STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
MANASOTA-88, INC., )
)
Petitioner, )
)
vs. )
)
DEPARTMENT OF COMMUNITY )
AFFAIRS and THE CITY )
OF BRADENTON, ) CASE NO. 89-6723GM
)
Respondents, )
)
and )
)
CURTISS WRIGHT, INC., )
)
Intervenor. )
)
RECOMMENDED ORDER
Pursuant to notice, final hearing in the above-styled case was held in Bradenton, Florida, on September 10, 1991, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.
APPEARANCES
The parties were represented at the hearing as follows: For Petitioner: Attorney Thomas W. Reese
123 Eighth Street North
St. Petersburg, Florida 33701 For Respondent Department of Community Affairs:
Michael P. Donaldson Assistant General Counsel
Department of Community Affairs 2740 Centerview Drive
Tallahassee, Florida 32399-2100 For Respondent City of Bradenton:
Alan Hardy Prather
Alan Hardy Prather, Chartered 1806 Manatee Avenue West Bradenton, Florida 34205
For Intervenor Curtiss Wright, Inc.:
Patricia A. Petruff Dye & Scott, P.A.
P.O. Box 9480
Bradenton, Florida 34206 STATEMENT OF THE ISSUE
The issue in this case is whether the comprehensive plan is not in compliance for the reasons set forth by Petitioner.
PRELIMINARY STATEMENT
By Amended Petition filed May 4, 1990, Petitioner raised the following issues:
The designation of the Coastal High Hazard Area is inconsistent with the criterion of supporting data and analysis, as required by Section 163.3177(8) and Rule 9J
The designation of the Coastal High Hazard Area is inconsistent with the criterion of the use of available appropriate data concerning historic damage and scientifically predicted damage of moving or storm driven water, including predicted sea level rise, as required by Rules 9J
9J-5.003(14). 2/
The designation of the Coastal High Hazard Area is internally inconsistent with
plan policies to protect coastal resources, protect the public from natural disasters, and maintain and reduce hurricane evacuation times.
The designation of the Coastal High Hazard Area is inconsistent with provisions of the State Plan 3/ concerning housing, public safety, water resources, natural systems and recreational lands, land use, and governmental efficiency.
The future land use designation of the western peninsula of Perico Island at a density of up to 10 units per acre is inconsistent with the criterion of supporting data and analysis.
The future land use designation of the western peninsula of Perico Island at a density of up to 10 units per acre is inconsistent with the criterion of a land use suitability analysis, as required by Section 163.3177(6) and Rule 9J-5.006(2)(b).
The future land use designation of the western peninsula of Perico Island at a density of up to 10 units per acre is internally inconsistent with the future land
use policies concerning the Perico Island neighborhood and the coastal management/conservation element. 4/
The future land use designation of the western peninsula of Perico Island at a density of up to 10 units per acre is internally inconsistent with plan provisions to protect coastal resources, water quality, wildlife habitat, and the public from natural disasters; to maintain and reduce hurricane evacuation times; and to deal with traffic circulation.
The future land use designation of the western peninsula of Perico Island at a density of up to 10 units per acre is inconsistent
with the criterion of an objective to coordinate coastal densities with the local hurricane evacuation plan, as required by Section 163.3177(6) and Rule 9J
The future land use designation of the western peninsula of Perico Island at a density of up to 10 units per acre is inconsistent with the criterion of an objective to coordinate with the Spoonbill Bay Development of Regional Impact, as required
by Section 163.3177(6)(a) and Rule 9J-5.006(3)(b)6. 5/
The future land use designation of the western peninsula of Perico Island at a density of up to 10 units per acre is inconsistent with the criterion of a policy to protect environmentally sensitive land, as required by Section 163.3177(6)(a) and Rule 9J
The future land use designation of the western peninsula of Perico Island at a density of up to 10 units per acre is inconsistent with the criterion of an objective to protect, conserve, or enhance remaining coastal wetlands, living marine resources, coastal barriers, and wildlife habitat, as required by Section 163.3177(6)(g) and Rule 9J-5.012(3)(b)1.
The future land use designation of the western peninsula of Perico Island at a density of up to 10 units per acre is inconsistent with the criterion of an objective to direct population concentrations away from coastal high hazard areas, once the Coastal High Hazard Area is properly defined, as required by Rule 9J-5.012(3)(b)6.
The future land use designation of the western peninsula of Perico Island at a density of up to 10 units per acre is inconsistent with the criterion of an objective to encourage land uses that are consistent with the community's character and
future land use, as required by Section 163.3177(6)(a) and Rule 9J-5.006(3)(b)3.
The future land use designation of the western peninsula of Perico Island at a density of up to 10 units per acre is inconsistent with the criterion of a policy to provide for the compatibility of adjacent land uses, as required by Section 163.3177(6) and Rule 9J-5.006(3)(c)2.
The future land use designation of the western peninsula of Perico Island at a density of up to 10 units per acre is inconsistent with the criterion of an objective to maintain or reduce hurricane evacuation times between the barrier island and mainland, as required by Section 163.3177(6)(g) and Rule 9J-5.012(3)(b)7.
The future land use designation of the western peninsula of Perico Island at a density of up to 10 units per acre is inconsistent with provisions of the State Plan 6/ concerning housing, public safety,
water resources, coastal and marine resources, natural systems and recreational land, land use, and governmental efficiency.
The stormwater provisions of the plan are internally inconsistent with plan
provisions concerning water quality protection and improvement.
The stormwater provisions of the plan are inconsistent with the criterion of a policy demonstrating how the local government will coordinate with the SWIM Plan for Tampa Bay, especially as to the SWIM Plan's requirement that all stormwater discharge comply with water quality standards and as to
the failure of the Capital Improvement Element to implement the SWIM Plan requirements, as required by Section 163.3178(2) and Rule 9J- 5.012[(3)](c)14.
The Capital Improvement Element is inconsistent with the criterion of including in the Schedule of Capital Improvements projects necessary to achieve treatment of stormwater sufficient to meet water quality standards, as required by Section 163.3177(3)
(a) and Rule 9J
The stormwater provisions of the plan are inconsistent with the provisions of the State Plan requiring the elimination of discharge into State waters of inadequately treated stormwater runoff, as required by Section 187.201(b)(12).
The Historic Preservation Element is inconsistent with the criterion of supporting data and analysis.
The objectives and policies of the Historic Preservation Element are internally inconsistent with the goal of the element to preserve Bradenton's architectural heritage.
The objectives and policies of the Historic Preservation Element are inconsistent with the criteria that they be objective and measurable, as required by Rules 9J-5.003(61) and (68). 7/
The Capital Improvement Element is inconsistent with the criterion of establishing a level of service standard for recreational facilities, as required by Section 163.3177(3)(a) and Rules 9J-5.005(3), 9J- 5.01[6(3)](c)4., and 9J
The Capital Improvement Element is inconsistent with the criterion of including in the Schedule of Capital Improvements projects necessary to achieve a level of service of D for roads, as required by Section 163.3177(3)(a) and Rule 9J
At the hearing, Petitioner called two witnesses. No other witnesses were called. Petitioner offered into evidence seven exhibits. The Department of Community Affairs offered into evidence one exhibit. Respondent City of Bradenton offered into evidence seven exhibits. Intervenor offered into evidence one exhibit. All exhibits were admitted.
The transcript was filed November 8, 1991. Each party filed a proposed recommended order. Treatment of the proposed findings is set forth in the appendix.
FINDINGS OF FACT
Background
Petitioner is incorporated in the State of Florida as a not-for-profit corporation. The corporate purpose of Petitioner includes the improvement of environmental health. Petitioner's activities in this regard are especially focused upon Manatee and Sarasota Counties, including the City of Bradenton (Bradenton).
Petitioner has about 2500 members. Members of
Petitioner reside in Bradenton. These persons use the water and roads adjacent to Perico Island.
Insubstantial evidence suggests that Petitioner, through its members, submitted oral objections to Bradenton at anytime during the planning process. Petitioner mailed a letter dated March 7, 1989, to the Department of Community Affairs (DCA) with a copy sent to Bradenton. The letter clearly constitutes written objections to the proposed plan.
Bradenton initially received the March 7 letter on March 9. It is difficult to determine whether Bradenton received a copy of the March 7 letter after the issuance of the Objections, Recommendations, and Comments (ORC) by DCA. Even if Bradenton received a copy of the March 7 letter prior to the
issuance of the ORC, it is impossible to determine if Bradenton received another copy of the letter with the ORC, which may contain numerous attachments consisting of the comments of other parties.
The ORC was not introduced into evidence. The only indication in the record, including pleadings, of the date of the ORC is in Exhibit 2 attached to the Deposition of Robert Pennock, which itself is City Exhibit 6. Exhibit 2, which is a letter from DCA to Bradenton, mentions the ORC dated March 17, 1989. This date would be at the outside of the range for DCA to submit an ORC in response to a proposed plan transmitted, as in the present case, on November 23, 1988. 9/
By Request for Admission served November 21, 1990, Petitioner requested Bradenton to admit: "that [Petitioner] submitted written objections to [Bradenton's plan] which [Bradenton] received after it received DCA's ORC report."
Bradenton's response to the request, in its entirety, states:
The City has received a copy of the correspondence relating to possible "objections" to the City's Plan that were mailed directly to [DCA]. The date of that correspondence was March 7, 1989 and addressed to Robert G. Nave, Chief, Bureau of Local Planning, and was written by Attorney Thomas
W. Reese. By date stamp on the copy of the correspondence in the possession of the City, it is believed that the document was received on March 9, 1989. The City does not admit that the correspondence of March 7, 1989 from Mr. Reese to Mr. Nave meets the intent of the statute for establishing standing and to the contrary, does not comply and does not establish such standing.
The response ignores the portion of the request directed toward the factual question of the order in which Bradenton received the March 7 letter and the ORC. The significance of the chronology, as opposed merely to the acknowledgement of receipt of the March 7 letter, may have been lost upon Petitioner's counsel, who inexplicably asserted in opening statement that the ORC was issued on December 19, 1988. Transcript, page 57. Given the probable chronology of events recited in the preceding footnote, one of the few certainties concerning this matter is that the ORC was not issued on December 19, 1988.
Intervenor is a Delaware corporation that owns property in Bradenton. Intervenor owns the western peninsula of Perico Island, which is described in detail below.
Intervenor submitted oral or written objections to Bradenton not later than the transmittal hearing on November 23, 1988. Prior to transmitting the proposed plan to DCA, Bradenton removed the coastal high hazard designation from much of the western peninsula of Perico Island and changed the designation of the affected land to ten units per acre.
Bradenton is a municipality located in western Manatee County. The city, which straddles the mouth of the Braden River to the east, generally lies along the southern bank of the Manatee River less than three miles upstream from where it empties into lower Tampa Bay. Wares Creek runs from south to north through the center of Bradenton and empties into the Manatee River.
Palma Sola Bay divides the majority of the city from Perico Island. The southern half of Perico Island, which consists of eastern and western peninsulas, is within the city limits. Perico Island, which is generally bounded on the west by Anna Maria Sound and Sarasota Pass, is located between Tampa Bay to the north and Sarasota Bay to the south. Barrier islands to the west, most notably Anna Maria Island, tend to protect Bradenton from direct Gulf waves.
On August 1, 1989, Bradenton adopted its comprehensive plan (Plan). As Bradenton noted accurately in its cover letter to DCA, no DCA representative attended the final adoption hearing on July 26, 1989, although Bradenton had requested that DCA send a representative to the hearing. 10/ On September 16, 1991, DCA issued a notice of intent to find the Plan in compliance.
Designation of Coastal High Hazard Area
Data and Analysis
The Data and Analysis 11/ contains a Coastal Area Map, which is on page 150 of the Plan. The map depicts those areas below two feet elevation as the Coastal High Hazard Area. The map shows that the Coastal High Hazard Area includes about one-half of the western peninsula of Perico Island and relatively thin strips along the south and east borders of the eastern peninsula of Perico Island. The only other portions of Bradenton designated as Coastal High Hazard Area are parts of islands in the Braden River and two small parcels on the west bank of the Braden River.
The Data and Analysis does not further address the Coastal High Hazard Area. In particular, the Data and Analysis fails to explain why the two-foot elevation was selected to define the Coastal High Hazard Area. The Data and Analysis does not mention the location of the Federal Emergency Management Agency velocity zone (V-zone) or the Department of Natural Resources Coastal Construction Control Line.
The portion of Perico Island within the city is bounded on the north by State Road 64. Immediately north of State Road 64, the remainder of Perico Island is in unincorporated Manatee County. The Manatee County comprehensive plan designates the entire island north of the road as coastal high hazard area. However, the county plan notes extends the coastal high hazard area to the five- foot contour. The county plan also divides the coastal high hazard area into two areas: the more critical area, which corresponds to the V-zone, that is subject to wave action and the less critical area that is subject to storm- induced damage. Some testimony suggests that the Manatee County plan has more stringent land use constraints for land uses within the V-zone than for land uses elsewhere within the county's coastal high hazard area.
Nothing in the record indicates the extent of the V-zone over any part of Perico Island. Early in the consideration by the City Council of the proposed plan, the coastal high hazard area included all land seaward of four
feet elevation. The four-foot contour had been selected because of data suggesting that the "spring high tide" runs to an elevation of 3.62 feet, which was rounded up because Bradenton had only one-foot contour maps.
By letter dated November 16, 1988, a representative of Intervenor complained that the four-foot contour was "scientifically unjustified and legally unsupportable." The letter states:
Only a portion of the westerly peninsula is in the [V-zone] and even that portion of the property could be partially used with proper construction safeguards. The staff position of four feet seems to be based upon the fact
that spring high tide occurs at elevation 3.56 feet but no one knows where that elevation occurs on this property nor does anyone know where the elevation 4.0 feet occurs on this property. The relationship between spring high tide and coastal high hazard is likewise unestablished.
Bradenton's Chief of Planning and Zoning, Margaret Swanson, testified that the two-foot contour line "definitely" includes the entire V-zone. Deposition of Margaret Swanson, page 48. Jerry West, Bradenton Planning and Development Director and Ms. Swanson's supervisor, testified likewise at the hearing. Transcript, page 90.
Petitioner produced no contrary evidence as to the location of the V- zone or the Coastal Construction Control Line. Likewise, there is no evidence that either peninsula has historically experienced destruction or severe damage from storm surge, waves, erosion, or other manifestations of rapidly moving or storm driven water. The spring high tide appears to be an unusual event, perhaps even occurring less often than annually. The evidence fails to link the spring high tide with destruction or severe damage from rapidly moving or storm driven water anywhere in Bradenton.
Plan Provisions
Coastal Management/Conservation Element (Coastal) Goal 5 states:
Use of coastal areas in a way which preserves natural systems, provides for public access, and minimizes storm and flood hazards to population and property, including public facilities.
Objective 1: Severely limit development in low lying coastal areas.
Policy 1: A coastal high-hazard area shall be established through the Land Use and Development Regulations to include all coastal lands along the Braden and Manatee Rivers and Palma Sola Bay which are below 2 feet in elevation.
Policy 2: Establish a conservation zone including all conservation lands as shown on the Future Land Use Map and all undeveloped areas below the Coastal High Hazard Line
(2-foot contour line) and prohibit construction of building, roadways and parking areas in that zone except to provide shoreline access points as determined necessary or of overriding public interest by City
Council. . . .
