regarding the amendment or

amendments to the local government." § 163.32465(4)(b), Fla.

Stat. The Department may also initiate an administrative

proceeding for the purpose of determining whether an amendment

is in compliance. See § 163.32465(6)(b), Fla. Stat.

3. Florida Rock owns property and operates a business

within the City and submitted oral and written comments in

support of the proposed amendment. The facts establish that it

is an affected person and has standing to participate in this

proceeding.

4. The Air Force owns property abutting Florida Rock's

property and on which MacDill is located. The Air Force

submitted written and oral comments to the City in opposition to

the plan amendment. As such, it is an affected person and has

standing to participate in this proceeding.

B. Background

5. A part of the City extends down a peninsula known as

Interbay Peninsula with Hillsborough Bay to the east, Tampa Bay

to the south, and Old Tampa Bay to the west. MacDill is located

at the southern tip of the peninsula and consists of 5,767

acres. The facility was established in 1941. Its primary

runway (Runway 4/22) is 11,421 feet long, exclusive of the 995-

foot overrun, and runs in a southwest-northeast direction.

Because of prevailing winds and its proximity to other airports

in the St. Petersburg area to the west, the majority of the

takeoffs are to the northeast. Around ninety percent of the

landings are from the southwest (over Tampa Bay on the approach)

to the northeast.

6. Florida Rock owns two adjoining parcels of land on

Interbay Peninsula, totaling 25.51 acres, located at 6604 South

Dale Mabry Highway, which is a commercial corridor. The

property lies just south of InterBay Boulevard, a few hundred

feet west of Himes Avenue, and directly north of MacDill. At

its closest, the site is less than three thousand feet from the

edge of the overrun portion of the active runway.

7. To the north and east of the property are residential

properties, many of which were developed between 1940 and 1959.

Another surge of development occurred in the 1980s. The

properties to the north have residential land use designations.

Future residential development of parcels to the north and east

are capped at ten units per acre because of their location near

MacDill. Directly to the south of the property is a vacant

parcel with a Light Industrial land use. To the east of that

property is land used as a park and includes baseball and soccer

fields. MacDill lies south of the vacant parcel. The existing

uses west of the property (and to the west of Dale Mabry

Highway) are commercial, industrial, apartment, and office.

8. The subject property has been classified as Light

Industrial under the City's Plan. As the name implies, that

land use category allows for light industrial uses that have

only minimal offsite impacts such as noise and odor, along with

offices, manufacturing, warehousing, and other general

commercial uses. Residential uses are prohibited under this

category. Development is subject to a maximum floor area ratio

of 1.5. (Floor area ratio measures the intensity of non-

residential land uses.) Currently, a warehouse distribution

facility (truck terminal) owned by Florida Rock is located on

the northern end of the property. Approximately one-half of the

parcel is vacant. A small part of the property (between eight

and nine acres) on the southern end is wetlands and has been

designated as an environmentally sensitive area by the Planning

Commission.

9. On March 8, 2007, Florida Rock filed an application

with the Planning Commission to change the land use on the

property from Light Industrial to Community Mixed Use-35 (CMU-

5). See Joint Exhibit 2. The proposed use of the property was

described in the application as a "Mixed Use Development." Id.

The new land use designates "areas suitable for general

commercial, professional office, and multi-family development"

and, absent any other limiting conditions, would permit a

development potential of eight hundred ninety-two residential

units or a maximum commercial buildout of almost 1.7 million

square feet. No text amendments were proposed.

10. On March 31, 2008, the Planning Commission recommended

approval of the application and forwarded that recommendation to

the City. On April 10, 2008, the City held its first public

hearing on the amendment and voted to transmit the plan

amendment to the Department and other entities that are required

by law to receive copies of the amendment and supporting data

and analyses. See § 163.32456(4)(a), Fla. Stat. The proposed

amendment and supporting data and analyses were submitted to the

Department and other entities on April 11, 2008. See Florida

Rock Exhibit 2.

11. Comments regarding the amendment were submitted by the

Department to the City on May 14, 2008. See Department Exhibit

10. Comments were also filed by the Air Force, the Florida

Department of Transportation, and the Tampa Bay Regional

Planning Council, all voicing concerns. 4 The Department

concluded its comments by stating that it "strongly urges the

City not to adopt the amendment." Id.

