STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF COMMUNITY AFFAIRS, )

)

Petitioner, )

)

vs. ) CASE NO. 89-2735GM

)

SEMINOLE COUNTY, MILLER ) ENTERPRISES, INC, ALBERT I. KATZ, ) and JOSEPH L. BRECHNER, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, final hearing in the above-styled case was held on September 12-14, 1989, in Sanford, Florida, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

The parties were represented as follows:

For Petitioner: David L. Jordan, Senior Attorney

Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399-2100

For Seminole Lonnie N. Groot, Assistant County Attorney County: Seminole County Services Building

1101 East First Street Sanford, Florida 32771

For Miller Miranda Franks Fitzgerald Enterprises, Maguire, Voorhis & Wells, P.A. Inc. 2 South Orange Avenue

Post Office Box 633 Orlando, Florida 32801

For Albert I. David C. Brennan Katz and Trickel & Leigh

Joseph L. 39 West Pine Street

Brechner: Orlando, Florida 32801 STATEMENT OF THE ISSUE

The issue in the case is whether the Commercial designation of a five-acre parcel on the Future Land Use Map of the Seminole County comprehensive plan, as amended, complies with the requirements of the Wekiva River Protection Act, Chapter 369, Part III, Florida Statutes (1989).

PRELIMINARY STATEMENT

The Wekiva River Protection Act requires Seminole County to review and, if necessary, revise its comprehensive plan and land development regulations to protect the Wekiva River Protection Area. Pursuant to the Act, Seminole County amended its comprehensive plan and land development regulations and submitted the amendments to the Department of Community Affairs for review and a determination of compliance.

On April 7, 1989, the Department of Community Affairs filed a petition with the Florida Land and Water Adjudicatory Commission. The petition requests that the Commission confirm the Department's determination that the amended comprehensive plan is in compliance with one exception. The exception is the commercial designation of about five acres of undeveloped land in the Wekiva River Protection Area.

The petition alleges that commercial development of this land would violate two provisions of the Wekiva River Protection Act. One provision prohibits development that is not low-density residential in nature, unless the development has less impact on natural resources than would low-density residential. The other provision restricts the intensity of land development adjacent to publicly owned lands to prevent adverse impacts to such lands.

On April 28, 1989, Seminole County filed with the Florida Land and Water Adjudicatory Commission a request for a formal administrative hearing, answer, motion to dismiss, motion for a more definite statement, and motion for judgment on the pleadings. The County later withdrew the motion for more definite statement.

On May 1, 1989, Miller Enterprises, Inc. filed with the Florida Land and Water Adjudicatory Commission a request for formal administrative hearing, answer, motion to dismiss, and defenses.

On May 26, 1989, Messrs. Katz and Brechner filed with the Florida Land and Water Adjudicatory Commission a petition for formal administrative hearing, answer, defenses, motion to dismiss, and motion for judgment on the pleadings.

By letters dated May 19 and June 19, 1989, the Florida Land and Water Adjudicatory Commission referred the pleadings to the Division of Administrative Hearings for a formal hearing.

At the commencement of the hearing, the hearing officer denied all motions to dismiss. The hearing officer declined to rule on the motions for judgment on the pleadings, which were left for resolution by the Florida Land and Water Adjudicatory Commission. On the final day of hearing, the hearing officer also denied oral motions for a summary recommended order. These motions were made by Seminole County, Messrs. Katz and Brechner, and Miller Enterprises, Inc.

At the hearing, the Department of Community Affairs called seven witnesses and offered into evidence one exhibit. Seminole County called one witness and offered into evidence two exhibits. Miller Enterprises, Inc. called six witnesses and offered into evidence five exhibits. Messrs. Katz and Brechner called one witness and offered into evidence no exhibits.

The parties jointly offered 14 exhibits. Three exhibits, consisting of maps, were labelled as Hearing Officer Exhibits 1-3.

By agreement of the parties, interested members of the public were allowed to testify on September 14, 1989. Eight such persons testified. During this phase of the hearing, three exhibits were offered into evidence.

All exhibits were admitted into evidence. The court reporter filed the transcript on October 2, 1989. Each party filed a proposed recommended order. Treatment accorded the proposed findings is detailed in the appendix.

FINDINGS OF FACT

1. Seminole County adopted amendments to its land development regulations on February 14, 1989, and to its comprehensive plan on February 28, 1989. As amended, the Seminole County comprehensive plan shall be referred to as the "Plan."