Policy 3: Prohibit the filling of coastal areas below the 2-foot contour line except in cases where such lands are completely separated from the shoreline by land of higher elevation or where determined necessary or of overriding public interest by City Council.
Policy 4: The City shall not locate infrastructure in the Coastal High Hazard Area (below the 2-foot contour line) except as determined necessary or of overriding public interest by City Council.
* * * Objective 5: Keep population and investment low in areas vulnerable to coastal flooding.
Policy 1: Designate undeveloped coastal acreage with areas below the 8-foot elevation contour line as PDP (planned development project) and limit residential development to low density below the 8-foot contour. Limit non-residential development below the 8-foot contour line to water dependent uses.
Policy 2: Locate all public facilities outside of the coastal high hazard area.
* * *
Policy 4: Discourage the location of high density residential projects, public housing, housing for the elderly, mobile homes and group homes in high priority hurricane evacuation zones through the Land Use and Development Regulations.
The Future Land Use Map (FLUM) designates as Conservation all of the land on Perico Island below the two-foot contour. According to Policy 1 under Objective 1 of the Future Land Use Element (FLUE), the "Recreational/Conservation" designation is for "[p]arks, designated open areas and conservation." No residential uses are permitted in the Recreation/Conservation category.
The only FLUE goal is:
A land use pattern which promotes the well being of the community in regard to compatibility of adjacent uses, building types and residential densities, efficiency of utilities and roadways, harmony with the natural environment and protection from natural hazards.
Objective 1: Location of new development and redevelopment in a manner conducive to compatibility of land uses, sensitive to natural resources and natural hazards and consistent with the availability of public facilities.
* * *
Housing Element (Housing) Policy 1 under Objective 1 is:
Designate vacant tracts of land for residential use on the future land use map except where unsuitable for that use because of incompatible adjacent existing uses, inappropriate elevation or drainage conditions or other safety hazard.
State Plan Provisions
There are no relevant provisions of the State Plan with which the Coastal High Hazard Area is arguably inconsistent.
Designation of Ten Units Per Acre on Western Peninsula of Perico Island
Data and Analysis
The Data and Analysis identifies Perico Island and the islands of the Braden River as the two areas of major environmental concern in Bradenton. The Data and Analysis states:
The value of these lands is that they are coastal lands with abundant sea life and habitat. In an urbanized area where much of the natural shoreline has been destroyed, these remaining lands should be protected because of their intrinsic value as well as because of their dwindling supply.
Plan, page 157.
The Data and Analysis notes that Perico Island is entirely within the 100-year flood zone and is less than five feet above sea level with "large areas" below the mean high water line. The western peninsula of Perico Island is lower than the eastern peninsula. The highest elevation on the western peninsula is five feet, which is within 100 feet of State Road 64. The elevation of most of the upland beyond 100 feet of the road is less than three feet. The elevation of much of the interior of the eastern peninsula is 3-4 feet.
Although Perico Island contains Australian Pine and Brazilian Pepper, which are nuisance exotics, the Data and Analysis explains that valuable natural habitat remains:
A great diversity of animal and plant life is found on the island[, including roseate spoonbills, brown pelicans, osprey, and an occasional bald eagle]. The mangrove swamps, mud flats, and marine grass flats fringing Perico Island support a variety of marine life including commercial and game fishing species such as mullet, trout, redfish, and snook, as well as shellfish.
Plan, page 158. The habitat of the endangered West Indian Manatee includes the coastal areas in question. In addition to the above-noted animal species that are listed as endangered, threatened, or of special concern, the threatened butterfly orchid is also found on Perico Island.
The Data and Analysis reports that Palma Sola Bay is a Class II waterbody, which means that it is suitable for shellfishing. Although it has not been approved for such purpose, its waters regularly satisfy Class II standards with only an occasional violation of the Class II bacteriological standards.
According to the Data and Analysis, Palma Sola Bay has been designated as part of the Sarasota Bay Estuary of National Significance. Plan, page 98. Both Anna Maria Sound and Palma Sola Bay are part of the Sarasota Bay estuarine system and, as such, are Outstanding Florida Waters. 12/
Concluding its discussion of the two areas of major environmental concern to Bradenton, the Data and Analysis
states:
As with Perico Island, the Braden River and its wetlands are an invaluable natural resource. Such tidal wetlands not only reduce water pollution by filtering pollutant-laden runoff, but also influence water quantity by retaining water during dry periods and absorbing it during flooding. Wetlands also stabilize the shoreline and act as a hurricane buffer. They provide essential breeding, nesting, resting areas for myriad fish and bird species and support a diverse food web extending to terrestrial animals as well. ...
Plan, page 159. The Coastal Vegetation map shows that the portion of the western peninsula corresponding roughly with the Coastal High Hazard Area is vegetated by coastal wetlands with considerable mangrove growth. Plan, page 151.
Perico Island is one of "three areas where future development will impact the coastal area." Plan, page 160a. The Data and Analysis notes that an historic shell mound on the western peninsula must be "protect[ed from r]esidential development."
However, the designation of the western peninsula at ten units per acre, as necessarily conceded by Mr. West, is not a low density.
The Data and Analysis surmises that the impact of future development on at least the eastern peninsula of Perico Island is largely unavoidable:
Because of a Development Order issued on a 1975 Development of Regional Impact application, the conditions of development are established and little can be done to modify them to meet the policies of this plan.
Id.
The Data and Analysis describes the 1975 development order as: authoriz[ing] 1512 dwelling units and a
neighborhood commercial center and call[ing] for the preservation of lands below the 1.5 foot elevation and in an historic shell mound on the western peninsula of the site.
Development of the western peninsula was prohibited by the approval stipulations.
Plan, page 158.
At the time of the application for what is known as the Spoonhill Bay DRI, Intervenor or an affiliate of Intervenor owned both peninsulas. After obtaining the development order, Intervenor sold all or part of the eastern peninsula to developers, but retained the western peninsula.
The application for development approval was for a total of 1776 units on 102.6 acres. The entire land area was about 546 acres with 171 acres of mangroves conservation, 200 acres of marine conservation, 10 acres of historic preservation, almost 2 acres of neighborhood commercial, 26 acres of lakes, and
35 acres of other open space and recreation. The map accompanying the application shows two sites for historic conservation, both evidently above the two-foot contour line.
According to the DRI application, both peninsulas of Perico Island contain about 184 acres above the 1.5-foot contour. The western peninsula encompasses 114 acres with about 10-16 acres higher than 1.5 to 2 feet in elevation.
According to the application, the dwelling units per gross acre would be 3.2 and the dwelling units per net acre would be 9.7. The gross acreage density is based on total acres, including mangroves, lakes, and marine conservation. The net acreage density is impossible to calculate from the information provided. 13/
The development order, which was approved May 28, 1975, by the Bradenton City Council, approves the development subject to the following conditions:
The developer shall initiate a positive program for the long run protection of the ecologically important undeveloped areas of the site. . . .
* * *
3. The applicant shall work in consultation with the State Division of Archives, History and Records Management to insure the protection and preservation of the two sites of historical and archaeological significance found on the project site. Protection of the Indian Mound area shall be by deed, dedication, or other appropriate legal instrument to insure that such sites are preserved in perpetuity.
* * *
5. With respect to responsibility for roadway improvements outlined in the transportation section of the DRI report:
* * *
(d) To further reduce traffic impact of the project, no residential development as originally proposed by the developer will be carried out on the westerly peninsula of the developer's property. ... Total number of residential units as proposed shall be reduced by 15% from 1,778 units to 1,512 units, all
to be located on the easterly peninsula.
* * *
7. Developer shall furnish at no cost to City not less than one acre site to accommodate governmental services that will be generated by the development, e.g., fire, police, etc. Site location shall be subject to approval of both parties.
The Data and Analysis includes among "acreage not presently slated for development . . . 10 acres, western peninsula, Perico Island[,] includes Mangrove areas, low-lying areas and an Indian shell mound." Plan, page 12. However, the Data and Analysis determines that this area is "suitable for development," which means that the land is "above mean high water line and is served by public facilities." Plan, page 14.
The soils map shows that the entire western peninsula, as well as the western half of the eastern peninsula, is characterized by nearly level, very poorly drained sandy and organic soils in tidal mangrove swamps. Plan, page 13. The soils of the western peninsula and western half of the eastern peninsula of Perico Island, as well as the soils of the Braden River islands, are the only soils in Bradenton that are generally "very poorly drained" and account for very little of the land area of the city.
Both peninsulas of Perico Island are identified as Neighborhood 12.04 in the Plan. In the discussion of Neighborhood 12.04, the Data and Analysis states that a condition of the development order "was that the smaller of the two peninsulas is not to be developed because of environmentally sensitive and historically significant areas as well as traffic impacts." Plan, page 97.
The Data and Analysis notes that the two shell middens, which date from "prehistoric times," have been damaged by erosion and amateur excavation. But the Data and Analysis recommends that the Indian mounds be professionally excavated or protected "because of their potential value in adding to the small amount of information available about prehistoric settlements in this area." Plan, page 97.
The Data and Analysis notes that approved development has provided 600 units through 1986 at a density of 6.3 units per acre. As of that time, 116 acres were in residential use, one acre in commercial use, and 70 acres were vacant. The Data and Analysis projects that 800 units will have been constructed by 1990.
In discussing Neighborhood 12.04, the Data and Analysis reports that no public recreation areas are proposed for the development, which will be served exclusively by private
recreation areas. In addition, State Road 64 is the hurricane evacuation route for Perico Island as well as Anna Maria Island, which is also served by another escape route.
The discussion of Neighborhood 12.04 concludes with several recommendations. Among them are the following:
Require the preservation of and protection of the historic shell middens on the western peninsula if the peninsula is ever developed.
Strictly enforce the flood protection ordinance for development of the island.
Require mangrove and water quality protection as part of development approvals.
Hurricane evacuation and traffic impacts on State Road 64 shall be considered as an important issue in review of applications for development approval.
Any applications by property owners to increase the density of development in the neighborhood shall be denied.
Participate in the studies of Sarasota
and Palma Sola Bays under the National Estuary Program and utilize the recommendations coming forth from that program to the extent possible.
Nothing in this Plan shall limit or modify the rights of any person to complete any development that has been authorized as a development of regional impact pursuant to Chapter 380 or who has been issued a final local development order, and development has commenced and is continuing in good faith.
Any amendments to the development order for the Development of Regional Impact shall comply with or require compliance with all of
the policies of this plan particularly those concerning protection of environmentally and historically sensitive lands, the coastal high hazard area and hurricane vulnerability zone.
Plan, pages 98-99.
The Evacuation Map shows that all of Perico Island is in Evacuation Zone A. Plan, page 153. This is the highest priority evacuation zone in Bradenton. This zone also encompasses bands of land along the Manatee River and both shorelines of the Braden River.
Additional data and analysis are included in the Surface Water Improvement and Management Program for Tampa Bay published on August 30, 1988 (SWIM Plan). The SWIM Plan notes that the Tampa Bay estuary, of which Anna Maria Sound, Palma Sola Bay, and the Manatee and Braden Rivers are a part, suffers from interconnected problems, including
habitat destruction (e.g., dredging, filling, hardened shorelines); water quality inclusive of eutrophication (e.g., point and non-point stormwater runoff, municipal and industrial effluents, septage); [and] altered freshwater inputs (e.g., dams, withdrawals).
SWIM Plan, page 1.
Addressing the functions of area wetlands, the SWIM Plan states:
In addition to their contributions to the biology of the marine ecosystems, coastal and estuarine wetlands play an important role in modifying the geologic and hydrographic characteristics of the area. Acting as baffles, roots and leaves reduce the velocity of water over the bottom causing suspended particles to settle out and become trapped at the base of the plants. In this way mangroves, marshes, and seagrasses reduce turbidity, increase sedimentation rates, stabilize sediments, and attenuate wave action on adjacent shorelines. The binding and stabilization characteristics of these
habitats are documented by reports of some coastal marshes and seagrass meadows surviving the destructive scouring forces of coastal storms and hurricanes in the Gulf states.
SWIM Plan, page 23.
However, these wetland systems "face increasing pressure from development of all types," notwithstanding the Warren S. Henderson Wetlands Protection Act of 1984. SWIM Plan, page 27. The water quality is directly threatened by the nutrients introduced into the water by, among other things, untreated stormwater runoff and the "extensive transformation of rural uplands to urban uses." SWIM Plan, pages 26-27.
Plan Provisions
The FLUM contains only two residential categories. All of Perico Island above the Coastal High Hazard Area is designated "Residential--maximum 10 units per acre." The other category permits up to 15 units per acre.
FLUE Policy 1 under Objective 1 describes the Residential categories as follows:
Residential with densities limited to 15 units per acre in the high density area and 10 units per acre in the moderate density area and limited by recommendations by neighborhood in this plan. . . . Neighborhood commercial uses permitted as part of the residential development plan. .. .
FLUE Policy 2 under Objective 1 is:
The recommendations for each neighborhood contained in this plan are hereby adopted as part of this plan and are to be adhered to in all land use decisions to be made by the City.
FLUE Policy 3 under Objective 1 states:
The future land use map, neighborhood recommendations and all other relevant policies under this plan are to be used as a basis for the revision of the land use and development regulations, including the zoning atlas.
FLUE Objective 3 provides:
Management of future development through adoption and enforcement of regulations which promote the use of land in a manner sensitive to public health and safety and to soils and topography.
FLUE Objective 4 and relevant policies are:
Objective 4: Limitation of population in first priority hurricane evacuation zones identified in the local and regional hurricane evacuation plan.
Policy 1: Deny requests for increases in density on property approved for development if the property is located in the first priority regional hurricane evacuation zone.
Policy 2: On the Braden River islands, designate as conservation area all lands below the 2 ft. contour line, and allow only recreational/open space or residential use at a gross density maximum of 3 units per acre on the uplands.
Coastal Goal 2 is "[i]mprovement of surface water quality." Objective
1 is: "Preservation of water quality cleansing and erosion control capabilities of natural, vegetated shorelines." Policy 4 is to "[r]equire by ordinance by December 1, 1989 best management practices for erosion control during and after land alteration projects."
Coastal Objective 2 under Goal 2 is: "Reduction of pollutant loads reaching waterways from urban stormwater."
Policy 2 defers to land development regulations the job of establishing standards for new developments to "provide on-site detention and filtration of stormwater runoff to remove oils, silt, sediment, nutrients, and heavy metals, and [to] require erosion control during construction."
Coastal Goal 4 provides: "Protection and enhancement of wildlife habitat and vegetation." Objective 1 deals with the Braden River estuary and islands and includes policies restricting development to uplands, generally prohibiting the removal of wetlands vegetation, and requiring that development proceed as a planned development project "to ensure site-sensitive planning and review." No similar provisions apply to Perico Island.
Coastal Objective 2 under Goal 4 is: "Preservation of wetlands, including coastal wetlands vegetation, living marine resources and wildlife habitat." Policy 1 states: "[b]y December 1, 1989 adopt regulations to prohibit the removal of wetland vegetation except for limited access points." Policy 2 is, "[b]y December 1, 1989 require that development approvals for land with wetland area stipulate wetland protection measures to ensure that upland construction and land use do no affect the wetlands." Policy 3 states: "[b]y December 1, 1989 adopt regulations to require the identification of wildlife habitats as part of planned development project applications and . . . provide mechanisms to require protection of valuable habitat." Policy 5 provides: "[b]y December 1, 1989 adopt regulations to limit disturbance of seagrass beds by prohibiting development and land uses in seagrass areas and where they will result in an increase in boating in seagrass areas except where necessary to maintain existing facilities." Policy 7 is to develop with Manatee County a management plan for the Braden River estuary, Manatee River, and Palma Sola Bay. Policy 8 is to adopt by ordinance, within six months of their issuance, the recommendations of the Sarasota Bay National Estuary Program.