12. Notwithstanding the adverse comments, on August 21,

2008, the City adopted Ordinance No. 2008-145, which approved

the application and changed the land use on Florida Rock's

property to CMU-35. To counter at least in part the objections

lodged by the Department and Air Force, the Ordinance contained

a condition that "[r]esidential density shall not exceed ten

(10) units per gross residential acre of land and/or a floor

area ratio of 1.5." See Florida Rock Exhibit 3. This

limitation on residential development is consistent with Future

Land Use Element (FLUE) Policy A-3.1, adopted in 1989, which

limits new residential development within the MacDill and Tampa

International Airport flight paths, also known as Accident

Potential Zones, to ten dwelling units per acre. Under either

category, Florida Rock can build more than 1.5 million square

feet of commercial uses. More than likely, the potential

residential (and/or commercial) development on the property will

be something less than ten dwelling units per acre because of

setback, parking, mitigation, and other miscellaneous

requirements. Also, density bonuses do not apply. One City

witness estimated that the maximum development potential will be

around 8.6 units per acre.

13. The Department timely filed its Petition with DOAH on

September 26, 2008. See § 163.32465(6)(b), Fla. Stat. ("[t]he

state land planning agency may file a petition with the Division

of Administrative Hearings pursuant to ss. 120.569 and 120.57,

with a copy served on the affected local government, . . .

within 30 days after the state land planning agency notifies the

local government that the plan amendment package is complete").

14. Although the Petition and parties' Joint Prehearing

Stipulation identify a number of issues to be resolved, the

Department and Air Force's Proposed Recommended Orders address

only two broad grounds for finding the amendment not in

compliance: that the proposed land use is not compatible with

the adjacent military installation, which the Department

describes as being the "principal dispute in this proceeding";

and that the proposed plan amendment is not based on

relevant and appropriate data and analyses, as required by

Section 163.3177(6)(a), Florida Statutes, and Florida

Administrative Code Rule 9J-5.005(2)(a). All other allegations

are assumed to no longer be in issue, voluntarily withdrawn, or

not supported by the preponderance of the evidence. 5

C. Operations at MacDill

15. The host wing at MacDill is the Sixth Air Mobility

Wing (Wing). Serving under that Wing is the 91st Air Refueling

Squadron (Squadron), which owns sixteen KC-135R aircraft that

are permanently based at MacDill. The Squadron's primary

mission is refueling other military aircraft, a mission that

requires the KC-135R to travel around the globe. The KC-135R

can carry up to 200,000 pounds of Jet Propellant 8 (JP-8)

aviation fuel, a kerosene-based jet fuel, depending on the

nature and duration of its mission. Besides the KC-135R, other

aircraft permanently based at MacDill include three C-37s

(smaller jet aircraft) assigned to the 300LS Squadron, the 310th

Airlift Squadron, and five or six aircraft associated with the

National Oceanic and Atmospheric Administration.

16. MacDill also hosts approximately six-to-eight joint

exercises per year (lasting between one and three weeks)

involving numerous fighter and bomber aircraft that use the Avon

Park bombing range for training, as well as C-17s and C-130s

(transport aircraft) that use the facility for special training.

In addition, Air Force and National Guard reserve units train at

MacDill. Therefore, on any given day, multiple fighters and

aircraft from other military branches, and occasionally even a

commercial aircraft, may use the runways at MacDill.

17. On an average day at MacDill, there are sixty takeoffs

and landings and up to five sorties. This does not include

touch and go takeoffs and landings, which involve pattern or

transition work.

18. Mainly residential uses are located in the flight path

of Runway 4 as far south as, and to the east of, the Florida

Rock property. That type of development continues in the flight

path until the aircraft exit the Interbay Peninsula and pass

over Hillsborough Bay. Due to this encroachment, when departing

on Runway 4, the aircraft maintain a runway heading until

reaching an altitude of four hundred feet; they then turn right

on a heading of 080 and climb to, and maintain, one thousand,

six hundred feet until air space is de-conflicted to ensure that

all aircraft in the area are separated. Air traffic control

requires that all flights are instrument departures using radar

vectors. Also, because of existing residential encroachment and

concerns about noise, MacDill has compromised some of its

mission flexibility by limiting its hours of operation to 6:00

a.m. to 11:00 p.m. and limiting engine use on some fighter

aircraft by reducing after-burning usage.

19. When departing on Runway 4 and passing just to the

east of Florida Rock's property (and over the closest existing

residential development), the KC-135R is at an elevation of

approximately three hundred feet and sometimes as low as one

hundred forty feet, depending on its fuel load and wind

conditions.

D. Air Installation Compatible Installation Zone (AICUZ)

20. The AICUZ program is a program developed by the United

States Department of Defense for military airfields to promote

land use compatibility in areas subject to aircraft noise and

accident potential. There have been four AICUZ studies prepared

for MacDill, which were published in 1976, 1978, 1998, and 2008.

The latter study was not yet finalized and available to the

public when Plan Amendment PA-07-08 was adopted. The 1998 study

was prepared to present and document flying conditions at

MacDill following the reassignment of KC-135R aircraft to the

base in 1996.