   
   

2. As required by the Wekiva River Protection Act, Chapter 369, Part II, Florida Statutes (1989) (the "Act"), Seminole County submitted the Plan to the Department of Community Affairs ("DCA") for review and a determination of compliance under the Act. DCA received the amendments on March 9, 1989.

   
   

3. On April 7, 1989, DCA filed a petition with the Florida Land and Water Adjudicatory Commission (the "Commission"). The petition requests the Commission to confirm DCA's determination that the amendments are in compliance with the Act with one exception.

   
   

4. The exception concerns five acres of undeveloped land designated Commercial on the Future Land Use Map. The land includes a 1.55-acre parcel located on the southwest corner of State Road 46 and Longwood-Markham Road owned by Miller Enterprises, Inc. ("Miller" and "Miller Parcel") and a 1.5-acre parcel located on the southeast corner of State Road 46 and Longwood-Markham Road owned by Messrs. Katz and Brechner ("Katz" and "Katz Parcel"). A third parcel of about two acres abuts the Miller Parcel and is owned by Rainbow Construction Company of Central Florida, Inc. However, this parcel has been included in land that has already been platted as part of an adjacent residential subdivision and would not likely be reassembled with the Miller Parcel for commercial purposes. Although the land adjoining the Katz Parcel is under common ownership, the land is designated Suburban Estates and could, as discussed in Paragraph 13 below, be reassembled for only limited nonresidential uses without an amendment to the Plan.

   
   

5. DCA's petition requests the Commission to order Seminole County to amend the Plan to change the designation of the Katz and Miller Parcels from Commercial to Suburban Estates, General Rural, Conservation, or other low- density compatible designation.

   
   

6. The Plan designates land for various uses throughout the County. Relevant designations are Commercial, Low Density Residential, Suburban Estates, General Rural, and Conservation. The specific uses permitted within each land use area are set forth in the Seminole County Land Development Code ("Code"). The Plan incorporates the zoning districts contained in the Code.

   
   

7. The Commercial designation permits the following commercial uses (CN, CS, C-1, and C-2): artist studio, barber shop, newsstand, clinic (except animal), ice cream store, dance or music studio, drug store, fire station, florist, gift shop, hobby shop, interior decorating, jewelry store, laundry pick-up location, library, locksmith, luggage shop, business or professional office, photography studio, physical fitness studio, retail paint store, post

   office, retail sporting goods, school, shoe repair shop, tailoring shop, tobacco shop, toy store, watch repair, clothing store, convenience market with self- service gasoline pumps, delicatessen, grocery store, self-service laundry, amusement and commercial within an enclosed building, appliance store, bakery, bank, church, day-care center, employment agency, funeral home, furniture store, hardware store, laundromat, pet store, plant nursery, private club, quick print shop, broadcasting studio without tower, electronics store, restaurant, theater, building and plumbing supplies, car wash, furniture warehouse, hotel or motel, marine sales and service, mobile home sales, outdoor advertising signs, parking garage, book printing shop, automobile sales, veterinary hospital and kennel, alcoholic beverage establishment, public utility structure, living quarters in conjunction with commercial use, hospital, nursing home, contractor's establishment without outside storage, open-air flea market, lumber yard, mechanical garage, paint and body shop, service station, and adult entertainment. In addition, the Commercial designation allows Planned Commercial Development District (PCD), which permits any nonresidential use, including industrial and office, if approved by the Board of County Commissioners.

   
   

8. The Commercial designation permits the following office uses (OP): dental and medical clinic; general office building; financial, real-estate, and professional business; telephone business; post office; public park or playground; fire station; administrative public building; church; day-care center; and similar uses approved by the Planning and Zoning Commission.

   
   

9. The Commercial designation permits the utilization of residences for professional uses (RP) and planned unit developments (PUD). The PUD district permits the following uses: residential, church, school, and nonresidential uses (including commercial, retail, industrial, office, and professional) if certain criteria are met, such as a minimum area of 20 acres.