Coastal Goal 6 is: "Fast evacuation prior to natural disasters such as hurricanes." Objective 1 is a "workable evacuation plan, geared toward maintaining present evacuation times."
Goal 4 of the Public Facilities Element (PFE) provides: "Prevention of flood damage and improvement of surface water quality."
PFE Objective 1 under Goal 4 sets forth the following provisions concerning drainage level of service standards.
Policy 1a. The peak discharge rate from new development shall be equal to or less than the peak discharge rate that existed prior to development based on a 25-year frequency,
24-hour duration storm event.
* * * Policy 1c. Internal or on-site drainage
facilities of developments shall be designed
to accommodate the stormwater resulting from a design storm of 10-year frequency, critical duration, based on the project site's time of concentration.
Policy 2: The applicability of the level of service standards to various types and sizes of private development shall be set forth in the land use and development regulations adopted by December 1, 1989.
PFE Objective 4 under Goal 4 is: "Nondegradation of capacity of natural drainage features." Policy 1 states:
All new developments shall be required by land use regulations adopted by December 1, 1989 to provide stormwater retention and drainage facilities to curb increased runoff to natural drainage features.
PFE Objective 5 under Goal 4 is: "Upgrading of existing drainage facilities to meet future needs." Policy 1 states:
Stormwater facility improvements as proposed in the Comprehensive Stormwater Management Study, 1981 and subsequent updates shall be scheduled into the Capital Improvements program. 14/
State Plan Provisions
The relevant provisions of the State Plan are set forth in Findings of Fact Paragraphs 74 et seq.
Stormwater Provisions
Plan Provisions
Already cited above, PFE Goal 4; PFE Objectives 1, 4, and 5, as well as various policies under these objectives; Coastal Goal 2, Objective 2 under Goal 2, Policy 2 under Objective 2; and Housing Policy 1 under Objective 1 address stormwater and drainage.
PFE Goal 1 is:
Provision of public facilities in a manner which protects investments in existing facilities, promotes orderly, compact urban growth, and promotes the quality of natural resources, particularly surface waters.
PFE Objective 1 and Policy 1 under Goal 1 are to maintain the applicable level of service standards for public facilities and not to issue development orders if the issuance would result in a violation of a level of service standard.
PFE Objective 2 under Goal 4 is: "Correction of existing stormwater facility deficiencies by the year 2010." Policy 1 is:
Stormwater facility improvements as proposed in the Comprehensive Stormwater Management Study 1981 hereby adopted as an appendix to this plan and subsequent updates shall be scheduled into the Capital Improvements program.
PFE Objective 3 under Goal 4 is: "Water conservation through use of stormwater runoff for irrigation."
SWIM Plan Provisions
The SWIM Plan provides as follows with respect to water quality:
Initiative 1. Reduce point and non-point source pollutant loadings to attain water quality necessary to restore and maintain healthy and productive natural systems, protect human health, and . . . attain the highest possible water use classification.
* * *
1.c. Urban Stormwater Management Strategies:
--Reduce the levels of nutrients and other contaminants in urban stormwater runoff by requiring, if feasible, that the quality of stormwater discharges be no worse than the State water quality criteria or the existing
quality of the receiving water body, whichever is better. The feasibility of implementing this objective will be examined through a review of federal, state, District, and local rules pertaining to stormwater management.
* * *
--For all new upland development or redevelopment within the Tampa Bay watershed, runoff rates should not exceed those of natural, undisturbed conditions. The feasibility of implementing this objective will be examined through a review of federal, state, District, and local rules pertaining to stormwater management.
Perico Island, Anna Maria Sound, and Palma Sola Bay, as well as the Manatee and Braden Rivers, are within the jurisdiction of the Southwest Florida Water Management District's SWIM program for Tampa Bay.
State Plan Provisions
Section 187.201(8) addresses water resources. The goal is to "maintain the functions of natural systems and the overall present level of surface and ground water quality." Policy 8 is to "[e]ncourage the development of a strict floodplain management program by state and local governments designed to preserve hydrologically significant wetlands and other natural
floodplain features." Policy 12 is to "[e]liminate the discharge of inadequately treated wastewater and stormwater runoff into the waters of the state."
Section 187.201(9) addresses coastal and marine resources. The goal includes ensuring that development does not "endanger . . . important natural resources." Policy 4 is to "[p]rotect coastal resources [and] marine resources from the adverse effects of development." Policy 6 is to "[e]ncourage land and water uses which are compatible with the protection of sensitive coastal resources." Policy 7 is to "[p]rotect and restore long-term productivity of marine fisheries habitat and other aquatic resources."
Section 187.201(16) addresses land use. The goal is to direct development to those areas that have, among other things, the "land and water resources . . . to accommodate growth in an environmentally sensitive manner." Policy 6 is to "[c]onsider, in land use planning and regulation, the impact of land use on water quality and quantity; the availability of land, water, and other natural resources to meet demands; and the potential for flooding."
Section 187.201(22) addresses the economy. The goal is to "promote an economic climate which provides economic stability, maximizes job opportunities, and increase per capita income for its residents." Policy 3 is to "[m]aintain, as one of the state's primary economic assets, the environment, including clean air and water, beaches, forests, historic landmarks, and agricultural and natural resources."
Historic Provisions
Data and Analysis
The Data and Analysis discloses that 85 structures in Bradenton were added to the Florida Master Site File following an historic survey in 1980. As a result of the survey, two historic districts were established: Downtown Bradenton and Old Manatee.
The Data and Analysis reports that the Braden Castle ruins and Braden Castle Tourist Camp are included on the National Register of Historic Places.
Plan Provisions
The sole goal of the Historic Preservation Element (Historic) is: "To preserve Bradenton's architectural heritage as part of the effort to redevelop the old portions of the City." Historic Objective 1 is: "Disseminate information on the historic-architectural resources of the community and of the incentives for preservation and restoration of these resources." Historic Objective 2 is: "Restoration of historic structures and sites." Historic Objective 3 is: "Encourage other governmental agencies to consider historic and architectural value when taking actions affecting such properties in Bradenton and to modify their actions as to enhance rather than detract from these resources."
Historic Policies include the dissemination of information pertinent to historic preservation, allowance of exemptions from the building code for certain historic rehabilitation, and cooperation with other governmental agencies in historic preservation efforts.
Miscellaneous Provisions
Plan Provisions Regarding Level of
Service Standard for Recreational Facilities
Recreation Element (Recreation) Objective 3 is:
Provision of neighborhood parks located within walking distance of population served and having adequate acreage and facilities to serve the size and type of population served.
Recreation Policies under Objective 3 include: Policy 1: One acre of neighborhood park per
500 people shall be the level of service standard for recreation.
Policy 2: A neighborhood park shall be defined as a parcel of land of a half-acre or more located within a half-mile of the population served and having the following minimum improvements: benches, trees, open
or grassy areas and play or exercise equipment facilities geared to the type of population served.
Policy 3: Land use and development regulations adopted pursuant to this plan will require new residential development to provide recreation areas which meet the needs of that development based upon the adopted level of service standard for neighborhood parks. Such recreations shall serve in lieu of public neighborhood parks for new development.
Plan Provisions Regarding Scheduling of Capital Improvements Necessary to Attain Level of Service D for Roads
There are no roads identified in the Traffic Circulation Element (Traffic) for which Bradenton has jurisdiction that are projected not to achieve a level of service of D or better. The Data and Analysis states that seven road segments in Bradenton will attain a level of service standard worse than D during the planning timeframe. Plan, pages 125-27. However, the Data and Analysis indicates that the federal, state, or county has jurisdiction over each of these segments. Plan, page 114.
Ultimate Findings of Fact
Designation of Coastal High Hazard Area
Petitioner has failed to prove to the exclusion of fair debate that the designation of the Coastal High Hazard Area is inconsistent with the criterion of supporting data and analysis.
The Data and Analysis fails to indicate whether the Coastal High Hazard Area encompasses at least the V-zone or the land seaward of the Coastal Construction Control Line. However, Petitioner has failed to prove that the
Coastal High Hazard Area excludes any part of the V-zone or the land seaward of the Coastal Construction Control Line. Testimony suggests that the Coastal High Hazard Area includes at least the V-zone.
Petitioner has failed to prove to the exclusion of fair debate that the designation of the Coastal High Hazard Area is inconsistent with the criterion of the use of available appropriate data concerning historic damage and scientifically predicted damage of moving or storm driven water.
The record contains no substantial evidence as to qualifying damage or destruction to areas outside the V-zone or landward of the Coastal Construction Control Line.
Petitioner has failed to prove that the designation of the Coastal High Hazard Area is inconsistent with Plan provisions to protect coastal resources, protect the public from natural disasters, and maintain and hurricane evacuation times. Likewise, Petitioner has failed to prove that the designation of the Coastal High Hazard Area is inconsistent with provisions of the State Plan concerning housing, public safety, water resources, natural systems and recreational lands, land use, and governmental efficiency.
As noted above, Petitioner failed to prove that the designation of the Coastal High Hazard Area is unsupported by data and analysis. Without proof that the designation of the Coastal High Hazard Area is incorrect, Petitioner is unable to prove the inconsistencies identified in the preceding Paragraph.
Designation of Ten Units Per Acre on Western Peninsula of Perico Island
Petitioner has proved to the exclusion of fair debate that the designation of up 10 units per acre is inconsistent with the criterion of supporting data and analysis, including a land use suitability analysis.
The density of ten units per acre is, to the exclusion of fair debate, excessive under the circumstances. The soils are very poorly drained. The land above the Coastal High Hazard Area is very low. Except for 100 feet of frontage along the road, the entire upland will be flooded with the spring tide, which occurs with some regularity if not annually, as well as by flooding associated with hurricanes and tropical storms, even if the water is not storm driven. In the absence of an entirely elevated community, the spring tide and other coastal flooding will render inaccessible any interior residences, as well as inundate interior public facilities, unless natural drainage features and the mangrove fringes of the western island are significantly altered.
The low elevation and very poorly drained soils increase the difficulty of effective stormwater management. At the same time, stormwater management is more critical on the island, which is surrounded by Outstanding Florida Waters and, in the case of Palma Sola Bay, Class II waters.
The Spoonbill Bay DRI Development Order, which also serves as data and analysis, does not support the designation of ten units per acre for the western peninsula of Perico Island. The Development Order does not expressly transfer development rights from the western to the eastern peninsula. However, the Development Order rejects a request to develop the western peninsula at a density approximately equal to that accorded the western peninsula by the Plan.
The Development Order expressly bases the denial upon transportation considerations. In light of other evidence, including quoted portions of the Data and Analysis, the cited transportation considerations probably included concerns as to the impact of transportation, including attendant stormwater runoff, upon the island's natural resources. In any event, Bradenton chose merely to designate up to ten units per acre on the western peninsula without addressing the bases for its denial, 15 years earlier, of approval to develop any portion of the western peninsula.
Petitioner has proved to the exclusion of fair debate that the designation of ten units per acre is inconsistent with Coastal Goal 5, Objective
1 under Goal 5, Objective 5 under Goal 5, and Policies 1 and 4 under Objective 5.
Goal 5 is to use coastal areas so as to preserve natural systems and minimize storm and flood hazards, among other things. Objective 1 is to limit development severely in low lying coastal areas. Objective 5 under Goal 5 is to keep population and investment low in areas vulnerable to coastal flooding. Policy 1 under Objective 5 is to limit residential development to low density below the eight-foot contour. Policy 4 is to discourage the location of high density residential projects in high priority hurricane evacuation zones, of which Perico Island is one.
The Plan provisions set forth in the preceding paragraph preclude the designation of ten units per acre on the western peninsula. It is irrelevant whether the Plan's density designation is gross, so as to include some combination of Coastal High Hazard Area, mangrove fringe, wetlands, lakes, and Indian mounds, or net, so as to exclude all of such nonbuildable features of the land and waterscape characterizing the western peninsula. Even ten units per net acre is inconsistent with and repugnant to each of the provisions described above. 15/
Petitioner has proved to the exclusion of fair debate that the designation of ten units per acre is inconsistent with FLUE Objective 1; FLUE Objective 4; and Housing Policy 1 under Objective 1. Petitioner has not proved to the exclusion of fair debate that the designation of ten units per acre is inconsistent with FLUE Objective 3 or FLUE Policy 6 under Objective 1, which incorporates into the operative provisions of the plan Recommendation 6 for Neighborhood 12.04.
FLUE Objective 1 is to locate new development in a manner sensitive to natural resources and natural hazards. FLUE Objective 4 is to limit population in the first priority hurricane evacuation zones. Housing Policy 1 under Objective 1 is to designate residential tracts except where unsuitable due to inappropriate elevation or drainage or other safety hazard.
The designation of ten units per acre, even on a net acreage basis, is inconsistent with FLUE Objective 1 because the new development is not located in a manner sensitive to natural hazards and natural resources. The density designation is also inconsistent with FLUE Objective 4 to limit population in the first priority hurricane evacuation zones. There is no difference whatsoever between the density accorded the western peninsula, which is in Hurricane Evacuation Zone A, and the density accorded large areas of Bradenton, especially just east of Palma Sola Bay, although the latter areas are excluded on the Evacuation Map from any priority evacuation zone. The density designation is also inconsistent with Housing Policy 1 under Objective 1 due to the low elevation and poor drainage associated with the western peninsula.
Policy 6 under FLUE Objective 1 incorporates the Recommendations for Neighborhood 12.04, which covers Perico Island. Recommendation 6 is to deny applications to increase the density of development in the neighborhood. FLUE Objective 3 is to manage future development through the adoption and enforcement of regulations to promote the use of land in a manner sensitive to the public health and safety and to soils and topography.
Based on the Spoonbill Bay DRI Development Order, the density for the western peninsula may be viewed as zero. No evidence suggests what density the western peninsula may have arguably been accorded by a former comprehensive plan or zoning. However, it is possible to read Recommendation 6 as intending to incorporate the density given the western peninsula by the Plan, so Petitioner has not proved to the exclusion of fair debate that the density designation is inconsistent with Recommendation 6.
Petitioner has failed to prove that the density designation is inconsistent with FLUE Objective 3 because of the latter's ineffectiveness. FLUE Objective 3 defers meaningful action to land development regulations and provides no upon real objective upon which an inconsistency determination could be based.
Petitioner has failed to prove to the exclusion of fair debate that the Plan is inconsistent with the criterion of an objective to coordinate coastal densities with the local hurricane evacuation plan. FLUE Objective 4 and Policy 1 under Objective 4 address this criterion.
Petitioner has proved to the exclusion of fair debate that the Plan does not coordinate with the Spoonbill Bay DRI Development Order. As noted above, the density designation is consistent with Recommendation 6 of Neighborhood 12.04 only because it is assumed that the increased densities prohibited by Recommendation 6 are measured from the point of view of a former plan or former zoning, rather than the zero density accorded the western peninsula by the Development Order. In such a case, Recommendation 6 fails to coordinate with the Development Order.