21. The AICUZ delineates a Clear Zone, Accident Potential

Zone I (APZ I), and Accident Potential Zone II (APZ II) for each

runway and makes land use recommendations for each of those

areas. These areas are based on standardized data compiled from

military airfields around the globe to determine areas of

increased accident potential. However, the studies do not

assess risk nor consider the safety record of each individual

airfield.

22. Based on the standardized data, the Clear Zone is the

area with the highest potential for accidents, then the APZ I,

and finally the APZ II. Accident potential increases toward the

centerline of the runway, and away from the ends of those zones.

The southwest corner of Florida Rock's property abuts the Clear

Zone for Runway 4, while the remainder of the site lies within

the APZ I north-northeast of the runway. Two aerial photographs

submitted into evidence provide an excellent view of the zones,

the flight path of Runway 4, the existing development north of

the airfield, and the location of Florida Rock's property. See

Air Force Exhibits g and g1.

23. The AICUZ land use compatibility chart recommends no

residential uses in a Clear Zone or in an APZ I. (The chart

identifies a number of examples of uses that are compatible with

APZ I and flight operations at MacDill, such as miscellaneous

manufacturing and low intensity office use. See Department

Exhibit 3, pages 46 through 50.) In an APZ II, the AICUZ only

recommends approval of single-family detached units for

residential uses. These recommendations apply to all military

installations with airfields and do not take into consideration

unique local situations. However, the AICUZ recommendations are

not binding on local governments and are to be balanced by the

local government along with other planning considerations.

24. The active runway at MacDill is three thousand feet

wide. At the end of the overrun for Runway 4 (and Runway 22 to

the southwest) is the Clear Zone, which is normally three

thousand feet wide and three thousand feet long. At the end of

the Clear Zone is the APZ I, which ordinarily is three thousand

feet wide and five thousand feet long. At the end of the APZ I

is the APZ II, which ordinarily is three thousand feet wide. By

using standardized APZs, the Air Force can alter the mission of

a base ( e.g. , change from fighters to bombers) without having to

alter the APZs.

25. The southeastern end of Runway 22 is surrounded by

Tampa Bay. Therefore, the Clear Zone, APZ I, and APZ II for

Runway 22 are located over the water and conform to the standard

dimensions described above. Because aircraft departing on

Runway 4 are required to make a right turn to a heading of 080

shortly after departure, the flight track for Runway 4 has an

atypical split to the right. This deviation from a straight

extension from the runway is permitted only when a majority of

the aircraft fly predominately in the alternate direction. This

split causes the APZ I for Runway 4 to deviate from the ordinary

rectangular shape and to have two distinct APZ IIs, one directly

northeast of, and aligned with, Runway 4, and the other to the

east-northeast tracking the alternate direction of the aircraft

after takeoff. The City's Plan depicts the Clear Zone, APZ I,

and APZ II on Figure 11 of the Transportation Element and shows

the outline of those areas on the FLUM. See Fla. Admin. Code R.

9J-5.019(2)(a)5. and (5)(a)7., which requires that both the

Transportation Element and FLUM depict "clear zones and

obstructions."

26. Besides the delineation of a Clear Zone, APZ I, and

APZ II, the AICUZ also includes noise contours and land use

recommendations based on these noise contours. Noise contours

are specific to each airfield based on one year of flight data

applying noise variables, such as aircraft type, altitude, and

engine power. An additional ten decibel (dB) noise penalty is

added for flights after ten o'clock in the evening.

27. Noise contours are mapped in five dB increments

between sixty-five and seventy dB. A noise of sixty-five dB is

equivalent to the sound of normal conversations. A noise of

seventy-five dB is perceived by most persons to be twice as loud

as a sixty-five dB noise.

28. The AICUZ land use guidelines include a determination

that residential uses in the Day Noise Level (DNL) sixty-five to

sixty-nine contour and seventy to seventy-four contour are

generally compatible with noise attenuation of twenty-five dB

and thirty dB, respectively. The guidelines further note that

residential use is discouraged in DNL sixty-five to sixty-nine

and strongly discouraged in DNL seventy to seventy-four, but if

residential uses must be allowed, measures to achieve outdoor to

indoor Noise Level Reduction (NLR) for DNL sixty-five to sixty-

nine dB and DNL seventy to seventy-four dB should be

incorporated into building codes.

29. The subject property is located mostly in the DNL

sixty-five to sixty-nine dB contour, while less than nine acres

in the southern portion are located within the DNL seventy to

seventy-four dB contour.