   
   

10. The Commercial designation permits the following agricultural uses (AC and A-1): grove and farm for the cultivation of citrus, vegetables, fruits, grass sod, and trees; pasture and grassland for the cultivation of livestock (excluding swine); wholesale plant nursery and greenhouse; poultry production; dairy farm; fish hatchery; bait production; publicly operated park;

    accessory agricultural structures such as stables, barns, silos, sheds, and windmills; home occupation, single-family dwelling with customary accessory structures; guest house; cemetery; kennel; sawmill; public utility and service structure; borrow operation; golf club or sporting club if at least 10 acres; riding stable if at least 10 acres; commercial swine operation; mobile home and customary accessory structures; adult congregate living facility and group home; truck farm; grazing and pasturing of animals; roadside stand; government-operated building; timber production; apiculture; church; private school or college; temporary asphalt plant; state-chartered fraternal club; private recreational activity open to the public; heliport; sewage disposal plant; antenna farm; off-street parking; and livestock slaughtering.

    
    

11. Last, the Commercial designation permits public uses under the public lands and institutions district (PLI), which allows such diverse uses as a zoo, cultural exhibit, or landfill.

    
    

12. The General Rural designation permits the uses allowed under the AC, A-1, PLI, and RM-3 districts. The last zoning district allows transient vehicular and tent camping; associated recreational buildings, laundries,

    toilets, and showers; service store for campers; recreational facilities, such as golf, swimming, and tennis; utility or storage building; sewer and water

    plants when necessary; and one house or mobile home for office and residential uses for the operator. To the extent that residential uses are allowed in the General Rural area, the maximum density is one unit per acre (1:1).

    
    

13. The Suburban Estates designation permits the uses allowed under the AC, A-1, PLI, and RC-1 zoning districts. The last district allows single-family residential and customary accessory uses, citrus cultivation, guest cottage, home occupation, riding stable for personal use, private or public school, church with attendant facilities and parking, publicly operated park, and adult congregate living facility and group home. The maximum density for residential uses is one unit per acre (1:1).

    
    

14. The Conservation designation permits the uses allowed under the AC and A-1 zoning districts. Otherwise, according to the Plan, the designation if intended for "wetland areas" with the following permitted uses: publicly owned open space and recreation and water management areas, public and private game preserves, private development open space and recreation and water management areas, and livestock grazing and short-term crop production. These uses are subject to the Floodprone Overlay Zoning District and Wetlands Overlay Zoning District in the Code. Because neither of these sets of provisions appears applicable to the subject parcels, the Conservation designation is inappropriate to these parcels.

    
    

15. The Low Density Residential designation permits the uses allowed under the AC, A-1, RC-1, PLI, and PUD zoning districts, as well as five single-family residential zoning districts. The maximum residential density is four units per acre (4:1).

    
    

16. One provision of the Plan overrides all of the designations and approved land uses. The Future Land Use element of the Plan provides:

    
    

    Regardless of the land use designation or zoning classification assigned to any parcel of property located within the Wekiva River Protection Area as defined in Section

    369.303(9), Florida Statutes (1988 Supplement), or its successor provisions, no development

    may be approved upon parcels so located unless the proposed development conforms to the provisions of the Wekiva River Protection Act [citations omitted] or its successor provisions and the provisions of this

    Comprehensive Plan adopted to conform to said Act.

    
    

    Plan, p. VI-A8.

    
    

17. The Katz and Miller Parcels are located in the Wekiva River Protection Area in Seminole County. They are just over four miles west of the Interstate 4/State Road 46 interchange, which is about four miles west of Sanford. The parcels are about 4100 feet east of the Wekiva River, which divides Seminole and Lake Counties.

    
    

18. The Wekiva River, which flows in a northerly direction, passes under State Road 46 about five miles before it empties into the St. Johns River. The Wekiva River begins at the confluence of Rock Springs Run and Wekiva Springs Run. Rock Springs Run begins at Rock Springs, which is located in Kelly Park. Kelly Park is a 200-acre park owned by Orange County. After leaving the park,

    the run flows about nine miles in a generally southward direction until it reaches Wekiva Springs Run, which begins about one-half mile to the southwest at Wekiva Springs. The spring is located in the southeast corner of Wekiva Springs State Park, which is a 6400-acre park located in Orange County.

    
    

19. The lower half of the Rock Springs Run divides Wekiva Springs State Park on the west and Rock Springs Run State Preserve on the east. Rock Springs Run State Preserve occupies about 8500 acres and extends northward, with Wekiva Springs State Park, to the vicinity of the Lake County line.