As noted above, the Data and Analysis fails to discuss why the Plan designates ten units per acre for the western peninsula when the Development Order prohibited any development. In effect, the Plan ignores the Development Order, and the resulting inconsistency is material in light of the impact of such a high density upon the natural resources of the peninsula and the public safety of future residents.
However, the preceding two paragraphs are relevant only to consideration of the issue whether the density designation is supported by data and analysis. For reasons set forth in Conclusions of Law Paragraph 55, Rule 9J-5.006(3)(b)6., on which Petitioner relies, does not require an objective to coordinate with an DRI.
Petitioner has failed to prove to the exclusion of fair debate that the Plan is inconsistent with the criteria of a policy to protect environmentally sensitive land and an objective to protect, conserve, or enhance remaining coastal wetlands, living marine resources, coastal barriers, and wildlife habitat. These criteria are addressed by Coastal Goals 2, 4, and 5 and their objectives, as well as PFE Goal 4, which is to "[p]revent. . . flood damage and improve. . . surface water quality."
Petitioner has failed to prove to the exclusion of fair debate that the Plan is inconsistent with the criterion of an objective to direct population concentrations away from accurately defined coastal high hazard areas. For the reasons noted above, Petitioner has failed to prove that the Plan inaccurately defines the Coastal High Hazard Area for Bradenton, In the absence of such evidence, the Recreational/Conservation designation effectively addresses this criterion.
Petitioner has failed to prove to the exclusion of fair debate that the Plan is inconsistent with the criteria of an objective to encourage land uses that are consistent with the community's character and future land use and a policy to provide for the compatibility of adjacent land uses. The FLUE Goal, FLUE Objective 1, and Housing Policy 1 under Objective 1 address these criteria.
Petitioner has failed to prove to the exclusion of fair debate that the Plan is inconsistent with the criterion of an objective to maintain or reduce hurricane evacuation times between the barrier island and mainland. Coastal Goal 6 and Objective 1 address this criterion, as do FLUE Objective 4 and Coastal Goals 1 and 6, although less directly.
Petitioner has proved to the exclusion of fair debate that the Plan is inconsistent with the provisions of the State Plan, construed as a whole.
The density designation given the western peninsula of Perico Island conflicts with various provisions of the State Plan designed to protect water, coastal and marine resources, and to promote efficient land uses compatible with land and water resources.
Stormwater Provisions
Petitioner has proved to the exclusion of fair debate that the stormwater provisions of the Plan are internally inconsistent with Plan provisions concerning water quality protection and improvement.
Coastal Goals 2 and 5 protect water quality. Goal 2 is to improve surface water quality. Objective 2 under Goal 2 is to reduce pollutant loads reaching waterways from urban stormwater. Goal 5 is to use coastal areas so as to preserve natural systems.
The stormwater provisions are inconsistent with the above-cited provisions protecting water quality because the level of service standard contains a serious loophole. PFE Goal 4, Objective 1, Policy 2 completely undermines the drainage level of service standard by providing that its applicability to "various types and sizes of private development" shall be as set forth in land development regulations adopted by December 1, 1989.
For the reasons set forth in Footnote 15 above, relegating to land development regulations substantial provisions required by law to included in a plan is ineffective for reasons involving public participation and notice, compliance review, and enforceability. In effect, the applicability of the drainage level of service standard is subject to land development regulations.
The evidence is insufficient to prove to the exclusion of fair debate the inefficacy of the stormwater provisions based on stormwater projects included in the Capital Improvements Schedule. The Data and Analysis discloses that Wares Creek has suffered most extensively from untreated stormwater runoff.
However, Table 4 in the Capital Improvements Element discloses that most, if not all, of the scheduled stormwater projects will affect the Wares Creek drainage basin, as defined in the map of Storm Drainage Areas on page 208 of the Plan.
16/
For the reasons set forth in the preceding paragraph, Petitioner has failed to prove to the exclusion of fair debate that the Plan is inconsistent with the criterion of including in the Capital Improvements Schedule projects necessary to achieve treatment of stormwater sufficient to meet relevant water quality standards.
Petitioner has proved to the exclusion of fair debate that the Plan is inconsistent with the criterion of a policy demonstrating how the local government will coordinate with the SWIM Plan, especially as to the latter's requirement that all stormwater discharge comply with relevant water quality standards.
The Plan's drainage level of service standard, which is seriously undermined in the manner set forth above, is further hampered by the failure of the standard to include post- development water quality standards. As noted in the SWIM Plan data and analysis, the water quality of stormwater runoff is a key factor in preserving the health of the Outstanding Florida Waters that surround Perico Island and in restoring the health of other nearby waters.
Due to the failure of the Plan submitted into evidence to contain as an appendix the Comprehensive Stormwater Management Study, 1981, Petitioner has failed to prove to the exclusion of fair debate that the scheduled capital improvements concerning stormwater projects fail to implement the SWIM Plan. In addition, the SWIM Plan does not generally impose project deadlines for various capital improvements.
Petitioner has proved to the exclusion of fair debate that the stormwater provisions of the Plan are inconsistent with the provisions of the State Plan, construed as a whole. The failure to incorporate into the Plan an effective level of service standard for post-development runoff rate for all developments and the failure to incorporate any level of service standard for post-development runoff water quality are inconsistent with the above-cited provisions of the State Plan.
Historic Provisions
Petitioner has failed to prove to the exclusion of fair debate that the Historic Element is inconsistent with the criterion of supporting data and analysis; the Historic goal is internally inconsistent with the Historic objectives and policies; or the Historic provisions are inconsistent with the criteria that objectives be measurable and policies describe how programs and activities will achieve the goals.
None of the Historic provisions contradicts any of the Data and Analysis concerning historic resources. The Historic objectives and policies are in no way inconsistent with the Historic goal of preservation. The Historic objectives are measurable, and the policies describe how programs and activities will achieve the goals.
Miscellaneous Provisions
Petitioner has failed to prove to the exclusion of fair debate that the Plan is inconsistent with the criterion of establishing a level of service standard for recreational facilities.
Recreation Objective 3 and Policy 1 establish a
level of service standard for recreation by acreage. Policy 2 addresses the facilities that must be constructed for each park used to satisfy the recreational level of service standard.
Petitioner has failed to prove to the exclusion of fair debate that the Plan is inconsistent with the criterion of including in the Schedule of Capital Improvements projects necessary to achieve a level of service D for roads.
No roads for which Bradenton is fiscally responsible are predicted to attain a level of service standard more congested than D during the planning timeframe.
CONCLUSIONS OF LAW
Jurisdiction and Standing
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties. Sections 120.57(1) and 163.3184(10), Florida Statutes. (All references to Sections are to Florida Statutes. All references to Rules are to the Florida Administrative Code.)
Participation as a party in a Section 163.3184(9) or (10) proceeding is limited to "affected persons" and DCA. In relevant part, Section 163.3184(1)(a) provides:
"Affected person" includes the affected local government; persons owning property, residing, or owning or operating a business within the boundaries of the local government whose plan is the subject of the review; and adjoining local governments that can demonstrate that adoption of the plan as proposed would produce substantial impacts on the increased need for publicly funded infrastructure or substantial impacts on areas designated for protection or special treatment within their jurisdiction.
Based upon the stipulation of the parties, Intervenor has standing even though its objections were offered at the time of the transmittal hearing and well in advance of the issuance of the ORC.
Petitioner has members who reside in Bradenton. In addition, Petitioner's business activities, which include improving environmental health, are partly conducted in Bradenton.
The key standing issue is whether Petitioner submitted oral or written objections "during the local government review and adoption proceedings," as set forth in the last sentence of Section 163.3184(1)(a).
These proceedings are described in Section 163.3184(7), which begins: "The local government shall review the written comments submitted to it by [DCA], and any other person, agency, or government."
The requirement that the local government must review comments from all sources does not mean that all comments so reviewed are timely submitted for standing purposes. To submit timely a comment, an affected person must submit the comment during the local government review and adoption proceedings. The last sentence of Section 163.3184(1)(a) refers to the review proceedings of the local government, not DCA or other agencies. The first mention of "review" in Section 163.3184 with respect to a local government is in Section 163.3184(7), which describes what the local government does following its receipt of the ORC from DCA.
An argument may be made that the "local government review and adoption proceedings" refers to the entire review and adoption proceedings concerning the local government and, more specifically, its proposed plan. The parties in this case present several interpretations of the last sentence of Section 163.3184(1)(a). 17/
Alternative interpretations of the last sentence of Section 163.3184(1)(a) would possibly start the time period for submitting objections at the point that the city council or county commission received a draft of the proposed plan from the local planning agency, such as the planning board. Possibly, the "local government review and adoption proceedings" would begin later, such as when DCA receives the proposed plan after the transmittal hearing. Even under alternative interpretations expanding the critical timeframe, persons who submitted objections while the local planning agency worked on the plan would not thereby be entitled to standing. Most interpretations of the last sentence of Section 163.3184(1)(a) would therefore deprive standing to some persons who submitted objections at some relatively early stage of the planning process.
The interpretation adopted by this recommended order of the last sentence of Section 163.3184(1)(a) is that the comments must be submitted to the local government, directly or indirectly, during the period commencing when the ORC is issued and ending when the plan is adopted.
In this case, the factual issue as to when Bradenton received a copy of the March 7 letter, relative to the issuance of the ORC, is settled by above- cited the request for admission and response.
Rule 1.370(a), Florida Rules of Civil Procedure, explains the process governing requests for admission:
The matter is admitted unless the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter
within 30 days after service of the request ....
Rule 1.370(a) requires that an answer to a request for admission: specifically deny the matter or set forth in
detail the reasons why the answering party
cannot truthfully admit or deny the matter. A denial shall fairly meet the substance of the
requested admission, and when good faith requires that a party qualify his answer or deny only part of the matter of which an admission is requested, he shall specify so much of it as is true and qualify or deny the remainder.
Rule 1.370(a) provides further:
If the court determines that an answer does not comply with the requirements of this rule, it may order either that the matter is admitted or that an amended answer be served.
Rule 1.370(b) addresses the circumstances justifying the withdrawal or amendment of an admission:
Any matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission. . . . [T]he court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved by it and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining any action or defense on the merits. . . .
The last sentence of Bradenton's response does not comply with the requirements of Rule 1.370(a). The response ignores the portion of the request asking for an admission as to the order in which the March 7 letter and ORC were received. The response does not fairly meet the substance of the requested admission; good faith demanded that Bradenton admit or deny the portion of the request directed toward the chronology of events. The failure effectively to "fairly meet the substance of the requested admission" constitutes an admission that Bradenton received the March 7 letter after Bradenton received the ORC.
No motion is required to enforce or recognize the deemed admission. The failure to comply with Rule 1.370 renders a matter admitted in the same manner that an answer admitting an allegation of a petition effectively removes from the case the factual issue set forth in the allegation. Cf. Wider v. Carraway, 101 So. 2d 13 (Fla. 2d DCA 1958) (unsworn answers signed by attorney, which were not in compliance with the rule, deemed admissions).
It is left to speculation whether the ORC attached a copy of the March 7 letter or perhaps incorporated the contents of the March 7 letter. The merits of this aspect of the standing issue have not been completely litigated. The incomplete response of Bradenton to the request for admission is partly responsible for the fragmented states of the record on this issue.
The focus of Rule 1.370(b) is to weigh the importance of allowing the parties to litigate the merits, rather than rely upon an admission obtained through error or inadvertence. Here, however, the response by Bradenton seems strategic, especially in light of its Findings of Fact Paragraph 2, which states in part: "The Petitioner did not submit evidence as to the date of the City's
receipt of the ORC from DCA." The error and inadvertence appears to be more on the part of Petitioner in failing to recognize the significance of the chronology issue.
Unlike the typical case, the merits are reached in this case by construing the response as an admission as to the chronology question. Moreover, more prejudice is visited upon Petitioner by a contrary ruling. Petitioner may have concluded from the response that the chronology issue was settled. Petitioner may therefore have failed to elicit all available evidence bearing on the question, such as the ORC and possibly additional evidence of timely oral comments from members of Petitioner. On the other hand, by construing the response as an admission, Bradenton suffers no similar prejudice in terms of litigating the merits of the case. Bradenton litigated the merits fully and completely.
The possibility exists that the undersigned could reopen the hearing for evidence strictly on the issue whether Petitioner timely submitted comments to Bradenton. Under the present circumstances, this alternative has been rejected as an inefficient use of resources. The construction of the last sentence of Section 163.3184(1)(a), which is obviously a legal conclusion, is the prerogative of DCA and, if the recommended order is submitted as suggested, the Administration Commission. A more expansive interpretation of this statutory language could render the issue moot.
Standard of Proof and Meaning of Consistency
Petitioner is required to prove to the exclusion of fair debate that the plan is not "in compliance." Section 163.3184(9)(a). "In compliance" is "consistent with the requirements of ss. 163.3177, 163.3178, and 163.3191, the state comprehensive plan, the appropriate regional policy plan, and rule 9J-5 .
. ., where such rule is not inconsistent with chapter 163, part II."
The Act does not define what is meant by "fairly debatable." In zoning cases, "'[t]he fairly debatable' test asks whether reasonable minds could differ as to the outcome of a hearing" (citations omitted). Norwood-Norland Homeowners' Association, Inc. v. Dade County, 511 So. 2d 1009, 1012 (Fla. 3d DCA 1987). The element of reasonableness imposes certain requirements upon the persons differing as to the outcome. The fairly debatable test requires that the persons reaching different conclusions are informed by relevant facts and law and are capable of analyzing this information in a reasonable manner in order to reach a logical conclusion based exclusively on the applicable facts and law.
The Act defines what is meant by consistency with the state and regional plans. However, the Act does not define what is meant by internal consistency, consistency with the state or regional plan, or consistency with the other criteria of the Act and Chapter 9J-5.
Section 163.3177(10)(a) defines "consistency" solely for the purpose of determining whether the plan is consistent with the state and regional plans. For these consistency determinations, the plan is consistent if it is "not in conflict with" the relevant plan and "take[s] action in the direction of realizing goals or policies" of the relevant plan. In making these determinations, the state or regional plan "shall be construed as a whole and no specific goal and policy shall be construed or applied in isolation from the other goals and policies in the plan . . .." Id.
The Act describes internal consistency as "coordination" among the several elements. Section 163.3177(2). Internal consistency also means that the elements are "related" to each other. Section 163.3177(9)(b).
The statutory definition of consistency with state and regional plans must be modified when applied to questions of internal consistency. The "not in conflict with" portion of the definition is suitable. A future land use policy that conflicts with a conservation policy typically results in internal inconsistency.
However, the remainder of the statutory definition is not applicable to internal consistency determinations. There is no reason to insist that all objectives and policies of a plan "take action in the direction of realizing" the other objectives and policies of the same plan. Unlike the situation in which provisions of different plans are compared, an objective in the conservation element of a plan should not be required to take action in the direction of realizing an objective in the public facilities element of the same plan. Without furthering each other, the conservation objective or public facility objective may each pursue its respective goal. The meaningful question is whether the two objectives are in conflict with each other; if not, they are coordinated, related, and consistent.