30. The FAA compatibility guidelines codified in 14 CFR

Part 150, Appendix A, which apply to civilian airports, include

a determination that residential uses are compatible with the

DNL sixty-five to sixty-nine contour.

31. Nothing in Chapter 163, Florida Statutes, or Florida

Administrative Code Rule Chapter 9J-5 requires noise contours to

be mapped or for comprehensive plans to include noise standards.

E. The Joint Land Use Study (JLUS)

32. The JLUS is a Department of Defense program

administered through its Office of Economic Adjustment and

funded by the Federal Government. It provides funds and

resources for local governments located adjacent to military

installations, such as the City, to evaluate a study area of

properties affected by the military installation.

33. The City and MacDill conducted a JLUS, which was

finalized in June 2006, or before Amendment PA07-08 was adopted.

The study was initiated at the request of MacDill because of its

concern that urban encroachment might affect its operations and

future viability. Two of the stated goals of the JLUS were to

promote "comprehensive planning for long term land use

compatibility between MacDill and the surrounding community" and

to restrict "land uses that are deemed to be incompatible with

MacDill operations by the AICUZ study." See Department

Exhibit 4.

34. The JLUS relied heavily upon information regarding

flight operations, accident potential, and noise impacts in the

1998 AICUZ. It analyzed each zone in the AICUZ to identify

existing development encroachment densities and ultimately made

recommendations regarding development issues adjacent to

MacDill. According to the 2006 study, residential uses

constitute ninety-one percent of the three hundred twenty-seven

acres of property that lie within the APZ I and most are single-

family detached homes. As of 2003, the AICUZ was almost fully

developed and only 72.2 acres were held in private ownership.

Most of this development has existed for years. The study

further indicated that almost eight thousand people lived in

APZ-1, and that the average net density in the APZ I is 5.78

units per acre, although higher densities exist in some areas.

35. The JLUS included four sets of land use options for

the Clear Zones and APZs, which vary in intensity from three to

ten units per acre, none of which followed the AICUZ

recommendation of no new residential uses in APZ I. One

recommended option was that within APZ I, densities for

residentially-designated parcels be limited to zero to six

dwelling units per acre and a 0.5 floor area ratio. Another

recommended option was to maintain the status quo within the APZ

I, as expressed in FLUE Policy A-3.1, of ten dwelling units per

acre. Ultimately, the committee preparing the report adopted

the zero to six dwelling units per acre option. The JLUS

further recommended that the City amend FLUE Policy A-3.1 by

establishing a new land use category entitled "Military

Installation Airport Compatibility Plan Category" with a

density/intensity range of zero to six dwelling units per acre

and a 0.5 floor acre ratio within APZ I. See Department Exhibit

4, page 5-5. Although the Planning Commission recommended to

the City that these changes be approved, to date the City has

not formally adopted either recommendation in its Plan. See

Department Exhibit 19.

F. The Objections

a. Compatibility

36. The Department and Air Force contend that the proposed

future land use on the Florida Rock property (CMU-35) is not

compatible with MacDill. Although the Department has not

adopted any rule specific to military installation compatibility

or to airport APZs, the word "compatibility" is defined in

Florida Administrative Code Rule 9J-5.003(23) as follows:

A condition in which land uses or conditions

can coexist in relative proximity to each

other in a stable fashion over time such

that no use or condition is unduly

negatively impacted directly or indirectly

by another use or condition.

Whether or not adjacent property is "unduly negatively impacted"

and therefore compatible or not is a fact-specific determination

made by the Department on a case-by-case basis.

37. Section 163.3177(6)(a), Florida Statutes, was amended

in 2004 to require that the FLUE of each local government

"include criteria to be used to achieve the compatibility of

adjacent or closely proximate lands with military

installations."

38. To assist local governments with all types of land use

compatibility issues, including those involving military

installations, in May 2004 the Department prepared a PowerPoint

presentation, presumably for the benefit of various local

government planning officials. See Florida Rock Exhibit 34.

Among other things, the document includes a list of twelve

"Suggested Best Practices" in addressing military installation

compatibility. One suggested practice is for the local

government to adopt noise attenuation standards in either the

plan itself or land development regulations.

39. To ensure compliance with the 2004 statutory

amendment, as well as requirements of Florida Administrative

Code Rule Chapter 9J-5, the City's Plan includes a number of

provisions to achieve compatibility with MacDill operations.

Most, if not all, of these provisions were actually in effect

before the change in the law, having been adopted in response to

the 1998 AICUZ. Specifically, Transportation Element Objective

9.6, and underlying Policies 9.6.1 through 9.6.5, generally

require that the City ensure that new development will not

obstruct military aircraft operations; that MacDill

representatives be included in the review of all proposed plan

amendments within the APZs and Approach Zones; that the City

consult the AICUZ recommendations when proposing land use

changes within APZ I and II; that the City promote compatibility

within the APZs and Approach Zones through reduced densities;

that the City and Planning Commission continue to review the

impacts of development within the Approach Zones; and that

communication towers and antennas be prohibited in APZ I and II.