    
    

20. The northern extent of the 14,900 acres of state holdings represented by Rock Springs Run State Preserve and Wekiva Springs State Park are separated from State Road 46 by the BMK Ranch. The ranch constitutes 5850 acres of land. The ranch is on the CARL list for state acquisition, and at least part of it is close to being purchased, if it has not been purchased already. The northeast corner of the BMK Ranch is between two and two and one-half miles west of the Wekiva River on the south side of State Road 46. Directly to the north of the BMK Ranch is the Seminole Springs tract, which consists of 9200 acres. Seminole Springs is also on the CARL list, but acquisition has not been going smoothly.

    
    

21. The northernmost point of the Wekiva River Protection Area is slightly east of the mouth of the Wekiva River. The eastern boundary of the protection area measures about 12 miles north-to-south. Proceeding due south past State Road 46 in the vicinity of Orange Boulevard, the line turns over one mile due west and then runs south along Markham Woods Road to a point just north of the interchange of State Road 434 and Interstate 4, capturing the broad, lower portion of the Little Wekiva River before it joins the Wekiva River.

    
    

22. The southern boundary of the Wekiva River Protection Area is formed by a line running east-west between the Interstate 4/State Road 434 corner to the Orange County line. The southern boundary runs north of Lake Brantley and captures much of Wekiva Springs Road, including one parcel designated on the Future Land Use Map as Commercial and at least one parcel designated as Office.

    
    

23. The Wekiva River Protection Area includes a smaller area known as the Wekiva River Protection Zone. The eastern boundary of the protection zone crosses State Road 46 about one-quarter of a mile west of the two parcels. To the east of the Wekiva River, the northern portion of the protection zone averages roughly one-half mile in width until it reaches Heathrow West, which is a large planned development located between Markham Woods Road and the Wekiva River directly west of the intersection of Lake Mary Boulevard and Markham Woods Road. At this point, the protection zone turns to the east and runs east of the Little Wekiva River until the zone terminates at the southeast corner of the protection area.

    
    

24. The land to the north of the Katz and Miller Parcels on the Seminole County side of the Wekiva River is largely undeveloped, with much of it owned by the state or Seminole County. Most of this land is within the Wekiva River Protection Area, whose eastern boundary crosses State Road 46 about two and one- half miles east of the parcels.

    
    

25. A thin strip of development lies on the east bank of the Wekiva River. The development, which penetrates about one mile north off State Road 46, consists of low density residential and a 55-dwelling unit marina. The area is designated on the Future Land Use Map as General Rural.

26. Directly east of this strip of development is the Lower Wekiva River State Preserve. The Preserve consists of 4636 acres of land, divided about one- third in Seminole County and two-thirds in Lake County. The Lake County portion of the Preserve abuts the northeast corner of the Seminole Springs tract. The Seminole County portion lies adjacent to the Wekiva River between State Road 46 and the confluence of the St. Johns and Wekiva Rivers. Overall, the Preserve includes four and one-half miles of the Wekiva River, one mile of the St. Johns River, and 3.8 miles of Black Water Creek, which runs north of State Road 46 in Lake County and merges with the Wekiva River just upstream from the river's mouth. Much of the Wekiva River and Black Water Creek, as well as Rock Springs Run, are designated as Outstanding Florida Waters, and a primary purpose for the state purchase of the above-described lands has been to protect these waters.

    
    

27. The Lower Wekiva River State Preserve contains habitats ranging from uplands to wetlands near the rivers. These habitats include sand hill, scrubby flatwoods, pine flatwoods, sand pine scrub, cypress dome, and bayhead communities. The sand pine scrub is itself very rare. The substantial sand hill habitat is important for gopher tortoises and indigo snakes. The scrubbier habitats are used by the Florida scrub jay and Florida black bear.

    
    

28. The Department of Natural Resources manages the Preserve to replicate conditions at the time of the arrival of the first Europeans around 1513. The Preserve is available for passive recreation, such as hiking and horseback riding. A portion of the Florida Trail passes through the Preserve. The Preserve offers no recreational facilities because its primary function is to protect viable resources. One of the most critical management tools toward protecting resources is prescribed burning. Artificial suppression of fires leads to the replacement of the existing habitats by climax communities, such as hammocks, which are less suitable for certain endangered wildlife.