One approach to determining consistency with the other criteria of Sections 163.3177 and 163.3178 and Chapter 9J-5 is to emphasize the "minimum criteria" 18/ language. Under this approach, the failure to satisfy any single requirement of Sections 163.3177 and 163.3178 or criterion of Chapter 9J-
5 results in a finding of inconsistency.
Another approach to determining consistency with the criteria of Sections 163.3177 and 163.3178 and Chapter 9J-5 is to emphasize the "consistency" language. Under this approach, the plan is first examined under the "minimum criteria" approach. If no criterion is left unsatisfied, then the plan is consistent with Sections 163.3177 and 163.3178 and Chapter 9J-5. If, as is often if not invariably the case, the plan fails to satisfy one or more of these criteria, further analysis must be undertaken before determining that the plan is not consistent with applicable statutory and regulatory criteria.
Borrowing the statutory definition of consistency as applied to comparisons with state and regional plans, the "consistency" approach would permit a finding of consistency if the plan as a whole were not in conflict with, and took action in the direction of, realizing the criteria unsatisfied by the plan. This approach would require, among other things, consideration of the purposes of the unsatisfied criteria in light of the entire plan, the Act, and Chapter 9J-5.
The "minimum criteria" approach is supported by several references in the Act and Chapter 9J-5 to these criteria as "minimum requirements" or "minimum criteria." See Sections 163.3161(7) and 163.3177(9) and Rule 9J-5.001, although Section 163.3177(9) also refers to "criteria" without the modifier, "minimum." Rule 9J-5.001 adds: "[a]s minimum criteria, these criteria are not intended to prohibit a local government from ... adopting . . . a ... plan which is more . .
. strict." The rule says nothing about adopting a plan less strict than the minimum criteria.
The "consistency" approach is supported by the language in the Act and Chapter 9J-5 that a plan must be "consistent with the requirements" of Sections 163.3177 and 163.3178 and Chapter 9J-5. Section 163.3184(1)(b).
Similarly, Rule 9J-5.002(1) requires consistency merely with Sections 163.3177 and 163.3178 and Chapter 9J-5, and not with any "minimum criteria." If truly "minimum criteria," they should be "satisfied" or "met," but these terms are not used in the Act or Chapter 9J-5 with reference to the criteria of Sections 163.3177 and 163.3178 and Chapter 9J-5 with one exception inapplicable to the present case. 19/
In one instance, the Act expressly endorses more flexibility than exists in the "minimum criteria" approach. The determination whether the plan is consistent with the criteria requiring certain detailed data must be based on such factors as the government's "complexity, size, [and] growth rate." Rule
9J
[DCA] shall take into account the factors delineated in rule 9J-5.002(2) . . . as it
... applies the rule in specific situations with regard to the detail of the data and analysis required.
The language of the Act favors the "consistency" approach over the "minimum criteria" approach. The "consistency" approach derives its support from the critical provision of the Act defining "in compliance." By contrast, the "minimum criteria" approach derives its support from less operative sources within the Act--a legislative declaration 20/ and a legislative directive to DCA regarding rulemaking. 21/
Adopting the "consistency" approach may emphasize flexibility over predictability, at least until the emergence of guidelines for the application of the consistency test with regard to the criteria of Sections 163.3177 and 163.3178 and Chapter 9J-5. However, the Act tacitly endorses similar flexibility in the determinations of consistency with the state and regional plans.
Under the "consistency" approach to Sections 163.3177 and 163.3178 and Chapter 9J-5, each unsatisfied criterion must be carefully considered to determine its function in light of the Act and Chapter 9J-5 as a whole. Then the relationship between the plan as a whole and the unsatisfied criterion, in light of its role within the Act and Chapter 9J
whether, among other things, the plan conflicts with the unsatisfied criterion, the plan takes action in the direction of realizing the unsatisfied criterion, and the plan is related to, coordinated with, and, ultimately, consistent with the unsatisfied criterion.
Designation of Coastal High Hazard Area
Rule 9J-5.005(2)(a) provides:
All goals, objectives, policies, standards, findings and conclusions within the comprehensive plan and its support documents shall be based upon relevant and appropriate data. . . . [DCA] will review each comprehensive plan for the purpose of determining whether the plan is based on the data described in this Chapter and whether
the data were collected and applied in a professionally acceptable manner.
For reasons set forth above, Petitioner has failed to prove to the exclusion of fair debate that the designation of the Coastal High Hazard Area is inconsistent with the criterion of supporting data and analysis.
Rule 9J-5.012(2)(e)3. requires the identification of coastal high hazard areas. Rule 9J-5.003(14) defines "coastal high hazard areas" as:
areas designated by local governments pursuant to Paragraph 163.3178(2)(h), Florida Statutes, and includes areas which have
historically experienced destruction or severe damage, or are scientifically predicted to experience destruction or severe damage, from storm surge, waves, erosion, or other manifestations of rapidly moving or storm driven water. These areas shall include all areas within the local government's jurisdiction where public facilities have
been damaged or undermined by coastal storms, Federal Emergency Management Agency designated V zones, areas seaward of the coastal construction control line established by the Florida Department of Natural Resources
. . ., and inlets which are not structurally controlled.
For reasons set forth above, Petitioner has failed to prove to the exclusion of fair debate that the designation of the Coastal High Hazard Area is inconsistent with the criterion of the use of available appropriate data concerning historic damage or scientifically predicted damage from moving or storm driven water.
Petitioner did not overcome what little evidence was presented as to the location of the V-zone and that the Coastal High Hazard Area is at least coextensive with the V-zone. A coastal high hazard area may be required to include other areas, if such areas have suffered or are predicted to suffer destruction or severe damage from rapidly moving or storm driven water. Flooding, such as associated with the spring high tide, is insufficient, unless the floodwaters are rapidly moving or storm driven. No evidence in this case suggests that areas landward of the V-zone have experienced or are predicted to experience destruction or severe damage from rapidly moving or storm driven water.
For the reasons set forth above, Petitioner failed to prove to the exclusion of fair debate that the designation of the Coastal High Hazard Area is inconsistent with Plan provisions to protect coastal resources, protect the public from natural disasters, and maintain and reduce hurricane evacuation times or is inconsistent with provisions of the State or Regional Plan.
If, after consideration of the data and analysis, the designation of a coastal high hazard area satisfies the definition set forth in Rule 9J- 5.003(14), the designation is not subject to challenge on the grounds of internal inconsistency with other plan provisions or inconsistency with provisions of the plan of the State or a region.
Designation of Ten Units Per Acre on Western Peninsula of Perico Island
The provisions of Rule 9J-5.005(2), which require supporting data and analysis, are set forth above. Rule 9J
land use element be based upon, among other things:
An analysis of the character and magnitude of existing vacant or undeveloped land in order to determine its suitability for use, including where available . . . soils . . ., topography, [and] natural resources ....
For the reasons set forth above, Petitioner has proved to the exclusion of fair debate that the designation of ten units per acre--whether on a net or gross acreage basis--is unsupported by data and analysis, including a land use suitability analysis.
It is entirely irrelevant that the designation allows a maximum of ten units per acre and, as Bradenton has argued, the Plan would call for lesser densities on the western peninsula. The plan is the point at which a local government must commit various land areas to various uses and, in the case of residential uses, densities. Densities may be clustered within a given parcel through the use of a planned development. Densities may even be varied, such as by density bonuses for affordable housing, density transfers for transferable development rights, or density reductions to protect wetlands or natural aquifer recharge areas.
But to indulge Bradenton's argument that the western peninsula would not necessarily be developed at the maximum density of ten units per acre would be to find that a local government may designate all residential areas at 100 units per acre and rely upon subsequent interpretation of other plan provisions to determine actual densities. Such an approach would undermine the importance of the densities set forth in the FLUM.
Although plans may preserve some flexibility with respect to density designations, the density by which a plan should be evaluated is typically the maximum density in any given range. If explicit provisions clearly impose a lower density, such as FLUE Policy 2 under Objective 4, which restricts density on the Braden River islands to three units per acre, then such explicit provisions would provide the density by which the Plan would be evaluated. However, no such explicit provisions govern the western peninsula.
For the reasons set forth above, Petitioner has proved to the exclusion of fair debate that the designation of ten units per acre--whether on a net or gross acreage basis--is internally inconsistent with Coastal Goal 5; Objective 1 under Goal 5; Objective 5 under Coastal Goal 5; Policies 1 and 4 under Objective 5; FLUE Objective 1; FLUE Objective 4; and Housing Policy 1 under Objective 1.
The density designation given the western peninsula of Perico Island does not stand in uneasy coexistence with the Plan provisions set forth in the preceding paragraph. The density designation defies these provisions, which are key components of the Plan. The Plan designates ten units per acre on an undeveloped peninsula surrounded by Outstanding Florida Waters and with prevailing elevations below three feet beyond 100 feet of frontage. Even if the density designation were on the basis of net acres, the designation contradicts
critical Plan provisions to preserve natural systems and minimize storm and flood hazard; keep population and investment low in areas subject to coastal flooding; limit residential development to low density in areas below eight feet in elevation; locate new development in a manner sensitive to natural resources and natural hazards; limit populations in priority hurricane evacuation zones; and avoid designating residential uses where inappropriate elevation and drainage conditions exist.
Rule 9J-5.006(3)(b) provides that a plan shall contain objectives to:
3. Encourage the elimination or reduction of uses inconsistent with the community's character and future land uses;
Coordinate coastal area population densities with the appropriate local or regional hurricane evacuation plan, when applicable; [and]
Coordinate with any appropriate resource planning and management plan prepared pursuant to Chapter 380, Florida Statutes, and approved by the Governor and Cabinet[.]
Rule 9J-5.006(3)(c)2. and 6. provides that a plan shall contain policies to "[provide] for compatibility of adjacent land uses" and "[protect] .
. . environmentally sensitive lands."
Rule 9J-5.012(3)(b) provides that a plan shall contain objectives to:
Protect, conserve, or enhance remaining coastal wetlands, living marine resources, coastal barriers, and wildlife habitat;
Direct population concentrations away from known or predicted coastal high-hazard areas; [and]
Maintain or reduce hurricane evacuation times.
For the reasons set forth above, Petitioner failed to prove to the exclusion of fair debate that the Plan is inconsistent with the any of the criteria set forth above.
The density designation given the western peninsula of Perico Island is not coordinated with the Spoonbill Bay DRI Development Order. However, Petitioner has raised an issue unrecognized by the law. Rule 9J-5.006(3)(b)6. does not require coordination with DRI Development Orders. The "resource planning and management plan" mentioned in the rule refers to the program described in Section 380.045 for areas that may later be considered for designation as areas of critical state concern.
For the reasons set forth above, Petitioner has proved to the exclusion of fair debate that the density designation for the western peninsula of Perico Island is inconsistent with provisions of the State Plan.
Stormwater Provisions
For the reasons set forth above, Petitioner has proved to the exclusion of fair debate that the stormwater provisions of the Plan are internally inconsistent with Plan provisions concerning water quality protection and improvement.
The application of the Plan's sole level of service standard for drainage, which deals exclusively with post- development rate of runoff, is conditioned upon land development regulations. The loophole renders the drainage level of service standard so ineffective as to conflict with Plan provisions to protect and improve water quality, to reduce pollutants entering waterways with stormwater, and to preserve natural systems. Data and analysis underscore the importance to estuarine systems of effective stormwater management. The failure of the Plan to set a drainage level of service standard in terms of post-development runoff quality exacerbates the internal inconsistency between the protective Plan provisions cited above and the ineffective drainage level of service standard included in the Plan.
For the reasons set forth above, Petitioner has proved to the exclusion of fair debate that the stormwater provisions of the Plan are inconsistent with the State Plan, construed as a whole.
As noted immediately above, the Plan, in effect, contains no drainage level of service standard. The level of service standard as to rate is ineffective, and the level of service standard as to water quality is nonexistent.
Rule 9J-5.012(3)(c)14. provides that a plan shall contain a policy:
Demonstrating how the local government will coordinate with existing resource protection plans such as resource planning and management plans, aquatic preserve management plans, and estuarine sanctuary plans.
The SWIM Plan qualifies as an existing resource protection plan. Section 373.451 states the Legislative findings and intent concerning the Surface Water Improvement and Management Act. It is clear from this material that surface water is deemed a resource that is to be protected by surface water and improvement plans, which are authorized under the act.
For the reasons set forth above, Petitioner has proved to the exclusion of fair debate that the stormwater provisions of the Plan are inconsistent with the criterion of a policy showing how the local government will coordinate with the SWIM Plan. The failure of the Plan to contain an effective rate- based drainage level of service standard and any quality-based drainage level of service standard effectively precludes meaningful coordination between the Plan and the SWIM Plan, whose key provisions call for setting such drainage level of service standards.
Rule 9J-5.016(4)(a)1. states that a plan shall contain a:
schedule of capital improvements, for which
the local government has fiscal responsibility, selected for the first five years, by year,
. . . which shall reflect the need to reduce existing deficiencies, remain abreast of replacements, and . . . meet future demand
. . ..
For the reasons set forth above, Petitioner has failed to prove to the exclusion of fair debate that the Plan is inconsistent with the criterion of including in the Schedule of Capital Improvements projects necessary to achieve treatment of stormwater sufficient to meet water quality standards.
Historic Provisions
For the reasons set forth above, Petitioner has failed to prove to the exclusion of fair debate that the Historic Element is not supported by data and analysis or is internally inconsistent.
Rule 9J-5.003(61) states that an objective shall be a "specific, measurable, intermediate end that is achievable and marks progress toward a goal." Rule 9J-5.003(68) states that a policy shall be "the way in which programs and activities are conducted to achieve an identified goal." For the reasons set forth above, Petitioner has failed to prove to the exclusion of fair debate that the Historic objectives and policies are inconsistent with these criteria.
Miscellaneous Provisions
Rule 9J-5.005(3) states that level of service standards shall be set
for:
ensuring adequate facility capacity ...for future development . . .. Each local government shall establish a level of service standard for each public facility located within the boundary for which such local government has authority to issue development orders or development permits. Such level of service standards shall be set for each individual facility or facility type and not on a systemwide basis.
Rule 9J-5.016(3)(c)4. restates the responsibility of the local government to include in its plan a policy setting level of service standard for "public facilities."
Rule 9J-5.003(76) defines "public facilities" to include "parks and recreation systems or facilities." Rule 9J
facility" as a "component of a recreation site used by the public such as a trail, court, athletic field or swimming pool."
For the reasons set forth above, Petitioner has failed to prove to the exclusion of fair debate that the Plan is inconsistent with the criterion of establishing a level of service standard for recreational facilities.
The neighborhood park level of service standard, which deals in terms of acreage, is complemented by Policy 2
under Recreation Objective 3. The policy addresses the facilities that must be placed in parks used to satisfy the recreation level of service standard.
For the reasons set forth above, Petitioner has failed to prove to the exclusion of fair debate that the Plan's treatment of road projects is inconsistent with the criterion of including in the Schedule of Capital Improvements projects necessary to achieve a level of service of D for roads.
The Data and Analysis discloses that the level of service for certain roads in Bradenton will degrade below level of service D during the planning timeframe. However, the Data and Analysis reports that none of these roads is within the maintenance jurisdiction of Bradenton.
Based on the foregoing, it is hereby
RECOMMENDED that the Department of Community Affairs submit the Recommended Order to the Administration Commission for entry of a final order determining that Bradenton's plan is not in compliance for the reasons set forth above.
ENTERED this 13th day of February, 1992, 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 13th day of February, 1992.