See Fla. Admin. Code R. 9J-5.019(4)(c)21., which requires that

the Transportation Element include policies to "[protect]

airports from the encroachment of incompatible land uses."

40. In addition, FLUE Objective A-3, and underlying

Policies A-3.1, A-3.3, A-3.4, A-3.6, and A-3.7, some of which

apply only to MacDill, and others to both MacDill and Tampa

International Airport, generally require that "adjacent

development be compatible with airport related activities"; that

future residential development be restricted to ten dwelling

units per acre; that new construction and redevelopment which

inhibits the safe and efficient operation of airport facilities

with the APZs be prohibited; that "noise sensitive" development

be prohibited unless noise attenuation features are included;

that new development not obstruct aircraft operations; and that

floor area ratios be promoted to guarantee the efficient

operation of the airports. See Fla. Admin. Code R. 9J-

5.006(3)(c)2., which requires policies in the FLUE that

"[p]rovi[de] for compatibility with adjacent uses." As noted

earlier, all of these provisions have been found to be in

compliance.

41. The compatibility argument by the Department and Air

Force centers around two concerns: accident potential and noise

impacts of aircraft departing from and/or landing at MacDill.

42. In response to the accident potential concern, Florida

Rock and the City point out that no witness could recall a Class

I accident (one resulting in a property loss of over $1 million,

a loss of life, or a permanent injury) ever occurring at a

MacDill Clear Zone or APZ. They also point out that aircraft

safety is continually improving, and that the Air Force itself

concedes that the number of accidents has decreased

"tremendously" over the last forty years. Finally, they point

out that ninety percent of the landings at MacDill are from the

southwest over Tampa Bay and thus pose no threat to Florida

Rock's property.

43. The two stages of a flight with the greatest potential

for accident are on takeoff and landing. Based on historical

locations of accidents, the APZ has the greatest potential for

accidents when aircraft are in distress. The Florida Rock

parcel is located within APZ I.

44. Although no Class I accidents have occurred at MacDill

for at least the last forty years, and aircraft safety has

dramatically improved over the years, there is no guarantee that

an accident will not happen in the future. If an accident

occurred, the results could be highly destructive. This is

particularly true since the KC-135R routinely departs over or

close to the southeastern corner of the Florida Rock parcel,

sometimes at altitudes as low as one hundred forty feet,

carrying up to 200,000 pounds of JP-8 aviation fuel. Debris

scatter from a larger, heavier aircraft such as the KC-135R

typically covers around eight acres. The debris scatter from a

smaller aircraft, such as a fighter jet, is around three acres.

Therefore, an aircraft accident would obviously be catastrophic

for residents living around the site of the accident.

45. Depending on its location, residential encroachment in

the APZ can erode operational flexibility. As noted earlier,

due to long-existing residential housing north and northeast of

the airfield, the hours of operation at MacDill have been

curtailed by eliminating flights between 11:00 p.m. and

6:00 a.m., more than likely due to noise concerns rather than

safety issues. The KC-135R must make a right turn towards

Hillsborough Bay when it reaches an elevation of only four

hundred feet. Pilots must use instruments (rather than visual

flight rules) and vectors when departing the airfield, but the

evidence suggests this limitation is due to congested traffic in

the area and the fact that MacDill air traffic control only

"owns" the airspace below one thousand, six hundred feet, and

not because of residential encroachment.

46. According to an Air Force witness, depending on the

type of development in the APZ and the height of the structures,

it might cause the KC-135R to maintain a higher altitude on

takeoff (with a corresponding lower fuel load) and/or to make a

slight change in direction. However, FLUE Policy A-3.3

prohibits new construction "which inhibits the safe and

efficient operations of airport facilities within the [APZ]";

FLUE Policy A-3.6 provides that "[n]ew development shall not

obstruct aircraft operations"; and FLUE Policy A-3.7 provides

that "[a]ll building regulations (floor area ratios (FAR) and

height) shall be promoted to guarantee the continued efficient

operation of the airport and ensure public safety." Also,

Transportation Element Policy 9.6.5 prohibits the construction

of communication towers and antenna in the APZ I and II zones.

Presumably, these restrictions are enforced during the site

approval process.