    
    

29. The presence of nearby development interferes with the prescribed- burning program. However, State Road 46 is already a major arterial highway with an average daily traffic count between the Wekiva River and Orange Boulevard of 10,211 vehicles. Exacerbating the situation, vehicles on this portion of the highway, which is only two-lanes and unlighted, routinely exceed the posted speed limit of 55 miles per hour, and the Seminole County Sheriff's Office and Florida Highway Patrol claim that they lack the resources to provide effective enforcement of the speed limit. Consequently, the Department of Natural Resources already conducts its prescribed burning program in the Preserve in a manner to avoid allowing smoke to drift over the highway to the best extent possible.

    
    

30. The easternmost boundary of the Preserve along State Road 46 is slightly east of the Katz and Miller Parcels. Separated from these parcels by only the 200-foot right-of-way of State Road 46, the small unpaved parking area and unimproved pedestrian and equestrian entrance to the fenced-in Preserve are directly across from the subject parcels. The 4636-acre Preserve is staffed by a total of four persons, who are also responsible for supervising the 8500-acre Rock Springs Run Preserve. Supervision of human activity in the Preserve is therefore minimal.

    
    

31. To the east of the Lower Wekiva River State Preserve and extending for about one mile to the east of the subject parcels is the Yankee Lake tract owned by Seminole County. Among other uses projected for this land is a 2600-acre regional wastewater treatment facility. Like the adjoining Preserve, the Seminole County land contains viable habitat for various wildlife, including the bear.

32. Scattered development exists to the east of the Yankee Lake tract, including a 30-acre mixed-use planned development. Roads have been built in this area, most of which is designated on the Future Land Use Map as General Rural with a density of one unit per acre (1:1). A strip running on both sides of State Road 46 a short distance east of Orange Boulevard is designated Medium Density Residential. A convenience store, which is located at Orange Boulevard and State Road 46, is the closest source of food and gasoline east of the subject parcels. However, most of the one and one-half miles of frontage east of Orange Boulevard to Interstate 4 is designated Conservation.

    
    

33. The area to the west of the Katz and Miller Parcels in Lake County is sparsely developed and generally under less development pressure than the land on the Seminole County side of the river, although the development of certain large parcels could materially change this situation.

    
    

34. Located on the west bank of the Wekiva River just south of State Road

    46 is Wekiva Falls Resort Campground, which is a high density mobile home park with a recreational vehicle campground and marina. Presently, the resort contains 789 dwelling units. Absent state acquisition, two tracts totalling almost 6000 acres of land north and south of the Wekiva Falls Resort Campground are available for development. As of May, 1988, these tracts were proposed for development comprising over 2600 residential units, two golf courses, a 150,000 square foot commercial area, and other uses. Mt. Plymouth, which is about seven miles west of the subject parcels, is the closest source of food and gasoline west of the subject parcels.

    
    

35. Much of the future development activity in the vicinity of the Preserve and the Katz and Miller Parcels will take place to the south on the Seminole County side of the river. This area is already characterized by large residential developments. Between the Wekiva and Little Wekiva Rivers, for instance, approximately 4000 to 4500 dwelling units have been approved. To the north and east of these dwelling units, near Lake Mary Boulevard and Markham Woods Road, one development contains 3500 dwelling units. The Plantation planned development (formerly known as Amcor) contains about 400 dwelling units and abuts the Wekiva River south of the intersection of Markham Road and Longwood-Markham Road. Most of the development south of the subject parcels is at a density of one unit per acre (1:1), which, under the subject facts, is the maximum density for low density residential within the meaning of the Act. At present, the closest source of groceries south of the Katz and Miller Parcels is a major grocery store at Interstate 4 and Lake Mary Boulevard, which is over six miles from the two parcels.

    
    

36. A limited-access, four- to six-lane expressway, known as the western extension of the Orlando Beltway, is planned to be constructed in an east-west direction from Interstate 4 south of the subject parcels. As it proceeds west from Interstate 4, the expressway will be located about one and one-half miles south of State Road 46 at its closest point to the Katz and Miller Parcels and as it crosses the Wekiva River. After crossing the river, the expressway will turn to the northwest until it reaches State Road 46 at the northeast corner of the BMK Ranch. The expressway will then run roughly parallel to the road until it reaches Mt. Plymouth, which will be the cite of the first interchange west of Interstate 4.