ENDNOTES
1/ The Amended Petition cites Rule 9J-5.012(2)(e)1., which addresses hurricane preparedness. This is a typographical error. Rule 9J-5.012(2)(e)3. involves the identification of coastal high hazard areas. Petitioner refers to Rule 9J- 5.012(2)(e)3. in Findings of Fact Paragraph 6 of its proposed recommended order. The Department of Community Affairs also refers to Rule 9J-5.012(2)(e)3. in Findings of Fact Paragraph 9 of its proposed recommended order.
2/ The Amended Petition cites former subsection, Rule 9-J- 5.003(13).
3/ The Amended Petition alleges that the Coastal High Hazard Area designation is also inconsistent with the Regional Plan. However, Petitioner failed to produce the Regional Plan at the hearing. In Findings of Fact Paragraph 16 of its proposed recommended order, Petitioner refers to the Regional Plan as Sierra Club Exhibit 6. Sierra Club is not a party in this case. Petitioner's counsel has mistakenly referred to an exhibit from Department of Community Affairs v.
Hillsborough County, DOAH Case No. 89-5157GM, in which he represents Sierra Club. Sierra Club Exhibit 6 in that case is the Tampa Bay Regional Plan.
Due to the advanced stage of the proceeding and the inability of the parties to address this issue, which goes to the merits, the undersigned declines to take official notice of the Regional Plan.
4/ This issue is stated in the Amended Petition as follows: [the FLUM designation of 10 units per acre for
the western peninsula of Perico Island is] externally inconsistent with Section 163.31[7]7(2), Fla.Stat., and Rule 9J-5.005(5),
Fla.Admin.Code, in that the Future Land Use Map is not consistent with the neighborhood analysis and policies for Perico Island and the conservation management/conservation element.
The cited rule states the criterion of internal consistency. This issue is thus treated as raising the question of internal consistency between the density provisions, on the one hand, and the Coastal Element and other Plan provisions governing Neighborhood 12.04, as described below, on the other hand.
Issue 7 is the only issue in which an allegation of "external inconsistency" in the Amended Petition is treated as raising a question of internal consistency. In other cases involving internal inconsistency, such as Issue 8, the Amended Petition speaks in terms of "internal inconsistency."
Most issues, such as Issues 9-16, raise the question whether the Plan is consistent with a criterion of Chapter 163, Part II, or Chapter 9J-5 other than the criterion of internal consistency. As to each of these issues, the relevant portion of the Amended Petition cites a rule stating a criterion other than internal consistency. For these issues, the recommended order considers only the question whether the Plan--not merely, as alleged, the density designation-- is consistent with the cited criterion.
For example, Issue 9 alleges that the density designation is inconsistent with an objective to coordinate coastal densities with the local hurricane evacuation plan. Due to the rule cited by this allegation, Issue 9 raises the question whether the Plan contains an objective to coordinate coastal densities, not whether the density designation is inconsistent with a Plan objective to coordinate coastal densities. The Plan is consistent with the criterion if the Plan contains one or more provisions effectively coordinating coastal densities with the local hurricane evacuation plan. Typically, in making such determinations, it does not matter that other Plan provisions may conflict with the provisions that achieve consistency with the specific criterion. The issue concerning a conflict of this nature is raised only by alleging internal inconsistency.
If Petitioner intended to raise an issue of internal inconsistency in Issues 9-16, it should have alleged "internal inconsistency," as it did in Issues 3, 8, 18, and 23, or at least cited Rule 9J-5.005(5), as it did in Issue
An allegation that the density designation is not consistent with a criterion of Chapter 163, Part II, or Chapter 9J-5--rather than with a Plan provision addressing such a criterion--does not raise a question of internal inconsistency.
5/ For reasons set forth in Conclusions of Law Paragraph 55, Rule 9J- 5.006(3)(b)6. does not require an objective to coordinate with a DRI.
6/ The Amended Petition alleges that the density designation is also inconsistent with the Regional Plan. For the reasons set forth in Footnote 3, this issue has been disregarded.
7/ The Amended Petition cites former subsections, Rule 9J-5.003(57) and (64). 8/ The Amended Petition cites former subsection, Rule 9J-5.003(72).
9/ Assuming that the proposed plan was received three days after transmittal, DCA would have five days, or until December 1, 1988, to forward the proposed plan to other reviewing agencies. 163.3184(4). The agencies would have 45 days from receipt to submit their comments to DCA. If three days are added for mailing to the agencies, their comments would be due by January 18, 1989.
Assuming that the comments were received three days later, DCA would have 45 days, or until March 7, to send the ORC to Bradenton.
If three more days are allowed for mailing, Bradenton would receive the ORC on March 10--one day after initially receiving the March 7 letter.
Ten days' slippage in the schedule is not so unlikely as to be dismissed as an impossibility. Nor can one dismiss as an impossibility that the above- cited schedule was followed, the ORC was mailed March 7, and March "17" was a typographical error.
On balance, the evidence, without regard to the request for admission discussed below, is too incomplete to permit a finding either way as to when the ORC was issued, when Bradenton received the ORC, and whether Bradenton received a copy of the March 7 letter (including possibly with the ORC) simultaneous with or after receipt of the ORC.
10/ 163.3184(8)(a) provides that DCA "may not find a local plan to be not in compliance unless [DCA] has participated in the public hearing pursuant to subsection (7) if requested to do so by the local government."
11/ All data and analysis that accompanied the Plan and were transmitted to DCA shall be referred to as Data and Analysis.
12/ Rule 17-302.700(i), Florida Administrative Code.
13/ 1776 units divided by 9.7 units per net acre yields 183.9 net acres. Subtracting the land on which the units were proposed to be placed leaves 81.3 acres to account for. This means the net acreage includes land classified as mangrove conservation, marine conservation, historic preservation, neighborhood commercial, lakes, or other open space and recreation. The problem is that either of the first two categories supplies around 200 acres, which, even after deduction for roads, utilities, and recreational facilities, appears much too high to account for the remaining 81.3 acres. However, the remaining categories are about nine acres short of the needed 81.3 acres.
14/ The Data and Analysis states that the 1981 stormwater study is included as Appendix B to the Plan. From the Plan language, Bradenton intended to add the study to the data and analysis, not operative provisions of the Plan. In any
event, the Plan introduced into evidence contains no such study. The only part of the study introduced in City Exhibit 2, which is the cover page and page 10 of the study (concerning the 3.62-foot elevation for spring high tide).
15/ This internal inconsistency is unaffected by Recommendation 2 of Neighborhood 12.04 for two reasons. First, the inconsistency between the cited provisions still exists.
Second, the flood protection extended by Recommendation 2 is deferred to land development regulations. Land development regulations may be changed by a local government without the public participation and notice required by Chapter 163, Part II, and Chapter 9J-5, without the same DCA review imposed upon plan amendments, and without the possibility of plan challenges initiated by affected persons. Cf. 163.3184 with 163.3202 and 163.3213.
Another fundamental flaw exists in deferring to land development regulations provisions required to be included in the plan. The planning effort is futile unless development orders are consistent with plan provisions, as required by 163.3215. There is no requirement in Chapter 163, Part II, or Chapter 9J-5 that development orders be consistent with land development regulations. Thus, if legally required plan provisions are deferred to land development regulations, these provisions would never serve as standards against which development order could be evaluated for consistency.
16/ It is impossible to determine the extent to which the scheduled projects address the existing stormwater problems. PFE Goal 4, Objective 2, Policy 1 assures that stormwater facility improvements necessary to correct existing deficiencies will be included in the Capital Improvements Schedule. The improvements are to be taken from the Comprehensive Stormwater management Study 1981, which was to be attached as an appendix to the Plan, but was omitted from the Plan admitted into evidence.
17/ In Paragraph 5 of its Petition for Leave to Intervene, Intervenor alleges that it submitted objections "during the review and adoption proceedings of the Comprehensive Plan." The dates alleged are the transmittal hearing and about one week later, which are both months prior to the date on which Bradenton received the ORC.
In Paragraph 1 of its proposed recommended order, DCA asserts that Petitioner submitted comments "during the plan development and adoption stages," and, in Paragraph 2, that Intervenor's objections, which were submitted as noted in the preceding paragraph, were "during the review and adoption proceedings."
Offering yet another interpretation, Bradenton asserts, in Paragraph 6 of its proposed recommended order, that Intervenor "submitted comments concerning the adoption of the City's Plan."
18/ The Act refers to "requirements," and Chapter 9J-5 refers to "criteria." As used in the Act and Chapter 9J-5, the two words are synonymous. For simplicity, all references in this Recommended Order to "criteria" or "minimum criteria" include "requirements" or "minimum requirements," as used in the Act.
19/ Rule 9J-5.0055, which became effective November 22, 1989, uses the word "satisfy" four times and the word "met" three times. This rule deals with the critical issue of concurrency.
20/ Section 163.3161(7).
21/ Section 163.3171(9).
APPENDIX TO RECOMMENDED ORDER
Treatment Accorded Proposed Findings of Petitioner
Adopted or adopted in substance: 1-5 (except 3(c)(1)), 11-12, 17-18, 20-26, 32-
33, 35-39, 41, 48, 51, 55 (as to lack of supporting data and analysis), 58, 60 (except as to (f), which is rejected as unnecessary, and (i), which is rejected due to weight of evidence), 63, 65-66, 70-78, 82, 85 (except as to (c) and (d), which are rejected as repetitious and unnecessary), and 87-89.
Rejected as legal argument: 3(c)(1).
Rejected as not finding of fact: 6-10, 30-31, 42-44, 49, 61, 68- 69, and 79-80.
Rejected as unsupported by the appropriate weight of the evidence: 13 (3.62 feet)-16, 29 (upland over two foot contour was "vacant," not "conservation" on map accompanying Neighborhood 12.04), 28-29, 34, 40 (third sentence), 50, 52, 54, 55 (as to internal inconsistency due to inefficacy of Plan provision incorporating Recommendations), 56-57, 59, 62, 83, and 90-91.
Rejected as unnecessary: 27, 40 (first, second, and fourth sentences), 53, 64,
81, 84, and 86.
Rejected as irrelevant: 40 (last sentence--not pleaded) and 45 Treatment Accorded Proposed Findings of DCA
Adopted or adopted in substance: 1-8, 11-25, and 27-32, Rejected as not finding of fact: 9-10.
Rejected as repetitious, recitation of evidence, and unsupported by the appropriate weight of the evidence: 26.
Rejected as unsupported by the appropriate weight of the evidence: 33. Treatment Accorded Proposed Findings of Bradenton
Adopted or adopted in substance: 1 except from "or own" through "business," which is rejected as unsupported by the appropriate weight of the evidence), 3-
14 (except, as to 7, 3.62 feet), 15 (second and third sentence), 16 (last sentence), 17 (second and third sentences), 18 (third and fourth sentences), 19 (second sentence through "FLUM", third sentence, and fourth sentence),
20-22, 24 (third sentence), 26 (except "dominated," which is rejected due to weight of evidence), 27 (except for last sentence), 28 (second sentence), 32 (first and last sentences), 37, 39-43 (except for last sentence), 44 (first two sentences), and 46-47.
Rejected as unsupported by the appropriate weight of the evidence: 2, 15 (first sentence), 17 (first sentence), 18 (second sentence), 19 (second sentence from "and all"), 23, 25, 28 (first sentence), 30-31, 32 (second sentence), 38 (first
sentence), 43 (last sentence), 44 (third sentence), 45, and 48
Rejected as irrelevant: 16 (first two sentences), 19 (first sentence), 24 (first and second sentences), 25, 27 (last sentence), 32 (third and fourth sentences), and 38 (second sentence).
Rejected as not finding of fact: 16 (third sentence). Rejected as repetitious: 18 (first sentence).
Rejected as legal argument: 28 (last sentence)-29 and 34. Rejected as subordinate: 33-36.
Treatment Accorded Proposed Findings of Intervenor
Adopted or adopted in substance: 1-3 (first sentence), 6-11 (through "concerns"), 15-18, 23-24 (second sentence), and 29.
Rejected as irrelevant: 3 (second sentence), 4, 14, and 22.
Rejected as unsupported by the appropriate weight of the evidence: 4-5, 24 (first sentence)-27, and 30.
Rejected as legal argument: 11 (from "however"), 13, 19-20, and 28.
Rejected as subordinate: 12 and 21.
COPIES FURNISHED:
William Sadowski, Secretary Department of Community Affairs 2740 Centerview Drive
Tallahassee, FL 32399-2100
G. Steven Pfeiffer, General Counsel Department of Community Affairs 2740 Centerview Drive
Tallahassee, FL 32399-2100
Attorney Thomas W. Reese
123 Eighth Street North St. Petersburg, FL 33701
Micahel P. Donaldson, Assistant General Counsel Department of Community Affairs
2740 Centerview Drive
Tallahassee, FL 32399-2100
Alan Hardy Prather
Alan Hardy Prather, Chartered 1806 Manatee Avenue West Bradenton, FL 34205
William R. Lisch
519 Thirteenth Street West Bradenton, FL 34205
Dewey A. Dye, Jr. Patricia A. Petruff Dye & Scott, P.A.
P.O. Box 9480 Bradenton, FL 34206
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
=================================================================
AGENCY FINAL ORDER
=================================================================
MANASOTA-88, INC.,
Petitioner.
STATE OF FLORIDA DEPARTMENT OF COMMUNITY AFFAIRS
vs.
DEPARTMENT OF COMMUNITY AFFAIRS, and THE CITY OF
BRADENTON, DOAH CASE NO. 89-6723GM
Respondents.
and
CURTISS WRIGHT, INC.,
Intervenor.
/
FINAL ORDER
On February 13, 1992, a Hearing Officer of the Division of Administrative Hearings entered his Recommended Order in this proceeding. The Recommended Order was received by the Department of Community Affairs ("Department" hereafter) on February 14. A copy is attached to this Order as Exhibit A. The parties have agreed to an extension of time for the Department to enter this order.
BACKGROUND
SUMMARY OF PROCEEDINGS
This is a proceeding in which the Petitioner has challenged the comprehensive plan adopted by the City of Bradenton ("City" hereafter). The plan was adopted by the City in accordance with the Local Government Comprehensive Planning and Land Development
Regulation Act, Ch. 163, Part II, Florida Statutes ("Act" hereafter). The Department issued its Notice of Intent to find the plan in compliance with the Act. Petitioner filed its petition in accordance with Section 163.3184 (9), Florida Statutes. Petitioner challenged the determination of compliance and alleged that the plan is not in compliance for reasons that are summarized on pages 2-8 of the Recommended Order. The Department forwarded the petition to the Division of Administrative Hearings. A Hearing Officer was assigned, and the final hearing was conducted on September 10, 1991.
The Hearing Officer made detailed findings of fact and conclusions of law in his Recommended Order. He determined that the plan is not in compliance with the Act, and recommended that the Department submit the Recommended Order to the Administration Commission for entry of a final order finding the plan not in compliance.
Petitioner, the City and the Intervenor have all filed Exceptions to the Recommended Order. The City and the Intervenor have filed responses to Petitioner's Exceptions.