47. MacDill has always been located in an urban area and

residential development has existed for decades directly in the

flight path of Runway 4. In fact, the AICUZ was nearly fully

developed in 2003. Therefore, it is fair to characterize the

area in and around the flight path as already developed and

built out with a residential character. While the potential for

an accident is always present, the evidence does not show that

this consideration has unduly negatively interfered with the

missions or operational flexibility of the base. Even the 1998

AICUZ describes the risk to people on the ground of being killed

or injured by aircraft accidents as "minute." See Department

Exhibit 3, page 42.

48. Even though the proposed change in land use will

result in more residential development to the west of the flight

path for aircraft using Runway 4, it should not unduly

negatively impact, directly or indirectly, the use or condition

of MacDill. (Under the Light Industrial land use, Florida Rock

can now construct a building that employs hundreds of people.)

The more persuasive evidence shows that the plan amendment is

not incompatible in this respect.

49. Most of the Florida Rock property lies entirely within

the DNL sixty-five dB noise contour zone. This means that the

average noise exposure is sixty-five dB, but the actual noise of

all aircraft in the fleet is much louder than that on takeoff.

For example, fighter aircraft are around one hundred ten dB at

one thousand feet and would be much louder at lower altitudes.

Some types of bombers, which occasionally use the base for

training operations, were described as being so loud that you

have "to hold the table down or things will fall over." Even

so, CMU-35 residential development within this category of noise

exposure is consistent with the FAA land use compatibility table

and is generally compatible with AICUZ land use guidelines. The

southern end of the site, which is a wetland area, is within the

DNL seventy to seventy-four dB noise contour, but it is highly

unlikely that development could ever occur in that area, given

its designation as an environmentally sensitive area by the

Planning Commission.

50. The City has adopted a land development regulation,

codified as Section 27-137.5, which requires that all

residential development within the APZ-I be "designed and

constructed to reduce noise levels by twenty-five (25)

decibels." Another land development regulation, Section 5-301.1

requires noise level reduction, or abatement, of twenty-five dB

for construction in the APZ-I. Both provisions were enacted in

order to ensure compatibility with MacDill's operations. While

the Department points out that there are no specific provisions

such as these in the Plan to reduce noise impacts, FLUE Policy

A-3.4 "[p]rohibit[s] future 'noise sensitive' development such

as residences . . . which do not provide the required noise

attenuation features within those noise contour areas adjacent

to MacDill AFB which may pose health hazards."

51. The Air Force acknowledged that curtailment of flight

operations for the KC-135R has not occurred due to noise

complaints from residents or users of property around the base.

In making this admission, it may have overlooked the fact that

late-night operations (between 11:00 p.m. and 6:00 a.m.) have

been curtailed for an unknown period of time, presumably because

of concerns that operations during these hours would disturb the

nearby residential areas. But this is due to existing

development, and not future development, and there is no

evidence that development by Florida Rock would likely cause a

further reduction in MacDill's hours of operation.

52. Although the Department argues that residents in the

neighborhood adjacent to MacDill constantly complain to the base

and City officials, recorded noise complaints numbered only

seventeen in 2007, twenty-five in 2008, and sixteen through the

date of the hearing in 2009. One person living in APZ II was

the source of eleven of the twenty-five recorded complaints in

2008 and four of the sixteen in 2009, while many of the other

complaints came from persons who live in other counties or

cities in the area. It is fair to say that all of the noise

complaints are associated with fighter and bomber aircraft,

which occasionally use the base for training missions, and not

the KC-135R, which is permanently stationed at the base.

53. Even though the Florida Rock property may be subjected

to potentially more than a hundred takeoffs and landings per

day, with aircraft operating at altitudes as low as one hundred

forty feet, there is insufficient evidence to support a finding

that military operations will be affected by noise concerns.

This is evidenced by the fact that literally hundreds of

existing residences in the APZ are now subjected to the same

conditions, yet they have coexisted with MacDill operations for

many years. Further support for this finding is based on the

fact that very few complaints have been filed by persons living

in the immediate area. Even though a City witness conceded that

the noise from aircraft may be a "nuisance" to some area

residents, the greater weight of evidence supports a finding

that from a noise perspective, the proposed change in land use

would not be incompatible with MacDill operations or use. 6

54. The evidence supports a finding that a change in the

land use for the Florida Rock property will be compatible with

adjacent uses, including MacDill, as that word is defined in

Florida Administrative Code Rule 9J-5.003(23).

b. Data and Analysis

55. The map change on the FLUM must be based on surveys,

studies, and data regarding the area, including the

compatibility of uses on lands adjacent to or closely proximate

to military installations. See § 163.3177(6)(a), Fla. Stat.

Florida Administrative Code Rule 9J-5.005(2) implements that

provision and spells out the requirements for satisfying the

statute. These include requirements that the data must be

"relevant and appropriate," "taken from professionally accepted

existing sources, such as . . . existing technical studies," and

"collected and applied in a professionally acceptable manner."