    
    

37. A viable population of Florida black bear occupies the Ocala National Forest, which is about 16 miles northwest of the Lower Wekiva River State Preserve. The southern terminus of this population is the portion of the Wekiva

    River basin south of State Road 46. The basin actually extends south of State Road 436 to the west Orlando area. However, the estimated population of perhaps

    20 bears south of State Road 46 is in all likelihood largely restricted to Wekiva Springs State Park, Rock Springs Run State Preserve, and Kelly Park. Whatever the actual number of bears south of State Road 46, they clearly are not so great in number as to form a viable, self-sustaining population. The continued survival of these bears is dependent upon their ability to maintain a connection to the larger bear population north of State Road 46.

    
    

38. At one time occurring throughout Florida, black bears are now largely found only in and around large tracts of public land. A self-sustaining population of black bears requires over 400,000 acres of contiguous forests. Each bear in the Ocala National Forest requires a home range of between 12 square miles for females to 40 square miles for males.

    
    

39. The effect of loss of habitat is accentuated by the low reproductive rate of the bear. In Florida, the female black bear becomes sexually mature at three to four years and can produce cubs every two years. A litter is normally two to three cubs, which remain with their mother until they attain about one and one-half years. Young females tend to remain in the range of their mothers, but young males disperse to establish their own home range.

    
    

40. The movement of bears across State Road 46 has led to numerous incidents in which motor vehicles have struck and killed bears. From 1980, when records were first kept, through 1987, 19 bears were confirmed as killed in the general area. The accidents typically occurred at dusk or during nighttime.

    
    

41. In 1988, the rate of confirmed traffic mortalities increased dramatically to 11. Apart from two of the traffic mortalities which occurred north and south of State Road 46 in Lake and Orange Counties, respectively, eight of the accidents occurred on State Road 46 and one within a mile south of the road. All of these incidents took place within a stretch of about three and one-half miles. Six of these incidents were within one mile of the intersection of State Road 46, County Road 433 on the south, and County Road 46A on the north, which actually joins State Road 46 slightly west of County Road 433. A seventh death occurred about one mile east of this intersection, which is about two and three-quarters miles west of the Wekiva River. Of the remaining two incidents, one took place on the bridge over the river, and the easternmost killing took place about a half mile east of the river, which is a little over one-quarter mile west of the Katz and Miller Parcels.

    
    

42. As a result of these bear mortalities, the Department of Natural Resources caused bear warning signs to be placed along a six-mile stretch of State Road 46, extending to a point about one-half mile east of the subject parcels.

    
    

43. As a practical matter, no viable bear habitat remains south and east of the Katz and Miller Parcels. As long as records have been kept, no bear has been killed on Longwood-Markham Road, although one was killed in recent years on Interstate 4 in the vicinity of State Road 46. The western extension of the Orlando Beltway will further impede bear movement south of State Road 46. Although bears pass along the eastern side of the Wekiva River, the eastern extent of the bear-movement corridor is already largely restricted to the river and its floodplain. The primary bear-movement route in this area is on the west side of the river, notwithstanding the obstruction posed by the Wekiva Falls Resort Campground.

    CONCLUSIONS OF LAW

    
    

44. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter. Section 120.57(1), Florida Statutes. (All references to "Sections" and "Chapters" are to Florida Statutes (1989).)

    
    

45. Seminole County is required to file amendments to its current comprehensive plan by April 1, 1991, in order to comply with the provisions of the Local Government Comprehensive Planning and Land Regulation Act, Chapter 163, Part II. Rule 9J-12.007(10), Florida Administrative Code.

    
    

46. In the interim, Seminole County is required to review its comprehensive plan and land development regulations and, by April 1, 1989, adopt any amendments necessary to comply with the provisions of the Act. Section 369.305(1).

    
    

47. The Act requires that the various land uses and densities permitted by the plan shall protect various enumerated resources and the "rural character" of the Wekiva River Protection Area. Section 369.305(1)(b).

    
    

48. The Act requires that the comprehensive plan include: a) "[p]rohibition of development that is not low-density residential in nature, unless that development has less impacts on natural resources than low-density residential development" and b) "[r]estrictions on intensity of development adjacent to publicly owned lands to prevent adverse impacts to such lands." Section 369.305(1)(b)3. and 5.

    
    

49. Under the Act, the County submits the amended plan and land development regulations to DCA, which determines whether the plan and land development regulations comply with the requirements of the Act. Section 369.305(2) and (3).