ROLE OF THE DEPARTMENT OF COMMUNITY AFFAIRS
The Department has the responsibility to review comprehensive plans that are adopted by local governments and to determine whether they comply with the Act. Section 163.3184 (8), Florida Statutes. When the Department determines that a comprehensive plan is in compliance with the Act, "affected persons"- can file petitions requesting that the issue of compliance be addressed in formal administrative proceedings in accordance with the Administrative Procedure Act. Section 163.3184 (9), (a), Florida statutes. If the Hearing Officer thereafter determines that the plan is not in compliance, the Department is required either to enter a final order if it determines that the plan is in compliance with the Act, or to enter a determination that the plan is not in compliance. In the latter case, the Department is required to submit the Recommended Order to the Administration Commission for final action. Section 163.3184 (9), (b), Florida statutes.
The Department has reviewed the Hearing Officer's Recommended Order, the exceptions filed by the parties, and the record of this proceeding. The Department has concluded that the Petitioner failed to establish its standing to initiate formal proceedings regarding the City's plan, that the "Petition Challenging Compliance and for Formal Proceeding" should be dismissed, and that the City's plan should therefore be found in compliance with the Act.
RULINGS ON EXCEPTIONS
PETITIONER'S EXCEPTIONS
Petitioner takes exception with the Hearing Officer's conclusions of law that interpret when a party with the requisite interest must submit objections to the local government in order to establish standing to initiate a formal proceeding. The Hearing Officer's discussion of this issue is set out at Paragraphs 5-20 of the Conclusions of Law in the Recommended Order. The specific conclusion that Petitioner challenges is Paragraph 9.
The threshold issue raised in this proceeding is whether Petitioner has the requisite standing to initiate formal proceedings to challenge the City's plan. Section 163.3184 (9) (a), Florida statutes, provides:
If the state land planning agency issues a notice of intent to find that the comprehensive plan transmitted pursuant to s. 163.3167 or s. 163.3191 is in compliance with this act, any affected person, within 21 days after the publication of notice, may file a petition with the agency pursuant to s. 120.57. . . (emphasis supplied)
"Affected person" is defined at Section 163.3184 (1) (a) as follows: "Affected person" includes the affected local
government; persons owning property, residing, or owning or operating a business within the boundaries of the local government whose plan is the subject of the review; and adjoining local governments. . . Each person, other than an adjoining local government, in order to qualify under this definition, shall also have submitted oral or written objections during the local government review and adoption proceedings.
The Hearing Officer determined that Petitioner has the requisite interest to meet the definition of "affected person." The issue that this exception addresses is when Petitioner must make objections in order to secure its standing under the Act. The Hearing Officer concluded:
The interpretation adopted by this recommended
order of the last sentence of Section 163.3184 (1) (a) Is that comments must be submitted to the local government, directly or indirectly, during the period commencing when the ORC [objections, recommendations and comments submitted by the Department to the local government in accordance with Section 163.3184 (6)] is issued and ending when the plan is adopted.
The Department concurs with this interpretation, and concludes that objections must be submitted by affected persons during proceedings conducted by the local government after the department transmits objections, recommendations and comments in accordance with Section 163.3184 (6), and before the local government adopts its comprehensive plan in accordance with Section 163.3184 (7). This interpretation is consistent with provisions of the Act. The Act provides that objections must be submitted during ". . . the local government review and adoption proceedings [emphasis supplied)." The only part of the process leading to adoption of the local plan that is designated in the Act as a
"review and adoption proceeding" is the stage after the Department transmits its report and before the local government adopts the plan at a public hearing.
While other policy choices regarding when objections should be submitted can be supported, the policy choice made by the Legislature is clear. Objections must be submitted during the local government review and adoption proceedings.
Section 163.3184 (1) (a), Florida statutes. Review and adoption proceedings do not begin until after the Department has submitted its report, and conclude when the local government adopts its plan. Section 163.3184 (7), Florida Statutes.
This interpretation has been adopted in prior administrative proceedings.
Austin v. Department of Community Affairs, ER FALR 89-0128 (Administration Commission, 1989) was the first proceeding under the Act that was submitted to the Administration Commission for final determination. As in the instant case, the Department had initially found the City of Cocoa plan in compliance. That determination was challenged by several petitioners with diverse concerns. The Hearing Officer determined that two petitioners did not have standing because their objections were not filed during the "review and adoption proceedings." He recommended that the plan be found not in compliance based upon evidence presented by other petitioners. The Department agreed with the recommended
order and entered a determination of plan not in compliance. The Administration Commission adopted the recommended order with changes determining some plan provisions not in compliance that the Hearing Officer had determined were in compliance. In his conclusions of law, the Hearing Officer stated:
The Act requires that each person claiming to be an affected person, except for an adjoining local government, must have "submitted oral or written objections during the local government review and
adoption proceedings" in order to qualify as an "affected person." Section 163.3184 (1) (a).
The review and adoption proceedings begin with the receipt of the ORC from DCA. Section 163.3184 (7), Florida Statutes. The local government then has 60 days within which to review the objections, recommendations, and comments and adopt a comprehensive plan. Id. In the present case, Cocoa received the ORC a few days after August 5, 1988, and adopted the Plan on October 4, 1988.
Petitioners Austin, Houston, and Dorn submitted oral or written objections during the period of review and adoption. They therefore qualify as "affected persons" and have standing to challenge the determination of compliance.
Petitioners Hendry did not submit oral or written objections during the period of review and adoption. They were unaware of the Plan or the planning process until after the Plan had been adopted. Their lack of knowledge was in no way attributable to the City, which amply advertised specific meetings at which the Plan or Proposed Plan was considered and discussed.
These conclusions of law were specifically adopted by the Department in its determination and by the Administration Commission in its Final Order.
The question of when objections must be submitted has not been a contested issue in proceedings before the Department since City of Cocoa, until this case. However, the principal that objections must be filed during the Section 163.3184
(7) proceedings was restated in Falk v. City of Miami Beach, 12 FALR 4548, 4552 (Department of Community Affairs, 1990); and in Benson v. City of Miami Beach, 12 FALR 4577, 4581 (Department of Community Affairs, 1990), rev'd on other grounds 591 So. 2d 942 (Fla. 3d DCA 1991).
Petitioner's Exception is rejected.
CITY'S EXCEPTIONS
City Exceptions 1-4, and 30-36
These exceptions are directed at the Hearing Officer's Findings of Fact and Conclusions of Law that address the issue of Petitioner's standing to initiate this formal proceeding. The Hearing Officer determined that Petitioner met the definition of affected person set out at Section 163.3184 (1) (a). He found that Petitioner mailed a letter, which clearly constitutes a written objection, to the Department. A copy of the letter was submitted to the City either by Petitioner, or as a comment forwarded by the Department to the City. It is not clear, however, from the record whether the letter was provided to the City during the "review and adoption proceedings." As stated above, "review and adoption proceedings" are the part of the process leading to adoption of a local government comprehensive plan that are conducted between the time that the local government receives objections, recommendations and comments (the "ORC" report) from the Department in accordance with Section 163.3184 (6), and the time that the local government adopts its plan in accordance with Section 163.3184 (7).
The Hearing Officer concluded that Petitioner met this requirement based on a construction of the City's response to a request for admission that was served by Petitioner during the course of prehearing proceedings. The Department rejects the Hearing Officer's construction of these documents.
Discovery is available in administrative proceedings in the same manner as provided under the Florida Rules' of Civil Procedure. Section 120.58 (1) (b), Florida Statutes. During prehearing proceedings, Petitioner filed a request for admission under Rule 1.370, Florida Rules of Civil Procedure, requesting the City to admit:
5. "That ManaSota-88, Inc. submitted written objections to the CITY's comprehensive plan which the CITY received after it received DCA's ORC report."
The City, in a timely manner, responded to the request as follows:
The City has received a copy of the correspondence relating to possible "objections" to the CITY's Plan that were mailed directly to the Department of Community Affairs. The date of that correspondence was March 7, 1989 and addressed to Robert G. Nave, Chief, Bureau of Local Planning, and was written by Attorney Thomas W. Reese. By date stamp on the copy of the correspondence in the possession of the City, it is believed that the document was received on March 9, 1989. The City does not admit that the correspondence of March 7,
1989 from Mr. Reese to Mr. Nave meets the intent of the statute for establishing standing and to the contrary, does not comply and does not establish such standing.
The Hearing Officer concluded that this response did not meet the substance of the request for admission because it did not address the date of receipt of the ORC Report. Since he concluded that the response did not meet the substance of the request, the Hearing Officer concluded that the requested matter should be deemed admitted. This conclusion was the sole basis for the Hearing Officer's finding of fact that Petitioner submitted objections during the required time frame.
The Hearing Officer's conclusion that the City's response to Petitioner's Request for Admission deemed the request admitted is not consistent with the language of the City's response, and is therefore rejected. While perhaps not artful in its draftsmanship, the City did clearly deny that the correspondence was sufficient to establish Petitioner's standing. The City's admission cannot serve to establish that Petitioner made an oral or written objection during review and adoption proceedings. There is no other evidence in the record from which it could be determined that Petitioner made objections during review and adoption proceedings.
There is evidence in the record that establishes that Petitioner submitted a letter which would constitute an objection. There is no evidence, however, that establishes whether the objection was presented during the part of the process when it must be presented. There is no evidence, substantial or otherwise, from which it could be concluded that Petitioner submitted its objection when required in order to secure standing to later initiate proceedings under the Administrative Procedure Act. A party must establish that it has the requisite interest in a proceeding in order to invoke proceedings under the Administrative procedure Act. Town of Palm Beach v. Department of Natural Resources, 577 So. 2d 1383 (Fla. 4th DCA 1991); Village Park Mobile Home Association v. Department of Business Regulation 506 So. 2d 426 (Fla. 1st DCA 1987), review denied 513 So. 2d 1063 (Fla. 1987); Agrico Chemical Company v.
Department of Environmental Regulation, 406 So. 2d 478, 482 (Fla. 2d DCA 1981). Petitioner has failed to establish that it has standing to petition for formal proceedings.
The City's Exceptions 1-4 and 30-36 are therefore granted, as they relate to the issue of Petitioner's standing based upon failure to submit objections during the relevant period. The findings of fact and conclusions of law from the Hearing Officer's recommended Order will be modified. The objections are otherwise denied.
City Exceptions 5-29 and 37-47
The remainder of the City's Exceptions relate to paragraphs of the Hearing Officer's recommended Order that address substantive issues regarding whether the City's plan is in compliance with the Act. Because the department has determined that Petitioner has failed to establish its standing to initiate formal administrative proceedings it is not necessary to address these issues. While the Hearing Officer's findings and conclusions other than those relating to the issues of standing will be rejected, it is not on account of any determination by the Department that they are not supported by the evidence and the law. Instead, because Petitioner has failed to establish standing to initiate a formal proceeding, issues addressed in that proceeding cannot change
the Department's initial determination that the City's plan is in compliance with the Act. Agrico Chemical Company v. Department of Environmental Regulation, supra.
INTERVENOR'S EXCEPTIONS
Intervenor's Exceptions to Findings of Fact 1-4, and Exceptions to Conclusions of Law 2-8
These Exceptions relate to the issues addressed with regard to the City's Exceptions 1-4 and 30-36. For reasons stated above, these exceptions will be granted insofar as they relate to the issue of Petitioner's standing based upon failure to submit objections during the relevant period. The objections are otherwise denied.
Intervenor's Exception to Conclusion of Law 1
Intervenor contends that Petitioner failed to establish that it meets the definition of affected person set out in Section 163.3184 (1) (a), Florida Statutes. The Hearing Officer made the following findings:
Petitioner is incorporated in the State of Florida as a not-for-profit corporation. The corporate purpose of Petitioner includes the improvement of environmental health. Petitioner's activities in this regard are especially focused upon Manatee and Sarasota Counties, including the City of Bradenton.
Petitioner has about 2500 members. Members of Petitioner reside in Bradenton. These persons use the water and roads adjacent to Perico Island.
These findings are based upon competent substantial evidence in the record. Given this membership, and this business orientation, it is appropriate to conclude, as the Hearing Officer concluded in Paragraph 3 of his Conclusions of Law, that petitioner resides in the City and operates a business in the City, or stands in the position of a person who resides in the City or operates a business in the City. Petitioner therefore meets the definition in the Act. See: Poke v. City of Cocoa Beach, 13 FALR 2867 (Administration Commission 1991).
Intervenor's Objection to Conclusion of Law 1 is rejected.
Intervenor's Exceptions to Findings of Fact 5-34, and Exceptions to Conclusions of Law 9-19
The remainder of the Intervenor's Exceptions relate to paragraphs of the Hearing Officer's Recommended Order that address substantive issues regarding whether the City's plan is in compliance with the Act. As with the City's Exceptions related to issues other than Petitioner's standing, it is not necessary to address these issues.
FINDINGS OF FACT
Findings of Fact 1-7 set out in the Hearing Officer's Recommended Order are hereby adopted, and are incorporated herein by reference.
The first sentence of Finding of Fact 8 set out in the Hearing Officer's Recommended Order is hereby rejected as not supported by competent substantial evidence. The City's Response to the Request for Admission, while not specifically stating that the March 7 letter was received within a discreet time period, does expressly deny that the letter establishes Petitioner's standing. Without some motion by Petitioner seeking to deem the matter admitted, it is inappropriate to base a finding of fact on so strict a reading of a response to a request for admissions. This is especially so when, as here, the -parties did not treat the matter as admitted, and the question of the admission was not raised until after the hearing was completed.
The remainder of Finding of Fact 8 is hereby adopted, and is incorporated herein by reference.
Findings of Fact 9-129 set out in the Hearing Officer's Recommended Order are hereby rejected. These findings address substantive issues regarding whether the City's plan is in compliance with the Act. Because Petitioner lacks standing to initiate these formal proceedings it is unnecessary to address these issues.
CONCLUSIONS OF LAW
Conclusions of Law 1-9 set out in the Recommended Order are hereby adopted and are incorporated herein by reference.
Conclusions of Law 10-20 set out in the Recommended Order are hereby rejected. The following conclusions of law are substituted for the rejected conclusions.
The City's response to Petitioner's Request for Admissions does not have the effect of deeming the request admitted. While the response may not artfully nor specifically state what the time sequence of receipt of the March 7 letter and the Department's ORC Report were, it does expressly deny that the letter is sufficient `to `confer standing upon Petitioner. Petitioner did not file a motion to deem the matter admitted. The City and Intervenor vigorously argued throughout these proceedings that Petitioner lacked standing because the requisite objection was not filed at the requisite time. At no time did Petitioner assert that the matter had been deemed admitted. Under these circumstances it would not be -appropriate to deem the matter admitted. Southern Railway Company v. Wood,
171 So. 2d 614 (Fla. 1st DCA 1965). The City's Response to Petitioner's Request for Admission cannot serve as the basis for a finding as to whether Petitioner made objections when it was required to make objections in order to secure standing.
There is no evidence in this proceeding from which it can be concluded that Petitioner submitted objections to the City during review and adoption proceedings. It is incumbent upon Petitioner to establish that it has standing to initiate administrative proceedings. Town of Palm Beach
v. Department of Natural Resources, supra; Village Park
Mobil Home Association v. Department of Business Regulation, supra; Agrico Chemical Company v. Department of Environmental Regulation, supra.
Because Petitioner has failed to establish that it has standing to initiate formal administrative proceedings regarding the compliance of the City's plan with the Act, the petition should be dismissed, and the City's plan should be found in compliance in accordance with the Department's Notice of Intent.