See Fla. Admin. Code R. 9J-5.005(2)(a). The City must also

"react to it in an appropriate way" at the time the amendment is

adopted. Id. Finally, a local government may rely on data and

analysis used to support the original plan or a previous plan

amendment unless "the previously submitted data and analysis no

longer include and rely on the best available existing data.

See Fla. Admin. Code R. 9J-11.007(1).

56. The Department and Air Force argue that the 1998 AICUZ

and the June 2006 JLUS are the best available, relevant, and

appropriate data regarding land uses around MacDill, and that

the City failed to appropriately react to that data when it

adopted the amendment. They further argue that the City relied

on data and analyses supporting the 1998 Plan, which is no

longer the best available existing data. On the other hand,

Florida Rock and the City assert that there is adequate data and

analysis that support the adopted map change, including the

Transportation Element and FLUE policies listed above (Joint

Exhibit 1), the JLUS data and recommendations (Department

Exhibit 4), the Planning Commission report (Florida Rock Exhibit

3), the City Community Planning Division staff report (City

Exhibit 28), the portion of the Department's PowerPoint relating

to Military Installation Compatibility (Florida Rock Exhibit

34), and 14 CFR Part 150, Appendix A, which was officially

recognized.

57. The 2006 JLUS includes as one option a recommendation

that the status quo for density in FLUE Policy A-3.1 be

maintained for development around MacDill. The Planning

Commission staff report noted that both land use categories have

the same maximum commercial buildout potential; that the site

will never be developed to its maximum potential; that the

change is consistent with recent trends away from light

industrial in that area; that the new designation is consistent

with the surrounding area; that the amendment is consistent with

all other provisions in the Plan; and that the City must ensure

that any development will not obstruct operations at MacDill.

Similarly, the City Community Planning Division staff report

noted that MacDill and the South Tampa community have coexisted

for sixty-five years; that the predominant land use in the area

is residential; that the change is consistent with FLUE Policy

A-3.1; that noise attenuation measures will be employed; that

the CMU-35 designation continues the land use trend away from

light industrial; that the site will not be able to develop to

its full potential; and that the change would be consistent with

the future development pattern of the area. The map change is

also supported by the land use compatibility policies in the

AICUZ study for noise contours, as well the FAA noise

compatibility guidelines. Finally, the change is consistent

with existing policies in the FLUE and Transportation Element.

They provide further support for the requested change and the

City's determination that the map change is compatible with

surrounding uses, including MacDill flight operations. The City

reacted appropriately to these data and analyses when it enacted

the amendment.

58. The AICUZ is based on standardized data complied from

airbases around the world to determine areas of increased

accident potential. It did not assess the individual risk nor

consider the safety record of MacDill; it did not give

consideration to any unique local situations, including the fact

that MacDill is located in a fully developed urban area and has

coexisted with residential development in the Runway 4 flight

path for decades; and it characterized the risk of an aircraft

accident as "minute." Because residential development under the

map change will be subject to noise attenuation requirements,

the new use will be consistent with the AICUZ and FAA

guidelines.

59. The JLUS presented four options for residential use

within the APZ I, one of which continues the existing policy of

allowing ten dwelling units per acre in APA I. Although the

committee ultimately recommended that more restrictive measures

be implemented, this recommendation was not adopted by the City.

60. Standing alone, the JLUS contains competing data that

support a less intense residential classification on the Florida

Rock property. But the City has no land use category that

allows the site a mixed use with a maximum of six residential

units per acre. When taken as a whole, the data and analyses

relied upon by the City constitute adequate support for the plan

amendment. Accordingly, the Department and Air Force have

failed to show by a preponderance of evidence that the plan

amendment contravenes Section 163.3177(6)(a), Florida Statutes,

or Florida Administrative Code Rules 9J-5.005(2)(a) and 9J-

11.007(1). See , e.g. , Geraci, et al. v. Hillsborough County, et

al. , DOAH Case No. 95-0259GM, 1999 Fla. ENV Lexis 11 at *114-15

(DOAH Oct. 16, 1998, DCA Jan. 12, 1999)(even though the data and

analysis may support another classification, a local government

is not required to demonstrate that its land use classification

choice is perfect, or that the data and analysis support that

use to the exclusion of any other classification).

61. The more persuasive evidence supports a finding that

the challenged plan amendment is in compliance.

CONCLUSIONS OF LAW

62. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties hereto

pursuant to Sections 120.569, 120.57(1), and 163.32465(6),

Florida Statutes.