    
    

50. At all times prior to the adoption of the plan required by the Local Government Comprehensive Planning and Land Development Regulation Act, Seminole County must submit to DCA for its review any amendment to the comprehensive plan or land development regulations applying to the Wekiva River Protection Area. Section 369.305(5). However, DCA does not review development orders except for those "solely within protection zones." Id. The protection zones, which are defined in Section 373.415 and Rule 9J-27.002(6), Florida Administrative Code, do not include the subject parcels.

    
    

51. The Plan incorporates the Act and designates the subject land Commercial. The key questions are: 1) whether the Plan prohibits development other than low-density residential or, failing that, whether the permitted development has less impact on natural resources than low-density residential development and 2) whether the Plan restricts intensity of development adjacent to publicly owned lands to prevent adverse impacts to such lands. The subject land is "adjacent" to the Lower Wekiva River State Preserve.

    
    

52. Merely designating the two parcels as Commercial does not violate either of these two requirements. The Commercial designation in itself allows a wide range of land uses. The designation violates the Act only if no permitted use exists that is harmonious with the two above-cited requirements of the Act. This is not the case.

    
    

53. Given the relevant land uses in the affected area, Katz and Miller could propose a site-specific Commercial land use that does not violate the

    above-cited statutory requirements. The relative likelihood of a violation of the Act by a designation of Commercial as opposed to Suburban Estates is irrelevant, as long as the Commercial designation does not necessitate a violation.

    
    

54. The failure of the Act to provide for DCA review of development orders concerning land outside of the protection zone does not justify an attempted determination of the likelihood that the County may, at a later date, grant development orders that are inconsistent with the Act and its Plan.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that the Florida Land and Water Adjudicatory Commission enter a Final Order determining that the Plan is in compliance with the Act.

ENTERED this 6th day of February, 1990, in Tallahassee, Florida.

ROBERT E. MEALE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 6th day of February, 1990.

APPENDIX

Treatment Accorded the Proposed Findings of Petitioner 1-3: adopted.

1. and 6: rejected as irrelevant.

2. and 7-10: adopted.

11 and 12: rejected as irrelevant. 13-15: adopted in substance.

16-18: adopted.

19-20: rejected as irrelevant. 21-22: adopted in substance.

23: first two sentences reject as irrelevant. Remainder adopted in substance.

24: adopted.

25: first two sentence adopted in substance. Third sentence rejected as legal argument. Remainder rejected as irrelevant.

26: rejected as legal argument.

27: adopted.

28: first two sentences adopted. Third sentence rejected as legal argument and against the greater weight of the evidence.

29: first sentence rejected as legal argument.

Remainder adopted.

30-31: rejected as irrelevant.

32: first two sentences rejected as legal argument.

Remainder rejected as subordinate, although surrounding land uses are relevant.

33: rejected as subordinate, although comparative land use intensities are relevant.

34: rejected as subordinate, irrelevant, and recitation of testimony.

35: rejected as irrelevant.

36-37: rejected as recitation of testimony and irrelevant. 38: rejected as irrelevant.

39-40: adopted in substance. However, the death of the bear on Interstate 4 was not during 1988. Also, the subject land is located within the six-mile bear travel corridor, but not within the narrower range in which nearly all of the kills took place during 1988. Lastly, the death on the bridge cannot be attributed either to Seminole or Lake County.

41: adopted in substance, except that, given recent traffic mortality trends, State Road 46 presently represents a barrier to bear movement, although the bears still attempt to cross it.

42: rejected as unsupported by the greater weight of the evidence.

43: rejected as legal argument.

44-45: adopted.

46: rejected as unsupported by the greater weight of the evidence.

47: first three sentences rejected as unsupported by the greater weight of the evidence. Remainder rejected as irrelevant insofar as the greater weight of the evidence does not support the inference that any commercial use of the subject land will necessarily result in such problems.

48: first six sentences adopted. Remainder rejected as irrelevant. The present level of traffic on State Road 46 already demands that DNR take every possible precaution in executing prescribed burns. Even if the Commercial designation were to result in more traffic, which is not necessarily the case, the impact on the prescribed burning program would be insignificant given the existing constraints.

Treatment Accorded Proposed Findings of Seminole County

(in view of the absence of numbered paragraphs, rulings are by page number) 9-12: rejected as legal argument or otherwise not finding

of fact.

13-14: rejected as irrelevant and subordinate. 15: adopted in substance.

16: first paragraph adopted. Second paragraph rejected as irrelevant.