Conclusions of Law 21-73 set out in the Hearing Officer's Recommended Order are hereby rejected. These conclusions address substantive issues regarding whether the City's plan is in compliance with the Act. Because Petitioner lacks standing to initiate this formal proceeding it is unnecessary and improper to address these issues.
ORDER
Based upon the foregoing findings of fact and conclusions of law, the Department hereby dismisses the Petition Challenging Compliance and for Formal Proceeding and hereby determines that the comprehensive plan adopted by the City of Bradenton is in compliance with the Act.
Entered this 23 day of March, 1992, in Tallahassee, Florida.
William E. Sadowski, Secretary Department of Community Affairs 2740 Centerview Drive
Tallahassee, Florida 32399-2100
Copies Furnished To:
Thomas W. Reese, Esquire
123 Eighth Street North
St. Petersburg, Florida 33701
Alan Hardy Prather, Esquire Alan Hardy Prather, Chartered 1806 Manatee Avenue West Bradenton, Florida 34205
Michael P. Donaldson, Assistant General Counsel Department of Community Affairs
2740 Centerview Drive
Tallahassee, Florida 32399-2100
Patricia A. Petruff, Esquire Dye & Scott, P.A.
P.O. Box 9480
Bradenton, Florida 34206
| Issue Date | Proceedings |
|---|---|
| May 12, 1992 | Final Order filed. |
| Feb. 27, 1992 | Manasota-88, Inc.'s Exceptions to Recommended Order and Manasota-88, Inc.'s Proposed Remedial Action; Manasota-88, Inc.'s Motion to File Interrogatory Answers filed. |
| Feb. 13, 1992 | Recommended Order sent out. CASE CLOSED. Hearing held 9/10/91. |
| Jan. 06, 1992 | Respondent's, City of Bradenton's, Exceptions to Petitioner's Proposed Recommended Final Order filed. |
| Jan. 06, 1992 | Respondent's, City of Bradenton's, Concurrence With DCA's Proposed Recommended Final Order filed. |
| Dec. 23, 1991 | (Respondent) Proposed Findings of Fact, Conclusion of Law and Recommended Order filed. |
| Dec. 23, 1991 | Manasota-88, Inc.'s Proposed Recommended Order filed. |
| Dec. 23, 1991 | (Respondent's) Proposed Recommended Order filed. |
| Dec. 23, 1991 | (Petitioner) Proposed Recommended Order filed. |
| Dec. 16, 1991 | Ltr. to REM from T. Reese re: amendment to PRO filing due date filed. |
| Nov. 12, 1991 | Letter to REM from Alan Hardy Prather (re: filing PRO) filed. |
| Nov. 08, 1991 | Transcript filed. |
| Oct. 09, 1991 | Ltr. to REM from A. Prather re: vacation schedule filed. |
| Oct. 02, 1991 | (DCA) Exhibits filed. |
| Sep. 12, 1991 | (DCA) Amended Prehearing Stipulation filed. (From Michael Donaldson) |
| Sep. 10, 1991 | CASE STATUS: Hearing Held. |
| Sep. 09, 1991 | Prehearing Stipulation filed. (From Michael P. Donaldson) |
| Sep. 06, 1991 | Notice of Appearance of Counsel For Department of Community Affairs filed. (From Michael P. Donaldson) |
| Sep. 05, 1991 | (Respondent) Proposed Pre-Hearing Stipulation filed. (From Patricia A. Petruff & Alan H. Prather) |
| Aug. 22, 1991 | Amended Notice of Hearing sent out. (hearing set for September 10-13,1991: 10:00 am: Bradenton) |
| Aug. 16, 1991 | (Petitioner) Notice of Vacation; Notice of Appear at Final Hearing filed. (From Thomas W. Reese) |
| Jun. 24, 1991 | Notice of Filing Answers to Manasota-88, Inc.'s Second Set of Interrogatories to the City Bradenton filed. (From Alan Hardy Prather) |
| Apr. 04, 1991 | Notice of Hearing sent out. (hearing set for Sept 10-13, 1991; 10:00am; Bradenton) |
| Apr. 01, 1991 | Letter to REM from A. Prather (re: Order to Show Cause) filed. |
| Mar. 29, 1991 | Manasota-88, Inc.'s Motion to Set Final Hearing; Notice of Service ofInterrogatories filed. |
| Mar. 27, 1991 | Stipulation and Response to the Order to Show Cause (signed by City of Bradenton only); & cover letter to counsel from A. Prather filed. |
| Feb. 04, 1991 | Order to Show Cause sent out. |
| Jan. 07, 1991 | Notice of Filing Answers to Manasota-88, Inc.'s First Set of Interrogatories to The City of Bradenton filed. (From Alan Hardy Prather) |
| Dec. 28, 1990 | Order Granting Continuance sent out. |
| Dec. 24, 1990 | Response of the City of Bradenton to Manasota-88, Inc.'s Request for Admission filed. |
| Dec. 19, 1990 | Case No/s: 89-6723 unconsolidated. |
| Dec. 19, 1990 | Notice of Filing of Answers to Manasota-88, Inc.'s First Set of Interrogatories to Curtiss-Wright; Response to Manasota-88, Inc.'s RequestFor Admissions; Manasota-88, Inc.'s First Set of Interrogatories and Requests For Productio n of Documents to the Ci |
| Dec. 18, 1990 | Amended Notice of Hearing sent out. (hearing set for Jan. 8-9, 1991: 10:00 am: Bradenton) |
| Nov. 26, 1990 | Notice of Service of Interrogatories; Manasota-88, Inc.'s Requests For Admission to The City of Bradenton and Curtiss-Wright filed. (from T. W. Reese) |
| Nov. 09, 1990 | Order Granting Continuance sent out. (hearing rescheduled for Jan. 7-9, 1990: 10:00 am: Bradenton) |
| Nov. 05, 1990 | Stipulated Motion for Continuance filed. |
| Nov. 05, 1990 | 2 cc's of letters to D. Russ from A. Prather; cc of Stipulated Motionfor Continuance filed. |
| Oct. 30, 1990 | Amended Notice of Hearing sent out. (hearing set for Dec. 5-7, 1990: 9:00 am: Bradenton) |
| Aug. 28, 1990 | Order Granting Continuance sent out. (hearing rescheduled for Dec 5-7, 1990; 9:00am; Manatee County) |
| Aug. 13, 1990 | Response to City of Bradenton's Second Request For Admissions by Petitioner, Manatee County filed. (from H. Hamilton Rice, Jr.) |
| Aug. 02, 1990 | (Manatee County) Response to Curtiss-Wright's Request For Admissions by Petitioner, Manatee County filed. (from Mark P. Barnebey) |
| Aug. 01, 1990 | Manasota-88, Inc.'s Response to Curtiss-Wright's Request For Production filed. Thomas W. Reese) |
| Jul. 30, 1990 | (Petitioner) Manasota-88 Inc.'s Response to Curtiss-Wright Second Request For Admissions filed. (from Thomas W. Reese) |
| Jul. 27, 1990 | (Manatee County) Motion for Continuance filed. |
| Jul. 18, 1990 | (Manatee County) Notice of Cancellation of Depositions filed. (From H. Hamilton Rice, Jr.) |
| Jul. 16, 1990 | Notice of Cancellation of Deposition filed. |
| Jul. 13, 1990 | (Curtiss-Wright) Response to Manatee County's Request For Production filed. (from Patricia A. Petruff) |
| Jul. 13, 1990 | (Manatee County) Notice of Taking Deposition filed. (From H. HamiltonRice, Jr.) |
| Jul. 13, 1990 | (Curtiss-Wright Corporation) Amended Notice of Deposition filed. (From Patricia A. Petruff) |
| Jul. 12, 1990 | (Curtiss-Wright Corporation) Notice of Deposition (3) filed. (From Patricia A. Petruff) |
| Jul. 12, 1990 | (Respondent) City of Bradenton's Second Request For Admissions to Manatee County filed. (from Alan Hardy Prather) |
| Jul. 12, 1990 | (Respondent) City of Bradenton's Second Request For Production to Petitioner, Manatee County filed. (From Alan Hardy Prather) |
| Jul. 12, 1990 | (Respondent) Motion to Shorten Time Within Which to Respond to Discovery filed. (From Alan Hardy Prather) |
| Jul. 05, 1990 | Response to Manatee County's Request for Admissions by Respondent, Curtiss Wright filed. |
| Jul. 02, 1990 | Curtiss-Wright's First Request For Production to Petitioner, Manatee County; Request For Admissions to Manattee County & attachment; Curtiss Wright's First Interrogatories to Manatee County, Inc.; Notice of Service of Interrogatories filed. (from Patricia |
| Jul. 02, 1990 | Curtiss-Wright's First Request For Production to Petitioner, Manasota-88, Inc.; Request for Admissions to Manasota-88, Inc. & attachment; Curtiss Wright's First Interrogatories to Manasota-88, Inc.; filed. (From Patricia A. Petruff) |
| Jun. 28, 1990 | Manatee County's Request to Permit Entry Upon Designated Land In The Control or Possession of Co-Respondent Curtiss-Wright w/exhibit-A filed. (From H. Hamilton Rice, Jr.) |
| Jun. 28, 1990 | City of Bradenton's Responses to Manatee County's First Request for Production filed. (From Alan Hardy Prather) |
| Jun. 05, 1990 | Order Granting Amended Motion to Intervene sent out. (Manasota-88 is granted intervention in case 89-6724GM) |
| Jun. 04, 1990 | Answer of Petitioner, Manatee County, to City of Bradenton's Request For Admissions filed. (from Mark P. Barneby) |
| Jun. 04, 1990 | (Manatee County) Notice of Propounding Second Interrogatories Directed to The Co-Respondent, The City of Bradenton filed. |
| Jun. 04, 1990 | Manatee County's First Request For Admission Directed to Curtiss-Wright Corporation filed. (from Mark P. Barneby) |
| Jun. 04, 1990 | (Manatee County) Notice of Propounding Interrogatories Directed to Curtiss-Wright Corporation filed. |
| Jun. 04, 1990 | (Manatee County) Notice of Propounding Second Interrogatories Directed to the Co-Respondent, Department of the Co-Respondent, Department ofCommunity Affairs filed. |
| May 31, 1990 | Manasota-88, Inc's Response to City's Request For Production of Documents filed. (from Thomas W. Reese) |
| May 23, 1990 | Curtiss-Wright's Answer to Amended Petition By Manasota-88 filed. (from Patricia A. Petruff) |
| May 18, 1990 | Amended Notice of Hearing sent out. (hearing set for Aug. 20-24, 1990; 10:00; Bradenton) |
| May 17, 1990 | Manasota-88's Inc.'s Amended Motion to Intervene; CC of Manasota-88 Inc.'s Amended Petition for Hearing filed. |
| May 14, 1990 | (Respondent) Answer oif Respondent, City of Bradenton, to Manasota-88, Inc.'s Amended Petition filed. (from Alan Hardy Prather) |
| May 14, 1990 | (Respondent) Answer of The City of Bradenton to Manatee County's Amended Petition filed. (from Alan Hardy Prather) |
| May 14, 1990 | City of Bradenton's Response and Objection to Manasota-88, Inc.'s Motion to Intervene filed. (from Alan Hardy Prather) |
| May 07, 1990 | Curtiss-Wright's Answer to Amedned Petition by Manatee County filed. |
| May 04, 1990 | Manasota-88, Inc's Amended Petition for Hearing; Manasota-88, Inc's Motion to Intervene filed. |
| May 02, 1990 | Letter to REM from Mark P. Barnebey (re: Telephone Conversation April27, 1990) filed. |
| Apr. 27, 1990 | Order on Pending Motions sent out. |
| Apr. 27, 1990 | Motion of Petitioner, Manatee County, For Leave to File an Amended Petition filed. |
| Apr. 27, 1990 | (Manatee County) Amended Petition by Manatee County Challenging Complaince And For Formal Proceeding & attachment filed. |
| Apr. 27, 1990 | Motion of Petitioner, Manatee County, For Leave to File an Amended Petition rec'd (from H. Hamilton Rice, Jr.) |
| Apr. 24, 1990 | Manasota-88, Inc.'s Response to Bradenton's Request For Admissions filed. (from Thomas W. Reese) |
| Apr. 20, 1990 | Manatee County's First Request For Admissions Directed to the Petitioner, The City of Bradenton w/exhibit-C filed. |
| Apr. 20, 1990 | (Petitioner) Response to Respondent, City of Bradenton's Motion to Shorten The Time For Petitioners to Respond to Discovery or, In The Alternative, to Extend Time For Discovery to All Parties filed. |
| Apr. 10, 1990 | City of Bradenton's Response to Petitioner's Motion to Compel and Motion to Allow Additional Time for Petitioner to Complete Discovery; Motion to Strike Witnesses filed. |
| Apr. 10, 1990 | Motion to Shorten Time for Petitioners to Respond to Discovery or in the Alternative, to Extend Time for Discovery to All Parties filed. |
| Apr. 10, 1990 | (Manatee County) Amended Notice of Taking Deposition Duces Tecum; Notice of Taking Deposition Duces Tecum filed. |
| Apr. 06, 1990 | (Manatee County) Motion to Compel and Motion to Allow Additional Timefor Petitioner Manatee County to Complete Discovery; Motion to StrikeWitnesses (+ exh A-B) filed. |
| Apr. 04, 1990 | (Manatee County) Notice of Taking Deposition Duces Tecum filed. |
| Mar. 26, 1990 | City of Bradenton's First Request for Production to Petitioner, Manasota-88, Inc. filed. |
| Mar. 26, 1990 | (Respondent) Request for Admissions filed. |
| Mar. 26, 1990 | Manasoita-88 Inc.'s Response to The City of Bradenton's Motion to Dismiss filed. |
| Mar. 22, 1990 | City of Bradenton's Motion to Dismiss For Lack of Jurisdiction filed. |
| Mar. 16, 1990 | (Petitioner) Petition for Leave to Intervene in Support of Respondent's Position filed. |
| Mar. 15, 1990 | Notice of Filing Answers to Interrogatories by The Co-Respondent, City of Bradenton, Florida filed. |
| Mar. 13, 1990 | (Respondent) Notice of Service of Answers to Interrogatories & Manatee County's First Interrogatories Directed to Co-Respondent, Departmentof Community Affairs filed. |
| Feb. 20, 1990 | (Respondent) Notice of Substitution of Counsel filed. |
| Feb. 13, 1990 | Corrected Notice of Hearing sent out. (hearing set for 05/09-11/90;10:00AM;Bradenton) |
| Feb. 05, 1990 | Notice of Propounding Interrogatories to The Co-Respondent, Department of Community Affairs filed. |
| Jan. 29, 1990 | Notice of Hearing sent out. (hearing set for May 9-11, 1990; 10:00; Bradenton) |
| Dec. 28, 1989 | Letter to REM from M. Barnebey (re: avail hearing info) filed. |
| Dec. 13, 1989 | Order(Prehearing stip's due 10 days prior to hearing) sent out. Consolidated case are:89-6723 & 89-6724 |
| Dec. 06, 1989 | Referral Letter; Petition Challenging Land Use Plan Compliance and Request for Section 120.57(1) Hearing filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Mar. 23, 1992 | Agency Final Order | |
| Feb. 13, 1992 | Recommended Order | Standing establish by construction of respondent's failure to respond adequately to request for dismissal. Designation of 10 units per acre on island inconsistent |