63. Except for the Department, only affected persons, as

defined by Section 163.3184(1)(a), Florida Statutes, have

standing to challenge, or intervene in a proceeding involving, a

Pilot Program amendment. See § 163.32465(6)(a), Fla. Stat. As

previously found, the evidence establishes that the Air Force

and Florida Rock are affected persons and have standing to

participate in this proceeding.

64. In a proceeding involving a plan amendment adopted

under the Pilot Program, "[t]he local government's determination

that the amendment is 'in compliance' is presumed to be correct

and shall be sustained unless it is shown by a preponderance of

the evidence that the amendment is not 'in compliance'." See

language used in small-scale amendment cases. Therefore,

challenges to compliance are evaluated under the preponderance

of the evidence standard rather than the typical fairly

debatable standard. The test in this case is whether the

evidence supports or contradicts the City's determination that

the amendment is in compliance. Denig v. Town of Pomona Park ,

DOAH Case No. 01-4845GM, 2002 Fla. ENV LEXIS 220 at *4-5 (DOAH

June 18, 2002, Admin. Comm. Oct. 23, 2002).

65. For the reasons given in the Findings of Fact, the

greater weight of evidence supports a conclusion that the City's

determination that the plan amendment is in compliance is

correct.

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDATION

RECOMMENDED that the Department of Community Affairs enter

a final order determining that the plan amendment adopted by

Ordinance No. 2008-145 is in compliance.

DONE AND ENTERED this 26th day of August, 2009, in

Tallahassee, Leon County, Florida.

S

DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 26th day of August, 2009.

ENDNOTES

1/ On the same date, the City also adopted Ordinance No. 2008-

144, which effected a similar land use change (Amendment PA07-02)

for a 26.07-acre parcel owned by Spray Miser International, Inc.

(Spray Miser). Because the Department challenged both

amendments, the two map changes were scheduled to be heard at the

final hearing. In the parties' Joint Prehearing Stipulation,

however, they agreed that the Spray Miser amendment should be

bifurcated from this proceeding and placed in abeyance pending

settlement negotiations by the parties. Accordingly, only the

Florida Rock amendment is in issue. Because of this, Spray Miser

has been dropped from the style of this case.

2/ All statutory references are to the 2008 version of the

Florida Statutes.

3/ The parties' Proposed Recommended Orders indicate that

Department Exhibit 12 (the Petition filed by the Department to

initiate this case) was also received in evidence. During the

Department's case-in-chief, its witness relied upon the Petition

to refresh his recollection. Although the document was

identified as Department Exhibit 12 in the Joint Prehearing

Stipulation, it was never moved into evidence.

4/ The Department of Transportation raised concerns about noise

from military aircraft; the Air Force was concerned with both

noise and safety issues; and the Tampa Bay Regional Planning

Commission cited concerns with a number of issues including the

conversion of industrial uses to other land use designations,

affordable housing, hurricane evacuation, and a lack of

compatibility with MacDill operations. Also, the Southwest

Florida Water Management District submitted a one-page letter

expressing concerns about the possibility of flooding on the

property. See Florida Rock Composite Exhibit 35.

5/ These include allegations that the plan amendment is

internally inconsistent with other Plan provisions, that the plan

amendment is inconsistent with the Tampa Bay Strategic Regional

Policy Plan and the State Comprehensive Plan, and that the City

lacked authority to adopt the amendment.

6/ It is illogical to assume that a potential buyer or lessee of

property in APZ I (including the Florida Rock property) would

assume ownership or sign a lease without full knowledge that

extremely loud military aircraft were taking off and landing

throughout the day and continuing until just before midnight, and

that the property on which they intended to reside or work was

located just north of MacDill.

COPIES FURNISHED:

Thomas G. Pelham, Secretary

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399-2100

Shaw P. Stiller, General Counsel

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399-2100

Matthew G. Davis, Esquire

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399-2100

Major George L. Burnett, Esquire

United States Air Force

Environmental Law & Litigation Division

112 Luke Avenue, Suite 343

Bolling Air Force Base, DC 20032-6400

John F. Rudy, III, Esquire

Assistant United States Attorney

400 North Tampa Street, Suite 3200

Tampa, Florida 33602-4798

Karen A. Brodeen, Esquire

Fowler White Boggs, P.A.

Post Office Box 11240

Tallahassee, Florida 32302-1240

Ernest Mueller, Esquire

Assistant City Attorney

315 East Kennedy Boulevard, Fifth Floor

Tampa, Florida 33602-5211

Mark S. Bentley, Esquire

Mark Bentley, P.A.

201 North Franklin Street, Suite 1650

Tampa, Florida 33602-5167

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days of the date of this Recommended Order. Any exceptions to

this Recommended Order should be filed with the agency that will

render a final order in this matter.