17: first paragraph rejected as irrelevant. Remainder adopted.

18: adopted in substance, although the Preserve is not the southern tip of the bear habitat for the Ocala National Forest bear population.

19: rejected as subordinate and irrelevant.

20: adopted, except that the Preserve is not the southern tip of bear habitat and the area south of State Road 46 is not marginal bear habitat to the west of the subject land.

21: rejected as subordinate, except that traffic travels too fast on State Road 46 and the traffic count is 10,211 vehicles per day.

22: first paragraph adopted in substance. Second paragraph rejected as irrelevant and subordinate. Third paragraph adopted.

23: adopted in substance.

24: adopted as to designation. Remainder rejected as irrelevant and subordinate.

25: rejected as irrelevant, except for possibility of variety of land uses under Commercial designation.

26: rejected as irrelevant, except that Miller Parcel has no wetlands and is not within any floodplain.

27: first paragraph rejected as irrelevant, except that Katz and Miller Parcels are undeveloped and Katz Parcel has not wetlands and is not within any floodplains. Remainder adopted.

28: first incomplete paragraph adopted in substance.

Remainder rejected as irrelevant.

29: rejected as irrelevant and subordinate.

30-33: rejected as cumulative, subordinate, and irrelevant. 34: rejected as cumulative, subordinate, and irrelevant,

except that commercial development could have less impact on natural resources than residential development.

35: rejected as cumulative, subordinate, and irrelevant, except that last incomplete paragraph is adopted in substance.

36: rejected as not finding of fact.

Treatment Accorded Proposed Findings of Katz 1-9: adopted or adopted in substance.

10: second and third sentences adopted. First sentence rejected as irrelevant. Remainder rejected as recitation of testimony.

11-13: rejected as irrelevant. 14-18: adopted.

19: rejected as irrelevant.

20: adopted.

21: rejected as irrelevant.

22: rejected as against the greater weight of the evidence.

23: rejected as irrelevant and subordinate.

24: adopted in substance, except for recitations of evidence, which are rejected.

25: adopted in substance.

26: adopted in substance, except for recitation of evidence, which are rejected.

27: rejected as subordinate.

28: rejected as irrelevant.

29: adopted in substance to extent not recitation of testimony or legal argument.

30: rejected as recitation of testimony. Treatment Accorded Proposed Findings of Miller

1-26: adopted or adopted in substance except that the distance in Paragraph 18 is about 4100 feet, not 4200 feet.

27-33: rejected as irrelevant. 35: adopted in substance.

36-37

and 39: rejected as subordinate.

38: adopted.

40: rejected as unsupported by the greater weight of the evidence.

41: adopted in substance.

42: adopted in substance, although it is not clear: 1) exactly what properties the state is actually going to acquire and 2) whether the properties finally acquired, in view of what development ultimately takes place on surrounding properties, will provide sufficient habitat for bear travel across State Road 46.

43: rejected as subordinate.

44-46: adopted or adopted in substance.

47-48: rejected as irrelevant or subordinate. 49-50: rejected as irrelevant.

1. and 53: adopted in substance.

2. and 54: rejected as irrelevant.

55-60: adopted or adopted in substance. 61-70: rejected as irrelevant.

71-74: adopted or adopted in substance.

75-82: rejected as irrelevant. In this proceeding, the proper emphasis is on whether acceptable impacts could result from any Commercial use, not whether acceptable impacts necessarily would result from any such use. The latter inquiry is limited to the process in which a development order is issued.

83-84: adopted.

85-88: rejected as subordinate or irrelevant. 89-91: adopted or adopted in substance.

COPIES FURNISHED:

David L. Jordan, Senior Attorney Jeffrey N. Steinsnyder, Senior Attorney Department of Community Affairs

2740 Centerview Drive, Suite 138

Tallahassee, FL 32399-2100

Miranda Franks Fitzgerald Maguire, Voorhis & Wells, P.A.

P.O. Box 633 Orlando, FL 32802

Robert A. McMillan County Attorney

Seminole County Services Building 1101 East First Street

Sanford, FL 32771

David C. Brennan Trickel & Leigh

39 West Pine Street Orlando, FL 32801

Patty Woodworth Director

Planning and Budgeting

Executive Office of the Director The Capitol, PL-05

Tallahassee, FL 32399-0001

Docket for Case No: 89-002735GM

Orders for Case No: 89-002735GM